Mohamed Dado Hatu v Dhadho Gaddae Godhana, Returning Officer, Tana River County & Independent Electoral and Boundaries Commission [2017] KEHC 1733 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARSEN

ELECTION PETITION NO 1 OF 2017 (CONSOLIDATED WITH ELECTION

PETITION NO. 2)

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

AND THE ELECTIONS (GENERAL) REGULATIONS, 2012 AND ELECTIONS

(PARLIAMENTARY AND COUNTY ELECTION ) PETITION RULES, 2017

AND

IN THE MATTERS OF THE GUBERNATORIAL ELECTIONS TANA TIVER

COUNTY,  COUNTY NO 4, HELD ON 8 AUGUST, 2017)

BETWEEN

MOHAMED DADO HATU………………………...................…..PETITIONER

VERSUS

DHADHO  GADDAE  GODHANA…………………….....1ST RESPONDENT

THE RETURNING OFFICER, TANA  RIVER COUNTY...2ND RESPONDENT

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION……….............….3RD RESPONDENT

AND

COMMISSION FOR UNIVERSITY EDUCATION…...INTERESTED PARTY

RULING

1. This is the 2ndand 3rd RESPONDENTS’ Application dated  16/10/2017 seeking the following orders;

(i) THATthe Election Petition dated 4th September,  2017 together with the Supporting Affidavits annexed thereto and filed in Court on 11th September, 2017, as is, or as howsoever amended, if at all, be struck out.

(ii) THAT the Petitioner does bear the costs of this Application and of the Petition.

2. The Application is based on the following  grounds:-

(i) THAT the petitioner has not deposited security for payment of costs as provided for under Section 78 (1) and (2) (c) of the Election Act No. 24 of 2011 and Rule 13 of the Elections (Parliamentary and County Elections) Petition Rules, 2017.

(ii) THAT section 78 (3) of the Election Act No. 24 of 2011 provides that where the Petitioner has not deposited security as required by the law, the court may dismiss the petition.

3) THAT Rule 8 (1) as well as Rule 12 (2) of the Elections (Parliamentary and County Elections) petitions provide in mandatory terms that the Petitioner's Petition should inter alia state: the name and address of the petitioner, the results of the Election and howsoever declared, and the date of the declarations of the results.

4) THAT the Petition is fatally and incurably defective as it fails to comply with the said mandatory provisions of Rules 8(1) and 12 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 by failing to state the results of the election under challenge, the manner in which the election results were declared, and when they were declared.

5) THAT the failure by the Petitioner to comply with the said Rules 8 (1) and 12 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 renders the said Petition bad in law and the petition before court is not valid and competent.

6) THAT the election Court has wide powers under the Constitution and the Election Laws to grant the orders sought to safeguard the constitution, the Election Laws and to stop its process from abuse.

3. The Application is supported by the following Affidavit;-

(i) THAT I am a male adult of sound mind, a citizen of Kenya and was a Returning Officer duly appointed as such by the 3rd Respondent in the just concluded Gubernatorial elections for Tana River County.

(ii) THAT the facts and matters deponed to herein are derived from my own knowledge, and partly from advice from my Advocates.  To the extent that any of these facts is based on information or belief, I have disclosed herein the sources or grounds whereof and I verily believe the same to be true.

(iii) THAT I have read and understood the contents of the Petition, the supporting affidavits thereof and annexed documents.

(iv) THAT I have read and understood the contents of the Notice of Motion Application herein seeking to strike out the Petition on the grounds stated therein and I swear this affidavit in support of the same.

(v) THAT I am advised by my advocates on record which advice I verily believe to be true that it is mandatory requirement of the law that the petitioner must deposit security for payment of costs within 10 days of filing the petition. The petition was filed on 11th September, 2017 and the security was not deposited within the timelines provided by the law and no leave was granted.

(vi) THAT I am advised by my advocates which advice I verily believe to be true that Rule 8 (1) as well as Rule 12 (2) of the Elections (Parliamentary and County Elections) petitions provides in mandatory terms that the Petitioner's Petition should inter alia state: the results of the Election and howsoever declared, and the date of the declarations of the results.

(vii) THAT I am further advised by my advocates which advice I verily believe to be true that the Petition is fatally and incurably defective as it fails to comply with the said mandatory provisions of Rules 8 (1) and 12 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 by failing to state the results of the election under challenge, the manner in which the election results were declared, and when they were declared.

(viii)THAT I am further advised by my advocates which advice I verily believe to be true the failure by the Petitioner to comply with the said Rules 8(1) and 12 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 renders the said Petition bad in law and the petition before court is not valid and competent.

