Chris Munga N. Bichage, Zaheer Jihanda & James F. O. Kenani v Independent Electoral & Boundaries Commission, Julius Meuta Okeyo & Richard Nyagaka Tongi [2017] KEHC 1912 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ELECTION PETITION NUMBER 12 OF 2017

(Consolidated with No. 10 of 2017)

IN THE MATTER OF PARLIAMENTARY ELECTIONS FOR NYARIBARI CHACHE CONSTITUENCY

CHRIS MUNGA N. BICHAGE.............................................1ST PETITIONER

ZAHEER JIHANDA.............................................................2ND PETITIONER

JAMES F. O. KENANI.........................................................3RD PETITIONER

VERSUS

INDEPENDENT ELECTORAL & BOUNDARIES

COMMISSION.................................................................1ST RESPONDENT

JULIUS MEUTA OKEYO................................................2ND RESPONDENT

RICHARD NYAGAKA TONGI.........................................3RD RESPONDENT

RULING

1. In an objection (p.o) supported by Counsel for the 1st and 2nd Respondents, Mr. Omogeni (Sc), Learned Counsel for the 3rd Respondent objects to the production of the annexture in the 2nd and 3rd Petitioner's Petition found at page 201 and marked “C” and which was from page 201 to page 719.

2. Similarly objected to is the document marked “B1” found at page 197 running to page 199.

3. The gist of the objection is that the said documents offend the mandatory provisions of Rule 9 of the Oaths and Statutory Declaration Rules.

4. It is urged that the Rule is mandatory and if there is non compliance the document ought to be expunged.  The omission is fatal.

5. I am referred to the decisions in H.C.C.C. No. 1511 of 2001, Abraham Mwangi v S. O. Omboo and Election Petition No. 1 of 2017 at Kisii.  Counsel also makes reference to the decision in ELC Case No. 21 of 2016 (served on him) by Angote J confirming that such documents ought to be expunged.

6. Mr. Terer, Learned Counsel for the 1st and 2nd Respondents supports the objection.  He asserts that the said omission is not a technicality.  I am invited to note that in the decisions cited, the Court was applying the Civil Procedure Rules and under the ELC Act where, unlike in election petitions, there are no restrictions within the rules and specific timelines.

7. It is urged that we are at the tail end of the trial.  The petition was filed 2 months ago.  The Petitioners knew the document was defective.

8. Ms. Makobu, Learned Counsel for the 2nd and 3rd Petitioners submitted that a p.o. as defined in Mukisa Biscuits case must be on a pure point of Law.  It ought to have the effect of disposing off the matter.

9. The affidavit filed complies with the law.  The objectors are accused of failure to raise the issue earlier during pre-trial.

10. It is urged that the witness who appeared before a Commissioner of Oaths is there.  She poses the question whether it was the duty of the witness to seal the document or was it the duty of the Commissioner of Oaths.

11. It is urged that the Court should facilitate the just resolution of disputes before it.  The failure to comply with the rules should be resolved within the spirit of Article 159 (2) (d) of the Constitution.

12. The remedy sought by the Respondents is drastic.  It should only happen if the documents is not admissible.

13. Counsel submits that Rule 9 of the Oaths and Statutory Declarations Rules came before Article 159 of the Constitution. The defect is curable under Article 159.

14. Counsel makes reference to the decision in ELC Case No. 21 of 2015 and states that the Judge found the failure to seal as a procedural technicality.  The Court made a finding that the affidavit could stand alone.

15. Counsel submits that should the Court be convinced that the annextures cannot be admitted the way they are, she would be seeking leave to introduce an affidavit to put in the annextures.

16. Mr. Ogutu Learned Counsel for the 1st Petitioner associated himself with the submissions of Ms Makobu.

17. He avers that Rule 9 is a subsidiary legislation and does not form part of the body of the Act.  These are enactments pursuant to the powers of the rules committee.

18. He submits that Rule 9 is directory and not mandatory.  The fundamental point is that the rule is procedural in nature and brings the operation and tenure of the said rules under Article 159 (2) (d) of the Constitution.

