Emily Nyabuto v Independent Electoral and Boundaries Commisson ,Isaac Ruto Constituency Returning Officer & Ernest Kivayu Ogesi [2017] KEHC 2709 (KLR)

IN THE HIGH COURT AT KISUMU

KAKAMEGA ELECTION PETITION NO. 7 OF 2017

IN THE MATTER OF THE NATIONAL ASSEMBLY ELECTION FOR

VIHIGA CONSTITUENCY

BETWEEN

EMILY NYABUTO ………………..……..……...…….………….………..…………. PETITIONER

AND

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSON ………………………..……………………… 1ST RESPONDENT

ISAAC RUTO

CONSTITUENCY RETURNING OFFICER ..…….….…………………….… 2ND RESPONDENT

ERNEST KIVAYU OGESI …..……………………....…………………………3RD RESPONDENT

RULING

1. On 6th September 2017, the petitioner Emily Nyabuto filed a petition contesting the return of Ernest Kivayu Ogesi as the member of National Assembly for Vihiga Constituency following the general elections on 8th August 2017.

2. After the pre-trial conference, I fixed this matter for hearing on 1st, 2nd and 3rd November 2017.  Prior to the hearing date on 20th October 2017, the petitioner filed an application seeking leave to withdraw the petition.

3. When the matter came up for hearing on 1st November 2017, the petitioner complained that she was not aware of the pending application and that she had not instructed her advocate to file such an application. I directed the petitioner to instruct a new advocate to appear in court today, 2nd November 2017, ready to proceed for hearing as the matter had been fixed for hearing for 3 consecutive days. Today, 2nd November 2017, neither the petitioner nor her advocates appeared in court when the matter was called out at 9. 00am and at 10. 00am.

4. Counsel for the respondents urged the court to dismiss the petition on the ground that the petitioner does not appear serious in prosecuting the matter.  They stated that they were not even served with the application to withdraw the petition.

5. I have considered whether I should now dismiss this petition and I am convinced that I have inherent jurisdiction to do so if the circumstances justify.  An election petition is time limited and hence parties must be prepared to proceed when the matter is fixed for hearing.  In this case, since the petitioner denied that she wished to withdraw the matter, I directed that she should avail her advocate and be ready to proceed today.  As neither her nor her advocate is present, the only cause available is for me to dismiss the petition.

6. I also award costs of the petition to the respondents. Given that the matter did not take off, I award the 1st and 2nd respondents Kshs 150,000/= all inclusive costs and the 3rd respondent Kshs 150,000/= all inclusive costs.  These sums shall be paid out of the security deposit held in court.

7. Orders accordingly.

DATED andDELIVERED at KISUMUthis 2ndday of November 2017.

D.S. MAJANJA

JUDGE