(ix) THAT I am further informed by advocates on record which information I verily believe to be true that the petitioner had an obligation to comply with the procedural imperatives contained in Rule 8 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 as he seeks justice in court and that obligation has not been ousted by Article 159(2)(d) of the Constitution as the said Article of the constitution was never meant to aid in the overthrow or destruction of rules of procedure.

(x) THAT I am further informed by advocates on record which information I verily believe to be true that indeed both Rule 8(1) and Rule 12(2) contain a checklist and all what the petitioner needed to do before filing the petition was to check if all matters listed therein had been captured in both the petition and the Supporting Affidavits. For whatever reason the petitioner and or his advocate neglected to do this very small but extremely necessary exercise, they can now only shoulder the consequences as the said law is couched in mandatory terms.

(xi) THAT I am further informed by my advocates which information I verily believe to be true that the issues of nomination of the 1st Respondent are res judicata as they were raised in HCCC No. 345 of 2017 ADAM BARISA DHIDHA & 4 OTHERS VS INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION AND 2 OTHERS and finalized by the High Court and cannot be a ground for a petition. I annex herein a copy of the court ruling and a letter from the Commission of University Education and mark them "MGR-1" and "MGR-2" respectively.

(xii) THAT I am further advised by my advocates which advice I verily believe to be true that the election Court has wide powers under the Constitution and the Election Laws to grant the orders sought to safeguard the constitution, the Election Laws and to stop its process from abuse.

4. The parties filed written submissions in the Application which they adopted.

THE 2ND AND 3RD RESPONDENTS’ SUBMISSIONS

The 2nd and 3rd Respondents submitted in writing as follows;

(i) It is the 2nd and 3rd Respondents' submission that the petitioner herein has failed to deposit security for payment of costs as provided for under Section 78 (1) and (2) (c) of the Election Act No.  24 of 2011 and Rule   13 of the Elections (Parliamentary and County Elections) Petition Rules, 2017.

(ii) Section 78 (3) of the Election Act No. 24 of 2011 provides that where the Petitioner has not deposited security as required by the law, the court may dismiss the petition. The foregoing provision is couched in mandatory terms and it is a mandatory requirement of the law that the Petitioner must deposit security for payment of costs within 10 days of filing the petition. In the circumstances of the present case, it is undisputed that the petition herein was filed on 11th September, 2017 and the security was not deposited within the timelines provided by the law and no leave whatsoever was granted. As it stands therefore, the instant Petition is defective, incompetent and an abuse of the Court process.

(iii) The Court in the case of MOSES SAISI VS INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 2 OTHERS, KAKAMEGA ELECTION PETITION 10 OF 2013, addressed its mind on the question of the implications of failure to deposit the security of costs. The Learned Judge held that:

[17] As was correctly observed by the court in K. Naomi Cidi -vs- IEBC & 3 Others, Malindi HC Election Petition No. 13 of 2013, the law under Section 73 (3) of the Elections Act is clear that once the deposit for costs has not been made, no   further proceedings shall be heard on the petition and the respondents may apply for dismissal of the petition and for payment of costs. In that election petition, the application for dismissal of the election petition was filed by a party who was not served but became aware of the petition through its publication in the Gazette.

[18] As there are pending applications filed by the respondents for dismissal of the election petition for default to comply with the law, and all parties having agreed that the election petition herein be terminated. I apply the provisions of Section 78 of the Election Act and dismiss the petition.

[19] How about costs? I fall back to section 78 (3) of the Elections Act. Since all the respondents had already filed applications for dismissal of the petition for want of compliance with the law, and requested for costs before the petitioner's counsel indicated that he had instructions to terminate the petition, in my view, they are entitled to costs. As

[20] Stated earlier, the law does not require that the respondents be served with the petition before they can apply to court for dismissal of the same and be entitled to costs. I will therefore award them costs of the proceedings. (Emphasis added)

(iv) It follows therefore that the failure to deposit the security of costs is fatally and incurably defective and the same bars the Court from entertaining such proceedings. It is the Applicants' submission therefore that the present Petition is bad in law, defective and an abuse of the Court process and the same ought to be dismissed.

(v) The Applicants also contend that the present Petition is incurably and fatally defective owing to the failure by the Petitioner to declare the results of the impugned elections herein. The Applicants contend that Rule 8 (1) as well as Rule 12 (2) of the Elections (Parliamentary and County Elections) petitions provide in mandatory terms that the Petitioner's Petition should inter alia state: the name and address of the petitioner, the results of the Election and howsoever declared, and the date of the declarations of the results.

