Abdirahman Adan Abdikadir & Adow Mohammed Abikar v Independent Electoral and Boundaries Commission,County Returning Officer & Abdullahi Ibrahim Ali [2018] KECA 644 (KLR) | Withdrawal Of Appeal | Esheria

Abdirahman Adan Abdikadir & Adow Mohammed Abikar v Independent Electoral and Boundaries Commission,County Returning Officer & Abdullahi Ibrahim Ali [2018] KECA 644 (KLR)

Full Case Text

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: MAKHANDIA, MUSINGA & MURGOR, JJ.A.)

ELECTION PETITION APPEAL NO. 6 OF 2018

BETWEEN

ABDIRAHMAN ADAN ABDIKADIR......................................APPELLANT

ADOW MOHAMMED ABIKAR.....CROSS-APPELLANT (APPLICANT)

AND

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.....................................1STRESPONDENT

COUNTY RETURNING OFFICER.............................2NDRESPONDENT

ABDULLAHI IBRAHIM ALI.......................................3RDRESPONDENT

(Appeal from the judgment of the High Court of Kenya

at Nairobi (Mwongo, PJ.) dated 31stJanuary, 2018

in

Election Petition Nos. 13 & 16 of 2017)

**********************

RULING OF THE COURT

1. In the contest for the position of Senator, Wajir County, during the last general election held on 8th August, 2017, Abdullahi Ibrahim Ali (the3rdrespondent),ofJubilee Partywas declared the winner, having garnered 35,393 votes. Abdirahman Adan Abdikadir (the appellant), ofOrange Democratic Movementparty got19,096 votes,andAdowMohammed Abikar (the applicant)ofKenya African National Unionpartymanaged26,769 votes.

2. The appellant and the applicant were dissatisfied with the conduct and outcome of the elections and each filed a petition against the 3rd respondent.

3. The two petitions, Nos. 13 and 16 of 2017, were consolidated and heard together. In a judgment delivered by Mwongo, PJ. on 31st January, 2018, both petitions were dismissed with costs.

4. Once again, the appellant and the applicant were aggrieved by the said judgment and each of them filed a notice of appeal. The appellant’snotice of appeal was the first one. The applicant was served with the appellant’s notice of appeal on 7th February, 2018. On the same day the applicant filed his notice of appeal.

5. The appellant filed the record of appeal on 1st March, 2018. He also deposited a sum of Kshs.500,000/= as security for costs of the appeal in terms of rule 27(1) of The Court of Appeal (Election Petition) Rules, 2017(the Court’s Election Petition Rules).

6. On the other hand, the applicant neither filed a record of appeal nor deposited any security for costs. Rule 9(1) of this Court’s Election Petition Rulesrequires that the record of appeal be filed within thirty days from the date of the judgment of the High Court.

7. On 8th March, 2018, the applicant filed a notice of cross appeal and on 20th March, 2018 the applicant also filed an application under rule 77(1) of this Court’s Rules, rule 2 of this Court’s Election Petition Rules, and Section 3Aof theCivil Procedure Act.In the said application, the applicant sought two substantive prayers as follows:

“1. ………..;

2. THAT leave be granted to ADOW MOHAMMED ABIKAR the Applicant herein, to be enjoined as an Interested Party and affected party in the Appeal;

3. THAT upon being granted leave the Intended Interested and affected Party hereby be and is allowed leave to file and serve its cross-Appeal, written submissions and any other relevant documents to the aforesaid Appeal.”

8. Before the application could be set down for hearing, on 23rd March,2018 the appellant filed a notice of withdrawal of the appeal pursuant torule 4(2)of thisCourt’s Election Petition Rulesandrules 68, 81 and 96 of the Court’s Rules.

9. Prior to the filing of the applicant’s application aforesaid and thefiling of the notice of withdrawal of the appeal, the court had given directions regarding disposal of the appeal. The directions were given on 15th March, 2018 in the presence of advocates for the appellant and thethree respondents. There is no indication as to whether the applicant’s advocates had been served with any notice to attend court for directions. It is also doubtful whether the court’s attention was drawn to the applicant’s application because the directions did not make any reference to the application. The court directed, inter alia, that the appeal be canvassed by way of written submissions and the same be orally highlighted on 25th April, 2018.

10. When the appeal came up for highlighting of the written submissions on the aforesaid date, Mr. Abdihakim, learned counsel for the appellant, told the court that the appellant, having filed the notice of withdrawal of the appeal as aforesaid, was no longer pursuing the appeal. He urged the Court to mark the appeal as withdrawn with no order as to costs.

11. Both Mr. Kubai and Mr. Karani, learned counsel for the 1st and 2ndrespondents respectively, had no objection to the withdrawal of the appeal with no order as to costs.

12. Mr. Issa, learned counsel for the 3rd respondent, also had no objection to the withdrawal of the appeal. But as to costs of the appeal, he left the issue to the court to determine as it deemed fit.

13. Mr. Omwanza, learned counsel for the applicant, told the Court that his client wished to take over the appeal under rule 97(1) of this Court’s Rulesas read withrules 2 and 10of theCourt’s Petition Rules. He urged the court to allow the applicant’s oral application.

