Lorna Chemutai,Evans Kurgat,Teresa Chepkemei,Erick Kipyegon Koech & Everline Chemutai v Independent Elections & Boundaries Commission,National Executive Comittee Jubilee Party of Kenya & Winny Chekoech Langat & 17 others [2018] KEHC 6538 (KLR) | Election Appeals Timelines | Esheria

Lorna Chemutai,Evans Kurgat,Teresa Chepkemei,Erick Kipyegon Koech & Everline Chemutai v Independent Elections & Boundaries Commission,National Executive Comittee Jubilee Party of Kenya & Winny Chekoech Langat & 17 others [2018] KEHC 6538 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

ELECTION PETITION APPEAL NO.1 OF 2018

LORNA CHEMUTAI................................................1ST APPELLANT

EVANS KURGAT.....................................................2ND APPELLANT

TERESA CHEPKEMEI..........................................3RD APPELLANT

ERICK KIPYEGON KOECH.................................4TH APPELLANT

EVERLINE CHEMUTAI........................................5TH APPELLANT

VERSUS

THE INDEPENDENT ELECTIONS

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

THE NATIONAL EXECUTIVE COMITTEE JUBILEE

PARTY OF KENYA.............................................2ND RESPONDENT

AND

WINNY CHEKOECH

LANGAT & 17 OTHERS............................INTERESTED PARTIES

(Being an Appeal from the Judgment of the Hon. B.R Kipyegon)-Senior Resident Magistrate

delivered in Kericho Election Petition No. 2 of 2017 consolidatedwith

Petition No. 3 of 2017 on 9th February 2018)

RULING

1.   The appellants in this matter were the petitioners before the lower court.  They had filed their petition challenging the party lists submitted by the 2nd respondent to the 1st respondent which were contained in the Gazette Notice dated 28th August 2017. Their contention before the court was that the nomination of the interested parties was in breach of Articles 177 of the Constitution as well as sections 34, 35, 36 and 37 of the Elections Act, as well as Regulations 54 and 55 thereof.  They contended that the said lists did not include persons with disabilities or marginalized groups, and that the 1st respondent had failed to supervise the nominations as required under the law.

2.   In his decision dated 9th February 2018, Hon. B.R. Kipyegon dismissed the appellants’ petition. He held that their petition was an afterthought as the petitioners should have raised their complaints earlier with their own political party or in the IEBC Disputes Resolution Tribunal.

3.  The appellants were aggrieved by the decision of the trial court and they filed their Memorandum of Appeal dated 5th March 2018.  The affidavit of service sworn by one Antony Mukuha on 12th March 2018 indicates that the Memorandum of Appeal was served on the respondents and the interested parties on 12th March 2018.

4. Thereafter, the appellants filed their Record of Appeal dated 29th March 2018 and filed on the same date. From the affidavit of service sworn by the said Antony Mukuha on 30th April 2018, the Record of Appeal was served upon the respondents and the interested parties on 19th April 2018.

5.  The matter came up for directions before me on 2nd May 2018. The 2nd respondent filed a Notice of Preliminary Objection dated 24th April 2018 in which it argued that the appeal before this court is incompetent, bad in law and improperly before the court. This was on the basis that:

(a)It has been filed out of time contrary to Rule 35 (3) of the Elections (Parliamentary & County Elections) Petition Rules, 2017.

(b)The Appeal has been filed without payment of the required deposit of security under Rule 35(4) of the Elections (Parliamentary & County Elections) Petition Rules, 2017.

(c)The Record of Appeal has been filed and served out of time against Rule 35(5) of the Elections (Parliamentary & County Elections) Petition Rules, 2017.

