Cosmas Foleni Kenga v Independent Electoral and Boundaries Commission, Wafula Chebukati, Kilifi North Sub- County Returning Officer & Owen Yaa Baya [2017] KEHC 1162 (KLR)

REPUBLIC OF KENYA

INTHE HIGH COURT OF KENYA

AT MALINDI

ELECTION PETITION NO. 12 OF 2017

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

VERSUS

INDEPENDENT ELECTORAL AND

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

WAFULA CHEBUKATI...............................2ND RESPONDENT

THE KILIFI NORTH SUB- COUNTY

RETURNING OFFICER..............................3RD  RESPONDENT

OWEN YAA BAYA.......................................4TH RESPONDENT

RULING

1. This petition was filed by COSMAS FOLENI KENGA on 6th  September,2017 whereby he was contesting the 2017 Parliamentary Election of member of the National Assembly, OWEN YAA BAYA, the 3rd Respondent,who was declared the successful candidate for Kilifi North  constituency. He cited that the Independent Electoral and Boundaries commission(IEBC),who conducted the electionand the Returning Officer of that constituency  as the 1st and 2nd  Respondents respectively.

2. In challenging the 3rd Respondent's petition the  petitioner contended that  the election of  the  said 3rd respondent was not  conducted in accordance  with  the governing  principles under the constitution, 2010, the  Elections  Act and the Rules and Regulations made  there under and other relevant provisions  of the  law.

3  Upon being served with the  said petition, the 1st and 2nd  respondents filed their responses on 22nd September, 2017 which they served upon the other parties.

The 4th respondent was also served with the petition on and he filed his  responses on 21st September, 2017.

4. On 3rd October,2017 the matter came upfor mention  for pre-trial conferenceand court's determination was drawn to a notice of change of advocates  and an  application by the petitioner seeking leave to withdraw the petition, dated 29th September, 2017. The same were served upon the  other parties  on this day and the court  then directed that;

(i) the petitioner  complies with the  provisions of rules 21,22,23 and 24, all  of the Elections (parliamentary and Count Elections) Petitions rules, 2017within seven (7) days from today and not later than noonon10th October,  2017;

(ii) the parties to attend court on 11th October, 2017 at 10. 00 am for further  directions.

5. On 11th October,2017 Mr Aboubakar, advocate  who  had been holding brief for Mr Mwaniki counsel originally on record for the petitioner, on  3rd October, 2017 informed court that he had  now come on record for the  petitioner. He  also informed court that the notice of withdrawal of the petition had been filed and advertised in the Daily Nation News paper on  10th October, 2017 in compliance with  the rules with regard to withdrawal of petition. He also indicated to court that there  was someone  who was ready to be substituted as a petitioner as  per the provisions of Rules 23 to 24 of the Elections (Parliamentary  and county Elections ) Petitions Rules, 2017 and as agreed with the counsel for the respondents, required time tofile a formal application in this regard.

The  court allowed the petitioner's counsel, Mr Aboubakar to file and serve a notice of change of  Advocate together with an application to substitute the  petitioner within three days from the 10th October, 2017 and the  Registrar  directed to comply with Rule 23 of the Elections (Parliamentary and County  Elections ) Petitions Rules,2017.

6. On 19th October,2017 the matter came up for the hearing of two applications  being;

(i) an application for  petitioner to withdraw the petition;

(ii) an application for substitution.

Counsel for  all the parties put forward their arguments with regard to the  two applications.

7. On 30th October,2017 the court delivered a ruling with regard tothe two applications  in which,after  due consideration of the arguments that were advanced by counsel for the parties herein while allowing the petitioner  to withdraw fromthe petition, denied  leave to withdraw the entire petition  and allowed on ESTHER KACHE ZERO  to be substituted as a petitioner withthe following directions.

(a) The  petitioner be and is hereby ordered to pay costs of the petition to the  Respondents who have filed 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 Respondent to share the balance of Ksh 250,000/= equally that is ksh 125,000/= each.

