[2017] KEHC 2446 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

ELECTION PETITION NO. 1 OF 2017

BETWEEN

WAVINYA NDETI................................................1ST PETITIONER

PETER MATHUKI…………………..…………2ND PETITIONER

AND

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION (IEBC)..........1ST RESPONDENT

THE MACHAKOS

COUNTY RETURNING OFFICER..................2ND RESPONDENT

ALFRED NGANGA MUTUA...........................3RD RESPONDENT

RULING

1. In the general election held on 8th August 2017 the 3rd respondent Alfred Nganga Mutua successfully contested the gubernatorial position for Machakos County by getting 249,603 votes. The 1st petitioner Wavinya Ndeti came second with 209,141 votes. Her running mate was Peter Mathuki (2nd petitioner). The other contestants were Jeremiah Muia Lemi who got 6,657 and Bernard Tom Kiala Muia who got 4,006 votes.

2. On 5th September 2017 the petitioners challenged the conduct of the election and the declaration of the results by the Country Returning Officer (2ndrespondent) and the Independent Electoral and Boundaries Commission (IEBC) (1st respondent). It was alleged that the election was not conducted in accordance with the principlesunder Article 81 of the Constitution, there was non-compliance with the election law and regulations, and that there were irregularities and improprieties, all of which substantially and significantly affected the results. A declaration was sought to nullify the declaration of the results.

3. The respondents filed their respective responses to oppose the petition. In their view, theelection was conducted in accordance with the Constitution and the law, and that the results declared were valid.

4. On 18th October 2017 the 3rd respondent filed the present application to have the petition struck out with costs for failure to comply with Article 180(5) and (6)of the Constitution, and rules 8(5), 10(3) (b) and (c)and12(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. In respect of Article 180(5) and (6) it was alleged that the petitioners had failed to join the 3rdrespondent’s running mate (who is now the deputy governor) as a necessary respondent and thereby denied him the right to participate in the petition. With regards torule 8(5)it was alleged that the Registrar had not acknowledged the receipt of the petition thereby breaching a mandatory provision of the law. Concerning rule 10(3) (b) and (c) it was alleged that the advertisement placed in the newspaper to serve the petition did not conform to the laid down requirements as to the size and font. Under rule 12(2) it was alleged that the affidavit filed insupport of the petition had not stated when the disputed election was conducted, the results of the election, the date when the results were declared,and the name and address of the petitioners’advocates for the purpose of service. For all these reasons, it was the 3rdrespondent’s case that the petitionwas incurably defective and should be struck out with costs.

5. The petitioners’ response was that it is not the requirement of the law or the Rules that the deputy governor be made a party in a petition challenging the election of a governor; that, it was only the IEBC that was under rule 9(a) mandatorily required to be a party. Their case was that it was open for the deputy governor to have sought to be joined in the petition, if he feared that his fundamental right to be heard in the matter would be infringed. The petitioners deponed that the duty to comply with rule 8(5) regarding the acknowledgement of receipt of the petition belonged to the Registrar and not them. In any case, they deponed, the Registrar had acknowledged the receipt of the petition. The receipt was annexed as “WN1” dated 5th September 2017. Regarding the advertisement, it was their evidence that when placing the order with the Daily Nation, they duly instructed it that the advertisement should be in font 12 and a minimum size of 10cm by 10cm, but that the paper had failedthem by using smaller font and size. Regarding the failure to comply with rule 12(2), it was the petitioners’ case that all that information had been provided in the petition; that the failure to provide the information inthe supporting affidavit had not caused any prejudice to the 3rd respondent. Further, they swore that the failure to comply did not render the petition incurably defective as the same could be cured by rule 5(1) and Article 159(2)(d) of the Constitution.

6. The 1st and 2ndrespondents supported the 3rdrespondent’s application.

7. Counsel for the 3rd respondent filed written submissions and list of authorities on the application. Mr. Waweru Gatonye for the 3rd respondent and Mr. Gitonga and Mr. Otiende Amolo for the petitioners addressed the court at length on the application. I have considered the application and the submissions made.