14. The  appellant’s  advocate  as  well  as  the  respondents’  advocatesopposed the applicant’s plea to take over the appeal. Mr. Issa narrated the background of the appeal as earlier set out herein. He submitted that the applicant had not been cited as a respondent in the appeal and could not therefore seek refuge under the provisions of rule 10 of this Court’s Election Petition Rulesto take over the appeal as sought. He added that the applicant, having filed a notice of appeal, but having failed to file a record of appeal and deposit security for costs, he should not be allowed to pig ride on the appellant’s appeal. In his view, the applicant was a stranger to the proceedings.

15. In reply, Mr. Omwanza submitted that the applicant was served with a notice of appeal and the record of appeal by the appellant. Having been so served, he filed a notice of cross appeal on 8th March, 2018. Counsel stated that the applicant did not see the need to file a record of appeal, since the appellant had already filed one. He also conceded that the applicant had not put in the required security for costs; but indicated that the applicant is prepared to deposit the same, if so ordered.

16. We have considered the issue of withdrawal of the appeal as well asthe applicant’s application dated 20th March, 2018. This court’s Election Petition Rules do not contain any specific provision regarding withdrawal of appeals. However, rule 4(2) thereof stipulates that where there is no applicable provision in the Rules, the provisions of the Court of Appeal Rules, 2010 relating to civil appeals shall apply to an election petition in so far as there is no inconsistency with the Petition Rules. We must therefore revert to the Court’s Rules.

17. Rule 96(1)permits an appellant at any time after instituting an appeal and before it is called out for hearing to lodge in the appropriate registry a notice in writing intimating his intention to withdraw the appeal. Under sub-rule (4), if all the parties to the appeal do not consent to the withdrawal of the appeal, the appellant may, before the conclusion of its hearing, apply for leave to withdraw the appeal. This is the case here. Despite the fact that the appellant filed and served the notice of withdrawal of the appeal two days before its scheduled date of hearing, the applicant objected to its withdrawal but the respondents welcomed it.

18. According to the 3rd respondent, the applicant is not even a party to the appeal and has no capacity to object to its withdrawal, leave alone being allowed to take over the appeal, if leave to withdraw it is granted.

19. Mr. Omwanza submitted that under rule 2 of this Court’s ElectionPetition Rulesa“respondent”includes“any person on whom a notice of appeal has been served…”,and since the applicant had been served with both a notice of appeal and the record of appeal, he is respondent and therefore a party to the appeal, hence has capacity to object to its withdrawal.

20. There is no dispute that the applicant was served with both the notice of appeal and the record of appeal. He is therefore a respondent. And being a respondent, the applicant has filed a notice of cross appeal under

rule 10(1)of thisCourt’s Petition Ruleswhich provides as follows:

“10. (1) A respondent who desires to contend at the hearing of an appeal that the decision of the High Court or any part thereof should be varied or reversed, either in any event or in the event of the appeal being allowed in whole or in part, shall give notice to that effect, specifying the grounds of his contention and the nature of the order which he proposes to ask the Court to make, as the case may be.”

21. This Court should not stand on the way of an appellant who has lost interest in his own appeal and wishes to withdraw it. Equally, respondents cannot force an unwilling appellant to continue with an appeal; at best they can only seek costs of the appeal. In the circumstances, we hereby grant leave to the appellant to withdraw his appeal with no order as to costs in favour of the respondents and the applicant.

22. Turning to the applicant’s application, although he filed and servedthe notice of appeal in time, the applicant did not file a record of appeal. The applicant, having lodged his notice of appeal subsequent to the lodgment of the appellant’s notice of appeal, under rule 80(1) of this Court’s Rulesthe applicant became a respondent and was therefore under no obligation to file a record of appeal, more so, where the appellant had already filed one.

The rule provides as follows:

“80. (1) Where two or more parties have given notice of appeal from the same decision, the second and all subsequent notices to be lodged shall be deemed to be notices of address for service within the meaning of rule 79 and the party or parties giving those notices shall be respondents in the appeal.”

23. The applicant’s notice of appeal must therefore be deemed to be anotice of address of service. But now that the appellant has withdrawn his appeal, the applicant ought to be allowed to proceed with his cross appeal, having filed the same on 8th March, 2018.

24. In the circumstances, we hereby make the following orders regarding the applicant’s application dated 20th March, 2018.

(a) The applicant, ADOW MOHAMMED ABIKAR, shall be the appellant in terms of the notice of cross appeal dated 8thMarch, 2018. Consequently, he should deposit a sum of Kshs.500,000/= being security for costs in terms of rule 27(1) of this Court’s Election Petition Rules. That ought to be done within the next ten (10) days from the date of this ruling.

(b) The  respondents  should  file  and  serve  their  writtensubmissions in response to the appellant’s submissions filed on 27thMarch, 2018 within ten (10) days from the date hereof.

(c) The appellant shall be at liberty to file a reply to the respondent’s submissions within four (4) days from the date of service of the respondent’s submissions.

(d) The costs of the appellant’s application dated 20thMarch, 2018 shall abide the outcome of the appeal.

(e) This appeal shall be heard on 20thJune, 2018.

Dated and delivered at Nairobi this 11thday of May, 2018.

ASIKE-MAKHANDIA

.....................................

JUDGE OF APPEAL

D.K. MUSINGA

....................................

JUDGE OF APPEAL

A.K. MURGOR

...................................

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR