David K Ole Nkedianye, Josiah Tarayia Kipelian Kores & Benjamin Tipatet v Joseph Jama Ole Lenku, Martin Martine Moshisho, Independent Electoral & Boundaries Commission (IEBC), Saadi Noor Odowa County Returning Officer Kajiado County & Agnes Siyiato Nankeyai County Returning Officer, Kajiado North Constituency [2017] KEHC 2613 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

ELECTION PETITION NO. 2  OF 2017

DR. DAVID K. OLE NKEDIANYE ……………………....….…........….…….……   PETITIONER

VERSUS

JOSEPH JAMA OLE LENKU …………………...….……..….…......….…. 1ST RESPONDENT

MARTIN MARTINE MOSHISHO ……………....……………..…….…….. 2ND RESPONDENT

THE INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION (IEBC) ……………………………...….. 3RD RESPONDENT

SAADI NOOR ODOWA

COUNTY RETURNING OFFICER KAJIADO COUNTY ….....…..………..4TH RESPONDENT

AGNES SIYIATO NANKEYAI COUNTY RETURNING

OFFICER, KAJIADO NORTH CONSTITUENCY…….………………… 5TH RESPONDENT

AND

JOSIAH TARAYIA KIPELIAN KORES ……………....……... 1ST INTENDED PETITIONER

BENJAMIN TIPATET ………………………………..……... 2ND INTENDED PETITIONER

RULING

1. On 8th August, 2017, Dr. David K. Ole Nkedianye (hereinafter referred to as the petitioner), Joseph Jama Ole Lenku (hereinafter referred to as the 1st respondent) and Daniel Livondo Mpute Nina, took part in the general elections exercise as candidates for the position of governor Kajiado County. Upon conclusion of the electoral process, the first respondent was announced and declared the winner by the County returning officer one Saadi Noor Odowa the 4th defendant herein and therefore returned as the governor elect Kajiado County.

2. Aggrieved by the results, the petitioner filed this petition on 7th September 2017, seeking to nullify the same on grounds that there were serious and glaring inherent contradictions, inconsistencies, irregularities and discrepancies.

3. Upon being served with the said petition, the 1st respondent and his running mate now Deputy Governor (hereinafter referred to as the 2nd respondent), filed joint response on 19th September 2017 challenging the petition. Equally, the 3rd respondent (Independent Electoral and Boundaries Commission), Kajiado County Returning Officer (4th Respondent) and Kajiado Constituency Returning Officer (5th respondent), filed their joint response on 2nd October 2017 after securing court’s leave to file the same out of time.

4. Subsequently, the matter was scheduled for pretrial conference on 9th October 2017.  On that day, Mr. Kanchory counsel for the petitioner intimated to the court that the petitioner intended to withdraw the petition hence no need to proceed with the pretrial conference as both parties had indicated that they had no objection. Counsel prayed for three days to enable his client file a formal application for withdrawal of the petition. Consequently, the court fixed the matter for mention on 17th October 2017 with the petitioner being granted three days leave to file and serve a formal application expressing his intention to withdraw the petition.

5. As directed, application by way of notice of motion was filed on 11th October 2017 pursuant to rules 21 and 22 of the elections (parliamentary and county elections) petitions rules 2017(hereinafter referred to as the rules) seeking to withdraw the petition and all subsequent applications.  Application was based on the grounds on the face of it and affidavit deponed by the applicant on 10th October, 2017 stating; that application to withdraw petition was made out of his own free will and volition in the interest of cohesion and unity in Kajiado County and; that no agreement or terms of any kind had been made or undertaking entered into in relation to the withdrawal. In response, the 1st and 2nd respondents filed a replying affidavit sworn by the 1st respondent on his own behalf and that of the 2nd respondent, conceding the application with no order as to costs.

6. Notice of intended withdrawal was published in the Nation daily of 12th October 2017 as required under rule 22(2) of the said rules.  However, on 16th October 2017, the law firm of Otieno Ogola and Company advocates filed an application of even date under certificate of urgency with one Josiah Tarayia Kipelian Kores and Benjamin Tipetat as the applicants seeking to be enjoined in the petition in place of the petitioner.