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

8. The court then directed that the case  be mentioned on 9th November, 2017for pre-trial conference with  regard to the substituted  petitioner.  And on  9th November, 2017 when he matter came up for pre-trial conference, Mr Aboubakar, counsel for the  petitioner indicated to court that after  the ruling he was informed  that his  client, the  substituted petitioner,  was admitted in  hospital and he had been engaged in other petitions  before other Judges in  Malindi High Court and  Mombasa High Court on respective dates  that  he  had been unable to follow up  his client, the said substituted  petitioner on  the issue of depositing security of costs. He also  indicated that he had not indicated  on his file that the  matter  would be coming up on this day and so  he was not aware of the matter being before court on that  day.

9. To this, Mr Owuor, counsel for the 4th  Respondent  who apologised for failing to appear in court during delivery of the ruling but indicated  that  theyhad sent a clerk to check on the position of the case in the registry and it was confirmed to them that the same was coming up for  directionson the  9th November, 2017. He then proceeded to urge the court to enforce its directions with regard to deposit of security of costs, given the strict timelines  which the election  court is expected to adhere to and dismiss the petition if such payment had not been done.

10. Mr Aboubakar, counsel for the  petitioner, indicated that he wanted to file  an application  before court with  regard to the  circumstances  under which  the deposit which the original petitioner had made.

11. The court then, in considering  the arguments by Mr Owuor, counsel for the4th respondents  and Mr Abourbakar counsel for the petitioner directed as follows;

(a) THAT the  Respondents to 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 that day

2. The substituted  petition to file and serve

(i) the response to the  Notice of Motion dated 28th September, 2017and Notice of Preliminary objection dated 9th November, 2017,and;

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

(c) The Respondents to file and serve their further affidavits  and  responses to the interlocutory application by the  substituted  petitioner within three (3) days of being served  but not later  than 21st November, 2017.

(d) That the substituted  petitioner  to file and serve their furtheraffidavits, if any, to the responses to their intended applications inrelation to the deposit of security by the Respondents within two (2)days of being served and not later than 23rd November,2017.

(e) That  such interlocutory applications to be heard on 4. 12. 2017 at9. 00am and a  pre trial conference to proceed.

(f) That  subject to the outcome of the interlocutory  applications  that mayattack the petition, the petition shall be heard on 11th, 13th,14th and  15th December, 2017.

These directions were given by this court in the presence  of  M/s Mwanakitina, counsel for the petitioner and Mr Owuor, counsel for the  4th Respondent.

12. Due to engagement at the Criminal  court at the  Mombasa High court, the  hearing of the applications  in this case which had been scheduled for 4th December, 2017 at 9. 30 am, was rescheduled to the afternoon. This was communicated to all counsel by the Deputy Registrar. And  on 4th December,2017 at 3. 15 pm, the court convened for hearing of the  applications and pre -trial conference as scheduled.

It is worth noting that Mr Aboubakar, counsel for the  petitioner was not in  attendance and neither  was there any representation from their firm or  on their behalf. In attendance were only counsel for the respondents, being Mr Wafula, counsel for  1st and 2nd Respondents and Mr Owuor and Mr Mosota counsel for the 4th Respondent.

13. And while these  counsel were ready to proceed with  the applications as had been directed by this court, it was glaring that;

(a) Neither the substituted petitioner nor their counsel, Mr Aboubakar were in  attendance in court. They had not even sent a representative  or communication of any  kind to explain their absence in court;

(b) the petitioner had not made any deposit for security for costs ashad been ordered by this court  on 30th  October, 2017.

(c) the petitioner's  advocate had not  filed any responses to the  applications that had been filed  on 28th September,  2017 and served  upon their firm on 9th November,2017.

(d) the petitioner's counsel, Mr Aboubakar had not filed any application as indicated on 9th November,2017.

