[2017] KEHC 2425 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ELECTION PETITION NO. 2 OF 2017

IN THE MATTER OF ELECTIONS ACT, 2011

AND

IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTION) PETITION RULES, 2017

AND

IN THE MATTER OF THE ELECTION FOR MEMBER OF NATIONAL ASSEMBLY FOR BONCHARI CONSTITUENCY (CODE 261)

BETWEEN

ZEBEDEO JOHN OPORE …….…………………….………….…PETITIONER

VERSUS

I.E.B.C ………………………………………………………...1ST RESPONDENT

DAVID K. CHEROP……………………………..………….. 2ND RESPONDENT

JOHN OROO OYIOKA ………………………..…………... 3RD RESPONDENT

R U L I N G

1. This is a composite ruling in respect of 2 applications viz:

1. The Notice of Motion dated 3rd October 2017 by the Petitioner seeking orders:

1. THAT leave be granted to the Petitioner/Applicant to lodge a supplementary affidavit annexing:-

(a)Polling Station Diaries prepared and submitted by the respective Presiding Officers at the polling stations within Bonchari Constituency during the 08 August 2017 elections.

(b)Copies of Forms 32A (Voter Identification and Verification Forms) used at the polling stations within Bonchari Constituency during the 08 August 2017 elections.

2. THAT the cost of this application be provided for.

2. The Notice of Motion dated 9th October 2017 by the 1st and 2nd Respondents seeking orders:

1. THAT leave be granted to the 1st and 2nd Respondents/ Applicants to lodge supplementary affidavits by the Presiding Officers of Nyabioto Centre Hall, Iruma Primary School, Bogiakumu Stream 1, Nyamare, Nyamokenye, Chisaro, Gesero Nyamoe, Nyang’iti, Rianyapara, Nyambunwa, Isamwera, Mwata Primary School, Nyangena Primary School and Genga Primary School.

2. THAT the cost of this application be provided for.

The Notice of Motion dated 3rd October 2017;

2. Vide this motion, the Petitioner avers that the additional documents sought to be filed touch on the main grounds of the Petition and confirm higher voter turnout than the registered voters at some polling stations, manipulation of votes and election malpractices.

3. Indeed the Petitioner moved the court (Justice Mativo) and obtained orders on 5th September 2017 compelling the 1st Respondent to furnish the documents requested.

4. The Petitioner has since been supplied with the documents and this was done after the filing of the petition.

5. A copy of letter requesting the documents from the 2nd Respondent and a copy of a decree of court dated 5th September 2017 is annexed. In the decree, the 1st Respondent is compelled to provide the Petitioner with the following:

a)Number of voters identified by the electronic voter identification devices at every polling station;

b)Copies of Forms 32A (Voter Identification and Verification Forms) at every polling station;

c)Polling Station Diaries as prepared and submitted by the respective Presiding Officers at every polling station.

6. It is urged that the additional documents will assist the court determine the matter and the Respondents will suffer no prejudice.

7. The 1st and 2nd respondents’ affidavit in response to this application was struck out by court for failure to comply with directions of court of 4th October 2017.

8. The application thus remains unopposed.

The Notice of Motion dated 9th October 2017 by the 1st and 2nd Respondents

9. In this application, the 1st and 2nd Respondents seek leave to lodge supplementary affidavits by the presiding officers of Nyabioto Centre Hall, Iruma Primary School, Bogiakumu Stream 1, Nyamare, Nyamokenye, Chisaro, Gesero, Nyamoe, Nyang’iti, Rianyapara, Nyambunwa, Isamwera, Mwata Primary School, Nyangena Primary School and Genya Primary School.

10. It is urged that due to logistical difficulties the presiding officer were unable to depone to their affidavits at the time of the filing of the response and the replying affidavit thereto.

11. They have since deponed to their affidavits for purposes of responding to the Petition. The said affidavits are responses to affidavits annexed by the Petitioner to the Petition.

12. The said affidavits will assist the court determine the matter as the deponents are by law integral players in the election process and no prejudice will be occasioned to Petitioner.

13. Grounds of opposition are filed in response to the application. It is urged that no justification for the delay and failure to file affidavits in time is given. The blanket ground of “logistical difficulties” advanced by the 1st and 2nd Respondents cannot form the basis for grant of orders sought.

14. The 1st and 2nd Respondents submit that the court should invoke Rule 4 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 to meet the overriding objective of the Rules i.e to facilitate the just, expeditious, proportionate and affordable resolution of election petitions.

15. It is urged that Rule 19, clothes the court with the necessary discretionary powers. I am urged to invoke Section 80 (1) (d) of the Elections Act and Article 159 (2) (d) of the Constitution.