7. The said application brought pursuant to Articles 22 and 23 (3) (b) and 258 of the Constitution and rule 24 of the elections rules 2017, was based on the grounds on the face of it and supporting affidavits sworn by both applicants separately on the 16th October2017 claiming; that the intended withdrawal of the petition amounted to an impediment of justice as the impugned elections were not conducted in accordance with the law and as such it would be a great injustice for the issues raised in the petition to go unheard and determined; that elections are a matter of public interest litigation (suit in rem) and not a private or personal matter (suit in personam) hence grave injustice to the public who had not been consulted before withdrawal and lastly; that the petitioner had been compromised by defecting to another political party while at state house as evidenced by photographs attached thereof.

8. The court directed the applicant to serve and had the same fixed for further directions on 17th October 2017.  On that day, the petitioner and respondents by consent agreed to have the petition withdrawn with no order as to costs. However, the court directed both parties to file their respective responses to the intended petitioner’s application and the registrar’s notice to issue pursuant to rule 23 for hearing of withdrawal and substitution applications.

9. Notice was faithfully issued on 17th October 2017 by the deputy registrar as directed. On that day, the 1st respondent filed a replying affidavit deposed on the month of October 2017 without indicating the date thus denying the averments contained in the supporting affidavits of the intended petitioners’ application dated 16th October 2017.  At the same time, Mr. Gatonye counsel for the 1st and 2nd respondents, sought leave to file submissions in reply to the intended petitioners’ submissions filed on the same day. As a consequence, hearing was rescheduled to 25th October 2017 which was later gazetted as a public holiday hence culminating to change of hearing date to 30th October, 2017.

10. During the hearing, the application for withdrawal of petition was not opposed as both parties wanted the same marked withdrawn by consent. Regarding the application for substitution, the petitioner, 3rd, 4th and 5th respondents did not file any response. In his submissions, Mr. Oginga for the intended petitioners reiterated the grounds and affidavits in support of the application.  He however challenged the validity of the 1st respondent’s replying affidavit filed on the 24th October 2017 on grounds that it was not dated.

11. Counsel emphasized that, the applicants being residents and registered voters of Kajiado County are interested parties in this petition hence have locus to take over as petitioners. Learned counsel opined that, the petition herein being a public interest litigation could not be terminated without consulting Kajiado people and that the petitioner had been compromised.  He referred the court to several authorities inter alia Kamunyu and others vs AG and others (2007)1 EA116 cited with approval in the case of Republic vs Independent Electoral and Boundaries Commission and 2 others exparte applicant Wavinya Ndeti, Judicial Review Misc. Application No. 301/2017 Nairobi.

12. In Kamunyu case, the court had this to say:

“in a suit seeking judgment in rem, that is judgment applicable to the whole world, an individual does not sue on behalf of the whole world, but sues for Judgment which is effective against the whole world. In other words, in the present case, the applicants when successful in the suit obtain judgment, which is effective against the whole world but does not confer benefits upon the whole world”.

13. Further reference was made to the case ofAbdi Khaim Osman Mohammed and Another vs Independent Electoral and Boundaries Commission and 2 Others Civil Appeal No. 293 of 2013(2014)eKLR where the court noted thus:

“the learned Judge further got the legal basis right when he stated that electoral disputes involve not only the parties to a petition but also the electorate in the concern electoral area and that they are therefore matters of great public importance and interest”.

Similar principles were highlighted and applied in the case of Serah Mwangudza Kai vs Mustafa Idd Salim and two others, Malindi Election Petition No. 8/2013 where the court stated that, election disputes are not ordinary civil suits but unique cases involving not only the parties but also the electorate in the electoral area concerned.

