Mwahima Mwalimu Masudi v Independent Electoral and Boundaries Commission, Luciana Sanzua, the Returning Officer Of Likoni Constituency of the Independent Electoral and Boundaries Commission, Presiding Officers of Majengo Mapya/Muzdalifa Polling Stations, Likoni Constituency of the Independent Electoral and Boundaries Commission & Mboko Mishi Juma Khamis [2017] KEHC 2259 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

ELECTION PETITION NO. 4 OF 2017

IN THE MATTER OF: THE ELECTIONS ACT, NO. 24 OF 2011

IN THE MATTER OF: THE ELECTIONS (PARLIAMENTARY & COUNTY ELECTIONS) PETITION RULES, 2017

MWAHIMA MWALIMU MASUDI...…………………..........PETITIONER

AND

INDEPENDENT ELECTORAL AND

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

LUCIANA SANZUA, THE RETURNING OFFICER OF LIKONI

CONSTITUENCY OF THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.......................... 2ND RESPONDENT

THE PRESIDING OFFICERS OF MAJENGO MAPYA/MUZDALIFA

POLLING STATIONS, LIKONI CONSTITUENCY OF THE

INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSION....................................................3RD RESPONDENT

MBOKO MISHI JUMA KHAMIS……………….....4TH RESPONDENT

RULING

The Application

1. By an application dated 25th September, 2017 brought under Article 82(2) of The Constitution, Section 2 of the Election Act, Regulations 83 and 87 of The Election General Regulations and Rules 8 and 12 of The Election Petition Rules, 2017, the Applicant (4th Respondent) seeks the following orders:

(a) The Petition of Mwahima Mwalimu Masudidated and filed in Court on the 6th September 2017, be struck out, and or alternatively and without prejudice to the foregoing, it be dismissed.

(b) The costs of this application and the Petition beawarded to the 4th Respondent/Applicant herein.

The application is premised on the grounds on the face of the application and those adduced during the hearing of the application.

2. The Applicant alleges that Rule 8 of the Election Petition Rules governing this Petition provides that an election Petition shall state the date when the election in dispute was conducted, the results of the election, if any, however declared and the date of the declaration of the results of the election; while Rule 12 (2) of the Election Petition Rules provides that an affidavit in support of a Petition under Sub-rule (1) shall state the results of the election, if any, however declared and the date of the declaration of the results of the election.

3. The Applicant alleges that the need to particularize the results of the election as declared, the date of the election, and the date the results are declared, are all central matters of content which must be specifically stated in an election Petition. The Applicant further contends that in the instant Election Petition, the Petitioner did not state or provide the following mandatory requirements as provided by the law;

(a) The Results of the Election as declared.

(b) The date of declaration of the Results of the election.

4. The Applicant alleges that the instant Petition does not state the number of votes cast in favour of each of the candidates who participated in the questioned election. Neither does it state the total votes cast in the election, hence the Applicant contends that the instant Petition is defective and incompetent.

5. The Applicant claims that the Affidavit in support of the Petition does not meet the mandatory requirements of Rule 12(2) (c) and (d) of the Election Petition Rules 2017.

6. The Applicant alleges that the laws and rules that are enacted require certain steps to be taken and particular matters to be included in an election Petition for the timely settling of disputes.

7. The Applicant claims that the Petition is further defective for having followed the Rules applicable to a Presidential Petition filed in the Supreme Court, at the expense of observing the mandatory requirements for petitions brought in this election Court.

8. It is the Applicant’s case that the Petitioner has failed to comply with mandatory requirements as set out in the Rules which also results in a failure to comply with the requirements of the Constitution, since these laws are derivatives of the Constitution.

9. It is also the applicant’s case that the alleged contravention of the Rules and the Constitution by the Petitioner cannot be remedied thus the entire Petition should be struck out/or alternatively, dismissed.

Response

10. The Petitioner/Respondent opposed the Application by way of grounds of objection filed on 9th October, 2017. The 1st-3rd Respondents did not respond to the Application

11. The Petitioner/Respondent alleges that the Application is bad in law and procedure as it is against the constitutional dictates at Article 159 (2) (d) and Rule 5 of the Elections (Parliamentary and County Petitions Rules 2017) which require the court to decide cases on their merits.

