Joel Makori Onsando,Francis Mochoge Omao & Justry P. Lumumba Nyaberi v Independent Electoral and Boundaries Commission,Robert Isaac Sidney Namulungu,James Elvis Omariba Ongwae,Joash Arthur Maangi Gongera & Naftal Obwocha Orina [2017] KEHC 9643 (KLR)

REPUBLIC OF KENYA

IN THE HIGH CORUT OF KENYA AT KISII

ELECTION PETITION NO.3 OF 2017

(CONSOLIDATED WITH ELECTION PETITION NO.7 OF 2017)

IN THE MATTER OF ELECTIONS ACT, NO.24 OF 2011, LAWS OF KENYA

AND

THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017

AND

IN THE MATTER OF GUBERNATORIAL ELECTIONS FOR KISII COUNTY, COUNTY NO.045 HELD ON 8TH AUGUST, 2017

JOEL MAKORI ONSANDO …………..…………….1ST PETITIONER

FRANCIS MOCHOGE OMAO …………….………..2ND PETITIONER

JUSTRY P. LUMUMBA NYABERI …………………3RD PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

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

ROBERT ISAAC SIDNEY NAMULUNGU …….....2ND RESPONDENT

JAMES ELVIS OMARIBA ONGWAE …………...3RD RESPONDENT

JOASH ARTHUR MAANGI GONGERA………….4TH RESPONDENT

NAFTAL OBWOCHA ORINA…………………......5TH RESPONDENT

RULING

1. The petition No.7 of 2017 had been filed by JUSTRY P. LUMUMBA NYABERI who was a candidate for the Kisii County gubernatorial seat in the 8th August 2017 elections challenging the election of JAMES ELVIS OMARIBA ONGWAE as governor.

He had named the following as respondents:-

INDEPENDENT ELECTORAL AND BOUNDARIES COMISSION (IEBC)

ROBERT ISAAC SYDNEY

JAMES ELVIS OMARIBA ONGWAE

2. Since there was another election petition No.3 of 2017 filed by two voters, challenging the gubernatorial election for Kisii County, this court directed that the petitions be consolidated and heard simultaneously.  JUSTRY P. LUMUMBA NYABERI became the 3rd Petitioner in the consolidated petition – the lead/control file being EP NO.3 OF 2017.

3. On the date set for hearing the petition, the 3rd petitioner informed this court that he did not wish to proceed with his petition and had even published a notice of withdrawal as required in the local dialies.

4. The matter for hearing of the withdrawal was set for 29th November 2017, but the 3rd Petitioner expressed a wish not to participate in the proceedings, which begun on the aforementioned date with the evidence of 1st petitioner and his witnesses.  The 3rd petitioner’s presence was dispensed with.  Both the 3rd petitioner and his counsel left the court room.  The matter proceeded with 1st and 2nd petitioner’s case – the intention was that since the 3rd petitioner’s case was in any event to proceed on 29th November 2017 then in the event that another party wished to be substituted, then no prejudice would be occasioned to the 3rd petitioner’s substitute.

5. However in the course of the proceedings, the 1st and 2nd petitioner abruptly closed their case, and the court allowed 1st and 2nd respondents to begin their case on 27th November 2017.

6. On 29th November 2017 when the 3rd petitioner appeared and the court plus all parties present in the petition, as well as proposed substitutes to the intended withdrawing petitioner expected the application for withdrawal to proceed – the 3rd petitioner indicated a change of heart and expressed a desire to proceed with prosecuting his petition.

7. It was at this point that Senior Counsel MR. OKONGO OMOGENI raised a preliminary objection on a point of law regarding this court’s jurisdiction to hear and entertain the 3rd petitioner on grounds that :-

INCOMPETENT PETITION

8. Counsel submitted the petition as drawn and presented is incompetent and in breach of the Elections Act and therefore a nullity and ought to be struck off as being incurably defective.

9. MR. OMOGENI drew to the court’s attention to the format and content of the petition, pointing out that although at the heading the respondents are named as INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC), ISSAC SYDNEY NAMULUNGU, JAMES ELVIS OMARIBA ONGWAE, the complaint on the body of the petition is against two individuals who are not parties in the petition; and not the 3rd respondent.

10. He stated that the circumstances leading to the petition are found in prayer (c) of the petition – which is a complaint against CHARLES BIRUNDU who purportedly convened a prayer meeting at the home of the petitioner who was running against him on a WIPER party.

