Seth Ambusini Panyako v Independent Electoral & Boundaries Commission, Returning Officer Kakamega County & Cleophas Wakhungu Malalah [2017] KEHC 2305 (KLR)

IN THE HIGH COURT OF KENYA AT KISUMU

KAKAMEGA ELECTION PETITION NO. 14 OF 2017

ELECTION FOR THE MEMBER OF SENATE KAKAMEGA COUNTY

BETWEEN

SETH AMBUSINI PANYAKO………..……………………….....……….……..…….PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION……1ST RESPONDENT

THE RETURNING OFFICER KAKAMEGA COUNTY...…….…................2ND RESPONDENT

CLEOPHAS WAKHUNGU MALALAH……………..................................……3RD RESPONDENT

RULING

1. By a Notice of Motion dated and filed on 30. 10. 17, brought under the inherent powers and jurisdiction of this court and all enabling provisions of the Law, the 3rd respondent, Cleophas Wakhungu Malala seeks the following orders:

1) That the witness affidavit of Angeline Itambo Ondiek sworn on 2. 10. 17 and submitted by the petitioner in support of his petition be struck out, expunged and excluded from the evidence

2) That the witness affidavit of Andrew Maloba Kagwa sworn on 2. 10. 17 and submitted by the petitioner in support of his petition be struck out, expunged and excluded from the evidence

3) That the witness affidavit of BenardOchiengAkugwi sworn on 2. 10. 17 and submitted by the petitioner in support of his petition be struck out, expunged and excluded from the evidence

4) That the witness affidavit of John KarakachaOpiyo sworn on 2. 10. 17 and submitted by the petitioner in support of his petition be struck out, expunged and excluded from the evidence

5) Costs of this application be provided for

2. The application is based on the grounds among others:-

i. That the petitioner did not seek leave to file additional affidavits

ii. That the affidavits are time-barred

iii. That the late introduction of additional unsanctioned affidavits greatly prejudices the 3rd respondent

3. The application is also supported by 3rd respondent’s ’s affidavit sworn and filed on 30. 10. 17 in which he reiterates the grounds on the face of the application and gives further details in respect thereof. He deposes that by a court order issued on 13. 10. 17; the petitioner was allowed to file a supplementary affidavit to the 2nd respondent’s replying and supplementary affidavits filed on 13. 10. 17 and a replying affidavit to the 3rd respondent’s application dated 6. 10. 17 but that he has filed additional affidavits introducing new evidence to the petition.

1st and 2nd respondent’s response and submissions

4. The 1st and 2nd respondent supported the 3rd respondent’s application and on 2. 11. 17 filed a notice of preliminary objection and grounds of opposition to the petitioner’s further affidavit dated 19. 10. 17 which is claimed to raise new evidence. They rely on a court order issued on 13. 10. 17 in which the petitioner was allowed to file a supplementary affidavit in response to the 2nd respondent’s replying and supplementary affidavits filed on 13. 10. 17 and a replying affidavit to the 3rd respondent’s application dated 6. 10. 17.

5. In their submissions filed on 7. 11. 17, the 1st and 2nd respondent state that the petitioner’s further affidavit addresses issues raised in the petition and more specifically paragraphs 1-33 and 36 to 57 and that it is not a supplementary affidavit as ordered by court on 13. 10. 17.

6. It was further submitted that the petitioner has sneaked in affidavits by Angeline Itambo Ondiek; Andrew Maloba Kagwa; Benard Ochieng Akugwiand John Karakacha Opiyo out of time contrary to rule 12 (3), (6), (7) and (11) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. They urged the court to strike out the affidavits filed in contravention of Rule 19 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017.

7. It was further submitted that the petitioner cannot seek refuge under Article 159 of the Constitution by deliberately disregarding procedure. To this end, the 1st and 2nd respondents cited Nicholas Kiptoo Arap KorirSalat v Independent Electoral and Boundaries Commission & 6 others [2013]eKLRwhich cited with approval Abok James Odera T/A A. J. Odera& Associates versus John Patrick Machira T/A Machira& Co. Advocates [2013]eKLR where the court held that:-

“the application of the overriding objective principle does not operate to uproot established principles and procedures but to embolden the court to be guided by a broad sense of justice and fairness”.

8. The court further stated that:

“It ought to be clearly understood that the courts have not belittled the role of procedural rules.  It is emphasized that procedural rules are tools designed to facilitate adjudication of disputes; they ensure orderly management of cases.  Courts and litigants (and their lawyers) alike are, thus, enjoined to abide strictly by the rules.  Parties and lawyers ought to be reminded that the bare invocation of the oxygen principle is not a magic wand that will automatically compel the court to suspend procedural rules.  And while the court, in some instances, may allow the liberal application or interpretation of the rules that can only be done in proper cases and under justifiable causes and circumstances.  That is why the Constitution and other statutes that promote substantive justice deliberately use the phrase that justice be done without “undue regard” to procedural technicalities”.