19. The responsibility of marking exhibits is not the responsibility of a litigant.  Where there is inadvertence or lapse on the part of the Commissioner of Oath, that lapse should not go against the deponent.  It should go against the Commissioner.

20. Counsel draws an analogy from the long held position where documents drawn by a quack have always struck off.  The new thinking is that the sanctions should be against the Advocate, not the Petitioners.

21. It is submitted that Rule 5 of the Elections (Parliamentary and County Elections) Petition Rules gives discretion to the Court to do justice and the court should not fetter its discretion.

22. Counsel invites the Court to take cognizance ofArticle 159 (1) of the Constitution which talks of the source of judicial authority. That authority is derived from the people and ought to serve the people.  The purposes of the Constitution ought to be protected underArticle 159 (e).

23. I am referred to Article 48 of the Constitution on Access to Justice and Article 22 on the interpretation of the Constitution.

24. It is urged that the Respondents have contravened Rule 15 (2) of the Elections (Parliamentary and County Election) Petition Rules. The p.o. as crafted is like an application tailored to strike out the annextures.  The issue ought to have been raised during pre-trials.

25. I am urged not to be persuaded by authorities cited which are not binding to this Court.  The rights affected are those of the whole constituency.

26. In rejoinder, Mr. Omogeni refers to Petition No. 1 of 2017 at Kisii where the Judge found the issue to be a pure point of Law.

27. The best timing to raise the objection was when the witness was making reference to the document.  That moment arose when the witness took the witness stand.

28. On the issue of raising the point earlier, Counsel submits that it was the duty of the Petitioners to do so.

29. Articles 48 and 22 on access to justice and interpretation of the Constitution, it is submitted, have no relevance to this application.

30. On the material before me the main issue for determination is the legal effect of failure to securely seal and properly mark the annextures to the affidavit of Richard Kerima Ratemo.

31. Tied to that question will be the issue whether the point as raised is a pure point of Law and whether Article 159 of the Constitution is a cure to the defect and whether the timing is right.

32. The question arises too whether if found defective, the 2nd and 3rd Respondents should be allowed to file a supplementary affidavit to introduce the annextures.

33. There is no contest that the annexture marked “B1” and “C” attached to the affidavit of Richard Kerima Ratemo are not securely sealed under the seal of the Commissioner nor are they marked with Serial letters of identification.

34. This is contrary to Rule 9 of the Oaths and Statutory Declarations Rules.  That Rule states;

“Rule 9: All exhibits to affidavits shall be securely sealed thereto under the seal of the Commissioner and shall be marked with serial letters for identification.”

35. I have painstakingly considered the objection, the submissions by Counsel and the applicable Law and relevant Case law.

36. To begin with, the objection raised is in my considered view a pure point of Law.  All the facts pleaded are correct.  No fact is to be ascertained as it is common ground that the impugned annextures are not securely sealed nor serialized as per Rule 9 above.  The p.o. herein perfectly fits in the celebrated case of Mukisa Biscuit Manufacturing Limited v West End Distributors Limited, Civil Appeal No. 9 of 1969 [1969] EA 696 where it was held;

“A preliminary objection is in the nature of what used to be a demurrer.  It raises a pure point of Law which is argued on the assumption that all facts pleaded by the other side are correct.  It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

37. On the timing of the p.o, the same being on a point of Law, the same can be raised at any point of the proceedings.

37. The submission by the Petitioners that the Respondents ought to have raised the issue at the pre-trial stage must fail.  It was the duty of the Petitioners to ensure that their documentation was in order.

38. To await to be awoken from their slumber by the objection herein speaks volumes as to the diligence of the Petitioners in pursuit of their claim.

39. The attempt to blame the Respondents for failure to raise the issue at the pre-trial is in my very respective view self defeatist.  I agree with Counsel for the 3rd Respondent that for them the opportune moment to raise the objections was at the point when the witness was called to the witness stand and sought to rely on the exhibit.

40. So what is the legal effect of the failure to seal and serialise the exhibits as provided for in Rule 9?

41. This question arose in the case of Musikari Nazi Kombo v Moses Masika Wetangula and 2 Others [2013] eKLR and I think this is a good place to begin as I associate myself fully with the dictum of the Learned Judge.