Further at prayer (d) of the petition it is averred that the 3rd Respondent LABAN CHWEYA (that is not JAMES ELVIS OMARIBA ONGWAE) together with CHARLES BIRUNDU are the culprits.

11. Counsel points to the contents of page 11 of the petition under particulars of malice and bad faith where the petitioner refers to a statement by the 5th respondent yet his petition had no 5th Respondent.  The reference to the unknown 5th respondent goes on upto page 12 of the petition.

Then at page 13, the complaint is against ROYAL MEDIA SERVICES and STANDARD GROUP on grounds that they abetted the offences committed by the 3rd respondent (LABAN CHWEYA).

12. The complaint against ROYAL MEDIA SERVICES goes on to the issues of unduly influencing the results.  At page 17 the petitioner refers to breach of Electoral Code during campaigns, and again the complaint is against LABAN CHWEYA and CHARLES BIRUNDU.

Counsel submits that the intention is clear and leaves no doubt as to the nature of the complaint and who is targeted.

13. MR. OMOGENI also referred to page 19 the top paragraph wherein again reference is made to offending conduct by LABAN CHWEYA and CHARLES BIRUNDU who are not parties to the petition and who infact belong to the WIPER PARTY and argues that this court has no business dealing with such complaint since the petitioner does not mention JAMES ELVIS OMARIBA ONGWAE, then the only reasonable inference to draw is that the prayer are being sought against LABAN CHWEYA and CHARLES BIRUNDU whom he named as the 3rd Respondent.

14. It is submitted that the petition breaches all known rules on presentation of Election Petitions and there is no way life can be breathed into it as it is incurably defective and is dead ab initio.

15. Counsel points out that the same mistakes are repeated in the supporting affidavit sworn by the petitioner.  Counsel urged the court to be guided by the decision in Election Petition No.6 of 2017 – HON. MARTHA WANGARI KARUA and ANOTHER –VS- IEBC and 3 OTHERSsaying that although the facts are not strikingly similar, the court was confronted with an issue where the petitioner had not presented any substantial material in the petition and the court held that there was no prima facie case with determinable issues showing any probable case against the 3rd petitioner, and the court struck out the petition suo moto for lack of substance and form.  MR. OMOGENI argued that there is no basis for going to trial with the petition in its defective form.

16. For good measure MR. OMOGENI cautioned that Article 159(2) (d) of the Constitution of Kenya would not come to the petitioner’s aid because to invoke that provision on basis of disregarding procedural technicalities, the court will be giving cover to a petition which has anarchical defect and is a waste of judicial time.  Further that the petitioner has demonstrated a total disrespect for Rules which govern election petitions.

17. On this limb MR. SONYE on behalf of the 3rd petitioner conceded that there was an error in the body of the petition where the 3rd petitioner is referred to as LABAN CHWEYA, but explained that it was a typing error and urged the court to allow him to amend all the paragraphs which had that improper reference although he only wishes to replace the name LABAN CHWEYA with JAMES ELVIS OMARIBA ONGWAE and leave CHARLES BIRUNDU’s name in all these paragraphs.

18. The election petition and responses thereto constitute the main pleadings in election disputes resolution.  The objective of these pleadings is to give the adversary a fair notice of the case against them; and indeed parties are bound by their pleadings.  This is a rule on pleadings and not special to electoral disputes to the effect that a party cannot adduce evidence or adopt a line of defence which has not been set out in the pleadings.

19. In the case of BENJAMIN OGUNYA ANDAMA –VS- BENJAMIN ANDOLA ANDAYIand2 OTHERS (KAKAMEGA ELECTION PETITION NO.2 OF 2013, it was pointed out that an election court will not permit a petitioner to pronounce complaints which are not set out in the election petition, unless a request for amendment is made and allowed by the court.

20. The rationale behind this requirement is obvious – because the pleadings have a bearing on the evidence to be presented, and the reliefs sought must flow from these pleadings.  The response to these will likewise flow from the pleadings in the petition, and eventually have a bearing on the scope of the judgment by the court.  Certainly a court cannot base its decision on presumption and second-guessing the intentions of a litigant.

21. Election Petitions are required to conform to specific details as set out under Rule 8of the Elections (Parliamentary and County Elections Rules 2017).