6. Pursuant to the directions of this court issued on 2nd May 2018, the 1st respondent filed its grounds in support of the Preliminary Objection filed by the 2nd respondent dated 8th May 2018. The 1st  respondent relies on the following points of law, grounds and facts:-

(1)The appeal does not conform to Rule 34 (6) of the Elections (Parliamentary & County Elections) Petition Rules 2017 as :-

a.The record of appeal served on the 2nd Respondent was filed outside the mandatory 21 days of filing the memorandum of appeal. The record of appeal and memorandum of appeal were filed on 29th March 2018 and 5th March 2018 respectively.

b.The record of appeal as served upon the 2nd Respondents does not contain the mandatory certified copy of the decree as provided under Rule 34 (6) e of the Elections (Parliamentary & County Elections) Petition Rules 2017.

c.The appellants have purported to introduce evidence in their submissions filed on 4th May 2018 in contravention of Rule 34 (6) (d) of the Elections (Parliamentary & County Elections) Petition Rules 2017, the laws of evidence and established legal principles.

(2)The 2nd Respondent did not receive any notice of a date fixed before the court for directions and hearing within 30 days of lodging the memorandum of appeal as mandatorily provided by Rule 34 (9) of the Elections (Parliamentary & County Elections) Petition Rules 2017. Be that as it may, the purported mention notice dated 18th April 2018 served upon the 1st Respondent was issued outside the mandatory time frame and so is the purported mention held on 2nd May 2018.

(3)The appeal contravenes the provisions of section 75 (4) of the Elections Act 2011 as the grounds in the memorandum of appeal transcends beyond issues of law only by raising issues of facts and challenging the trial magistrate’s exercise of jurisdiction.

7.  I directed the parties to file submissions on the Preliminary Objection, and the submissions were highlighted on 10th May 2018.

8.   The 2nd respondent and the 1st to 17th Interested parties filed submissions dated 4th  May 2018.  They rely on Rule 35 (3) of the Elections (Parliamentary and County Elections) Petition Rules 2017 (the “Rules”) which provides that a Memorandum of Appeal shall be filed at the nearest High Court registry within 14 days from the date of judgment. However, in the course of submissions, they abandoned their objection to the appeal on the basis that the appellants had not met the timelines for filing of the Memorandum of Appeal. Mr. Sigei conceded that the Memorandum of Appeal was filed within the statutory timelines.

9.  The core objection to the appeal is that the Record of Appeal was filed outside the timelines provided in Rule 34(6) of the Rules. Mr. Sigei’s submission was that the Rules are couched in mandatory terms and therefore non-compliance is fatal. As this is an election petition, the timelines are the very core of the Petition.  He relied in this regard on the decision in Lemanken Aramat vs Harun Meitamei Lempaka & 2 Others [2014] eKLR; SC Petition No. 5 of 2014.

10.  Counsel noted that the record of appeal was filed 13 days out of time as it was required to be filed by 16th March 2018. The 2nd respondent and the interested parties relied on Nicholas Kiptoo Salat vs IEBC [2014] eKLR to argue that the late filing of the Record of Appeal makes the Appeal incompetent, and it should be struck out.

11.  The 2nd respondent and the interested parties further challenge the competency of the appeal on the basis that the appellants had not deposited security for costs as required under Rule 35 (4) of the Rules. Their contention was that payment of security is not a mere procedural requirement but goes to the root of the case.  There was no proof of payment presented to the court by the appellants, and they relied on Esposito Franco vs Amason Jeffah Kingi & 2 Others – Court of Appeal at Nairobi Civil Appeal No. 248 of 2008 [2010] eKLR.

12.  Finally, the appeal was challenged on the basis that the record of appeal is not complete as required under Rule 34(6) as it does not contain a certified copy of the decree. Mr. Sigei argued that the said  rule is couched in mandatory terms and the decree should form part of the record. To support his argument on this point, he relied on Ndegwa Kamau t/a Sideview Garage vs Fredrick Isika Kalumbo [2016] eKLRas well as Bwana Mohamed Bwana vs Silvano Buko Bonaya & 2 Others [2014] eKLR.

13.  It was Mr. Sigei’s submission that in an election petition, time is not a technical issue as envisaged under Article 159.  He prayed that the record of appeal be struck out with costs to the 2nd respondent and the interested parties.

14. The 1st respondent supported the preliminary objection by the 2nd respondent and the interested parties. Its Learned Counsel, Mr. Osoro, submitted that he fully associated himself with the submissions made on behalf of the 2nd respondent and the interested Parties.