16. It is submitted for the Petitioner that Rule 14 (I think counsel meant Rule 12 (7)) requires a Respondent to file a response to the Petition together with affidavits sworn by the Respondent and each witness whom the respondent intends to call at the hearing.

17. It is urged that no reasonable explanation is given for the failure to comply.

18. It is submitted that the application is a deliberate attempt to prolong the Petition. This despite the strict timelines set under Article 105 of the Constitution. I am referred to the decision in Wavinya Ndeti –vs- I.E.B.C and 2 Others, Johana Kipkemei Too –vs- Hellen Tum [2014] eKLRand Philip Osoro Ogutu –vs- Michael Onyura Aringo & 2 Others [2013] eKLR.

19. It is submitted that the application is brought after pre-trial contrary to Rule 15(2) of the Rules.

20. The issues for determination in both applications herein are:

1. Whether the court has power to allow additional evidence/ affidavits.

2. Whether either or both the applicant’s have laid a justification for inclusion of the intended additional evidence.

3. What orders would serve the best interests of justice in the matter.

4. Who is to bear the costs of the applications.

21. I think this turns out to be a case of “what is good for the goose is good for the gander”. Both parties seek to file additional affidavits out of time.

22. Whether or not to grant leave for filing witness affidavits out of time is a matter for the discretion of the court pursuant to Rule 19 of the Election Rules. The Rule affords the court the discretion to extend time where time has been stipulated by the rules or granted by court.

23. This is to ensure that injustice is not occasioned to any party. (see Wavinya Ndeti –vs- I.E.B.C & 4 Others, Machakos EP No. 4 of 2013).

24. What issues must the court consider in an application like the one before court? The Supreme Court of Kenya in Raila Odinga & 5 Others –vs- I.E.B.C AND 3 Others [2013] eKLR captured this clearly:

“The other issue that the court must consider when exercising its discretion to allow further affidavit is the nature, context and extent of the new material intended to be produced and relied upon. If it is small or limited so that the other party is able to respond to it, then the court ought to be considerate, taking into account all aspects of the matter.”

25. Looking at the Petitioner’s application, it is one that the court should allow as a matter of right.

26. The petitioner craved the use of the material sought to be added long before filing of the Petition. When requests to the 1st Respondent hit a brick wall, the Petitioner sought the court’s intervention and obtained a decree ordering the 1st respondent to supply the material in question.

27. No evidence is offered by the 1st Respondent when the material were supplied if at all. Indeed the Petitioner’s position is that not all materials have been supplied.

28. One can safely infer that the 1st Respondent all along knew that the Petitioner intended to use these materials in evidence. There is neither an element of surprise nor expansion of the scope of the Petition. No prejudice will be occasioned to the 1st and 2nd Respondents. Not even to the 3rd Respondent.

29. The circumstances of this case are such that the application dated 3rd October 2017 exhibits considerable merit. I would have no hesitation allowing it.

30. As for the application by the 1st and 2nd Respondents, the same doesn’t appear to me to be as firmly grounded as that of the Petitioner.

31. I am however alive to the overriding objective of the rules as provided by Rule 4 of the Elections (Parliamentary and County Elections) Petition Rules, 2017, the flexibility allowed by Rule 19 of the Rules and the guiding principle in Article 159 (2) (d) of the Constitution.

32. Guided by the decisions in Wavinya Ndeti –vs- I.E.B.C AND 2 Othersand Philip Osoro Ogutu –vs- Michael Aringo, I am satisfied that the evidence sought to be introduced in no way amends the pleadings or changes the character of the case. The evidence is in answer to adversary evidence already on record in the Petition.

33. Relying again on the Supreme Court decision in Raila Odinga decision inRaila Odinga and 5 Others –vs- I.E.B.C & 3 Others [2013] eKLR, I am satisfied that what the 1st and 2nd Respondents intend to introduce is small and limited and being a response to evidence already on record should be allowed.

34. It is not lost on this court that the 1st and 2nd Respondents are the managers of the election that is impugned. In the public interest of the electorate, they should be given a chance to fully articulate their case. This will do justice, to, not only the parties in this case, but to all the people of Bonchari Constituency.

35. With the result that I allow the applications dated 3rd October 2017 and 9th October 2017 respectively.

36. In respect of the application dated 3rd October 2017, the Petitioner shall have the costs of the application. Each party to bear its own costs in respect of application dated 9th October 2017.

Ruling dated, signedand deliveredat Kisii this 9th day ofNovember, 2017.

A.K NDUNGU

JUDGE

In the presence of:

M/s Moenge for the Petitioner

M/s Odhiambo for the 1st and 2nd Respondents

Mr. Odhiambo holding brief for Mr. Morara for the 3rd Respondent

Mr. Limo court assistant

A.K. NDUNGU

JUDGE