Are the defects pointed out by MR. OMOGENI of such technical nature that to entertain them would result in not delivering substantive justice?

22. I am aware of views expressed by several courts that the provisions in Rule 8 (formerly Rule 10), are not mere technical requirements but are procedural details which spell out the form and content of the intended petitions, but are also substantive as they go to the root and substance of the issues and matters being contested.

23. I hold the view that each procedural requirement under Rule 8has a different role, and there are certain procedural lapses which may not necessarily go to the substance of the dispute, that to pay strict fidelity to them would result in deferring to procedural justice in preference to substantive justice.  See KISII ELECTION PETITION NO.8 OF 2017 – THOMAS MATWETWE NYAMACHE –VS- IEBC AND 2 OTHERS.

24. I have keenly considered whether these lapses (and they are multiple) can be salvaged under Article 159 (2) (d)of theConstitution.  I need not repeat in detail lapses – but certainly JUSTRY P. LUMUMBA NYABERI’s petition names individuals who are not mentioned as parties to the petition, and remain strangers.  It then goes further not just one slip but multiple times referring to LABAN CHWEYA as the 3rd respondent, not just in the petition but also in the petitioner’s affidavit.

25. The phrase procedural technicality was defined in the case ofJAMES MANGELI MUSOO –VS- EZEETEC LIMITED [2014] eKLR as:-

“A technicality, to me is a provision of law or procedure that inhibits or limits the direction of pleadings, proceedings and even decision in court matters.  Undue regard to technicalities therefore means that the court should deal and direct itself without undue consideration of any laws, rules and procedures that are technical and/or procedural in nature.”

26. Introducing strangers to a petition and having a litany of complaints against them while referring to one of them as the 3rd respondent cannot be a procedural technicality.

27. Making references to incidences attributed to those strangers, then turning around to say “I meant JAMES ELVIS OMARIBA ONGWAE” cannot be technical.  On the basis of the complaint raised in the various paragraphs of the petition and the affidavit by the petition, the respondents crafted their responses and prepared their defences in line with exactly what was raised – simply 3rd respondent only needs to say “it wasn’t me” – because he was not mentioned in the grievances.  That is a factual substantive lapse, which goes to the root of the petition and to ignore it and wish it away as a mere procedural technicality would be making a mockery of legal sensibilities in an electoral dispute even if the court was to use its inquisitorial jurisdiction.

Indeed this situation is easily distinguishable from the observations made in KISII ELECTION PETITION NO.8 OF 2017 (supra).

28. The intention is clear as to who the complaint is against and to go on with the petition in its present form would be a waste of time.

Is there room for amendment?

Section 76 (4) of the Elections Act 2011 provides that:-

“A petition filed in time, may for the purpose of questioning a return or an action upon or allegations of an offence, be amended with leave of the election court within the time which the petition questioning the return or the election upon that ground may be presented.”

29. The court may also allow amendments to correct inadvertent errors and omissions at any stage of the proceedings if the amendment will not occasion prejudice to any party and change the character of the petition – [See RAMADHAN SEIF KAJEMBE –VS- RETURNING OFFICER JUMVU CONSTITUENCY AND 3 OTHERS (MOMBASA) ELECTION PETITION NO.10 OF 2013. ]

30. In the instant case, the amendment sought to change the names in each impugned paragraph will definitely change the entire character of the petition and cause prejudice to the respondents; and would require significant amendment of the responses.

31. I am persuaded that to allow an amendment would be unfair and unjust to the respondents.  Further that to give a blanket cover by invoking Article 159 (2) (d) of the Constitution when the procedural omission impacts on the just determination of the dispute would be entertaining incompetent pleadings.

32. I concur and reiterate the views expressed by the Supreme Court in MOSES MWICIGI AND 14 OTHERS –VS- IEBC AND 4 OTHERS, that Article 159 (2) (d) is not a panacea for all situations as to warrant a litigant’s indiscretion and does not offer succour to the threatened life of the petition.   I decline to intervene on the strength of the Constitutional provision.

Complaints can be adjudicated before different tribunals.