15. In response, the appellants filed submissions dated 3rd May 2018.  They argue that the respondents had quoted the wrong provisions of law in their P.O in order to mislead the court, noting that the correct rule is Rule 34 and not Rule 35 as cited in the preliminary objection.

16.  On the substance of the preliminary objection, Counsel for the appellants, Mr. Kemboi, submitted that the Memorandum of Appeal was filed within the 30 days envisioned under Rule 34 (3) of the Rules. His submission was that it was filed within 7 days as provided under Rule 34 (5) and served on the respondents on 12th March 2018. The appellants had therefore complied fully with Rule 34 (3) and (5) of the Rules.

17.  With regard to the Record of Appeal, Mr. Kemboi argued that it had been filed on 29th March 2018.  The Memorandum of Appeal had been filed on 5th March 2018. His submission was that Rule 34 (6) requires that the Record of Appeal should be filed within 21 days of filing the Memorandum of Appeal. In his view, this meant that the Record of Appeal was to be filed by 2nd April 2018. Further, that section 2 of the Act does not include a definition for a day, and if the court were to consider only weekdays, then the appellants will be within time.

18.  It was his submission, further, that the Record of Appeal was filed within time and therefore there was no need for the appellants to seek an extension of time.  The appellants had complied with the timelines despite the distance, and he urged the court to be guided by Article 159 of the Constitution.

19.  With respect to the decree, Mr. Kemboi conceded that it had not been included in the Record of Appeal. He relied on the case of Okunyo vs Were & 4 Others [2004] eKLR to submit that the appellants must not be punished for the mistakes of counsel. He further submitted that he would be seeking the leave of the court to file a Supplementary Record of Appeal to include the decree which he has now extracted.

20.  As for the deposit of the security for costs, Mr. Kemboi submitted that the appellants had deposited Kshs. 100,000/- each in the Petition before the Magistrates court.  This amount had not been withdrawn, and the court should direct that it be used in this appeal. It was his argument therefore that the appellants have complied with Rule 34 (4) of the Rules, and he urged the court to dismiss the preliminary objection.

21.  In his submissions in reply, Mr. Sigei argued that a Record of Appeal cannot be amended by filing a supplementary Record of Appeal. He placed reliance for this submission on the Bwana Mohamedcase (supra).

22.  With regard to the time for filing the Record of Appeal, his argument was that this should have been done within 21 days of the 5th of March that is by 26th March 2018. In his view, the only instance in which a party can be permitted to exclude public holidays is when a party has been given 6 days under Article 259 of the Constitution. He urged the court to disregard the authorities relied upon by the appellants as they do not relate to election petitions which provide for strict timelines.

23.  In his submissions in reply, Mr. Osoro for the 1st respondent observed that the appellants have admitted that they did not include a decree in their Record of Appeal. They had also admitted that they did not file the Record of Appeal within the 21 days statutory time frame. In his view, these admissions rendered their appeal irredeemable.

24.  He argued, further, that the authority relied on by the appellant, which was a 2004 decision which was decided before the Elections Act which governs the instant appeal became operational, was not applicable to the present matter.

Analysis and Determination

25. I have considered the submissions of the parties on the preliminary objection in this matter. I note that the 2nd respondent and the interested parties conceded at the hearing of the preliminary objection that the Memorandum of Appeal had been filed within the time frame stipulated in the Rules. Accordingly, only three issues remain for determination:

i.Whether the Record of Appeal was filed within the required timeframe

ii.Whether the failure to include a Certified Copy of the Decree renders the Petition Incompetent

iii.Whether the failure to deposit Security for Costs renders the appeal incompetent.