42. The Court held that;-

“1. The legal requirement relating to securely sealing and marking exhibits in an affidavit entailed a substantive legal act within the context of the production of evidence and the admissibility of evidence, and it was not a legal technicality.  The requirement would serve to ensure that only proper documents were placed before the Court and admitted in evidence.

2. Allowing documents brought in an improper and inappropriate manner to form part of the Court's record would prejudice the administration of justice and it would also go against the Law of Evidence as it would defeat the aims of safeguarding the fairness of the trial process.

3.  The document titled “Principal Register of Voters PRV” and annexed to the Petitioner's further affidavit was not securely sealed and marked with serial letters of identification as required by Law. As there was no basis laid in the further affidavit for its introduction as an annexture and its sources were unknown, the document was inadmissible.”

44. In my considered view, the sealing of the exhibits and their serialization is a fundamental step provided by law.  Failure to properly seal the exhibits goes to the root of the evidence envisaged and it would be against all tenets of substantive justice to allow admission of evidence whose propriety is questionable in law.

45. Indeed as early as in 2002, the High Court did pronounce itself on this issue in Abraham Mwangi v S. O. Omboo & Others,H.C.C.C. No. 1511 of 2002 where Hayanga J (As he then was) quoted Order 41 of the Rules of the Supreme Court of England that dealt with forms of affidavits and exhibits.

46. That Order 41 divided exhibits into documents and non documents and maintained that fly papers are misleading and fraught with uncertainty.  He held;

“Exhibits to affidavits which are loose fly sheets for identification attached to them and do not bear exhibit marks on them directly must be rejected.  The danger is so great.  These exhibits are therefore rejected and struck out from the record.  That being the case, the application fails and is dismissed.”

47. In Francis A. Mbalanya v Cecilia N. Waema [2017] eKLR, the annextures had not been marked completely like in our instant suit.  The Judge stated:

“The Law that requires the sealing and marking of annextures with serial letters is in mandatory terms and must be complied with.... In the instant case, the Law has provided in mandatory terms the manner in which evidence by way of annextures can be received by the Court.  The failure to comply with that Law, like in the instant case can only lead to one thing, the striking out of the offending documents.  However, considering that the supporting affidavit itself complies with the Law, it is only the annextures that can be expunged from the record and not the supporting affidavit and the application.”

48. Finally on this point, and in a case that sits on all fours with the instant petition, Justice Mutungi in Solomon Omwega Omache and Another v Zachary O. Ayieko and 2 Others [2016] eKLR stated as follows;

“Although the point was not taken up by the plaintiffs, the Court has a duty to uphold the sanctity of the record noting that this is a Court of record.  Before the Court is a replying affidavit with annextures which are neither marked nor sealed with a Commissioner's stamp.  Are they really exhibits?  I do not think so and they cannot be properly admitted as part of the record.  I expunge the exhibits and that renders the replying affidavit incomplete and the same is also for rejection as without the annextures it is valueless.  This should serve as a wake up call to practitioners not to be too casual when processing documents for filing as it could be extremely costly to them or their clients as crucial evidence could be excluded owing to Counsels or their assistants lack of attention and due diligence.”

49. I find consonance with the views of my brother Judges above with my held view on the matter.  The indiscretion is not an innocuous one that can be ignored or easily remedied.

50. Therefore, much as Mr. Ogutu in his submissions passionately  implored on this Court not to be persuaded by the holdings aforesaid, and which holdings are not binding on me, I am satisfied that the same embody the correct statement of law on the issue at hand and I fully concur with the findings.

51. I have paid great attention to the remedies possibly available under Articles 22, 48 and 159 of the Constitution as submitted by Counsel.

52. On this issue, the Supreme Court in Raila Odinga & 5 others v IEBC & 8 Others [2013] eKLR had this to say;

“Our attention has repeatedly been drawn to the provisions of Article 159 (2) (d) of the Constitution which obliges a Court of Law to administer justice without undue regard to procedural technicalities.  The operative words are the ones we have rendered in bold.  The Articles simply means that a Court of Law should not pay undue attention to procedural requirements at the expense of substantive justice.It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from Court of Law (emphasis mine).”