(vi) Rule 8 (1) provides that:

(l)An election petition shall state-fa) The name and address of the petitioner; (b) The date when the election in dispute was conducted;

(c)The results of the election,   if any, and howsoever declared; (d) The date of the declaration of the results of the election; (e) The grounds on which the petition is presented; and (f) The name and address of the advocate, if any, for the petitioner which shall be the address of service,

(vii) Rule 12 (2) on the other hand provides thus:

(viii) An affidavit in support of a petition under sub-rule (1) shall state-

(a) The name and address of the deponent;

(b) The date when the election in dispute was conducted;

(c) The results of the election, if any, however declared;

(d) The date of the declaration of the results of the election;

(e) The grounds on which the petition is presented; and

(f) The name and address of the advocate, if any, acting for the petitioner which shall be the address for service.

(ix) The effect of the foregoing provisions is that a petitioner ought to state in his or her petition his/her name; the date when the election in dispute was conducted; the date of the declaration of the results; the grounds upon which the Petition is founded and the name and address of the advocate, if any, for the Petitioner.

(x) It is the Applicants' humble submissions that the Petition is fatally and incurably defective as it fails to comply with the said mandatory provisions of Rules 8 (1) and 12 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 by failing to state the results of the election under challenge, the manner in which the election results were declared, and when they were declared.

(xi) Additionally, the failure by the Petitioner to comply with the said Rules 8 (1) and 12 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 renders the said Petition bad in law and hence the same is not valid and competent.

(xii) The question then that begs for answers is when is it said that a declaration of the results has been made? The Constitution spells out the period within which a petition must be filed, any statute that purported to expand that period is void and to that extent, the provisions of Section 76 of the Election Act are inconsistent with Article 87 (2) of the Constitution, and they cannot in any event supersede the constitutional provision herein, since that provision introduced the element of gazettement of results, whereas the Constitution simply provided for declaration.

(xiii) Furthermore, it is interesting to note that Section 39 of the Elections Act provides thus;

(l)The Commission shall determine, declare and publish the results of an election immediately after close of polling. (Emphasis Ours)

(xiv) A plain reading of Section 39 of the Election Act is therefore to the effect that the outcome of the votes cast constitutes the results of such an election, and such results are required to be declared immediately after the close of the polling exercise and therefore it is after this declaration by the Returning Officer that time starts to run.

(xv) The foregoing position was affirmed by the Court in the case of JOHN M. N. MUTUTHO VS JAYNE N. W. KIHARA & 2 OTHERS, CIVIL APPEAL NO. 102 OF 2008 (NAKURU), whereby it was noted that declaration included particularizing of the results of all the candidates. Therefore, a gazette notice which only cited the name of the winner of a particular contest within the electoral process could not constitute the declaration of results.

(xvi) Similar sentiments were echoed by the Supreme Court in the case of HASSAN ALI JOHO & ANOTHER V SULEIMAN SAID SHAHBAL & 2 OTHERS, PETITION NO 10 OF 2013, where the Apex Court observed that;

[64] It is clear from Regulation 83 that the tallying of votes and the public announcement of the total votes cast in favour of each candidate precede the declaration of election results. Tallying and public announcement are designed by the Constitution [Article 86 fb) & (c)] and the Elections Act [Section 39] to take place immediately after the close of polling. The Constitution specifically emphasizes the promptness with which the collated and tabulated results ought to be announced. This is important because it signifies the urgency with which the public should be notified of the outcome of the election. Taking into account this requirement of efficiency, which runs through all the electoral provisions, this Court is of the opinion      that  the subsequent stage of declaration must take place immediately after the tallying and announcement of the election results.

[66] After these results have been delivered to the Commission, the Commission is mandated to publish a notice in the Gazette, which may form part of a composite notice, showing the names of the person or persons elected [Regulation 87 (4) (b)]. With respect to the 2013 gubernatorial elections, the Commission fulfilled this mandate through Gazette Notice No. 3155, Vol CXVNo. 45 dated 13thMarch, 2013. This Gazette Notice did not contain the election results of the elections held on 4thMarch, 2013 but was published by the Commission in compliance with Regulation 87 (4)(b). In our considered view the Gazette Notice and/or publication of election results, is simply the affirmation of the election   results declared by the returning officer.