33. MR. OMOGENI also argued that the nature of some of the complaints raised by the petitioner did not fall within the strict menu of an election court.  He submitted that where the Constitution provides a very clear mechanism for adjudication of disputes, then the court has no discretion to entertain such a matter.  He pointed out that the complaint by the petitioner revolved around:-

a) A breach of the Electoral Code of conduct by one LABAN CHWEYA and CHARLES BIRUNDU because they issued press statements yet they were members of the petitioner’s political party namely WIPER.

b) Breach of Media Code of Conduct by ROYAL MEDIA SERVICES, STANDARD GROUP LIMITED and EGESA FM station.

c) Claim for damages because of the breaches.

34. It was submitted that there are three different fora which can adjudicate on these aforementioned issue, because under Article 88 (4) (e) of the Constitution of Kenya, the IEBC has been given the mandate to deal with settlement of disputes before elections.  Counsel pointed out that the petitioner’s complaint regarding enforcement of a code of conduct by candidates’ falls within the mandate of IEBC, and Parliamentenacted.  Section 74 of the Elections Act in fulfillment of the Constitution regarding Settlement of Election Disputes.

35. Further under Rules on Procedures of Settlements of Disputes 2012, a dispute is defined as a complaint relating to any claim in the electoral process and includes objection to nomination of candidates.  Rule 4 (c) refers to violation of the Code of Electoral Conduct, while Rule 8 provides procedures on how a complaint is initiated.  So if the complaint was on breach of electoral code of conduct, the Constitution and Statutes give a clear mechanism on where to lodge such a complaint, which would take such a dispute out of the court’s jurisdiction.

36. Secondly the complaints against the media have nothing to do with an electoral court because breach of the Code of Media Conduct is governed by the Media Council Act No.36 of 2013, and Section 27 establishes a complaints commission whilst Section 32 gives powers to the commission to receive complaints and make investigations on complaints against journalists and media enterprises.

37. The Act also provides for mechanism for lodging complaints by aggrieved persons at Section 34 - so all the complaints against the media is before the wrong forum and is an abuse of the court process.

38. Counsel urged this court to be guided by the decision in ELECTION PETITION NO.6 OF 2017 – MARTHA WANGARE KARUA & ANOTHER(supra) which held that where there exists sufficient and adequate mechanism to deal with specific issues, those fora must first be exhausted.

39. This was also stated in CONSTITUTION PETITION NO.85 OF 2016 – JENNIFER SHAMALLA –VS- LSK & 10 OTHERS, to boost the argument that the petitioner has a forum through which his grievances can be addressed in a constitutional manner.

40. To this MR. RIOGORO on behalf of the 1st and 2nd respondent argued that as concerns the breach of the code – the incident alleged occurred on 6th August, two days before the elections, but the matter was brought to the attention of the 1st and 2nd respondent only at the wee hours of 10th August 2017 after the election results had been received and the Returning Officer could not interfere with the outcome, so the matter would fall within the court’s jurisdiction.

41. In response MR. SONYE argued that the acts complained about occurred during the election period and so fell within this court’s jurisdiction and that paragraph 15 in Election Petition No.1 of 2015 – Moses Mwicigi and 14 others (supra).

42. The 3rd petitioner in this petition indeed referred to breaches revolving around the areas mentioned by MR. OMOGENI– from page 9 – page 12, the complaint is really about how the 5th respondent (who is not named in his petition) made statements at a press conference suggesting that WIPER party was unequivocally supporting the re-election of the out-going governor JAMES ELVIS ONGWAE, without consulting WIPER party Head Office.

43. Even if it was to be inferred that the reference to the 5th respondent was LABAN CHWEYA, then just apart from not being a party to the petition, he is mentioned as a WIPERspokesman at paragraph (1) of page 9 – that could mean that whatever complaint existed was against the 3rd petitioner as a candidate of WIPER Party and his fellow party members.

44. The legal framework in electoral disputes is characterized by hierarchy of institutions – each having a specific jurisdiction and role.  Where a member of a political party is aggrieved by events involving a fellow party member or the party, then the first port of call is the Internal Dispute Resolution Mechanism provided for under paragraph 23 of the Second Schedule of the Political Parties Act which requires inter alia that a political party’s constitution must contain:-

“Internal party dispute resolution mechanism in accordance with Article 47 and 50 of the Constitution.”

Further Section 40 (2) states that the Political Parties Tribunal “should not hear or determine a dispute …. Unless the dispute has been heard and determined by the internal political party dispute resolution mechanism.”

45. Once this avenue is exhausted, then parties can move to the Political Parties Tribunal which has jurisdiction under Section 40to determine inter alia|:-

a) Disputes between members of a political party;

b) Disputes between a member of a political party anda political party.