Whether the Record of Appeal was filed within the statutory timelines

26.  Rule 34 sub-rule 6 of the rules provides that the appellant shall file a Record of Appeal within 21 days of filing the Memorandum of Appeal. The section provides as follows:-

The appellant shall within 21 days of the filing of the Memorandum of Appeal in accordance with sub-rule 3, file a record of appeal…

27.  The argument by the 2nd respondent and the interested parties is that the Rule was couched in mandatory terms and therefore non-compliance is fatal.  Further, that as this is an election petition, timelines are at the core.  Reliance was placed on Lemanken Aramat vs Harun Meitamei Lempaka & 2 Others (supra).

28.  The question is what recourse the court has when an appellant files the Record of Appeal out of time. Rule 34 (6) of theElection (Parliamentary and County) Petitions Rulesrequires a Record of Appeal to be filed within 21 days. These 21 days refers to calendar days. Computation of time will be done in accordance with section 57 (d) of theInterpretation and General Provisions Act which provides that:

In computing time for the purposes of a written law, unless the contrary intention… appears where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.

29.  Rule 19 of the Election (Parliamentary and County) Petitions Rulesallows the election court to extend time within which anything under the rules may be done in the following terms:

19. (1) Where any act or omission is to be done within such time as may be prescribed in these Rules or ordered by an elections court, the election court may, for the purposes of ensuring that injustice is not done to any party, extend or limit the time within which the act or omission shall be done with such conditions as may be necessary even where the period prescribed or ordered by the court may have expired.

30.  This power is extended to the High Court in exercise of its appellate jurisdiction by Rule 34 (10) which states that:

(10) The High Court to which the appeal is preferred may confirm, vary or reverse in whole or in part, the decision of the court from which the appeal is preferred and shall have the same powers and perform the same duties as are conferred and imposed on the court exercising original jurisdiction.

31.  In the appeal before me, the appellants’ Counsel, Mr. Kemboi, argued that the Record of Appeal was filed in time.  However, as the rules set out above and the provisions of the Interpretation and General Provisions Act show, the Record of Appeal should have been filed within 21 calendar days. However, as the rules also show, the late filing of the Record of Appeal is not fatal, as the court has the discretion, in the interests of justice, to extend time.

32.  I find support for this view in the decision of the Court of Appeal in John Munuve Mati vs Returning Officer Mwingi North Constituency, Independent Electoral & Boundaries Commission & Paul Musyimi Nzengu [2018] eKLRin which the Court considered the issue of strict adherence to timelines with respect to appeals. The Court of Appeal  considered the question whether non-compliance with timelines occasioned any prejudice to any of the parties and stated as follows:

“24. There is no dispute that the appellant did not file and serve the notice of appeal within the period prescribed by the 2017 rules. Decisions of this Court abound where it has been held that the prescribed timelines as regards electoral dispute resolution must be strictly adhered to. (See for example Charles Kamuren vs Grace Jelagat Kipchoim & 2 Others [2015] eKLR). We agree with those decisions particularly given the constitutional and statutory demand for timely resolution of disputes. Nevertheless, the 2017 rules themselves now expressly confer on us discretion to determine the effect of any failure to comply with the rules, taking into account the fact that justice must be administered without undue regard to procedural technicalities, balanced against the need to observe prescribed timelines.”

33.  The court then went on to consider the facts of the case before it then stated:

“25. In this case there is clear noncompliance with the rules, but we have before us the record of appeal and we perceive it is possible to determine the appeal without any further infraction on the set timelines. We have considered the effect of the appellant’s failure to file the notice of appeal within 7 days and to serve the same within the prescribed period. No evidence has been adduced that any party has been prejudiced by non-compliance with the 2017 rules, which we have noted. The three objects of the 2017 rules, namely just, impartial, and expeditious determination of appeals, which we agree must be given equal consideration, do not stand to be compromised if we hear the appeal on merits. We bear in mind that in Raila Amolo Odinga & Another vs Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR) the Supreme Court also declined to strike out documents filed or served out of time Supreme Court (Presidential Election Petition) Rules 2017. ”

34.  I am satisfied in this case that the dictates of justice require the extension of time, and I therefore find that although the Record of Appeal was filed five days out of time, the court has discretion to extend the time for filing the same, which I hereby do exercise, and the Record of Appeal is deemed as duly filed and served.