[72] "Declaration" takes place at every stage of tallying. For example, the first declaration takes place at the polling station; the second declaration at the Constituency tallying centre; and the third declaration at the County returning centre. Thus the declaration of election results is the aggregate of the requirements set out in the various forms, involving a plurality of officers. The finality of the set of stages of declaration is depicted in the issuance of the certificate in Form 38 to the winner of the election. This marks the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority.

(xvii) As a result of the decision of the Supreme Court, it follows that the declaration of results takes place at the Polling Station and the Tallying Centre which is finalized by the issuance of the final results declaration instrument which is the statutory form. That constitutes the declaration as opposed to the mere gazettement of the winner. It is therefore incumbent for a petitioner to state the results as and when declared.

(xviii) The failure to declare the election results, the manner in which the aforesaid results were declared and when they were declared is incurably defective as it goes to the very heart of the dispute in question. The Court in the case of JIMMY MKALA KAZUNGU VS INDEPENDENT ELECTORAL AND BOUNDARIES COMMISION AND OTHERS, MOMBASA ELECTION PETITION NO. 9 OF 2017, while confronted with a similar issue rendered the following opinion:

[15] The first of the two issues for determination is pretty straightforward. In order to determine whether the Petitioner has complied with the mandatory requirements of Rule 8 (1) of the Election Petition Rules, all this Court is required to do is look at what is contained in the Petition against the provisions of Rule 8 (1). [17] I have carefully looked at the Petition. I do note that the same does not state the date when the election in dispute was conducted. It does not state the results of the election and it does not also state the manner in which the results were declared. I further note that there are other matters stipulated in Rule 8 (1) the Petition fails to state. These include the name and address of the Petitioner as well as the date of the declaration of the results of the election. Also omitted from the body of the Petition is the name and address of the advocate for the petitioner being the address for service.

[18] The requirements in Rule 8 (1) of the Election Petition Rules are couched in mandatory terms. It is noteworthy that the same requirements are replicated in Rule 12 (2) of the Election Petition Rules which requirements are replicated in Rule 12 (2) of the Election Petition Rules which requires that the affidavit in support of a petition shall state the very same things that are to be stated in a petition...

[21] In the instant petition, the election date, the election results and the manner in which the results were declared are not stated in the Petition. The Court therefore declines  the invitation by the Petitioner to overlook this omission in the Petition and deem the Supporting Affidavit as part of the petition for purposes of fulfillment of the mandatory requirements of Rule 8 (1) and finds that the Petitioner failed to comply with the express mandatory provisions of Rule 8 (1) if the Election Petition Rules.

(xix) While striking out the Petition, the Court concludedthus:

[31] The petitioner had an obligation to comply with the procedural imperatives contained in Rule 8 (1) of the Election Petition Rules as he seeks justice from this Court.  That obligation has not been ousted by Article 159 (2) (d) and this Court therefore declines to exercise its discretion as proposed by the Petitioner. Rules of procedure must be respected by all parties. Article 159 (2) (d) was never meant to aid in the overthrow or destruction of rules of procedure... [33] In view of the foregoing, this Court finds that the Petitioner failed to comply with the express and mandatory provisions of Rule 8 (1) of the Elections (Parliamentary and County Elections} Petition Rules, 2017. It must follow therefore that the Petition herein is incurably defective and allowing the same as presently drawn to proceed to trial would be an abuse of the Court process. The same is hereby struck out. The Petitioner shall bear the costs of both the Application and Petition.

(xx) In the Indian case of CHARAN LAL SAHU & OTHERS VS SINGH [1985] LRC (CONST). Chief Justice Chandrand expressed himself thus on specificity of pleadings:-

"The importance of specific pleading in these matters can be appreciated only if it is realized that the absence of a specific plea puts the respondent at a great disadvantage. He must know what case he has to meet. He cannot be kept guessing whether the petitioner means what he says "connivance" here or whether the petitioner has used that expression as meaning 'consent'. It is remarkable that in their petition, the petitioners have furnished no particulars of the alleged consent, if what is meant by the use of the word connivance is consent. They cannot be allowed to keep their options open until the trial and adduce such evidence of the consent as seems convenient and comes handy. That is the importance of precision in pleadings, particularly in election petitions. Accordingly it is impermissible to substitute the word "consent" for the word "connivance" which occurs in the pleading of the petitioner."