46. The 3rd petitioner did not even deign to access the forum available to resolve his concerns which took place before polling day.  Certainly elections are a cycle not an event – but within the cycle there are events marking the progress of the cycle, and structures designed to deal with those events.

47. There is also the complaint regarding violation of the election code of conduct during the campaign period.

48. Article 88 (e) of the Constitutionprovides:-

“The Commission is responsible for …….the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.”

49. This is reflected under Section 74 of the Elections Actwhich provides that the IEBC is responsible for settlement of electoral disputes excluding election disputes and disputes subsequent to declaration of election results.

The 3rd petitioner has not demonstrated that he made use of the available forum.

50. There is the complaint against the Media under particulars of influencing the outcome of the election.  The petitioner’s grievance is that the named media structures covered unauthorized statements by LABAN CHWEYA and CHARLES BIRUNDU 12 hours before the elections commenced yet this was a violation of the election code of conduct.

51. Further that the media abetted violations by LABAN CHWEYAand CHARLES BIRUNDU by allowing broadcasts after the window for campaigning had closed.

52. The Media Council Act provides mechanisms for addressing the issues raised.  The Media Council Act provides as follows:-

“27 (1) There is established a Complaints Commission which shall consist of seven members appointed in accordance withthis section.

32. The Commission shall have all the powers incidental to andnecessary for the effective discharge of its functions under thisAct and any other written law and shall –

(a) establish and maintain an internal mechanism for theresolution of disputes;

(b) prescribe procedures for determination of disputes relatingto the media;

(c) receive, investigate and deal with complaints made againstjournalists and media enterprises;

(d) summon and receive information of evidence relating to any matter.

34. (1) A person aggrieved by –(a) any publication by or conduct of a journalist or mediaenterprise in relation to this Act; or

(b) anything done against a journalist or media enterprisethat limits or interferes with the constitutional freedomof expression of such journalist or media enterprise,may make a written complaint to the ComplaintsCommission setting out the grounds for the complaint,nature of the injury or damage suffered and the remedysought.

(2) A complaint under section 31 may be made –(a) orally, either in person or by any form of electroniccommunication; or

(b) in writing, given to the Registrar of the ComplaintsCommission setting out the grounds for the complaint,nature of the injury or damage suffered and the remedysought.

(3) Where complaints are oral, the Commission may require themto be reduced in writing within seven days, unless it is satisfiedthere are good reasons for not doing so.”

53. I have no doubt that the complaint against Royal Media Service, Standard Group and Egesa FM station are before the wrong forum.  Further the 3rd petitioner has not shown that he has presented his grievances to the Media Complaints Commission and been rejected or ignored as to warrant him bringing the same to court, let alone an election court.

NOT NAMING DEPUTY GOVERNOR

54. The 3rd petitioner did not name Deputy Governor of Kisii County as a respondent in the petition and this omission is described as fatal to the petition and also breaches Article 50of the Constitution which deals with the right to a fair trial.

55. Counsel argues that Article 180 of the Constitutiondoes not separate the issue of election of County Governor and Deputy Governor.  He points out that underArticle 180 (5)of theConstitution of Kenya, in each election, a candidate for County Governor nominates his deputy as a candidate.  He submits that this envisages that other than just electing a governor, there shall also be elected a deputy Governor and there is never a separate election for the Deputy Governor.  It is further argued that if a County Governor ceases to hold office, the Deputy Governor automatically ascends into the office – so to entertain a petition which does not name the Deputy Governor, means were the court to continue hearing the petition, then it cannot make any orders nullifying election of the Deputy Governor – yet such a scenario would create a constitutional crisis.

56. He urged the court to be guided by the decision in Mwicigi and 14 others (supra), saying the circumstances were that of a party list and it was held that once a Deputy Governor is nominated in an election, he steps into the shoes of a candidature in the election.

He also explained that IEBC does not conduct a separate election for the Deputy Governor and there is no doubt that a Deputy Governor is elected in an election – so the Governor’s election and that of the Deputy cannot be separated.

57. MR. WANYAMA (Assisting counsel to MR. OMOGENI) added that Article 179 (5) of theConstitution acknowledges the position of Deputy Governor as a chief executive who is elected by the people and not just a mere nominee of the Governor.

