Musimba v Independent & Boundaries Commission & 2 others [2022] KEHC 14362 (KLR)

Musimba v Independent & Boundaries Commission & 2 others (Election Petition E001 of 2022) [2022] KEHC 14362 (KLR) (17 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14362 (KLR)

Republic of Kenya

In the High Court at Makueni

Election Petition E001 of 2022

JN Onyiego, J

October 17, 2022

Between

Patrick Mweu Musimba

Petitioner

and

Independent & Boundaries Commission

1st Respondent

County Returning Officer Makueni County

2nd Respondent

Mutula Kilonzo Junior

3rd Respondent

Ruling

Factual Background 1. During the national general elections exercise held on August 9, 2022, the people of Makueni county joined the rest of Kenyans to exercise their democratic right in electing their preferred leaders in various categories of elective positions. Among the candidates who contested for the position of governor in Makueni county were Mutula Kilonzo Junior who emerged victorious after garnering a total of 214, 088 votes against his closest rival Partrick Mueu Musimba who secured second position with 63,252 votes.

2. Consequently, on August 13, 2022 the County Returning Officer (2nd respondent) declared the said Mutula Kilonzo Junior (3rd respondent) as the duly elected Governor. This declaration was followed by a public gazette notice Vol CXXIV No 166 published on August 19, 2022 by the Independent Electoral and Boundaries Commission (1st respondent) the body constitutionally charged with the mandate of conducting and supervising elections and or referenda in Kenya declaring the 3rd respondent as the Governor and Lucy Mumbua Mulili as his Deputy Governor. The two were subsequently sworn and effectively assumed their respective offices on September 25, 2022.

3. Dissatisfied with the results and declaration of the 3rd respondent as the Governor Makueni county, the petitioner lodged an election petition dated September 8, 2022 and filed on September 9, 2022. Contemporaneously filed with the petition under certificate of urgency is a notice of motion dated September 8, 2022 seeking supply of all election materials, retallying and scrutiny of all votes cast in the entire county.

4. The petitioner subsequently approached the court through another notice of motion application under certificate of urgency dated September 15, 2022 and filed on September 16, 2022. The application which is the subject of this ruling seeks the following orders;a.Spent.b.That this court be pleased to join Lucy Mumbua Mulili, the Deputy Governor of Makueni county as the 4th respondent.c.That any orders that meets the ends of justice be issued.d.That costs of this application be provided for.

5. The application is premised on the grounds stated therein and the supporting affidavit of the petitioner sworn on September 15, 2022. According to the petitioner, it would be in the interest of justice that the proposed 4th respondent who was declared the Deputy Governor elect in the gazette notice Vol CXXIV No 166 published on August 19, 2022 be joined in these proceedings as the outcome of the petition would directly affect her.

6. In response to the said application, the 1st and 2nd respondent filed a replying affidavit sworn on September 20, 2022 by Maurice Kepoi Rapia Mparo who averred that; the application was defective as it did not state the provisions of the law under which it was brought; article 87(2) of the Constitution as read with section 76(1)(a) and 77 of the Elections Act require a petition challenging validity of gubernatorial election be filed within 28 days after the date of declaration of results; 28 days lapsed on September 10, 2022 without the petitioner filing a petition challenging the election of the Deputy Governor and; allowing the joinder application will amount to aiding the petitioner in disregarding strict time lines.

7. In their further response, the 1st and 2nd respondent filed a notice of preliminary objection dated September 20, 2022 based on grounds that ; the petitioner’s / applicant’s notice of motion dated September 15, 2022 is incompetent and fatally defective as the same threatens to violate the provisions of article 87(2) of the Constitution; allowing the said application would violate the provisions of section 76 of the Elections Act thereby entertaining an election petition challenging the validity of the gubernatorial election outside the prescribed twenty eight days and; the court lacks jurisdiction to grant the orders sought.

8. They further filed a notice of motion application dated September 20, 2022 seeking that; an order of the court to issue to strike out the entire petition for being fatally defective having failed to join the Deputy Governor the proposed 4th respondent as a party to this suit within 28 days of declaration of results; an order to issue dismissing the entire petition for failure to deposit security ofKshs 500, 000/= pursuant to section 78 of the Elections Act and; the court to issue any other order that it may deem fit.