(xxi) Closer home, the case of JOHN WAWERU KIARIE -VS- BETH WAMBUI MUGO & 2 OTHERS - ELECTION PETITION NO. 13 OF 2008, the court, in dealing with a petitioner who sought to adduce evidence on matters not pleaded held thus:-

"The petitioner raised several issues concerning the validity of the Form 16As that were produced in evidence by the 2nd Respondent. It was evident that the petitioner did not consider the manner in which the Form 16As were filled to be of such an importance as to merit consideration by the court. The petitioner did not plead failure by the 2nd Respondent to properly fill the Parliamentary Form 16As.  It is trite law that a party is bound by his pleadings. The petitioner cannot be allowed to introduce new grounds in the course of adducing evidence in support of his petition. This court will not therefore address the issues raised by the petition regarding the validity of the Parliamentary Form 16As."

(xxii) Justice Ruth Nekoye Sitati in paragraph 115 in Charles Oigara Mogere v Christopher Mogere Obure & 2 others [2013] eKLR agrees with John Waweru case (supra) as indeed   the   law with   regards   to   what   constitutes   a competent petition.

(xxiii) In light of the above cited decisions, the Applicants contend that the present Petition is incurably defective and an abuse of the Court process and entertaining the same is tantamount to abusing the will of the electorate. It is the Applicants' other submission that the election Court has wide powers under the Constitution and the Election Laws to grant the orders sought to safeguard the constitution, the Election Laws and to stop its process from abuse.

(xxiv) In the case of JOHO -VS- NYANGE & ANOTHER [2008] 3 KLR (EP) AT PAGE 500, Maraga J (as he then was) had the following to say regarding the uniqueness of electoral disputes:-

"Election Petitions are no ordinary suits. Though they are disputes in rem fought between certain parties, election petitions are nonetheless disputes of great importance - Kibaki -vs- Moi, Civil Appeal No. 172 of 1999. This is because when elections are successfully challenged, bye elections ensue which not only cost the country colossal sums of money to stage, but also disrupt the constituents9 social and economic activities. It is for these reasons that I concur with the election court's decision in Wanguhu Na'ang'a & another -vs- George Owiti & another. Election Petition No.41 of 1993 that election petitions should not be taken lightly.9'

(xxv) In the Court of Appeal decision in Nakuru between JOHN MICHAEL NJENGA MUTUTHO V JAYNE NJERI WANJIKU KIHARA & 2 OTHERS [2008] eKLR had this to state with regards to pleadings in election petitions:

"Election petitions are special proceedings. They have a detailed procedure and by law they must be determined expeditiously. The legality of a person's election as a people's representative is in issue. Each minute counts. Particulars furnished count if the petition itself is competent, not otherwise. Particulars are furnished to clarify issues not to regularize an otherwise defective pleading.    Consequently   if a petition   does   not contain all the essentials of a petition, furnishing of particulars will not validate it"

"...The law has set out what a petition should contain, and if any of the matters supposed to be included is omitted, then the petition would be incurably defective. For instance, paragraph (a) of rule 4(1) deals with capacity to petition. If a petitioner omits to make an averment in that regard the petition will be incurably defective. Likewise if the date of the election omitted that omission would be fundamental in nature and would of itself without more render a petition incurably defective. We say so advisedly. The provisions of the National Assembly and Presidential Elections Act, have been held, to provide a complete code of the law and rules on elections and election petitions.

"...In view of the conclusions we have come to on that aspect, it follows that the term "shall" as used in rule 4, must be read as having a mandatory import. Reading it otherwise will render the provisions of that rule otiose." (Emphasis added)

(xxvi) Kiage,  J A in NICHOLAS KIPTOO ARAP KORIR SALAT V IEBC & 6 OTHERS [2013] eKLR states:

"... I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned..."

(xxvii) The law has set out what a petition should contain, and if any of the matters supposed to be included is omitted, then the petition would be incurably defective.

THE PETITIONER’S SUBMISSIONS

5. The  petitioner also submitted in reply as follows;

(i) The Petition was filed on 4 September, 2017 though the Registry erroneously received the Petition with the stamp bearing 4th August, 2017.

(ii) In absolute compliance with Section 78 (2) (b) of the Act and Rule 13(1), the Petitioner deposited the security for costs on the 11th day of September, 2017, and receipt was issued to that effect on 16th September, 2017. This was done within the prescribed time by the law.

(iii) What motivated the applicants to believe that security for cost was not furnished is still unknown to the Petitioner as we would have expected such information to originate from the Registrar courtesy of Rule 13 (3) (d).

