Robinson Simiyu Mwanga & Alpha Kitazi Chore v IEBC, Bilha Kiptugen & Khaemba Patrick Simiyu [2017] KEHC 2713 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

ELECTION PETITION NO. 1 OF 2017

ROBINSON SIMIYU MWANGA

ALPHA KITAZI CHORE..........................................PETITIONERS

VERSUS

THE IEBC.........................................................1ST RESPONDENT

BILHA KIPTUGEN..........................................2ND RESPONDENT

KHAEMBA PATRICK SIMIYU.......................3RD RESPODNENT

RULING NO. 2

Upon the close of the Petitioners' case Counsel for the Petitioners Miss Anyango who has been appearing with Mr S. Gitonga in these proceedings has sought for an adjournment of the hearing to tomorrow morning so as to enable Mr. S. Gitonga who lost a close relative yesterday and had to rash to Nairobi to be able to deal with the matter further more so on the cross-examination of the 2nd Respondent herein, Bilha Kiptugen.

The application is opposed by Mr. Yegofor the 1st and 2nd Respondents principally on the ground that he had a discussion with Mr Gitonga last night and they agreed to proceed on with the hearing today and that he was surprised to learn of the application in court.

Further, the 2nd Respondent has been bonded to appear and testify in a Criminal case in Nairobi tomorrow and on Friday and that she is scheduled to travel tonight by the 07:30 pm flight from Eldoret Airport.

Likewise, Counsel for the 3rd Respondent Mr Peter Wanyama is opposed to the application for adjournment and urges this Court to note that we have very limited time to deal with this matter to its conclusion and unless deliberate efforts are taken towards attaining that goal, we may not achieve the timely determination of the matter.

Having carefully considered the application I note that the issue of Mr S. Gitonga having lost a close relative came up yesterday and the Court had to adjourn at a certain point so as to give time to Mr. Gitonga to liase with his family members in Nairobi over the sudden occurrence. Mr Gitonga however indicated that he would travel to Nairobi after yesterday's proceedings.

I must commend all the Counsels and parties herein for the deliberate efforts taken in proceeding on with this matter. As at now, the Petitioners have closed their case and the matter is due for the Respondents' cases' hearing. That is for a mean achievement in three days.

In as much as this Court remains so alive and vigilant on the strict time-lines in this matter on one hand, the reality that a Counsel lost a close relative yesterday remains on the other hand. As Miss Anyango has been in Court since morning and has indeed proceeded with the hearing which has enabled this Court to deal with several witnesses and in view of the nature of the evidence to be adduced by the 2nd Respondent herein more so given that it is now 03:00pm, I am of the very considered view that adjourning the hearing to tomorrow morning will be a fair order in the unique circumstances of this case.

I also note that this matter had been fixed for hearing for the entire week and the 2nd Respondent is required to attend to the hearing as scheduled. Needless to say, the matter in which the 2nd Respondent is to testify in Nairobi is before the Magistracy and more importantly it is not an election petition. I therefore do believe that there is still adequate time for the 2nd Respondent to make the necessary arrangements and inform Nairobi of the position in this matter.

Having said so, I now make the following orders:-

a) The hearing is hereby adjourned to 02/11/2017 at 08:30 am.

b) Counsel for the Petitioner who is now in Court to prepare and proceed accordingly just in the event Mr. Gitonga does not turn up tomorrow.

Orders accordingly.

A.C. MRIMA

JUDGE

01/11/17

Delivered in open court and in the presence of:

Miss Anyango for the Petitioners

Mr. yego for the 1st and 2nd Respondents

Mr. Peter Wanyama for the 3rd Respondent