9. On their part, the 3rd respondent also filed a notice of preliminary objection and a notice of motion dated September 20, 2020 thus challenging the jurisdiction of the court in hearing the petitioner’s application dated September 15, 2022 which he alleged was filed outside the statutory timelines. In his application, he sought orders to strike out the petition for failure to enjoin the Deputy Governor as a respondent.

10. Subsequently, the petitioner filed a replying affidavit sworn on October 3, 2022 in response to the 1st and 2nd respondents’ notice of motion dated September 20, 2022. He termed the application as scandalous, vexatious, frivolous, misconceived, baseless, premature and made in bad faith, anchored on misinterpretation of the elections laws and maliciously drawn to mislead the court to dismiss the petition on technicalities without going to the substance of the petition.

11. He further stated that; the petition raises serious issues which ought to be heard and determined on merit without focusing on the technical aspects of the petition and; the requirement to deposit security within 10 days of filing the petition was complied with as the same was deposited on September 15, 2022 about 7 days after the petition was filed.

12. He averred that as per the Elections (Parliamentary and County Election) Petition Rules 2017, it’s not mandatory for a petitioner to name a Deputy Governor as a respondent. That the petition seeks to challenge the election of the governor who is directly elected by voters contrary to the nomination of the deputy governor who is not elected by the registered voters of the county and consequently not a necessary party in an election petition.

13. With regard to the 3rd respondent’s notice of motion dated September 20, 2022, the petitioner filed a replying affidavit sworn also on October 3, 2022 basically reiterating his position contained in the reply to the 1st and 2nd respondent’s application dated September 20, 2022.

14. He stated that in compliance with rule 6(1) (a) of the Elections (Parliamentary and County Elections) Petition Rules 2017, the court is properly constituted. That in accordance with article 180(5) and (6) of the Constitution, the deputy governor’s candidature and or inclusion in the petition is not a choice of the voters as he/she is only a nominated candidate. It was his position that the issues raised by the respondent lack merit as non-inclusion of the deputy governor does not render the petition fatally defective.

15. When the matter came up for directions on October 5, 2022, the court directed that the three applications and two notices of preliminary objection be consolidated and the same be heard simultaneously. It also directed parties to file their respective submissions and appear for highlighting on October 13, 2022.

Petitioner’s Submissions 16. Through the firm of Andrew & Steve Advocates, the petitioner filed his submissions on October 7, 2022. Mr Kimathi as the lead counsel appearing together with M/s Mwaniki basically reiterated the content and particulars in the subject application and the supporting affidavit, responses to the respondents’ applications and preliminary objections. According to the petitioner, the preliminary objections raised herein do not meet the threshold set out in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd(1969) EA 696.

17. It was counsel’s submission that the contention by the respondent that the application for joinder ought to have been filed within 28 days of declaration of results is erroneous. It was further contended that rule 17(d) of the Elections (Parliamentary and County Elections) Petition Rules 2017 does provide for filing of interlocutory applications either at the point of filing the petition or during the intervening period before the matter is fixed for case management. To that end, it was contended that there are no statutory timelines set for filing interlocutory applications.

18. Counsel submitted that the court is properly constituted under rule 6(1) (a) of the said rules in so far as the hearing of the petition challenging the election of a governor is concern. According to the learned counsel, declaration of the election of the Deputy Governor Makueni was made on August 19, 2022 through a gazette notice VolCXXXIV hence 28 days started running from that date up to September 16, 2022. In counsel’s view, the application was filed within the statutory timelines. It was further contended that the deputy governor having been duly served with the application but failed to file a response is a clear indication that she is not interested in participating in these proceedings.

19. In the alternative, it was submitted that; the rules do not require nor make it mandatory for a deputy governor to be enjoined as a respondent; non-inclusion of the deputy governor herein as a respondent is not fatal; the deputy governor will not suffer any prejudice on account of non-inclusion in the petition; the deputy governor can apply to be enjoined if she so wishes and; the court is only bound to determine on the validity of election of the governor and not the deputy governor. To advance the proposition that joinder of the deputy governor is not fatal to the petition, reliance was placed in the case of Raila Amolo Odinga & another v Independent Electoral and Boundaries commission & 2 others (2017) e KLR where the D-President was allegedly not named as a co-respondent and the suit was not declared as being fatal.