8. On the question of failure to join the deputy governor as a necessary respondent, Mr. Gatonye’s argument was that the position of the governor and that of the deputy governor were joint and inseparable, and it followed that a complaint against the election of the governor was a complaint against the deputy governor. Counsel submitted that the name of the deputy governor appeared on the ballot paper, and therefore his position was elective;that the election of the governor was also the election of the deputy governor. If the election of the governor was challenged, that of his deputy was also being challenged. Under section 18 of the Elections Act, 2011, he submitted, the person nominated by the governor to be his running mate could not be changed after receipt of the nomination by the 1strespondent. Relying on rule 2, counsel argued that the deputy governor was a necessary party, a respondent, because he was a person against whom the election was complained of. It was further submitted that, if the petition succeeds both the governor and his deputy will cease to be in office. It would therefore be gravely offensive against the deputy governor under Articles 25 and 50 of the Constitution for him to be condemned without being afforded a hearing.

9. Mr. Gatonye relied on the case of Josiah Taraiya Kipelian Ole Kore –v- Dr David Ole Nkedienye & 3 Others [2012]eKLR in which it was held that the election of the governor cannot be separated form that of his deputy, and that the post of the deputy governor is elective and therefore susceptible to an election petition as is the governor’s position. He further relied on M’Nkiria Petkay Shem Miriti –v- Ragwa Samwel Mbae & 2 Others [2013]eKLR for the holding that, upon election of the governor, the position of the deputy governor is treated as elected. The court was interpreting Article 180 of the Constitution.

10. Mr. Gitonga for the petitioners submitted that under rule 9 the IEBC is the only one that is mandatorily required to be a respondent in every election petition. Under rule 2 an election petition can only be brought against the person whose election is complained of, or any other person whose conduct is complained of in relation to an election. In this petition, he submitted, the petitioners had no single complaint against the deputy governor, and that the election complained of was that of the governor (3rd respondent). If the deputy governor felt aggrieved, he argued, he should have sought to be enjoined in the petition. Of course, such joinder could only be done within the 28 days allowed by the ConstitutionandElection Act. Counsel madereference to Articles 180, 181 and 182 of the Constitution which he said related to the creation of the office of governor, but didnot relate to the election of the governor. Counsel then referred to the decision in Hassan Omar Hassan & Another –v- IEBC & 2 Others, Mombasa Election Petition No. 10 of 2017 in which, in a similar application, it was held that the joinder of the deputy governor was not crucialto the petition.

11. Under Article 180(1) a governor shall be directly elected by votersregistered in a county during the general election. Under Article 180(5) the candidate for election as governor shall nominate a person qualified for nomination as county governor as a candidate for deputy governor. Under Article 180(6) no separate election shall be conducted forthe deputy governor, but IEBC shall declare the candidate nominated by the person who is elected county governor to have been elected as the deputy governor. Under Article 182, the office of the deputy governor shall become vacant if the holder dies, resigns, is convicted of an offence punishable by jail for at least 12 months, or is removed from office under theConstitution. If any of these happens, the deputy governor shall assume office as governor for the remainder of the term.

12. It is clear from these provisions that a governor is directly elected by registered voters in a county. He nominates a running mate to be on the same ticket with him. If he is elected the running mate becomes the deputy governor who is deemed to be elected. In other words, the deputy governor is not directly elected by voters in the county. He will only assume office of the governor if it falls vacant under any of the circumstances under Article 182. If the validity of the election of the governor is successfully challenged by petition, then both him and the governor will leave office. In my view, unless there is an election act or omission alleged against a deputy governor during the election of the governor he will not become a necessary party in the election petition filed against that the governor. He will not be a respondent in the petition. The governor will be the respondent in the petition because he is the one who has been directly elected in the election, and he is therefore the one who will cease to hold office if the election is validly and successfully challenged. The deputy governor will be collateral damage, as it were. The governor is the person whose election is complained of under rule 2, hence his being made a respondent.

13. This does not mean that a petitioner may not join a deputy governor in an election petition against the governor. It is also open to the deputy governor to seek to be joined to the petition, or to seek to be joined as an interested party.

14. I consequently find that the non-joinder of the deputy governor to this petition was not offensive, and neither did it make the petition defective in any way. The deputy governor was neither a necessary nor a material party in the petition.