12. The Petitioner/Respondent further claims that the Respondents herein have already filed their Responses to the Petition and have sought validation of the same therefore their actions show that indeed the Petitioner has a good Petition before the court.

13. The Petitioner/Respondent claims that the application is against the call for a speedy trial to do justice to the Parties as it is made against the requirements set by the Petition Rules, 2017.

Hearing

14. The Application came up for hearing on 18th October, 2017. Mr. Mongeri and Ms. Mayabi appeared for the Petitioner/Respondent, Mr. Paul Buti appeared for the 4th Respondent/Applicant while Mr. Wafula appeared for the 1st-3rd Respondents.

15. Mr. Buti, learned counsel for the 4th Respondent/Applicant, in support of the application submitted that Rule 8 sub-rule 1 (b), (c) and (d) makes mandatory requirements that need to be contained in an election Petition which are:

(b) The date when the election was conducted.

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

Counsel argued that these requirements are not discretionary but mandatory for any election petition to be competent.

16. Mr. Buti submitted that in terms of results of the election Section 2 of the Election Act defines “election results” as “the declared outcome of the casting of votes by voters at an election” and that the results of the election form an integral part of an election petition and if omitted an election petition becomes incompetent.

17. Mr. Buti cited the case of John Mututho vs. Jayne Kihara 2008 eKLRin which he argued, the court of Appeal dealt with a similar issue as in this application. Counsel stated that in that case the Respondent had filed an Election Petition without including therein the results of the election as announced by the relevant officers and the Court stated:

“The marginal note to Regulation 40, aforesaid reads “Announcement of Election results”. A careful reading of that Regulation clearly suggests that the result is not confined to just declaring who won. The detailed result is what is envisaged. The Regulation deals with votes cast, votes spoilt, and those garnered by each candidate”

Counsel further argued that the present Regulation 83 is in exactly similar terms and contains all the matters referred to in that decision. In particular, Counsel submitted that Regulation 83(1) (c) requires the Returning officer to declare:

(ii) total number of registered voters

(iii) votes cast for each candidate in each polling station

(iv) number of rejected votes for each candidate in eachpolling station

(v) aggregate number of votes cast in the respective electoral area; and

(vi) aggregate number of rejected votes.

18. Citing the same case, John Mututho (supra), Mr. Buti submitted that the Court of Appeal while making reference to Rule 4 (1) (b) stated that the issue in any election is the result of the election, hence the result of the election is an important factor that should be included in a petition.

19. Mr. Buti submitted that in the case of John Mututho (supra), the Court of Appeal prescribed what should happen if a Petitioner does not state the date of the elections and the results of the election. Counsel stated that the Court of Appeal held that:

“What would happen where, as here, the results as envisaged by regulation 40, above are not included in the Petition” In our view an essential element would be missing. The Petition shall be incomplete as the basis for any complaint will be absent. Whatever complaints a petitioner may be having about an election may be regarded as having no legal basis. 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 is 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. As rightly pointed out by Mr. Kilonzo for the appellant, that law has no provision for amendment of pleadings after the 28 days stipulated for lodging 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.”

20. Mr. Buti submitted that Rule 8 1(c) requires a Petition to specifically state the results, “however declared”. Counsel argued that this means that there has to be a tabulation of results in the manner that each candidate in the election received votes that were cast in his/her favour. Counsel submitted that the Petitioner herein has not shown the votes cast in favour of each candidate in the election that is being questioned and so it is not possible to tell from this Petition how many candidates vied for the seat of Member of National Assembly in Likoni Constituency, the votes garnered by each candidate and the total number of votes cast. Counsel cited the case of John Mututho (supra) where the Court held:

“Any evidence adduced or to be adduced is intended to show that certain irregularities affected the outcome of the election, but without the result, it might not be possible to relate the irregularities to the result”.

21. To support his submissions above, Mr. Buti added that the decision of the Court of Appeal in the John Mututho case has been followed by the High Court of Kenya in various election petition cases. Counsel cited the case of Amina Hassan Ahmed vs. IEBC & 2 Others 2013 eKLR in which the court relied on the case of John Mututho where it was held:

“The Petition before me failed to state the election results being contested. It failed to include the dates or the time of the results… And yet she appealed to this Court to consider such details and mandatory information in the Petition as technicalities which the Court should ignore or disregard under Article 159(2) (d) of the Constitution: The Petitioner’s view is not in conformity with the said constitutional provision.”