9. They also cited Steven Kariuki v George Mike Wanjohi& others[2013] eKLR where the court reiterated as follows:-

“But that is not to say that rules or technical rules shall not apply: only that the court should not pay undue regard to them. If rules were to be thrown out of the window, chaos akin to a village baraza, will step in through the wide door. That was clearly not the intention of the legislature”.

10. The 1st and 2nd respondents further submitted that the petitioner had not established any justification for filing the witness affidavits without seeking leave and that the court could therefore not exercise discretion in his favor. They relied onSteven Kariuki v George Mike Wanjohi& others (Supra) where the court held:

“If procedural rules were to be waived in all cases, there would be disorder in court processes.  I do not see why the legislature in section 81 of the Civil Procedure Act created the Rules Committee if the Civil Procedure Rules were to be waved away casually”.

11. On the question of whether the court should disregard technicalities, they relied on Steven Kariuki v George Mike Wanjohi& others (Supra) where the court further stated:

The Supreme Court has succinctly interpreted the boundaries of Article 159 (2) (d) in Raila Odinga and others v Independent Electoral and Boundaries Commission and 2 others Nairobi Petition No. 5 of 2013 [2013] eKLR. In a motion brought to strike out a further affidavit, the learned judges delivered themselves as follows: “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. This principle of merit, however, in our opinion, bears no meaning cast-in-stone, and which suits all situations of dispute resolution. On the contrary, the court as an agency of the processes of justice is called upon to appreciate all the relevant circumstances and the requirements of a particular case and conscientiously determine the best course”.

Petitioner’s response

12. The application is opposed on the basis of a replying affidavit sworn by the petitioner on 3. 10. 17 and filed on 6. 10. 17 in which he avers that the affidavits do not introduce new evidence since he had in paragraph 16 of his affidavit in support of the petition averred that the 3rd respondent had hired people to bribe voters at all polling stations. The petitioner urged the court to disregard technicalities by applying the overriding objectives principles and thereby admit the affidavits out of time by invoking the provisions of invoke Rule 19 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 and Section 80(1) (d) of the Elections Act.

13. In reply to the 1st and 2nd respondent’s preliminary objection, the petitioner in his affidavit sworn and filed on 6. 11. 17 avers that he was granted leave to file a further affidavit to respond to the affidavits filed by the 1st and 2nd respondents. The petitioner urged the court to disregard the preliminary objection since it does not meet the threshold in Mukisa Biscuits Manufacturing Company Ltd vWest End Distributors Ltd Civil Appeal No. 9 of 1969 (EA)in whichSir Charles Newboldstated thus:

“a preliminary objection is in the nature of what   used to be a demurer.  It raises a pure point of law which is argues on the assumption that all facts pleased by the other side are correct.  It cannot be raised if any fact has to be ascertained or what is the exercise of judicial”.

14. I have considered the notice of motion in the light of the supporting affidavit, the replying affidavit and the written and oral submission on behalf of the parties.

15. Issues for determination

a) Whether the further affidavit sworn by the petitioner on 19. 10. 17 and filed on 23. 10. 1 should be struck out

b) Whether affidavits sworn by Angeline Itambo Ondiek; Andrew Maloba Kagwa Benard Ochieng AkugwiandJohn Karakacha Opiyo on 2. 10. 17 should be struck out

a) Whether the further affidavit sworn by the petitioner on 19. 10. 17 should be struck out

16. The court in its wisdom and in applying the overriding  objectives to facilitate the  just, expeditious,proportionateandaffordable resolutionofelections petitions and in ensuring that no injustice was visited on either party on 6th October, 2017 granted the following orders among others that:-

a) The Petitioner be and is hereby granted leave to file a supplementary affidavitto the 2nd respondent’s replying and supplementary affidavits filed on 13. 10. 17

17. When the parties appeared before this court on 13. 10. 17, it became apparent that they had not been able to fully comply with the orders issued on 6th October, 2017 and the court upon hearing oral applications by the petitioner and respondents’ counsels granted the following orders among others that:-

i. The petitioner is granted 4 days from today’s date to file and serve a supplementary affidavitto the 2nd respondent’s replying and supplementary affidavits filed on 13. 10. 17and replying affidavits to the 3rd respondent’s application dated 6. 10. 17

18. For avoidance of doubt, the same order relating to the filing by the petitioner of a supplementary affidavit to the 2nd respondent’s replying and supplementary affidavits filed on 13. 10. 17 was reiterated in the court’s order issued on 13th October, 2017.