Our answer to this issue is a resounding NO! In arriving at this affirmation, we have taken cognizance of the matter under the following sub-heads;

(iv) That the name and address of the Petitioner is indicated in the petition and the affidavit, the results of the election are well indicated in the petition and how it was declared together with the date of the declaration of the result being 10th August, 2017. The Petition is good in form and content both of which has given the Respondents and the Court the necessary information to understand and determine the dispute in the petition which is a unique one. The application for striking out is generally unmerited and is intended to buy or waste time.

(v) The application to strike out this petition was brought on second thought and too late in the day. It is not in dispute that the applications was filed 36 days after the filing of the Petition and after directions were given on disposing an interlocutory application dated 9' October, 2017.

(vi) Further, the results of the election and the date the same was declared is well alluded to, by the affidavit of the petitioner in paragraph 2 of the Affidavit which confirms that the Petitioner has read and understood the petition and confirms that the contents therein are true.Muriithi J in Kisii Election Petition No. 7 of 2013 Ens. Peter Kimori Maransa & Another v Joel Omagwa & 2 others held that the petition is clearly self-contained statement of the petitioners claim in relation to the election dispute and the petitioners' affidavit is not part of the petition. The provisions of the constitution and the Elections Act do not require the petition to be supported by an affidavit.

(vii) The requirement under Rule 10(3) for an affidavit to be supported by an affidavit is not backed by any statutory or constitutional provision and in view of that inconsistency, the Constitution and statute prevails. Both the constitution and the statute are silent on the features of petition. It was left to the Rules to flesh out the form and contents of a Petition and the manner of its presentation. The accompanying affidavit sets out the grounds on which the relief is sought and the facts relied by the petitioner. This gives notice to the Respondent on the exact nature of the action to be answered. On appeal, this position was upheld by the Court of Appeal in Jared Odoyo Okello & another versus IEBC (2014) eKLR. Our instant petition therefore discloses a probable cause of action.

(viii) In Jimmy Mkala Kazungu case cited by the applicants, the petitioner had failed to state vital information such as the date of election, results of the election and the manner in which they were declared. That was omitted in the Petition itself and the omitted information is of such fundamental nature in which a petition would logically not proceed without them.

(xi) It is not in dispute that in the face of the content of the Petition and the Affidavit, the Applicants herein logically targets only the requirement of failing to state the results and the date of declaration of the results in the Affidavit. The aforesaid details do not form the core particulars that so aggrieved the Petitioner as to push him to file the Petition. As a matter of fact, the results have been particularized and whether they are the correct results is a different matter.

(x) Further, the failure to state the election results in the affidavit does not go to the root of the Petition as to render it a nullity. Seeking recourse to Article 159(2) of the Constitution and Section 80(d) of the Elections Act, the Petitioner should be granted and afforded an opportunity to ventilate the merits of the Petition for substantial justice to be done. The Petition has substantially complied with the law and ought not to be struck out.

(xi) Rule 4(1) of the Rules sets out the overriding objective of the rules and incorporates the principles of the Constitution in the determination of election petitions. The honorable Court should take these principles and values into account in determining the application in view of the fact that the petition was filed in the form required by the rules.

(xii) Rule 5 obliges this Court to conduct proceedings before it to achieve, "(a) the just determination of the election Petition; (b) the efficient and expeditious disposal of an election petition within the timelines provided in the Constitution and the Act."

(xiii) Rule 4 and 5 of the Rules is a consecration of the provisions of Article 159(2) (d) of the Constitution which obliges every Court to dispense justice without undue regard to technicalities. The Supreme Court in Raila Odinga and others v Independent Electoral and Boundaries Commission and 3 others Nairobi Petition No. 5 of 2013 (2013) e KLR discussed this provision thus,

"The essence of that provision is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object, of dispensing substantive justice to the parties.... " Hon. Justice Kimondo in Steven Kariuki v George Mike Wanjohi and 2 other , Nairobi Election Petition No. 2 of 2013 (Unreported) observed as follows, '(21) Once seized of the dispute , the Court is enjoined by Article 159(2)(d) of the Constitution to do substantial justice to the disputants expeditiously and without undue regard to technicalities. Rules of procedure have aptly been described as handmaidens of justice: not mistresses (22) Electoral dispute resolution is unique in many ways but the principles applicable in a motion to strike out a pleading or action cut across the board. A good example starting point is the standards applied in ordinary civil cases. Striking out a pleading is a draconian measure to be employed sparingly... "

(xiv) ) No injustice has been occasioned to the Applicants by the failure to set out the election results and the date of declaration expressly in the affidavit.

(xv) The Rules do not define the meaning of the clause "the results for the election...." We submit that an election result such as the one pleaded in this petition by the Petitioner and which includes the votes garnered by both the winner and the losers, sufficiently provides the election result particulars anticipated under the Rules.