14. Mr. Gatonye for the 1st and 2nd respondents opposed the application for substitution arguing that; the intended petitioners had failed to establish that they have locus hence busy bodies without proof that they were voters; that no basis had been laid sufficiently to prove that the intended petitioners will be prejudiced by the said withdrawal and lastly; that they had not deposited security for costs or at least demonstrated ability to pay costs. In support of his arguments, counsel cited the case ofMoses Saisi vs Independent Electoral and Boundaries Commission and 2 others (2013)eKRLin which the court held that failure to deposit security for costs is a ground for dismissal of a petition.

15. Mr. Gatonye further urged the court to find that the withdrawal application was not influenced by any form of compromise and that it was voluntary.  He referred the court to the case ofClement Kungu Waibara vs Peter Kamau Njeri (2008) eKRL and Ngutu and 2 others vs Kithonga and another (2008)IKLR (EP1570)where the court allowed an application for withdrawal of petition and the security for costs deposited refunded with the incoming petitioner depositing his own security. Regarding the undated replying affidavit, counsel sought refuge in Article 159(2) (d) of the constitution contending that the omission was an oversight hence a mere procedural technicality. Lastly, Mr. Gatonye submitted that, the intended petitioners had failed to prove by way of production of voter’s card that they were voters and that they did vote during the 8th August 2017 general elections. Mr. Asheke for 3rd, 4th and 5th respondents merely associated himself with Gatonye’s submissions.

16. I have considered the application for withdrawal of petition and substitution thereof, affidavits in support, replying affidavits, submissions by both counsels and authorities quoted thereof.  Issues for determination are:

(a) Has the petitioner met the threshold for withdrawal of a petition?

(b) Have the intended petitioners met the threshold for substitution as petitioners in place of the petitioner?

(c) Who will bear costs if any?

17. The law governing withdrawal of petitions is anchored in rules 21 and 22.  Rule 21 provides as follows:

(i) “A petition shall not be withdrawn without leave of the election court.

(ii) The election court may grant leave to withdraw a petition on such terms as to payment of costs or as the election court may otherwise determine.

(iii) An application for leave to withdraw a petition shall:

a. Be in form 5 set out in the first schedule.

b. Be signed by the petitioner or person authorized by the Petitioner.

c. State grounds for withdrawing the petition and

d. Be lodged at the registry

(iv) The parties to petition shall each file an affidavit, before leave for withdrawal of petition is determined, addressing the grounds on which the petition is intended to be withdrawn.

(v) Despite sub-rule (4), an election court may, on cause being shown dispense with the affidavit of a party to the petition if it seems it is fit to the election court on special grounds to be fit and just.

(vi) Each affidavit filed vide sub-rule (4) shall contain the following:

“to the best of the deponent’s knowledge and belief, that no agreement or terms of any kind has been made and that no  undertaking has been entered into, in relation to the withdrawal of the petition”.

18. Save for allegations of compromise, there is no dispute that petitioner has met all the requisite conditions (threshold) attached to withdrawal of a petition as required under rules 21 and 22.  The application was not opposed by anybody as both parties agreed to have the same withdrawn with no order as to costs.  The allegation by the intended petitioners that the petitioner was compromised by defecting to some party is not proven.  Attachment of photographs with the petitioner appearing at state house with the president is not supported by a certificate as required under Section 106 (B) (4) of the evidence act Cap 80 of the Laws of Kenya thus subjecting their authenticity into question hence not admissible in law.

19. It is trite law that a court has unfettered discretion to grant leave to withdraw as a petitioner as long as it is satisfied that the application is bonafide. In this case, the petitioner stated that, the withdrawal was out of his free will and volition for the sake of unity and cohesion of Kajiado people.  The allegation that he was compromised is unsubstantiated. Change of political party affiliation alone is not sufficient enough to infer a compromise or corruption. There is no proof that the petitioner has entered into any agreement or terms of any kind and or undertaking entered into in relation to the withdrawal of the petition.

20. It is the petitioner’s constitutional right under Article 36 of the constitution to enjoy freedom of association which includes the right to form, join or participate in activities of an association of any kind. Article 38(1) of the constitution further guarantees every citizen freedom to make choices including the right to form or participate in forming, a political party or participate in activities of, or recruit members for, a political party or campaign for a political party. Therefore, going to state house or joining another political party is not evil or unconstitutional.  In any event, under normal circumstances, a petitioner cannot be forced to prosecute a case he voluntarily files and wishes to withdrawal subject to attendant conditions like payment of costs if necessary. To that extent, it is my finding that application for withdrawal of petition is merited.