20. To further galvanize the contention that non-joinder of a deputy governor is not fatal and that non-inclusion does not render the petition incompetent, the court was referred to several authorities inter alia; Wavinya Ndeti & another v IEBC and others(2017)e KLR, Walter Enock Nyambati Osebe v Independent Electoral and Boundaries Commission &2 others(2018) e KLR,Hassan Omar Hassan & another v independent Electoral & Boundaries Commission & 2 others(2018) e KLR and Samwel Kazungu Kambi v Nelly Ilongo County Returning Officer Kilif County & 2 others (2018) e KLR.

1st and 2nd Respondents’ Submissions 21. The 1st and 2nd respondents through their advocates Iseme,Kamau & Maema Advocates led by Mr Nyaburi filed their written submissions dated October 11, 2022.

22. Touching on the question of the preliminary objection for striking out the petition, it was submitted that the gubernatorial election results were declared on August 13, 2022 and therefore 28 days period of filing the gubernatorial election petition lapsed on September 9, 2022. That the petition herein was filed on September 9, 2022 but did not name the deputy governor as a respondent meaning by the end of 28 days the petitioner had not yet filed any petition challenging the election of the deputy governor.

23. Counsel submitted that entertaining the petitioner’s application for joinder of the deputy governor is akin to sanctioning the institution of an election petition against the deputy governor outside the timelines allowed by article 87(2) of Constitution and section 76(1) of the Elections Act, 2011. In support of this contention, counsel relied on the case of Lemanken Aramat v Harun Meitamei Lempaka & 2 others [2014]eKLR where the court held that the high court has no jurisdiction to entertain an election petition filed later than 28 days following declaration of results. Thus the 28 days’ period having lapsed, the court has no jurisdiction to make orders allowing joinder of the deputy governor hence constrained to down its tools as it lacks jurisdiction to extend statutory timelines. To buttress that position further reliance was placed in the case of Andrew Toboso Anyanga v Mwale Nicholas Scott Tindi & 3 others (2017) e KLR.

24. Counsel further submitted that compliance with the electoral dispute resolution timelines is not an issue of fact but a question of law hence the court has no jurisdiction. In that regard, the court was urged to find that it has no jurisdiction to entertain the application hence a question of law which meets the threshold set in the celebrated and often quoted case of Mukisa Biscuit Manufacturing Co Ltd case (supra). Thus, it was opined that to allow the joinder application will amount to extending timelines for filing a petition through the back door.

25. Further, it was argued that the petitioner seems to be appropriating and re- approbating by abandoning the initial prayer for joinder and then submitting that it was not necessary since the deputy governor has not responded. On whether the 1st and 2nd respondents’ application dated September 20, 2022 has merit, counsel submitted that article 87(2) of the Constitution and section 76(1) of the Elections Act require that an election petition challenging the validity of an election, other than a presidential election be filed within 28 days after declaration of results.

26. That rule 2 of theElections (Parliamentary and County Elections) Petition Rules, 2017 contemplates that a person whose election is complained of be named as a respondent in such a petition and thus the deputy governor is therefore for all intents and purposes a person whose election is complained of and as such is a necessary party in the petition. That the omission of the deputy governor is irregular, prejudicial and renders the petition fatally defective as was held in the case of Mwamlole Tchappu Mbwana v Independent Electoral & Boundaries Commission & 4 others [2017] eKLR.

27. Counsel further submitted that upon the election of the 3rd respondent, the deputy governor was also declared to have been duly elected as deputy governor in accordance to article 180(6) of the Constitution. Thus, it follows that challenging the validity of the election of the governor amounts to challenging the election of the deputy governor and it’s subject to the timelines prescribed in the electoral laws.

28. It was contended that upon assuming office, the deputy governor acquired certain rights and these rights cannot be taken away without according her a fair hearing under article 50 of the Constitution. Counsel relied on the case of Joel Makori Onsando & 2 others v Independent Electoral and Boundaries Commission & 4 others [2017] e KLR to advance the proposition that the Deputy Governor is entitled to a fair hearing hence should not be condemned unheard.

29. It was counsel’s position that the only remedy available in law for the error of non-joinder of the deputy governor is by amending the petition within 28 days allowed for filing the petition failure to which the petition would be declared fatally and incurably defective hence fit for striking out.