Whether the failure to include a certified copy of the decree renders the appeal incompetent

35.  The 2nd respondent and the interested parties have argued that the appeal should be struck out as the appellants did not include a primary document, the decree, in the Record of Appeal. This position was supported by the 1st respondent. In response, the appellants concede that they did not include the decree, but argue that they were intending to apply for leave to file a Supplementary Record of Appeal, and failure to include the decree does not render the appeal liable for striking out.

36.  Rule 34 (6) of the Election (Parliamentary and County) Petitions Rulesrequires that the Record of Appeal should contain “a signed and certified copy of the judgment appealed from and a certified copy of the decree.” The question is whether failure to include a certified copy of the decree is fatal to the appeal.  InTwaher Abdulkarim Mohamed vs Mwathethe Adamson Kadenge & 2 others [2015] eKLR (Election Petition Appeal 1 of 2014)Chitembwe J stated that it was not, holding that:

“...an appeal should not be struck out simply because the certified copy of the decree has not been included in the Record of Appeal.  It is always contended that an appeal emanates from the decree and not judgment.  The wording of Rule 34 rule (6) (e) is to the effect that a certified copy of the judgment appealed from has to be included in the Record of Appeal.  In simple terms, under Rule (34), the appeal emanates from the judgment.  Without a judgment, there cannot be a decree.  What is normally attacked in the appeal is the trial court's findings including the evaluation of the evidence and legal findings.  Several grounds have been raised in this appeal relating to the law on scrutiny and the general election law among other issues.  These cannot be found in a decree but can only be traced from the judgment.  The obsession with a decree seems to blind us from seeing the overriding objective of the dispute.  Once the record is, struck out, one can still come back to file another appeal.  Striking out of Records of Appeal due to  lack of decrees only makes litigation expensive for Kenyans.”

36. The court went on to invoke Article 159 of the Constitution and stated as follows:

“I believe Article 159 of the new Constitution relating to administering justice without undue regard to technicalities comes into play.  What is so difficult for the court to ask the appellant to file a Supplementary Record of Appeal and annex the decree.  At times the decree is already in the trial court's file especially where execution proceedings have commenced:  In this case Rule 34 (8) requires all the proceedings before the trial magistrate to be brought to the High Court.  Ordinarily, these documents would include the decree:  why should the court close its eyes and pretend that there is no decree in the lower court record. Having participated in the case, the respondents should be taken to know the outcome of the lower court case and by extension, the contents of the decree.  In any case a decree is always extracted after the parties or their counsels have had the advantage of seeing the draft.”

37.  A contrary view was expressed by  Ngaah J inPaul Kurenyi Leshuel vs Ephantus Kariithi Mwangi & Another [2015] eKLR (Civil Appeal No. 76 of 2013)when he stated:

“The Court of Appeal (Kneller, Hancox JJA & Platt Ag as they then were) in Civil Appeal No. 7 of 1983, Municipal Council of Kitale vs Fedha (1983) eKLR held that failure to include the decree appealed from in the record of appeal rendered the appeal incompetent. The judges went further to state that the omission could not even be cured by including the decree in a supplementary record because, in their view, a supplementary record cannot comprise the documents which ought to have been included in the original record in the first place.

While the judges in the Municipal Council of Kitale case may have had the provisions of the Civil Procedure Act and the Rules made thereunder in mind, the same principle that informed their decision in that case applies with equal force to an appeal against a decision from an election court; the decree appealed from is as relevant and necessary in an appeal arising from an election petition as much as it is in any other appeal arising from (an) ordinary civil suit.”

38.  As for the rationale for insisting on inclusion of the decree, Nyaah, J, went on to state:

“One may ask why so much importance is attached to this document; the answer appears to me to be that an appellate court can only uphold or overturn what has been demonstrated to exist. As far as election petitions are concerned, it must be demonstrated that an order or a declaration has formally been made by the election petition court under section 75 of the Elections Act. And I should think this is the reason why rule 34. (5) is couched in mandatory terms that the record of appeal shall contain the decree appealed from.