Further Counsel stated that in the High Court case, the case of Raila vs. IEBC & 2 Other (2013) was cited where the Supreme Court pronounced itself in regard to Article 159 (2) (d) of the Constitution by stating:

“Article 159 (2) (d) was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from Courts of law…”

Counsel stated that the High Court in the aforementioned case having analyzed the cited cases concluded that:

“In my view and finding based on the facts and reasons hereinabove, the Petitioner’s Petition is without doubt fatally defective because it is deficient in form and lacks vital prescribed content.”

“To that end, this Court borrows and fully adopts the clear reasoning of the Kenyan Court of Appeal as well as the Supreme Courts of India in the cases quoted above.”

22. Mr. Buti also referred the court to the case of Evans Nyambaso vs. IEBC & 2 Others, 2013 eKLRwhere Sitati J. having considered the cases of John Mututho (supra) and Amina Hassan Ahmed (supra) held:

“My view of the matter is that since Rule 10 of the Rules clearly sets out the contents and form of an election Petition a Petitioner has to comply with the same so as to give a chance to the Respondents to know what case they are faced with.

The authorities cited above all point to the fact that where material particulars are not included in the Petition then such a Petition is fatally incompetent and must be struck out.

That is the position in this case and I so find.”

23. Mr. Buti submitted that on the basis of the cases that he had cited the instant Petition was defective and incurable for failure to state the date and results of the election and in particular the manner of declaration of those results, the number of candidates in the Contest and votes garnered by each candidate in that election.

24. Mr. Buti submitted that the date of declaration of results of the election was important so as to determine whether a Petition was filed within or outside the time provided for in Article 87 (2) of the Constitution.

25. Mr. Buti submitted that this Petition was a replica of Election Petition No. 1 of 2017, Supreme Court, yet the elections rules followed by the Supreme Court do not apply to this election court. Counsel cited some of the mistakes made by the Petitioner in his Petition including:

(a) At Paragraph 6 of this Petition where the Petitioner complains that there was total failure to comply with Articles 138, 149 and 163 of the Constitution during the conduct of the Likoni Parliamentary Elections.

Counsel argued that this is fallacious because:

Article 138 deals with Procedure at Presidential Election Article 140 deals with Questions as to validity of presidential elections. Article 160 concerns itself with Establishment of the Supreme Court, and its exclusive jurisdiction to hear and determine a Presidential Election Petition.

All these, Counsel submitted, have no relevance to the Parliamentary Elections held in Likoni Constituency.

26. Mr. Buti submitted that the Petitioner herein chose to follow the Rules of the Supreme Court, and included such matters from Paragraph 66 of this Petition in error. Counsel submitted that the consequent fatal result from this error is that the Petitioner included irrelevant matters in the Petition, and omitted/failed to include vital relevant matters.

27. In concluding, Mr. Buti submitted that the Petitioner had failed to comply with the mandatory requirements of Rules 8 and 12 of the Election Rules and therefore this Petition should be struck off or alternatively dismissed.

28. Ms. Mayabi, learned Counsel for the Petitioner/Respondent in response submitted that the Applicant’s allegation that the date of declaration of results has not been included is misguided as the same has been stated at Paragraph 5 of the Petition.

29. Ms. Mayabi submitted that the Petitioner has complied with Rules 8 and 12 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 as to the contents and form of a Petition as he has annexed Form 35B which is the copy of the declaration of results, to the affidavit in support of the Petition.

30. Ms. Mayabi stated that the Election Petition Rules provide that the Petition must be supported by an Affidavit, the failure of which renders it incompetent. Counsel argued that the Petition and the Supporting Affidavits should be properly regarded holistically and globally as one document. Counsel cited Supreme Court Petition No 2B of 2014 Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others. Counsel stated that in that case the court opined that the Affidavit in support of a Petition and any documents annexed thereto are deemed to be part of the Petition and therefore part of the pleadings.

31. Ms. Mayabi submitted that Rule 5(1) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 grants the Court discretion as to any failure of compliance by any party and consequentially renders all provisions of the Rules as directives, rather than mandatory provisions. Counsel stated that this Court should not fetter its discretion and in the spirit of substantive justice disallow the Application for dismissal.

