Cosmas Foleni Kenga v Independent Election and Boundaries Commission (IEBC), Guliya Hussein Abidwahid & Owen Yaa Bya [2017] KEHC 2272 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

ELECTION PETITION NO. 12 OF 2017

COSMAS FOLENI KENGA ............................................PETITIONER

VERSUS

THE INDEPENDENT ELECTION AND

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

GULIYA HUSSEIN ABIDWAHID ............................2RD RESPONDENT

OWEN YAA BYA ..................................................3RDRESPONDENT

RULING

On 30. 10. 2017, this case came up for a ruling  in  respect  of two applications brought  separately by the Petitioner and the Substituting party, ESTHER  KACHE ZIRO.

The  first application  was brought by the petitioner whereby he was seeking  leave to  withdraw  the petition under Rule 23 of the Elections  ( Parliamentary  and County ) Petitions Rules, 2017.

The 2nd  application was sought by the substituting party, ESTHER KACHE ZIRO on 12th October, 2017 under Article 87 (a) of the constitution, sections 109 (1) (f) and  (2) of the Elections  Act and rule 24 of the Elections  (Parliamentary and county) Petition Rules, 2017, in which she was seeking to be substituted  as a new petitioner in the place of petitioner, COSMAS FOLENI  KENGA. She also sought that the court directs that the security deposited  on behalf of the petitioner remains  as security for purposes of the petitioner.

Upon listening to both applications and the response  by the 4th respondent's  counsel, the court allowed the two applications vide a ruling  delivered on 30th October, 2017,with orders as follows;

(a) the petitioner be and is  hereby ordered to pay costs of the petition to the respondents who have filed their responses  herein. The said costs  to be paid from the  deposited security as follows;

(i) the 4th respondent  to be paid Ksh 250,000/=

(ii) the 2nd and 3rd respondents  to share the balance  equally, that  is, Ksh 125,000/=  each.

(b) the substituted petitioner to  deposit ksh 500,000/= as security within (3) days from the  date of the order.

The court went on to direct that the case would be mentioned on 9. 11. 2017 for pre-trial -conference with regard to the substituted petitioner.

And on 9. 11. 2017,when the matter came up for mention, counsel for the substituted petitioner  parties indicated to court that they  were not aware of the said mention date and so they were not ready. Mr. Aboubakar, counsel for the substituted petitioner  asked the court to give him another date to enable them  put in their  applications.

Mr.  Owuor, counsel for the  4th petitioner, on the other hand asked the court to enforce the order regarding the payment of security, given the  strict  timelines, the election  court is obliged to  follow and  dismiss the petition. He also asked the court to give directions with regard to the preliminary objection they had filed.

In response to this, Mr Aboubakar, counsel for the  substituted petitioner, indicated that going by their sentiments, both of them were not aware of the mention date; He then indicated  to court that he had an application to make in regard to the issue of payment of the deposit for security.

I have  carefully gone through the  submissions by  both counsels.

I wish to  point out that the court record clearly indicates that  this case was fixed for mention for  pre-trial  directions with respect to the substituted petitioner's coming on board for 9th November, 2017. The same was read out in  open court and coram shows that Mr. Aboubakar ,counsel for the  substituted petitioner  was in court. The respondents were not present and  neither did they sent any representation  despite the date  for ruling having been fixed  in their presence on 19. 10. 2017.

With regard to the issue of compliance with the court's orders of 30th October, 2017 and the interlocutory applications by  both counsel  (for the  substituted petitioner and 4th respondent ), in the spirit of fair hearing,  (as provided for under article 50 (1) of the constitution), I  direct ;

(1) That the respondents do serve the substituted petitioner  with the Notice  of Motion application dated  28th September, 2017 and the Notice of Preliminary objection dated 9th November,2017 before the close of today.

(2) That the  substituted petitioner  to file and serve;

(a )  That the responses to the  notice of motion dated 28th September, 2017 and notice of preliminary objection dated 9th November, 2017; and

(b) The intended interlocutory application in relation to payment of security, all within  three(3) days  from today, but not later  than 16th November, 2017.

(3) That the respondents to file and serve their further affidavits to the responses to the  notices of motion and preliminary objection and   a response to the intended application in relation to the payment of security by the substituted  petitioner  within three (3) days  of being  served but not later than 21st November, 2017;

(4) That the substituted petitioner to file and serve her further affidavits ,if any, to the responses to their intended  application  by the respondent  within 2 days of being served but not later than 23rd November, 2017;

(5) That  such interlocutory applications to be heard on 4. 12. 2017 at 9. 00am;

(6) That subject  to the  outcome of the interlocutory application  that  may attack the petition, the petition shall be heard on 11th ,13th and 14th and 15th of December, 2017.

Ruling delivered signed and dated this 13th day of November 2017.

D. O. CHEPKWONY

JUDGE