Much as this requirement is contained in the rules, it is not, in my humble view, a requirement that can merely be dismissed as a procedural technicality that may be swept under the carpet; the question whether or not there is indeed an appeal which calls for the appellate court to exercise its jurisdiction in that respect goes to the root of the appeal itself for without an appeal, properly so called, any attempt to invoke and exercise that jurisdiction would be in vain.”

39.  In its decision inRichard Ncharpi Leiyagu vs Independent Electoral and Boundaries Commission & 2 Others [2013] eKLR Civil Appeal 18 of 2013, the Court of Appeal pronounced itself on the issue of an incomplete record of appeal  when it stated as follows:

“Whereas we underscore the importance of a party filling a complete Record of Appeal, we are of the view that the respondents too could have filed the documents that were left out; but more importantly the respondents could have applied to strike out the appeal. Raising the issue at the hearing cannot aid the respondents because nowadays pendulums have swung and the courts have shifted towards addressing substantive justice and no longer worship at the altar of technicalities. “

40.  I am inclined to agree with the approach taken by Chitembwe J and the Court of Appeal with respect to an incomplete record of appeal. The 2010 Constitution underscores the importance of substantive justice against observance of procedural technicalities particularly in a case such as is before me where there is non-compliance with a requirement in the Rules for inclusion of a document that is already in the record of the court. Accordingly, it is my finding that failure to include the decree is not a fatal omission. Justice, in my view, lies in granting the appellants time within which to comply with the provisions of rule 34.

Whether the failure to deposit security for costs renders the appeal incompetent.

41.  The final issue for consideration is whether the failure by the appellants to deposit security for costs renders the appeal incompetent and liable to be struck out.

42.  The appellants argue that they had deposited Kshs.100,000 each in their petition before the lower court, and had elected not to withdraw it but to seek an order that it be used as security for the present proceedings.

43.  Learned counsel for the 2nd respondent and the interested parties argued that the appeal is incompetent and should be struck out for failure to deposit security for costs. Mr. Kemboi learned counsel for the appellants sought to make an application to have the monies deposited in the lower court utilised as security in this appeal, maintaining that the failure to deposit security for costs did not render the appeal incompetent.

44.  I have considered the law and judicial precedents with respect to deposit of security for costs with respect to election petitions. In Evans Nyambaso Zekediah & Another vs IEBC and 2 Others Petition No. 10 of 2013 it was stated as follows:-

“...the deposit of security for costs is a substantive issue that goes to the root of the proceedings as non-payment of the same deprives the court of the jurisdiction to deal with the matter any further. I also agree that requirements for security for costs keeps away from the court corridors some busy bodies who file cases in court while knowing that such cases have no chances of succeeding and also while knowing that such cases have no chance of succeeding and also while knowing that they have no intention of paying the costs once they lose their cases...”

45.  Sitati J in the above case considered the holdings in the cases of     Franco Esposito vs Amason Kingi Jeffa & 2 Others vs Civil Appeal (Nairobi) No 248 of 2008; [2010] eKLR, Rotich Samuel Kimutai vs Ezekiel Lenyongopeta & Others [2005] eKLRand Fatuma Zainabu Mohamed vs Ghati Dennittah & 10 Others (unreported)in which it was held that a court is deprived of jurisdiction if security for costs in an election petition was not deposited as it was a mandatory provision.

46.  In the case of Franco Esposito vs Amason Kingi Jeffa & 2 Others, the court emphasised that the requirement to deposit security for costs was to discourage frivolous or vexatious litigants from challenging the results of an election.

47.  In Morris Muindi Mutiso vs Naomi Namsi Shaban & 2 Others [2017] eKLR the court observed as follows:

“55. While courts are called upon to exercise caution and restraint in not denying litigants fair and reasonable opportunity to present their cases, in the same breathe, courts are called upon not to entertain frivolous matters.  As was correctly appreciated by the Petitioner herein, election petitions are not ordinary litigation. They cannot therefore be taken casually. They are a high- stakes game that has the potential of plunging the entire electoral process into disarray. They also have grave implications on the finances of a country. They also cause undue anxiety to respondents who are put on tenterhooks. Such respondents are unable to fully employ their minds to the tasks that have been given to them because election petitions hang over their heads like swords of damocles.”