15. The next issue for determination is whether there was failure to comply with rule 12(2), and whether that failure has rendered the petition fatally defective. Rule 12(2) requires an affidavit in support of an electionpetition to state:-

(a) the name and address of the petitioner;

(b) the date when the election in dispute was conducted;

(c) the results of the election, if any, and however declared;

(d) the date of the declaration of the results of the election;

(e) the grounds on which the petition is presented; and

(f) the name and address of the advocate, if any, for the petitioner which shall be the address for service.

16. It was submitted on behalf of the 3rd respondent, and supported by the 1st and 2nd respondents, that these requirements were mandatorily required under the rule, and that non-compliance should automatically lead to the striking out of the petition. Counsel relied on Chelaite –v- Njuki & Others, Appeal No. 150 of 1990 at Nakuru, Aboud Ali –v- IEBC & 2 Others [2013]eKLR, Amina Hassan Ahmed –v- Retuning Officer Mandera County & 2 Others [2013]eKLR,and The Speaker of the National Assembly –v-Karume [2008]1KLR 425 to arguethat an election petition was a special proceeding governed by the Elections Act and the Rulesthereunder; a special jurisdiction that has always to be exercised in accordance with these provisions; and that these provisions were enacted to provide for a proper, efficient, expeditious and just conduct of election petitions. Every provision in the Act and Rules has to be strictly complied with, and any deficient compliance will occasion delay and injustice, and has to meet the sanction of striking out.

17. The petitioners did not deny that the affidavit in support of the petition was non-compliant. When they claimed that the requirements were present in the petition, they were referred to the decision in Jimmy Mkala Kazungu –v- IEBC 2 Others Mombasa Election Petition No. 9 of 2017 in which it was held that the requirement to state the listed matters applied to both the petition and the affidavit; that the listed matters must be in both the petition and the affidavit, as the petitioner was not liberty to choose to have the listed matters in either the petition or the supporting affidavit. Lastly counsel referred the court to the judgment of KiageJ.A. in Nicholas Kiptoo Arap Salat –v- IEBC & 6 Others [2013]eKLRin which he emphasized that a petitioner has the obligation to comply with the procedural imperatives under the Election Rules, otherwise his petition will be struck out; that, not even Article 159(2) (d) can save him. The petitioners had asked the court to save their petition by relying on rule 5(1) and Article 159(2)(d).

18. I have looked at the affidavit sworn by the 1stpetitioner in support of the petition. She gave her name and address, the name and address of her advocates and laid the grounds upon which the petition was based. There was thereforepartial compliance.

19. I accept that election petitions are governed by a special jurisdiction donated under the Elections Act and the Rules made thereunder. The Act and the Rules are designed to provide for a proper, efficient, expeditious and just conduct of election petitions. Every provision in the Act and Rules is designed to achieve this purpose, and therefore any deficient compliance has to be frowned upon. I also consider that the listed requirements serve to inform the respondents the case they have to meet. They make it easy for them to prepare their responses accordingly. In my view, where the information that is asked to be contained in the affidavit is available in the petition then the court should be able to look at the matter in a favorable manner.

20. But what is the effect of non-compliance with this rule? Under rule 5(1) it is provided that:

“The effect of any failure to comply with these Rules shall be determined at the Court’s discretion in accordance with the provisions of Article 159(2)(d) of the Constitution.”

This being the case, it is not true that any failure to comply with any of these Rules, whichever way they are couched, will automatically lead to striking out. Rule 5(1) has given the court a discretion, so that, depending on the facts of each case, it may or may not strike out the petition that is non-compliant (Dickson Mwenda Kithinji –v- Gatirau Peter Munya & 2 Others, Civil Appeal No. 38 of 2013 at Nyeri). It is, further, true that where non-compliance has been shown the court may be asked to consider whether the provisions of Article 159(2)(d) can be relied upon to save the petition. The Articlecalls on courts and tribunals to make sure that justice is administered without undue regard to procedural technicalities.

21. In Salat case (above) the Court of Appeal was dealing with the appellant’s failure to comply with rule 77 of the Court of Appeal Rules.There was application to strike out for the non-compliance. The Court, relying on sections 3A and 3B of the Appellate Jurisdiction Actan Article 159(2)(d) saved the appeal. It also considered that the failure had not occasioned any prejudice to the respondents. The court said that it was doing this to promote substantive justice.