(xvi) Upon being served with the petition, the 2nd and 3rd Respondents filed a joint response on the 15th day of September, 2017 which response is competent and the applicants do not in any way complain that the petition is embarrassing.

(xvii) Going back to the issue of the results of the election, howsoever declared and the date of declaration, the 2nd and 3rd Respondents in paragraph 7 of their response and admits the contents of paragraph 7 of the petition being the results of the election as duly declared by the County Returning Officer.

(xviii) My Lady, some genre of election petitions, like the instant petition, may quite apart from results, challenge other aspects of elections since it is now trite that an election is a process not an event. A good example is the petition in Kituo Cha Sheria vs John Ndirangu Kariuki and another. High Court Election petition no. 8 of 2013 (2013) eKLR. The petition was filed after the general elections of 4th March 2013. No complaint of electoral malpractices. It challenged the election of the 1st Respondent as member of the National Assembly not on the results but his qualification for nomination as a candidate on grounds of integrity. As the petition did not go to the root of the aggregate results, even the Returning Officer was not made a party.

(xix) The Court observed that Rule 10(1) (c) of the then 2013 Rules must thus be given a liberal and purposive interpretation that gives effect to the overriding objective of the Court to do justice to all the parties. The Court further observed that it would be to turn logic onto its head to require every petition. Even one sui generis like this one, to religiously follow the format ofEP 1 in the Rules. Even those Rules themselves at rule 4 require this Court to consider the overriding objective to do substantive justice.

(xx) Your Ladyship, the Petition herein is purely dealing with the issue as to whether the 1st Respondent possessed a valid degree prior to the elections. The issue of election results is not contested at all at least in this petition. The validity of the 1st Respondent degree forms the substance of the Petition before the Court and not election results. The Court of Appeal in Mututho vs Kihara 1 EAGR 270 was emphatic that election petitions envisage a challenge of results in an election. Accordingly, the requirement to particularize the results was mandatory.

(xxi) A purposive approach must be taken in interpreting Rule 8(1) and 12(2) in order to achieve the objects of the rules. The rationale for the enactment was based on the idea that election petitions are primarily about figures and numbers and that being the ultimate challenge, then they ought to be set out in order to enable court address the appropriate relief. Thus, in the Mututho v Kihara where the pleading simply stated that the Returning Officer is alleged to have declared, "this old man was ahead of Mrs. By 100 votes" was clearly inadequate.

(xxii) (Amina Hassan Ahmed case) in the list of authorities by the applicant, the Petitioner had failed to include crucial particulars such as election results, names of the candidates, date and manner of declaration of results and most important the prayer for an order in the Petition to declare the Petitioner as the validly elected candidate instead of the 3rd Respondent who was declared the duly elected person.

(xxiii) The Petitioner in Amina Hassan Ahmed case in addition admitted the omission and had gone ahead to file an application seeking leave to amend the Petition to include the aforesaid vital information in the petition, an application which was rejected. It is accordingly, not difficult to see the difference between that case and the one before this Court. While in that case all the above stated information was missing, in this case, virtually all the information is provided in the Petition.

(xxiv) The Court in William Kinyanyi Onyango v Independent and Electoral Boundaries Commission and 2 Others (2013) eKLR, the learned Judge held that in view of Rule 21 requiring the IEBC to file the result in Court, failure to particularize the results is no longer fatal. IEBC is expected to furnish the election results within a period of fourteen days of being served with the petition.

(xxv) Rule 21 of 2013 Rules taken together with Rule 12(2) (c) of the Rules which now permit the petitioner to plead "the results, if any, however declared" was meant to deal with the mischief identified in Mututho v Kihara.

(xxvi) The matter should be looked at on its own merits and either way the authorities cited by the applicants are of a Court equal and concurrent jurisdiction and as such we pray that this Honorable Court makes its own determination guided by the facts in this Election Petition bearing in mind its uniqueness.

THE COURT’S FINDINGS

6. I have considered the rival submissions filed by the parties in the Application dated 16th October 2017 together with the authorities relied upon. The issues for determination are as follows;

(i) Whether the petitioner did deposit security for costs within the prescribed time by law.

(ii) Whether the petition should be dismissed for alleged non-compliance with the Rule 8 (1) and Rule 12 (2) of the ELECTION (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017.

(iii) Who should bear the costs of the Application?