56. A respondent must therefore be certain very early after the filing of a petition that a petitioner intends to proceed with a petition to the very end. It is therefore imperative that as early as possible and in any event within ten (10) days after the filing of the petition as required by section 78 of the Act, that a petitioner deposits security for costs to signify his or her intention of proceeding with the petition to enable the respondent prepare his or her arsenal to defend himself or herself from the challenging of an election by such a petitioner.”

48.  The court then went on to state as follows:

“61. Again, as the aforesaid decisions were rendered by courts of concurrent jurisdiction as this one and were therefore not binding on it, this court took firm view that deposit of security of costs is a prerequisite for the sustenance of petition. Failure to deposit the security for costs is not a procedural technicality that can be cured by Article 159 (2) (d) of the Constitution of Kenya. Notably, Article 159 (2) (d) of the Constitution of Kenya is not a panacea of all omissions and commissions as some actions are hinged on mandatory and not discretionary provisions of the law.

62. Section 78 (1) of the Act shows that the same is couched in mandatory terms. It does not give a court room to be flexible. The amount to be deposited under Section 78 (2) of the Act is also non-negotiable. In the case of petitions against a member of Parliament or a county governor, the deposit for security is Kshs 500,000/=. A court cannot therefore exercise its discretion to reduce or enhance the said deposit.”

49.  However, in some cases, the courts took the view that time could be extended for depositing of security for costs even in election petitions, reliance for this being placed on Rule 19 of the 2017 Rules which provides that a court may, for the purpose of ensuring that injustice is not done to any person, extend the time within which something is to be done. In the case of Samwel Kazungu Kambi & Another vs Nelly Ilongo County Returning Officer, Kilifi County & 3 Others [2017] eKLR,the court was of the view that as long as cogent reasons were given, a court could exercise its discretion and permit the payment of security for costs. The court stated as follows:-

“My understanding is that an election petition can be revived, with the leave of the court, upon payment of the security deposit so long as the period for hearing the petition has not lapsed.  Nothing would have been easier for Parliament than to use the language used in Section 96 in Section 78 if the intention was to completely take away the discretion of an election court to enlarge time.  I therefore agree with Edward M. Muriithi, J that if sufficient cause is shown, an election court has jurisdiction to extend the time for depositing security for costs in an election petition.”

50.  So much for the issue of deposit of security deposit in election petitions. While the dominant view is that deposit of security for costs under section 78 of the Elections Act is a mandatory provision and failure to comply renders the petition incompetent and liable to be struck out, there is a school of thought that even in election petitions, time for such deposit can be extended.  The question is what the position with respect to appeals in election petitions is.

51.  There appears to be no express provision requiring security for costs with respect to election appeals. The Court of Appeal considered this issue in the case ofLydia Mathia vs Naisula Lesuuda & Another [2013] eKLR and noted that there was no express provision in the Act or Rules for security for costs in election appeals. The court observed as follows:-

“9.  It is indisputable from the wording of section 78 of the Act as a whole and from the definition of a “petition” and “Election Court” in section 2 of the Act as well as from the provisions of the relevant election petitions rules, that the deposit for security for costs is solely confined to election petitions filed in an Election Court.  By Article 93 (1) of the Constitution, Parliament consists of the National Assembly and the Senate.  From the nature of the petition filed by the appellant in the Election Court, it was a petition against the 1st  respondent as a member of Parliament and was by s.78 (2) (b) of the Act required to deposit shs. 500,000/- as security for costs.  The purpose for which the deposit was made was served by the conclusion of the petition.  The submission by Mr. Kanjama that Parliament did not intend that the requirement for deposit should solely apply to election petitions and further that Parliament did not intend a person to prosecute an appeal from the decision of an Election Court without providing sufficient security for costs is not supported by the Act or by any other law.  If such was the intention of Parliament it could have made express provisions in the Act and in the Election Petition Rules and could not have specifically excluded appeals from the operation of the Election Petition Rules.”