53. Therefore much as the Constitution guarantees rights to a fair hearing and embodies the Court to do justice within the spirit of Article 159, that by no means derogates from the duty of parties to comply with the Law of the land to ensure that trials are held in an orderly and predictable manner.  No party should in my view be allowed to hide behind the Constitution to run roughshod over known and established laws and rules.

54. So much so that, whereas the Court will at all times strive to achieve substantive justice in a matter, the Article does not absolve a party from the duty to comply with the law and the rules made thereunder.

55. And whereas as submitted Articles 22, 48 and 159 are a true refuge for a party seeking justice before a Court of Law, there is equally an important issue of public policy that there be an orderly dispensation of justice.

56. In the case of Abdul Aziz Juma v Nikisuhu Investment and 2 Others ELC No. 291 of 2013 the Court held;

“Article 159 of the Constitution was never intended to override clear provisions of statute unless such provisions of the statute had been found and held to be unconstitutional.  Acts of Parliament... make provisions for the application of the Law and the Constitution demands of the Courts to protect the Constitution, the Law and the Acts enacted by Parliament.  In my view, Article 159 of the Constitution cannot be resorted to where there are clear and express provisions of the Law.”

57. I cannot agree more.  Before me is an affidavit that has annextures marked “B1” and “C”.  The said annextures are neither sealed or serialized as required by rule 9 of the Oaths and Statutory Declarations Rules.  These are clear Rules that must be adhered to and Article 159 of the Constitution cannot be used to validate otherwise invalid evidence.

58. To do otherwise by allowing parties to operate outside the dictates of the Law would be a sure recipe for anarchy in Court proceedings ultimately obscuring the administration of justice by employing a liberal approach to deal with legal infractions.  Where necessary and based on the circumstances of each case, the Court must guard against such approach.

59. All litigation and specifically the preparation of evidence/documents must be taken seriously, meticulously executed and timeously filed.  The need so to do is more pronounced in election petitions which operate under a very strict regime of law within the Constitution, the Elections Act and the various Rules made thereunder.

60. Rule 9 of the Oaths and Statutory Declaration Rules is applicable to Election disputes by virtue of Rule 12 (14) of the Elections (Parliamentary and County Elections) Petition Rules.  It needs to be adhered to.

61. As held by the Supreme Court of India in Typta Basu & Others v Debi Ghosal & Others;

“An election petition is not an action at Common Law, nor, in equity.  It is a statutory proceedings to which neither the common Law not the principles of equity apply but only those rules which the statute makes and applies.  It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statutory (sic) creating it. Concepts familiar to common Law and equity must remain strangers to Election Law unless statutorily embodied.  A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to trial of election disputes, is what the statute lays down in the trial of election disputes.  The Court is put in a straight jacket...”

62. Even the application of Rule 4 and 5 of the Elections (Parliamentary and County Elections) Petition Rules does not come to the aid of the Petitioners in view of the above findings relating to Article 159 of the Constitution.

63. As to whether there should be room for a further affidavit, the ready answer is that this is overtaken by events.

64. There was the initial failure to regularize the documents within the 28 days allowed in law for the filing of the petition.  There was the 2nd failure to raise the issue during pre-trial and regularize the documents.  At the current stage, introduction of further evidence/affidavits is not tenable.

65. In election petitions The luxury of time is not available to the Courts or to the parties. The people of Kenya in no less a document than the Constitution itself determined how election petitions would be handled noting the need for expedition.

66. This was informed by the inglorious past where parties would use all manner of delaying tactics to defeat the ends of justice with the Courts normally ending up with the ignominy of petitions filed but not concluded by the advent of the next round of elections.

This Court is bound to strenuously guard the wishes of the people for expeditious trials in election petitions.

67. With the result that for the reason that documents marked “C” and “B1” do not comply with the mandatory provisions of Rule 9 of the Oaths and Statutory Declaration Rules, the Court makes an order that the same be expunged from the record.  The affidavit however remains and is not affected by this order.

Costs to abide the outcome of the petition.

Dated, Signed and Delivered in Kisii this 5th day of December, 2017.

A. K. NDUNG'U

JUDGE