He pointed out that the Deputy Governor is required to meet certain qualifications and be cleared by the IEBC in an election for governor.  Further the IEBC when printing ballot papers places the names of both the Governor and his deputy on the ballot paper, and the people do not make separate decisions.

58. MR. WANYAMA urged the court to consider that apart from the joint decision in electing the governor and deputy governor, the Deputy Governor cannot be removed at whim – once he assumes office – much in the same way that he cannot ascend office without an election.  This is because he has already been elected by the people and his removal cannot be achieved by an automatic removal of the Governor, precisely because once the Governor is removed from office, the Deputy automatically takes over.  The same arguments were adopted by MR. RIOGORO.

59. MR. SONYE made no reply to this limb.

60. In strict sense Article 180 (1)provides that it is the County Governor who is directly elected by voters during the general election.  The deputy is nominated under Article 180 (5) to be a candidate for the deputy governor at the election.  It is constructive participation, Article 180 (6|) is emphatic that:-

“The Independent Electoral and Boundaries Commission shall not conduct a separate election for the deputy governor ….”

61. I would be hesitant to regard the position of Deputy as merely a collateral which must collapse when the chips for the governor are down.

I say this because under Article 182 (2)of the Constitution when “a vacancy occurs in the office of County Governor, the Deputy County Governor shall assume office as county governor for the remainder of the term of the county governor.”

62. Therefore to condemn the deputy governor unheard, and expect him to vacate office in the event of a county governor losing his position – whether as a result of a successful election petition or any of the events listed under Article 182 (1) of the Constitution, would be defeating the Constitutional provisions and indeed violating a party’s right to a hearing under Article 50 of the Constitution of Kenya.  It is imperative that a person who is likely to be adversely affected by a decision be heard.

63. I am aware of the views expressed by Ongudi J in the case of KITHINJI KARANJA–VS- MARTIN NYAGA WAMBORA AND 2 OTHERS [2013] eKLR that:-

“If the election is challenged and the Governor is found to have been unlawfully elected, then it means he/she has to vacate office alongside his/her deputy.  The Deputy Governor could not therefore be enjoined as a party as his nomination is not in question.”

64. This approach was also adopted by Achode J in MOMBASA PETITION NO.10 OF 2017 – HASSAN OMAR HASSAN –VS- IEBC AND OTHERS that:-

“…. In the event an election petition against a County Governor results in a nullification of the results, the Deputy Governor no matter how compelling a case he/she may put forward, suffers the same fate as the Governor by dint of having assumed office through the same irregularly declared ticket.”

65. I respect the views expressed by the two judges but do not agree with them in light of Article 182 (2) of the Constitution.  I am persuaded, as was Thande J in ELECTION PETITION NO.5 OF 2017 – MWAMLOLE TCHAPPU MBWANA –VS- IEBC AND 4 OTHERS, that the deputy governor is a necessary party in an election petition seeking to nullify elections of the governor and the non joinder results in a fatal defeat.

PRAYER FOR DAMAGES

66. The petitioner also seeks damages for:-

Loss of campaign funds;

Loss of money paid to agents;

Loss of money used in organizing campaign rallies.

67. MR. OMOGENI submits that common law and principles of equity must remain strangers to election disputes and an election court cannot address issues regarding damages suffered by the petitioner.

68. The petitioner’s counsel did not address this issue.

69. In the case of IYOYI BASWI & OTHERS –VS- DEBI BHOSAI & OTHERS AIR 1982 SCthe Supreme Court held that:-

“….. An election petition is not an action at common law nor in equity.  It is a statutory proceeding to which neither the common law nor the principles of Equity apply but only those rules which the statute makes and applies…. A court has no right to resort to them …”

70. I need not say more – in my view these prayers are misplaced and cannot hold in an election petition.

71. The upshot is that there are a myriad of defects to the extent that an amendment, or invoking Article 159 (2) (d) of the Constitutiondoes not offer a cure.  What emerges is a display and exhibition of scant respect for rules by the 3rd petitioner and he is not deserving of any indulgence.

72. Consequently the preliminary objection raised has merit and is upheld.  The petition filed byJUSTRY P. LUMUMBA NYABERIis defectiveab initioand must be dislodged from these proceedings by striking it out with costs of not exceeding Kshs.500,000/= to all the respondents.

Delivered and dated this 6th day of December, 2017 at Kisii.

H.A. OMONDI

JUDGE