52.  The Court of Appeal then went on to observe as follows:

“Moreover, the present application was not made under section 78 of the Elections Act.  To import the provisions of section 78 as a general rule regarding provisions of security for costs in election disputes including appeals to Court of Appeal is tantamount to legislating which is not the function of the Court.  It may well be that Parliament deliberately avoided legislating on deposit for security for costs in the appeals in the Court of Appeal as an election petition is quite distinct from an appeal.  An appeal is confined to matters of law while an election petition involves, in many cases, a mass of factual evidence.  By providing for a relatively large and a mandatory deposit for security of costs the Parliament intended, among other things, to filter out frivolous petitions.

It follows that the law to be applied in this application is not section 78 of the Act but rather, Rule 107(3) of the Court of Appeal Rules.  However, that does not preclude the Court in exercising its discretion under Rule 107(3) to take cognizance of the fact that the appeal arises from an election petition and to give due consideration and weight to that fact.”

52.  A similar issue arose in the case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR. In that case, the court considered the importance of security for costs as far as litigants are concerned and stated as follows:

“The rationale for security for costs is to ensure firstly, that a party is not left without recompense for costs that might be awarded to him in the event that the unsuccessful party is unable to pay the same due to poverty; secondly, it ensures that a litigant who by reason of his financial ability is unable to pay costs of the litigation if he loses, is disabled from carrying on litigation indefinitely except on conditions that offer protection to the other party. In Noor Mohamed Abdulla vs Ranchhodbhal J. Patel & Another (1962) E.A. 448, it was held:-

“The order for security for costs in such a case is not directed towards enforcing payment of the costs as such, but is designed to ensure that a litigant who by reason of near insolvency is unable to pay the costs of the litigation when he loses, is disabled from carrying on the litigation indefinitely except upon terms and conditions which afford some measure of protection to the other parties..”

53.  In my view, and noting the absence of express provisions in the Rules requiring the deposit of security for costs in appeals in election petitions, I believe the court is left with the discretion to balance the competing rights of the parties: the right of a party to seek justice in an appellate process, and the right of a successful party in the court of first instance to be assured that it will receive payment of such costs as may be awarded in the event that the appeal is unsuccessful.

54.  In the present case, the appellants argue that they wanted to utilise the deposit for security for costs in the lower court as security for costs in this appeal. However, noting that they were the unsuccessful party in that case, utilising such deposit would leave the costs of the successful party in that litigation unsecured.  It has not been indicated if, and how much, was awarded in respect of costs in that matter.

55.  Accordingly, while I am of the view that the appeal should not be struck out for failure to make a deposit as security for costs, I believe that the appellants must be required to deposit an appropriate amount in respect of the appeal.

56.  The amount required to be deposited as security for costs in an election petition before the lower court is Kshs.100,000. In my view, the appellants are entitled to prosecute their appeal, subject to their depositing the same amount of Kshs.100,000 as security for costs in this appeal.

57.  Accordingly, my findings and final orders on the notice of preliminary objection by the 2nd respondent and interested party are as follows:

i.I find and hold that although the Record of Appeal was filed five days out of time, the court has the discretion to extend time for filing the same. The same is hereby extended, and the Record of Appeal is deemed as duly filed and served.

ii.I find and hold that failure to include the decree is not a fatal omission and the court has the discretion to extend time for the appellants to comply with the provisions of rule 34.  I therefore direct the appellant to file a Supplementary Record of Appeal to complete the record in accordance with Rule 34 within the next three (3) days from the date hereof.

iii.I find and hold that failure to deposit security for costs of the appeal does not render the appeal incompetent. The appellants are directed to deposit security for costs amounting to Kshs 100,000 within the next seven (7) days from the date hereof.

58.  The upshot of my findings above is that the notice of preliminary objection fails. It is dismissed but with no order as to costs.

Dated Delivered and Signed at Kericho this 31st day of May 2018.

MUMBI NGUGI

JUDGE