Christine Nafula Soita v Independent Electoral and Boundaries Commission, Bilha Kiptugen & Janet Nangabo Wanyama [2017] KEHC 1742 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

ELECTION PETITION NUMBER 4 OF 2017

CHRISTINE NAFULA SOITA :::::::::::::::::::::::::::::: PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION:::::::::::::::::: 1ST RESPONDENT

BILHA KIPTUGEN::::::::::::::::::::::::::::::::::::::: 2ND RESPONDENT

JANET NANGABO WANYAMA:::::::::::::::::: 3RD  RESPONDENT

RULING

The Petitioner herein filed the petition before this court on 6th September, 2017, seeking to nullify the election of 8th August 2017 conducted by the 1st and 2nd Respondents and declaring the 3rd Respondent as the winner.

Section 78(1) of Elections Act number 24 of 2011states that a petitioner shall deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petition under this part.

78(2)(b) states a person who presents a petition to challenge an election shall deposit five hundred thousand shillings, in the case of a petition against a Member of Parliament or a County Governor;

Rule 13 of Elections (Parliamentary and County Elections) Petition Rules 2017 is as follows:-

1. Within ten days of the filling of a petition, a petitioner shall deposit security for payment of costs in compliance with section 78(2)(b) and (c) of the Act.

From the foregoing provisions of the law it is explicit that the petitioner had 10 days from the date of presentation of the petition to deposit 500,000/- as security for costs with the Registrar.  Given that the petition was presented on 6. 9.2017, the petitioner had up to 16. 9.2017 to deposit security for costs.  The petitioner did not do so and when the matter was mentioned on 18. 10. 2017 the respondents indulged her by allowing her up to 3. 1.2017 to deposit it.  She was however still unable to comply with the law in that respect.  On 8. 11. 2017 she filed an application to withdraw the petition.  The respondents filed notice of motions seeking to have the petition struck out for want of deposit of security for payment of costs.  When the court was faced by these two sets of applications, it was noted that they all intended to bring the petition to an end.  However, the withdrawal notice would have required the petitioner to publish it in a newspaper of national circulation under Rule 22(2) of Election Petition Rules number 24 of 2011of which had not been done, and the court would have to comply with Rules 23and 24 of the said Rules, of which would have occasioned delay and extra costs.  It was agreed the easier option to attain the intended end was to hear the Notice of Motions to strike out the petition.

The petitioner’s Advocate had no instructions to oppose the Notice of Motion and his only raised concern was the prayer by 1st and 2nd Respondents for costs to be capped at 10 million.  The petitioner argued that she should not be penalized for failure to raise deposit for costs, and urged the court to leave cost to taxation by registrar and if to be capped it be at 500,000/-.  The counsel for 1st and 2nd respondents relied on two decisions in petitions of which were not heard to the end, of Martha Wangari Karua and another versus Independent electoral and Boundaries Commission and 3 others [2017] eKLR in which the costs were capped at Kshs.10 million, and Mbaraka Issa Kombo versus Independent Electoral and Boundaries and 3 others [2017] in which costs were capped at kshs.2. 5 million.

The point at which this matter is, is guided by provisions of Section 78(3) of the Elections Act number 24 of 2011 which provides that:-

“Where a petitioner does not deposit security as required by this section, or if an objection is allowed and not removed, no further proceedings shall be heard of the petition and the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent’s costs.”

From the foregoing there’s no doubt that this is a matter of which is legally fit for striking out.  It’s struck out as prayed by the respondents, with costs to them.  Section 84 of the elections Act provides that an election court shall award the costs of and incidental to a petition and such costs shall follow the cause.  Under Rule 30(1)(b) the court may make an order specifying the maximum amount of costs payable.  This is what is normally referred to as “capping costs.”  This does not however mean the maximum indicated is the costs payable; it simply means the bills cannot be taxed beyond the amount indicated.  To each of the respondents I cap the costs at 3 million.

S. M. GITHINJI

JUDGE

7. 12. 17