3rd Respondent’s Submissions 30. The third respondent through his advocate Kyalo & Associates, Advocates filed his written submissions dated October 11, 2022.

31. On whether the application for joinder of deputy governor was filed within the stipulated statutory timelines, counsel reiterated the position held by the 1st and 2nd respondent on the 28 days’ period and submitted that the submissions by the petitioner that declaration of results refer to the gazettement of the election results is factually and legally incorrect as the declaration of results does not refer to publication of the results on a gazette notice.

32. That the gazette notice only cites the name of the governor and does not contain the declaration of results. Counsel relied on the case of John Michael Njenga Muthutho v Jayne Njeri Wanjiku Kihara & 2 others [2008] eKLR where the court held that the result of an election is not confined to just declaring who won. That under section 39 of the Elections Act the results are declared after the close of the polling exercise and that the declaration for Makueni gubernatorial election was made by the 2nd respondent on August 13, 2022 as envisaged by the Elections (General) Regulations 2012. Thus, the 28 days’ window within which the petition could be challenged by way of a petition closed on September 10, 2022 whereas the instant application was filed 33 days later.

33. Counsel submitted that attempts to enjoin the deputy governor out of the 28 days’ window period was a violation to the statutory timelines. To buttress this position, the court was referred to material contained in the Judiciary Bench Book on Electoral Disputes Resolution at page 29 and the holding in the case ofWalter Enock Nyambati v Independent Electoral & Boundaries Commission & 4 others [supra] and Odinga & 7 others v Independent Electoral and Boundaries Commission & 3 others (2013). In his view, the court has no jurisdiction or powers to enlarge time, to amend any election petition or to join a party to it.

34. On the consequences of failure to name the deputy governor as a respondent in a petition seeking the nullification of the election of a governor, counsel relied on article 180(5) and (6) of the Constitution hence submitted that a deputy governor is not merely nominated but declared elected upon announcement of the election results and therefore his or her election can only be challenged through an election petition.

35. That the election of a governor is interwoven with that of a deputy governor such that an election for one is an automatic election of the other thus the two cannot be separated in the manner the petitioner has done in this case. Counsel relied on the case of Mwamlole Tchappu Mbwana v Independent Electoral & Boundaries Commission & 4 others (supra) where the court held that a Deputy Governor assumes office through the relevant provisions of the law and can only be removed through the process set out in the law. In that regard, reliance was further placed on the case of Samwel Kazungu Kambi v Nelly Ilongo County Returning Officer Kilifi County & 2 others [Supra]where the court also held that failure to make the deputy governor a respondent in a petition challenging the election of a governor was a fundamental defect that would lead to the striking out of the petition.

36. Counsel contended that prayer (p) of the petition which seeks a declaration that the 3rd and 4th respondent were not validly declared as governor elect and deputy governor elect respectively read together with the application for joinder of the deputy governor is a concession by the petitioner on the mandatory necessity for the joinder of the deputy governor.

37. When the matter came up on October 13, 2022 for highlighting of submissions, counsel reiterated their respective positions in their written submissions. However, the respondents abandoned the question regarding deposit of security which they confirmed was filed in time.

Determination 38. I have considered the three applications herein, preliminary objections thereof, various responses and rival submissions by parties’ respective counsel. Issues that emerge for determination are;a.Whether the petitioner has established a case for joinder of the deputy governor as a party in these proceedings.b.Whether the petition herein is fatally defective and incompetent for non- joinder of the deputy governor as a necessary a party/respondent in these proceedings.

39. The crux of the three applications herein together with the two preliminary objections thereof is the non-joinder of the deputy governor as a party. Therefore, since the two issues framed herein are intertwined, I will deal with them concurrently. Parties having acknowledged and indeed the court record having confirmed that a deposit for security was made within ten days as stipulated under rule 13 of the Elections (Parliamentary and county Elections) Petitions Rules 2017 (hereafter the rules), that ground for striking out the petition is settled and therefore spent.

40. On the question whether the application seeking joinder of the deputy governor should be allowed, the petitioner took two approaches. The first approach was that as a deputy governor elected together with the governor and declared as such on publication of gazette notice of August 19, 2022, she has a stake in the petition hence should not be condemned unheard. The second approach is that, since the Deputy Governor has failed to seize the opportunity to participate in these proceedings, it is not mandatory that she be enjoined as there is no law which makes joinder of a Deputy Governor mandatory.