21. Regarding substitution of a petitioner, rule 24  provides:

(1) At the hearing of the application for withdrawal of a petition, a person who is qualified to be a petitioner in respect of the election to which the petition relates may apply to the election court to be substituted as the petitioner in place of the petitioner who has applied to withdraw the petition.

(2) The election court may grant the application to substitute the applicant under sub-rule (1) as the petitioner.

(3) The election court may direct that the security deposited on behalf of the original petitioner shall remain as security for any costs that may be incurred by the substituted petitioner and that to the extent of the sum deposited as security, the original petitioner may be liable to pay costs of the substituted petitioner.

(4) If the court does not make an order under sub-rule (3), security of the same amount would be required of a new petitioner and 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 proceeding with the petition.

(5) Subject to sub-rules (3) and (4), a substituted petitioner shall stand in the same position, to the extent possible, and shall be subject to the same liabilities as the original petitioner.

22. The key question is, who is a petitioner? Rule 2 defines a petitioner as a person who files a petition to the election court under the constitution or under the Act in accordance with these rules. The word petitioner, is derived from the word petition, which under section 2 of the elections Act means “an application to the election court under the constitution or under this Act”. Who then is eligible, to petition or be substituted as petitioner in an election petition as contemplated under rule 24? Must one be a registered voter in an electoral area affected by the particular petition? To my knowledge, am not aware of any particular provision requiring one to have been registered or actually voted in a particular electoral area in an election exercise in order to qualify as a petitioner.

23. The relevant law in the circumstances, is the constitution under articles 22 and 258 of the constitution which allows anybody to file public interest litigation either on his own or on behalf of others in case of a denial, violation or infringement of, or threat to a right or fundamental freedom in the bill of rights. Could anybody from outside Kajiado County who is not a registered voter or did not vote in Kajiado County, apply to take over the petition in case of a withdrawal by the petitioner? The law is silent on the same issue thus leaving it open for any Kenyan adult of sound mind or who has capacity to sue to institute a suit for redress on any wrong committed in relation to an election exercise hence a petitioner. If the constitution or parliament intended to limit election petitions to applicant(s) who are registered voters only in a given electoral area, it would have expressly stated so.

24. Having held as such, are the applicants qualified to be petitioners? Based on the above reasoning, the answer is yes. In any event, the applicants stated in their respective affidavits that they are Kenyan male adults  of sound mind, residents and registered voters of Kajiado County and that they did vote during the 8th August 2017 general elections. Mr. Gatonye challenged that assertion arguing that there was no proof as there were no electors’ cards or documentary proof attached. Mr. Oginga invited the court to take judicial notice of the fact that there are no electors’ cards any more since registration turned electronic. I do agree with Mr. Oginga and indeed take judicial notice that, with the electronic voters register under Section 2 of the Elections Act in place, there is no provision for electors’ cards in Kenya’s electoral voting system.

25. The applicants having stated that they are registered voters of Kajiado County and that they did vote on 4th August 2017, the 3rd respondent (IEBC) who are the custodians of the unique electronic voters’ register, were under a duty to rebut that assertion by providing the register.

26.  Since there is no evidence to suggest that the applicants are not eligible petitioners, I will find that they have satisfied the requisite requirements under the constitution hence eligible petitioners and therefore qualify as such in accordance with rule 24 for substitution.

27. Do the applicants have locus? The intended petitioners argued that, as voters and residents of Kajiado County, they are entitled to free and fair elections which was not hence this petition. They further argued that, election petitions are matters of great public importance. This argument was enunciated  In the case of Evans Nyambaso Zedekiah and another vs Independent electoral and boundaries commission and 2 others (2013) eKLRin which the court  with approval made reference to the case of Joho vs Nyange and another (2008)3 KLR (EP 156) where Justice Maraga  as he then was held as follows:

“Election petitions are not ordinary suits.  Though they are disputes in rem, brought between certain parties, election petitions are nevertheless disputes of great public importance”.