14. All counsel present urged this court to dismiss or  strike out the petition on  these  grounds and more particularly, on the ground that the petitioner has  failed  to deposit security of  costs as required under sections 78 (3) of the Elections Act and within the time directed by this court.

The records clearly show that the substituted petitioner has yet to comply with the court's directions of 30th  October, 2017. These  is also no explanation  for this nor an application on record where the substituted  petitioner is seeking to extent the time limit that was given by the court.

15. The payment of security of costs is a statutory requirement and failure to paythe same after the court  has directed that it be paid is in breach of a statutory  requirement.

Section 78 (1) of the elections  Acts,2015 provides  that;

"A petitioner shall deposit security for the  payment of costs that may become payable by the petitioner not more than ten days afterthe  presentationof a petition under this part"

This  provision is in mandatory terms on the  requirement to deposit securityof costs.

Section  78 (2) of the said Act further specifies the amount to be deposited  for each category of petitioner. The substituted petitioner was required to deposit Ksh 500,000/=

The mischief behind  this requirement is to protect the office of the elected  person and to allow only  people with genuine grievances  to file petitions.

16.  Section  78 (3) of the Elections Act,2015 states that;

"Where a petitioner  does not deposit security as required by this section, or if and objection is allowed and not removed, no further proceedingsshall be heard on the petition and the respondent may apply to the electioncourt  for an order to dismiss the petition and for the payment of theRespondents costs."

Again in  mandatory terms, the statute states that  non compliance to depositsecurity, stalls any further proceedings and the respondents  may apply to dismiss the petition and pray for costs.

17. Rule 13 of the Elections (Parliamentary and county  Elections ) Petition  Rules,2017  is synchronised with  section 78 (2) (b) and (c ) of the Elections Act and allows a party to pay the said deposit within  ten (10)  days.

18. In the  instant case, the substituted petitioner having been allowed to comeon board, the court directed  that she deposits security within three (3) daysof the date of  ruling as per the provisions of rule 24 (4)  of the Elections Parliamentary and County (Elections ) Petitions Rules ,2017, to enable her  have audience as per Rule 24 (5) of the said rules.

Rule 24 (4) of the rules provides as follows;

"If the elections court does not make an order  under sub-rule (3)security of the same  amount as would required of a new petitionerand  subject to the same conditions imposed on the original petitioner, the substituted  petitioner shall pay, within three days after the order of substitution, the security before proceedings with  the petition".

Rule 24 (5) goes on to state;

"subject  to sub-rules 3 and 4 a substituted petitioner shall stand in the same petition, to the extent  possible ,and  shall be subject to the sameliabilities as the  original petitioner"

19.  The substituted petitioner, who on 30th October, 2017 among other  directions, was directed to deposit security within three (3) days, had , by 4th  December, 2017 not complied with the same. This  coupled with  failure by the  said substituted petitioner  to attend court either by herself or byher  counsel or sending anexplanation  to explain such absence, or file any  application, is a clear indication that  they have either  lost interest in  the  petition or  have total  disregard of  the court's directions.

This being the case, these is  need, in public interest , to allow the elected member of parliament , (herein referred to as 4th Respondent) proceed withhis  mandate of representing the people of  Kilifi North constituency and for the people  of Kilifi  North constituency to put the  2017 election behindthem.

20. This court ,therefore allows the oral applications by the Respondent's  counsel and order that this petition  be stuck out with costs.

The costs  are capped at Ksh 250,000 and the same to apportioned equally among the respondents.

Ruling  delivered , signed  and dated this 18th day of December,2017.

LADY JUSTICE D. O. CHEPKWONY

In the presence of

Mr Aboubakar ,counsel for the Petitioner

Mr Tsofwa,counsel holding brief for Wafula, counsel for the 1st and 2nd Respondents

Mr Fondo, counsel holding brief for  Mr Owuor , counsel for  the 4th Respondent

C/clerk- Zaituni