41. In addressing the issue regarding the need to enjoin the Deputy Governor as a party, one will have to look at the relevant provisions of the law governing election of a governor, declaration of results and the process of challenging the result. One such crucial provision is article 180 of the Constitution which provides that;1. The county governor shall be directly elected by the voters registered in the county, on the same day as a general election of members of parliament, being the second Tuesday in August in every fifth year.2. …3. ….4. …5. Each candidate for election as county governor shall nominate a person who is qualified for nomination for election as county governor as a candidate for deputy governor6. The Independent Electoral and Boundaries Commission shall not conduct a separate election for the deputy governor but shall declare the candidate nominated by the person who is elected county governor to have been elected as deputy governor.

42. A party who is dissatisfied with the election result has a constitutional right to challenge the declaration of such result under article 87(2) of the Constitution which provides that; petitions concerning an election, other than presidential election, shall be filed within twenty-eight days after the declaration of the results by the Independent Electoral and Boundaries Commission.

43. The procedure for challenging such declaration of result is set out in the rules. Rule 6 sub-rule 1(a) states that; an election court shall properly be constituted to hear and determine a petition in respect of an election of a member of parliament or to the office of governor if it is composed of one high court judge. Rule 8 sub-rule 1(d) does require that a petition should indicate the date of declaration of results.

44. Under rule 6 a foresaid, the high court is bestowed with the mandate to hear petitions challenging election of member of parliament and governor. There is no provision under the rules conferring authority over the high court to hear a petition challenging election of a deputy governor.

45. From the record, it was admitted by both parties that the Governor Makueni county was declared as duly elected on August 13, 2022 and the petition herein filed on September 9, 2022 which was well within 28th days. The point of contention is whether the publication of election result formally published through gazette notice of August 19, 2022 declaring the governor and deputy governor as duly elected as such implies that 28 days for challenging the election of deputy governor started running from that date and therefore lapsed on September 16, 2022. Mr Kimathi for the petitioner strongly supported that position while emphasizing that section76 (2) and (4) of the Elections Act does allow filing of a petition without 28 days of publication of results in the gazette.

46. Counsel for the respondents vehemently opposed Mr Kimathi’ s interpretation of the law regarding timelines in filing a petition challenging declaration of results. It is trite that there can never be two dates of declaration of results in respect of the seat of Governor and consequently the Deputy Governor. The date of declaration of results contemplated under rule 8 a foresaid is the date the returning officer upon closure of the vote tallying exercise announces the winner and issues a declaration certificate of the election result under form 38 and not the date of gazettement which is the formal way of communication or notification to the public.

47. The contention that section 76(2) and (4) empowers the petitioner to file the application for amendment of petition within 28 days is not tenable. This is because that provision only applies to amendment of a petition to question a return or an election upon the ground of a corrupt practice or election offence none of which has been mentioned in the joinder application.

48. For avoidance of doubt, I wish to reproduce the relevant part of section 76(2) and (4) of the Elections Act which provides;sub-section 2-“A petition questioning a return or an election upon the ground of a corrupt practice, and specifically alleging a payment of money or other act to have been made or done since the date aforesaid by the person whose election is questioned or by an agent of that person or with the privity of that person or his agent may, so far as respects the corrupt practice, be filed at any time within twenty –eight days after the publication of the election results in the gazette.Sub-section-4-A petition filed in time may, for the purpose of questioning a return or an election of an election offence, be amended with the leave of the election court within the time within which the petition questioning the return or the election upon that ground may be presented

49. My understanding of the petition being referred to under section 76 is in the nature of allegations of election malpractices and corrupt practice which is not the subject of the petition herein hence inapplicable as no such allegations have been specified in the joinder application.

50. In my view, a date of declaration of an election result for a particular seat cannot be split hence the reason why the law does not provide for institution of an independent petition with one against the governor and another against the deputy governor. Therefore, the allegation that the declaration of results of the Deputy Governor was on August 19, 2022 is erroneous. With that conclusion, the claim that the intended amendment of the petition is within the statutory time line is not tenable as time for filing any petition challenging the validity of the election leading to declaration of the result in respect of the seat of Governor for Makueni county lapsed on September 10, 2022 and not September 16, 2022.