32. Ms. Mayabi submitted that dismissing of pleadings in their entirety is drastic and draconian and limited to cases/pleadings which are scandalous, embarrassing or oppressive. With regard to this Petition, Counsel argued that it was not weak beyond redemption as the Applicant alleged and that it is just and equitable in the circumstances to allow the Petition proceed to full hearing and determination on its merits as it raises triable issues which not only affect the Petitioner but the residents of Likoni Constituency as a whole. To support this assertion, Counsel cited the Presidential Petition No 1. of 2017, Raila Amollo Odinga and Another vs. the Independent Electoral and Boundaries Commission and 2 Others [2017] eKLR, in which the Court dismissed an Application seeking to strike out and/or expunge from the Court record documents filed by the 1st, 2nd and 3rd Respondents that were not served upon Counsel for the Petitioner even where the Supreme Court (Presidential Election Petition) Rules had provided for rules of service in mandatory terms. The Court stated that:

“…the nature of this Application is such that were it to be granted, it would dispose of the entire case of the 1st, 2nd and 3rd Respondents at this preliminary stage. Such a drastic consequence in our view cannot be justified if the scales of justice are weighed in favour of all the parties to this Petition…”

33. In the same aforementioned Presidential Petition, the court allowed the retention on record of certain documents, stating as follows:

a) The Applicant had not claimed nor demonstrated that the retention of the documents and annexures in question on the Court record would jeopardize or seriously undermine the ability of this Court to hear and determine the Petition within the Constitutional time limit.

b) The Court appreciated the Applicant’s apprehension and indeed noted that it was not an idle one in stating that the Rules of the Court must be adhered to by all litigants at all times to ensure the orderly and expeditious conduct and disposal of disputes that come before it. However in the interests of justice to all parties in the Petition, the court was inclined to invoke their inherent jurisdiction in favour of retaining the documents and annexures in question on the court record.

34. Ms. Mayabi submitted that the Applicant in this instant has not demonstrated that the alleged failure to include the results of the election would jeopardize or seriously undermine the ability of this Court to hear and determine the Petition within the Constitutional time limit.

35. Ms. Mayabi stated that if this Court is persuaded by the argument of the Applicant that the results of the election as declared have indeed not been included in the Petition, this Court should consider the well-adjudicated principle that mistake of an advocate should not be visited upon his client. Counsel cited the case of Philip Chemwolo & Another vs. Augustine Kubende [1982-88] KAR 103 in which Apaloo JA stated:

“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that the party should suffer the penalty of not having his case heard on merits….. I think the broad approach to this matter is that unless there is fraud or intention to overreach there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”

Counsel argued that Petitioner should not be punished for the mistake of his Advocate.

36. Ms. Mayabi stated that there is no allegation that the Applicant stands to suffer any prejudice that cannot be compensated by way of costs if the Application is dismissed. Counsel contended that if the Petition proceeds to full hearing and thereafter the same is found to be unmerited, there would be no prejudice caused on the part of the Applicant that cannot be compensated by costs whereas striking out the Petition could have dire consequences for the Petitioner and the residents of Likoni as a whole. Counsel urged this Court in exercising its discretion, to opt for the lower rather than the higher risk of injustice.

37. Ms. Mayabi submitted that the result of an election is not the only thing that can be challenged in an election petition that would have the effect of voiding an election. Counsel submitted that any irregularity in the process would have the same effect. Thus the results are not necessary to challenge an election, especially where the main grounds of the Petition are on the propriety of the conduct of the process as opposed to the results of the election as declared, which Counsel submitted, is the position in the instant Petition. Counsel cited the Presidential Petition, 2017 (supra) where the Supreme Court held:

“… In our respectful view, the two limbs of Section 83 should be applied disjunctively…a Petitioner who is able to prove that the conduct of the election in question substantially violated the principles laid down in our Constitution as well as other written law on elections, will on that ground alone, void and election…”

38. Ms. Mayabi noted that the overriding objective of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 as stated in Rule 4 therein is to ensure that there is just, expeditious, proportionate and affordable resolution of election petitions thus this Court is enjoined to ensure the merits of this Petition are determined in the interests of justice and fairness. Counsel referred the court to the cases of Stephen Boro Gitiha vs. Family Finance Building Society & 3 Others Civil Application No. Nai 263 of 2009 and Lucy Bosire vs. Kehancha Div. Land Dispute Tribunal & 2 Others [2013] eKLR.