28. An election petition though filed by an individual is not strictly speaking a private suit.  It is a public interest litigation with a wider public inclination and legitimate expectation by the affected electorate that, the will and sovereign power of the people, through democratically elected representatives based on universal suffrage is protected and preserved as guaranteed by the constitution and that where there is such denial, infringement of, violation or threat to aright or fundamental freedom in the bill of rights, due process by way of judicial remedy is critical. The right to be heard and fair hearing is derived from the Kenyan 2010 constitution whose primacy or sanctity cannot be compromised at the altar of any person’s convenience.

29. The intended petitioners herein have demonstrated a bonafide claim that elections in Kajiado County were not conducted in accordance with the law hence the public interest in this petition and the court has no reason not to exercise its unfettered discretion conferred upon it by rule 24 aforementioned in their favor.  In exercise of judicial discretion, the same must be exercised judicially and not whimsically without clearly stating reasons for the denial (SeeNgutu and 2 others vs Kithonga and Another (2008)IKLR (EP).  The respondents stand to lose nothing and will not suffer any prejudice if the intended petitioners took over the petition. The submission by Mr. Oginga advocate that the respondent did file an undated replying affidavit, is a mere procedural technicality which is curable under rule 5 of the elections rules 2017, section 89(1) (d) of the elections Act and Article 159(2) (d) which provides that courts shall determine matters without undue regard to technicalities (See Election petition no.10 of 2013 Kisii between Ezekiel Okondo Onchieku vs independent electoral and boundaries commission and 2 others.

30. With regard to deposit of security for costs, rule 24 is crystal clear.  The rule allows a party being substituted as petitioner to deposit security within three days from the date application for substitution is allowed.   Similar position was held in the case ofNgutu and 2 others vs Kithonga and anotherabove quoted where the court held:

“In the upshot, we hereby grant the petitioners to withdraw from this petition forthwith on payment of the respondent’s costs to date. We also hereby substitute Mrs. Nicholas Kyengo and Councilor David Mwasya Muviti in place of petitioners from henceforth.  As we are satisfied that the withdrawal was not enhanced by any bargain or consideration, we direct that the new petitioners should deposit a sum of 50,000/= in court as security within 3 days from the date hereof”.

31. Based on the foregoing, the court is satisfied that  the application for the petitioner to withdraw from being petitioner and the one for substitution by the intended petitioners(applicants) herein to take over as petitioners are merited and same allowed  with orders as  follows:

(a) That application for leave to withdraw as petitioner dated 11th October 2017, be and is hereby granted forthwith and the withdrawing petitioner henceforth ceases to act as such.

(b) That the applicants in respect of the application dated 16th October, 2017 Joseph Tarayia Kipelian Kores and Benjamin Tipatet be and are hereby substituted in place of the petitioner from now henceforth.

(c) That the substituted petitioners shall deposit security for costs amounting to Kshs.500,000 within three days from the date of delivery of this ruling.

(d) That security deposited herein by the withdrawing petitioner be refunded less any costs that may have been incurred on that account.

(e) That the substituted petitioners are hereby granted two days leave from the date of delivery of this ruling within which to file and serve their affidavits in support of the petition provided that they do not introduce new issues that will change the character of the petition.

(f) That the respondents are hereby granted corresponding leave to file and serve their response in reply thereto if need be within two days from the date of service.

(g) Each party to bear their own costs.

Order accordingly.

Signed, Dated and Delivered at KAJIADO this 6TH day of NOVEMBER 2017.

J.N. ONYIEGO, (JUDGE)

In the presence of :

Miss Kirenge …………….Counsel for petitioner

Mr. Matemu …………….Counsel for 1st and 2nd respondents

Mr. Mungai ….…………Counsel for 3rd, 4th and 5th respondents

Mr. Byamugisha ……….for the new petitioners

M/s Catherine ………… Court Assistant