51. This court cannot therefore extend the timelines strictly set for filing a petition through an amendment of the petition using a joinder application. To do so will be tantamount to stretching time lines beyond the constitutionally and statutorily provided time lines. In the case of Lemanken Aramat v Harun Meitamei Lempaka & 2 others (supra) the court when confronted with an almost similar issue held as follows;“(148)the factor of time and timelines, at the very beginning in the high court, when the 1st respondent filed his petition on April 10, 2013- 36 days after final declaration of results on March 4, 2013-goes to jurisdiction”(149)By the principles considered in this judgment, and by the settled authorities of the court, the high court lacked jurisdiction to entertain the 1st respondent’s petition”

52. To further emphasize on the importance of observing strict time lines, the supreme court in Raila Odinga& 5 others v Independent Electoral and Boundaries Commission and 3 others(2013)(KESC)1KLR held that election petition timelines are made with special and unique considerations hence parties must comply with their respective time lines.

53. However, the above holding notwithstanding, the deputy governor like any other could be interested party or person was at liberty with leave of the court to seek joinder as an interested party through an interlocutory application before the close of case management to protect her interest if she so wished. Nevertheless, the petitioner seems to have beat an about turn by technically withdrawing from seeking joinder of the deputy governor as a party arguing that it is not mandatory. with that kind of submission, one wonders whether the petitioner is still interested with joinder of the deputy governor. Since the petitioner has technically disowned the application which he stated was only meant to generate jurisprudence and given that the deputy governor has not shown any interest in the suit, and, having found that the application was intended to extend strict timelines through the backdoor, the application dated September 15, 2022 is found to be lacking in merit hence dismissed.

54. I will now turn to the critical question on whether non-joinder of the deputy governor is fatal to the petition. Under article 180(1) of the constitution, it is the Governor who is elected by the voters. Sub article 5 does provide for nomination of a deputy governor by the governor. Sub-article 6 goes further to provide that theIEBC shall not conduct separate elections for the two but shall declare the person nominated by the person declared governor as deputy governor.

55. My understanding of that provision is that, the declaration of deputy governor’s election is subject to the success of the governor’s election. Therefore, the election of a deputy governor is hinged on the election of the governor. That is why rule 6 recognizes jurisdiction of the high court in hearing election petitions in respect of the member of parliament and governor and not deputy governor.

56. Besides, section 2 defines an election as a presidential, parliamentary, or county election and includes a by-election. At the same time, a county election is defined as one of the election of governor or member of county assembly. Equally, a candidate is defined as a person contesting for an elective post to which a deputy governor is not a contestant but a nominee.

57. My understanding is that, a deputy governor merely rides on the success of a governor such that if the governor falls, he also falls. That is however in so far as an election and declaration of results is concern subject to approval by the court in case there is a petition. With that in mind, it is my finding that there can never be an independent petition against a deputy governor minus the governor. In the case of Japhet Muroko & another v Independent Electoral and Boundaries Commission (IEBC) & 2 others(2017) e KLR Mbogholi J as he then was held as follows;“the position of deputy governor is therefore not distinctly elective, and is dependent on the governor’s candidacy. While the constitution recognizes the position of deputy governor, there is no specification in statute, that he should be a party to a petition. The court cannot impose a deputy governor into a petition.”

58. The question as to whether failure to enjoin a deputy governor as a party is fatal to a petition is a matter that has sharply ignited wide and length discourse within the high court jurisprudence thus eliciting varying and contrasting decisions. While addressing this subject in previous related election petitions, two schools of thought have persistently emerged before the high court. One such school is that which believes that failure to enjoin a deputy governor in a petition is fatal. This position was held in the case of Mwamlole Tchappu Mbwana v independent Electoral & Boundaries commission & 4 others (supra) where Thande J held that;“(69)... Failure to enjoin the deputy governor herein renders the petition incurably defective. In the circumstances, the petition is hereby struck out...”

59. Similar position was held in the case of Joel Makori Onsando & 2 others v Independent Electoral and Boundaries Commission &4 others (supra) where the court held that 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 petition or on grounds stated under article 182(1) would amount to violating a party’s right to a fair hearing under article 50 of the Constitution.