39. Mr. Wafula, learned Counsel for the 1st-3rd Respondents supported the application and adopted wholly submissions by Mr. Buti.

Analysis and Determination

40. I have carefully analyzed the application and the submissions by Counsel. The issues or determination are:

a) Whether the Petitioner/Respondent stated the date of Declaration of the results.

b) Whether the Petitioner/Respondent stated the results of the election.

c) Whether the Petition should be struck off or dismissed.

Whether the Petitioner/Respondent stated the date of Declaration of the results

41. Rule 8 (1) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 (herein after to be referred to as the Election Petition Rules) provides the contents and form of a petition, it states that:

8. (1) An election petition shall state-

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 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.

Rule 12 (1) and (2) of the Election Petition Rules provide that:

12. (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 ofthe petitioners, if there is more then one petitioner.

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

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 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.

42. The Applicant herein contends that the Petitioner did not state the date when the declaration of the results of the election was made. The Applicant further states that this date of declaration of results is significant because it helps determine whether a Petition was filed within or outside the time provided for in Article 87 (2) of the Constitution, which is 28 days after the declaration of the results.

43. The Petitioner, on the other hand, argues that the date of the declaration of the results has been provided at paragraph 5 of the Petition.

44. I have carefully perused the Petition and I agree with the Petitioner that the date of declaration of the results has been stated in the Petition. Paragraph 5 of the Petition reads:

“5. The 4th Respondent was the Member of National Assembly candidate of the National Super Alliance Coalition of Parties (“NASA”), running on an Orange Democratic Movement Party (“ODM”) in the August 2017 General Elections and was declared the winner of the said elections by the 1st Respondent on 10th August 2017. ”

Therefore, the date of the declaration of the results has been provided in the Petition being 10th August, 2017 when the 4th Respondent/Applicant was declared the winner.

Whether the Petitioner/Respondent stated the results of the election

45. Rule 8 and 12 of the Election Petition Rules provide that the Petition and the Supporting affidavit respectively shall state the “the results of the election, if any, and however declared”. The Applicant argues that these Rules provide mandatory requirements that must be followed in every petition failure to which the petition becomes incompetent. The Petitioner states that the rules are not mandatory and pegs his hope on Rule 4 of the same Rules. Rule 4 of the Election Petition Rules provides:

4(1) The objective of these Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions.

(2) An election court, shall, in the exercise of its powers under the Constitution and the Act, or in the interpretation of any provisions in these Rules, seek to give effect to the objective specified in sub-rule (1).

46. Again, I have looked at the Petition and the supporting affidavit. I have found that the Petitioner has not stated the results of the election or how they were declared in either the Petition or the Supporting affidavit. However, the Petitioner contends that the results of the election are in annexures to the Supporting Affidavit specifically “MM4” which the Petitioner states is a copy of Form 35B which shows the results of the election in question.

47. The Petitioner further argues that the Petition and the Supporting Affidavits should be properly regarded holistically and globally as one document thus any non-compliance with Rules 8 and 12 can be cured by the said annexure.

48. The issue of whether annextures form part of pleading has been settled in the case of Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others [2014] eKLR where the Supreme Court held:

“We agree with the Court of Appeal in its faulting of the trial Judge’s statement that “annexures to an affidavit cannot be said to constitute pleadings.” The reasoning by the Court of Appeal regarding this question, in our view, represents the correct position in the law and practice relating to pleadings.”

49. However, although the annextures form part of the pleadings, the Election Petition Rules expressly provide that the results of the election must be stated in the Petition and in the Supporting Affidavit. It is important to note that in both Rules 8 and 12 the word “shall” is used. The Black’s Law Dictionary (2nd Edition) defines the term “shall” as follows:

“As used in statutes and similar instruments, this word is generally imperative or mandatory; but it may be construed as merely permissive or directory, (as equivalent to “may”) to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private (right) is impaired by its interpretation in the other sense.”

50. The Court of Appeal in the case of John Mututho (supra) stated:

“…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.”