19. Section 19 of the Elections Act emphasizes the flexibility available to the Court when, at the pre-trial conference, party’s first meet to discuss the overall scope and process of their intended cases. The Court may inter alia, give directions as to the filing and serving of any further affidavits or the giving of additional evidence.

20. On this point, the Supreme Court in the case of Raila Odinga & 5 Others vs. Independent Electoral and Boundaries Commission and 3 Other [2013] e KLRheld:

“The other issue the Court must consider when exercising its discretion to allow a further affidavit is the nature, context and extent of the new material intended to be produced and relied upon. If it is small and limited so that the other party is able to respond to it, then the Court ought to be considerate, taking into account all aspects of the matter. However, if the evidence...is such as to make it difficult or impossible for the other party to respond effectively, the Court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence”.

21. While it is true that the petitioner filed a further affidavit instead of a supplementary affidavit; there is no evidence that itraises any new matters that were either not in his petition and supporting affidavit or the affidavits filed on behalf of the 1st and 2nd respondent. I have perused the affidavit. In my view it answers to direct matters raised in the affidavits in reply to the petition.  I have no doubt that the respondents will be able to respond to the issues raisedand that no prejudice will be occasioned to them.I therefore disregard the technicality in the title of the affidavit and decline an invitation to strike it out.

b. Whetheraffidavits sworn byAngeline Itambo Ondiek; Andrew Maloba Kagwa Benard Ochieng Akugwi and John Karakacha Opiyo on 2. 10. 17 should be struck out

21. Article 87 of the Constitution provides as follows:-

(2) Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.

22. Section 12 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 provides as follows:

3)Each person who the petitioner intends to call as a witness at the hearing shall swear an affidavit.

(4)A petitioner shall, at the time of filing the petition, file the affidavits sworn under sub-rule(3).

23. The foregoing rules contemplate a situation where witness affidavits are filed together with the petition withintwenty-eightdaysafterthedeclaration of the election results by the Independent Electoral and Boundaries Commission.

24. The legislature in its wisdom well knowing that parties may not be able to meet some deadlines enacted, Section 19 of the Elections Act which provides as follows:

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

(2)Sub-rule(1)shall not apply in relation to the period within which a petition is required to be filed, heard or determined.

25. In exercising its discretion to extend time on 6th and 13th October, 2017,court did not grant the petitioner leave to file further witness affidavits in support of the petition.

The petitioner has not offered an explanation why he chose to disregard well laid down rules of procedure. I am persuaded by the holding in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission& 6 others [2013]eKLRwhich cited with approval Abok James Odera T/A A. J. Odera& Associates versus John Patrick Machira T/A Machira& Co. Advocates [2013]eKLRwhere the court held that the application of the overriding objective principle does not operate to uproot established principles and procedures but to embolden the court to be guided by a broad sense of justice and fairness.

26. I also agree with the holding in Steven Kariuki v George Mike Wanjohi& others[2013] eKLRthat if procedural rules were to be waived in all cases, there would be disorder in court processes.

27. There is no evidence that the evidence sought to be introduced by the further witness affidavitswas not available to the petitioner when he filed this petition. And even if the same was not available at the time of filing this petition, the petitioner had an obligation under the provisionsof Rule 19 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, to seek extention of time instead of mischievously sneaking the affidavits into this petition.

28. Having said that, I find that the introduction of the new affidavitsno doubt presents new evidence out of time, and the respondents will certainly be prejudiced since they will be required to seek witnesses within the limited time frame to respond to the new evidence.

29. Further to the foregoing, I find that it is the duty of this court to guard against the ceaseless back and forth that would ensue if the exchange in filing of affidavits is not closely supervised by the court.

30. Consequently, this court finds that the affidavits sworn by Angeline Itambo Ondiek;Andrew Maloba Kagwa; Benard Ochieng Akugwi andJohn Karakacha Opiyo on 2. 10. 17 are an abuse of the court process and declines to exercise its discretion in favor of the petitioner.

ORDERS

31. From what is stated herein above, this court makes the following orders on the notice of Preliminary objection filed by the 1st and 2nd respondents on 2. 11. 17 and the 3rd respondent’s Notice of Motion dated and filed on 30. 10. 17:

1. The Preliminary Objection raised by the 1st and 2nd respondents has no merit and it is overruled

2. The affidavits swornon 2. 10. 17byAngeline Itambo Ondiek; Andrew Maloba Kagwa; Benard Ochieng Akugwi and John Karakacha Opiyo are an abuse of the court process andthey are struck out and expunged from the court record.

3. Costs of the application shall be borne by the petitioner

DATED AND DELIVERED THIS14thDAY OFNovember2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant                        - Felix

Petitioner                                  - N/A

1st and 2nd Respondent        - Mr Bukania

3rd respondent                          - N/A