60. Yet again, in the case of Samwel Kazungu Kambi v Nelly Ilongo county returning officer kilifi county & 2 others(supra), Korir J as he then was had this to say;“(98)Therefore, a person who seeks to remove a governor from office through an election petition must make the deputy governor a respondent, for a successful petition not only affects the election of the governor but also invalidates the election of a deputy governor. Failure to include the deputy governor as a respondent will therefore render such a petition incurably defective for it seeks to invalidate the election of the deputy governor through the backdoor…”

61. However, the second school of thought has its fair share in holding that non-joinder of a deputy governor in an election petition proceedings is not fatal; In the case of Lesrima Simeon Saimanga v Independent Electoral and Boundaries Commission & 2 others(2017) e KLR Wendo J had this to say;“Flowing from rule 2 and 9, unless there are specific allegations made against the deputy governor, during the election of the governor, then it would not be necessary for him to be made a party to the election petition filed against the governor. The governor will be the respondent in the petition because he is the one who was elected and would cease to hold office if the challenge is successful. Since the deputy governor’s office is pegged on the election of the governor, the deputy governor would cease to hold office too because he would have assumed office through an irregular process. The upshot is that the petition is properly before the court without joinder of the deputy governor and the 1st and 2nd respondent’s application dated October 18, 2017 must fail and is dismissed”.

62. While faced with a similar situation, Ongudi J in the case of Kithinji Kiragu v Martin Wambora & 2 others(2013) e KLR stated as follows;“…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 /her nomination is not in question. The question concerns only the election of the governor. I therefore find the issue of non-joinder to have no basis.”

63. Similarly, inHassan Omar Hassan & another v Independent electoral & Boundaries Commission & another (supra) Ajode J as she then was held that joinder of the deputy governor was not crucial to the petition at hand. Again, Muchelule J as he then was held similar sentiments in Wavinya Ndeti & another v Independent Electoral and Boundaries Commission(IEBC) & 2 others (supra) in which he stated that”“...In my view, unless there is an election act or omission alleged against a deputy governor during the election of the governor he will not become a necessary party in the election petition filed against the governor.”

64. From the above quoted case law, it is apparent that the jurisprudence emanating from the high court in the subject matter is at variance. Those in support of joinder of a deputy governor feel that a deputy governor should not be condemned unheard and that grounds for his or her removal from office are clearly set out under article 182(2) of the Constitution and that removal upon invalidation of the governor’s election is not one of them.

65. A deputy governor just like the governor cannot purport to have assumed office substantively if there is a pending election petition challenging his election. I would say that during that time, he would be squading in office pending validation of his election by the court. A deputy governor cannot also purport to hold a distinct office independent from that of his boss the governor so as to attract a petition against him independently. His joy and occupation of office or sadness and non-occupation of the same office is purely pegged on the outcome of the petition against the governor. If the governor falls, the deputy governor must follow suit.

66. A deputy governor cannot hide behind article 182(2) of the Constitution to claim and gain special autonomy from that enjoyed by the governor. A deputy governor’s joinder or non-joinder is immaterial or of no consequence as his or her survival purely depends on the fate of the governor. That is why I suppose the deputy governor in this case did not find it necessary to take part in these proceedings because she could as well participate as a witness if she wishes to add any value in the petition in which case the element of being condemned unheard does not arise

67. There is no way a deputy governor can remain in office while clinging on article 182(2) even when the electoral process through which he or she assumed the same office is said to have been flawed or irregular giving rise to nullification of the results that facilitated his occupation of the office of deputy governor. That is why in the Raila Amolo Odinga & another v independent Electoral and Boundaries Commission & 2 others (supra) the deputy president elect was not named or enjoined as a co-respondent yet the Supreme Court did not find the omission fatal to the petition.

68. Having fully associated myself with second school of thought, I would simply say, the non- joinder of the deputy governor in this case is not fatal to the petition and therefore, the respondents’ notices of motion and preliminary objections of September 20, 2022 are without merit hence dismissed. Costs shall be in the cause.

DATED SIGNED AND DELIVERED IN OPEN COURT AT MAKUENI THIS 17THDAY OF OCTOBER, 2022. ………………..…………….J.N. ONYIEGOJUDGE