The conclusion that can be derived from the above is that the term “shall” as used in Rules 8 and 12 creates a mandatory obligation on the Petitioner. It was incumbent on the Petitioner to adhere to Rules 8 and 12 of the Election Petition Rules and include all the information listed therein in both the Petition and the Supporting Affidavit respectively.

Whether the Petition should be struck off or dismissed

51. Having found that the Petition and the Supporting Affidavit did not have the results of the election and the manner in which the same was declared, the court now turns to the issue of whether the Petition should be struck off owing to this failure.

52. The Applicant contends that the Petition is incomplete in that an essential component is missing thus the Petition is incurably defective and ought to be struck off. The Petitioner, on the other hand, argues that the Petition is not hopelessly incurable and relies on Rule 5 (1) of the Election Petition Rules which states:

“The effect of any failure to comply with these Rules shall be determined at the Court’s discretion in accordance with the provisions of Article 159 (2) (d) of the Constitution.”

53. Article 159 (2) (d) of the Constitution states:

“justice shall be administered without undue regard to procedural technicalities”

The Petitioner argues that these provisions give this Court the discretion to deal with any non-compliance with the Election Petition Rules.

54. The Applicant argues that the non-compliance with the mandatory requirements is not a mere technicality which this Court should overlook. To support his arguments, Counsel for the Applicant relies on the case of Raila vs. IEBC & 2 Other [2013] where the Supreme Court held that Article 159(2) (d) was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from Courts of law.

55. The relevance of Article 159(2) (d) of the Constitution was also discussed in the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 6others [2013] eKLR where Kiage JA stated:

“…I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both commend 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…”

56. The Petitioner argues that this Petition is not so hopeless that it should be dismissed in its entirety and states that striking out pleadings should be limited to pleadings that are scandalous, embarrassing or oppressive. The Petition supports his position with the Presidential Petition No 1. of 2017, Raila Amollo Odinga and Another vs. The Independent Electoral and Boundaries Commission and 2 Others [2017] eKLR where the Supreme Court in dismissing an application held:

57. I do agree with the Supreme Court and the Petitioner. Striking out a petition is a drastic move and an election court should be cautious when faced with such an application. The issue of striking out suits was discussed in the case of D.T. Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina & Another [1980] eKLRwhere Madan JA held:

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it”.

Although this decision was in relation to a civil suit, the principle enumerated therein can still have relevance in an election petition.

58. In this instance, if this Petition is dismissed then would justice be served to all the parties? If the scales of justice are weighed in favour of all the parties in this Petition then dismissal of this Petition would be too drastic. I have considered not only doing justice for the parties involved in this Petition but also for the residents of Likoni Constituency. The residents of Likoni Constituency may not be directly involved in this Petition but they have an interest in this Petition and its outcome.

59. I have also considered Article 159 (2) (d) of the Constitution in light of Rule 5 of the Election Petition Rules which gives this election court the discretion to determine any failure to comply with the Rules. I do not find that the failure by the Petitioner to include the results of the elections and how they were declared in the Petition and the Supporting Affidavit warrants dismissal of this Petition. The Respondents will not be so prejudiced by the lack of this information in the Petition or Supporting Affidavit that they will not be able to defend and/or challenge this Petition. Further, a copy of Form 35B, marked as “MMM 4”, for Likoni Constituency is annexed to the supporting affidavit to this Petition containing the results of the disputed election; votes cast and votes garnered by each candidate and as stated, above annexures form part of the pleadings. In the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 6 Others (supra),Ouko, J.A had the following to say:

“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the court, or the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not to be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”

60. Article 159 (2) requires justice to be administered without undue regard to procedural technicalities and in the same breath requires justice to be done to all. I find that justice in this instant can only be done to all the parties if this Petition is allowed to proceed on its merits.

61. For the foregoing reasons, the application dated 25th September, 2017 is dismissed. Costs to be in the cause.

Dated, Signed and Delivered in Mombasa this 8th day of November 2017.

E. K. O. OGOLA

JUDGE

In the Presence of:

Mr. Mongeri & Ms. Mayabi for Petitioner

Mr. Wafula for 1st to 3rd Respondents

Mr. Buti for 4th Respondent

Mr. Kaunda Court Assistant