22. In Munya’s case (above) the Court of Appeal observed as follows:-

“Article 159 of the Constitution enjoins courts to dispense justice without undue regard to technicalities. The Constitution should also be interpreted in a purposive manner. Taking note of Article 159 and the jurisprudence developed by election courts in Kenya and a purposive approach to interpretation of Rule 33(4), we are of the considered view that in the instant case, the trial Judge erred in law in placing a restrictive and technical interpretation to Rule 33(4) of the Election Petition Rules in stating the scrutiny and recount cannot be done in constituencies.”

23. Lastly, in Nicholas Kiptoo Arap Salat –v- IEBC & 7 Others, Supreme Court Petition No. 33 of 2014, the Supreme Court was dealing with a situation where the appellant, in appealing to the Court, had filed an originating summons instead of filing a petition of appeal pursuant to rule 33 of the Supreme Court Rules, 2012. This was an irregular election appeal. However, the Court saved the appeal under Article 159(2)(d). It emphasized that Article 159(2)(d) accords precedence to substance over form.

24. In my view, therefore, whereas there is need for strict compliance with the Rulesgoverning the resolution of election disputes, the court should be mindful of the current constitutional dispensation that requires substantive justice to be done in dealing with the disputes. Depending on the peculiar facts of each case, and unless the petition is hopelessly defective and cannot communicate the material complaints to the respondents, it is the responsibility of the court to ensure that the petition is heard and determined on its merits. I will apply the provisions of Article 159(2)(d) to save this partially defective petition so that it can go to hearing on its merits.

25. On the complaint that there was failure to comply withrule 8(5) which asks the Registrar to acknowledge receipt of the petition in Form 2 of the First Schedule, I find that there was acknowledgement. There is, therefore,no merit in the complaint.

26. The 3rd respondent complained of the failure by the petitioners to comply with rule 10(3) (b) and (c). The rule requires that where a petition is served through an advertisement that is published ina newspaper of national circulation, the advertisement ought to be at least font size twelve and should be captured in dimensions of not less than ten centimeters by ten centimeters. It was conceded that the advertisement did not meet the requirement.The petitioners’ case was that they gave clear instructions to the Daily Nation regarding font, but that the paper failed them. Mr. Gatonye cited the case of Rozaah Akinyi Buyu –v- IEBC & 2 Others [2014]eKLR in which the Court of Appeal observed that:-

“Service is a fundamental step in the electoral process and resolution of disputes arising therefrom. Failure to serve the petition onto the respondents went to the root of the petition and the petition could not stand when there was failure to serve the same.”

27. The service advertisement was placed in the Daily Nation on 8th September 2017, and there is no dispute that the 3rd respondent saw the advert. He, however, complained that the advert was not, on account of size, sufficient enough to draw the attention of would be respondent. This is why he was only able to see it a day to the close of time. In Buyu case, what the petitioner had placed in the advertisement was not service but

“a notification to the parties that the petition as served upon them and the documents are in their respective offices.”

The court found that there was no service.

28. The purpose and essence of service is to bring the proceedings to the attention of the affected party. It is an integral part in the resolution of election disputes. This is because, without service the other side is denied the opportunity to know that there is a petition against him so that he can have the opportunity to defend himself. Therefore, failure to serve the petition upon the respondents goes to the root of the petition. The petition will be struck out if there is no service. It matters not that the respondents became aware of the petition and filed their response. A waiver or acquiescence cannot cure the situation.

29. However, the 3rd respondent is complaining about the font and size of the advertisement, in a situation where through the advertisement he became aware of the petition. I have in the foregoing already made reference to rule 5(1) and Article 159(2)(d). Under rule 4(1) the objective of the Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions. In interpreting the Rules, the election court should seek to give effect to this objective. The court has to be careful not to elevate legal and procedural technicalities over substantive justice (Evans Odhiambo Kidero & 4 Others –v- Ferdinand Ndung’u Waititu & 4 Others, Supreme Court Petition No. 18 of 2014).I find that, in the particular circumstances of the petition, service to the 3rd respondent was sufficient.

30. The result is that the 3rd respondent’s application dated 18th October 2017 is dismissed. Given the facts of the application, however, I make no order as to costs.

DATED and DELIVERED at MACHAKOS on the 10TH day of NOVEMBER 2017.

A.O. MUCHELULE

JUDGE