(iv) On the issue as to whether or not the Petitioner deposited security for costs, I find that it is evident that there is a receipt on record. It is deposed in paragraph five of the  Affidavit in support of the Application as follows;

“THAT I am advised by my advocates on record which advice I verily believe to be true that it is mandatory requirement of the law that the petitioner must deposit security for payment of costs within 10 days of filing the petition. The petition was filed on 11th September, 2017 and the security was not deposited within the timelines provided by the law and no leave was granted”.

(v) The Petitioner said the costs were deposited at KCB on 11th September 2017 and it was the receipt which was issued on 16th September 2017.

(vi) I find that the issue is not whether the security of costs was deposited or not, but when the security of costs was deposited. The petitioner said it was deposited within the time stipulated while the Applicants stated it was done after the said time had elapsed. I find that this is a matter of evidence and therefore that issue cannot be conclusively dealt with at interlocutory stage.

(vii) On the issue as to Whether the petition should be dismissed for alleged non-compliance with the Rule 8 (1) and Rule 12 (2) of the ELECTION (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017,the said rules provide as follows;

(a) Contents and form of a petition

(1) An election petition shall be-

(a) the name and address of the petitioner

(b) the date when the election in dispute was conducted;

(c) the results of the election if any, and however declared

(d) the date of declaration of the results of the election

(e) the grounds on which the petition is presented; and

(f) the name and address of the advocate, if any, for the petitioner which shall be the address of service.

(b) 12 Affidavits generally

(1) A petition shall be supported by an affidavit which shall-

(a) Set out facts and grounds relied on in the petition; and

(b)  Be sworn personally by the petitioner or by at least one of the petitioners, if there is more than one petitioner.

(2) An affidavit in support of a petition under sub-rule (1) shall state-

(a) the name and address of the deponent;

(b) the date when the election in dispute was conducted;

(c) the results of the election, if any, however declared;

(d) the date of the declaration of the results of the election;

(e) the grounds on which the petition is presented; and

(f) the name and address of the advocate, if any, acting for the petitioner which shall be the address of service.

(viii) I find that in my opinion, the petition and verifying affidavits contain the required details under Rule 8 (1) and 12 (2)of the Election Rules 2017

(ix) I also find that this Court has a duty to hear the parties and at the same time comply with the electoral law timelines and ensure that substantive justice is done in electoral disputes. I find that it is not in the interest of justice to drive a party unheard from the seat of judgment on the basis of non-compliance with rules.

(x) I find that under Article 159 (2) (d) of the constitution, this court is mandated to dispense justice without undue regard to technicalities of procedure. Unless an election petition is hopelessly or it is not properly on record or it cannot communicate at all the complaints and prayers of the petitioner, the court should ensure that the petition is heard and determined on merit.

(xi) The electoral rules are meant to assist the election Courts to dispense justice  and therefore  the said rules  should not be elevated to a fetish as Justice Ringera (as he then was) once  said in the pre constitution  case of Microsoft Corporation v Mitsumi Computer Garage Ltd & another [2001] eKLR where he stated as follows concerning rules of procedure;

“Rules of procedure are the hand maidens and not the mistresses of justice. They should not be elevated to a fetish. Theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not to fetter or choke it…….Deviations from or lapses in form and procedure which do not go to the jurisdiction of the Court or prejudice the adverse party in any fundamental respect ought not to be treated as nullifying the legal instruments thus affected.

In those instances the Court should rise to its higher calling to do justice by saving the proceedings in issue.”

(xii) I also  rely on the case of Rozaah Akinyi Buyu v Independent Electoral and Boundaries Commission & 2 others [2014] eKLR  where the Court of Appeal acknowledged the applicability of Article 159(2)(d) of the Constitution to election disputes by stating as follows;

“It will therefore be seen that the courts in Kenya and elsewhere have interpreted electoral law strictly within the corners and confines of the same as electoral law is a special jurisdiction created by the Constitution and statutes and civil process is not applicable to the same.

We are, of course, aware of Rule 4 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 which declares the overriding objective of the Rules as being to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act.  The court is also required, in exercise of its powers under the Constitution and the Act or in the interpretation of any of the provisions of the Rules to seek to give effect to the overriding objective of the Rules.”

(xiii) In view of what I have stated above, I find no merit in the 2NDand 3RD RESPONDENTS’Application dated 16/10/2017 and I accordingly dismiss it.

(xiv) On the issue of costs of the said Application, I order that the costs shall abide the outcome of the Petition.

Dated, signed and delivered at Malindi this 6th day of December, 2017.

ASENATH ONGERI

JUDGE.