Shukra Hussein Gure v Independent Electoral and Boundaries Commission, Country Returning Officer of Independent Electoral and Boundaries Commission & Anab Gure Mohamed [2017] KEHC 1611 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

HIGH COURT ELECTION PETITION NO. 5 OF 2017

SHUKRA HUSSEIN GURE ...............................................................PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND BOUNDARIES

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

THE COUNTRY RETURNING OFFICER OF INDEPENDENT ELECTORAL AND

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

ANAB GURE MOHAMED.......................................................3RD RESPONDENT

RULING

1. This ruling is in respect of two applications.  That is application dated 19th October, 2017 and the application dated 21st November, 2017.  Both applications have been filed by the 3rd Respondent, Anab Gure Mohamed the women’s Representative for Garissa County in the National Assembly.  The two applications were argued simultaneously

2. I will first deal with the application dated 19th October, 2017.  The application is brought under Section 78 of the Election Act, the inherent jurisdiction of the Court and all other enabling provisions of the law. The principal prayers in the application seek orders that there be no further proceedings in this Petition pursuant to Section 78(3) of the Elections Act.  Secondly, that the court do dismiss the Petition dated and filed on 5th September, 2017 for want of compliance with the mandatory requirements of Section 78(1) of the Elections Act, with costs to the 3rd Respondent on an advocate/client basis.

3. The application is supported by the affidavit of Anab Gure Mohamed sworn on 19th October, 2017.  It is stated that the petition herein was filed on 5th September, 2017.  That the Petitioner failed to deposit the Security for costs within ten (10) days as provided by Section 8 (1) of the Elections Act 2011. It is further stated that as at the 19th October, 2017 when the application under consideration was filed, which is more than 30 days after the filing of the petition, the Petitioner was yet to deposit the security for costs.

4. The application is opposed.  In a replying affidavit sworn by John Muriithi Waiganjo counsel for the Petitioner, it is stated that this petition was filed on 5th September, 2015 (sic) and the deposit of security made on the 14th September, 2017 of Kenya shillings One million in two installments of Ksh.500,000/= as security for costs in petition No. 8 Women’s Representative Wajir County and the petition herein. That efforts to obtain a receipt for the said deposit in the court’s registry in Nairobi were fruitless as the deposit had been made in the judiciary account in Garissa and it was indicated that the receipt had to be obtained from Garissa.  That on being contacted Garissa Law Courts indicated that the file had been transferred to Nairobi where the hearings were to be conducted.

5. It is deposed that the Deputy Registrar Nairobi involved the Principal Accountant Nairobi who contacted the accounts office at Garissa Law Courts and after the reconciliation of the accounts the receipts were issued.  That he then delivered the receipt for this petition to this court.  It is averred that the deposit was made within the ten (10) days as required by the law and that the application ought not to be dismissed.

6. In a further affidavit sworn by Noel Ngaca Gacugia counsel for the 3rd Respondent, it is pointed out that there could be possible non compliance with the provisions of the law on the deposit of security.  It is stated that it took more than 40 days from the date of filing the petition before the documents for the deposit of security found their way into the court file.  That the bank deposit slip for the sum of Ksh.500,000/= bearing reference No. 5E4577F07F1DD440DA74 in respect of  cheque No. 000159 was at first provided then  after the instance application was filed the bank deposit slip reference No. B82AC43112A24C1B9AE for cheque No. 000158 was forwarded by the Deputy Registrar.

7. It is further asserted that no response to the application was filed immediately and instead the Petitioner’s counsel delivered to the court a copy of a deposit receiptNo.0325423 dated 30th October, 2017.  That a letter dated 15th November, 2017 from the Deputy Registrar Garissa Law Courts forwarded a certified copy of the duplicate receipt No.0325423 and an uncertified copy of a bank deposit slip Ref. No. B82AC43112A24C1B9AE in respect of cheque No. 000158.  That the replying affidavit by the Petitioner came after about one month and the same demonstrates a real possibility of non compliance with the law.  It is deposed that the bank slip is not certified or authenticated by the Deputy Registrar.

8. It is questioned why the Petitioner has not produced the original deposit receipt. It is argued that no logical explanation has been given why the deposit receipt was not issued on 14th September, 2014 when the payment was allegedly made so that the Deputy Registrar could make an entry in the record of deposit in the petition register as envisaged under Rule 13(3)(c) of the Elections (Parliament and County Elections) Petitions Rules (hereinafter Rules).

9. It is questioned why the triplicate receipt was not transmitted to this court by the Deputy Registrar Garissa Court through the official channels. It is further stated that what was furnished by the Deputy Registrar is a duplicate copy. That the only document the Deputy Registrar could have used for purposes of certification is through the original copy being provided by the petitioner. It is stated that there is no report or bank statement provided by the Judiciary Principal Accountant confirming when the payments were made and verified through certified copies of the extracts of the statement of the judiciary account.

10. It is averred that there is no report from the Deputy Registrar Garissa court to confirm when the entry of the deposit was made in the deposits register or when the file was transferred from Garissa to Nairobi nor any explanation provided or report to attest to the averments in the replying affidavit which relate to the said deposit.  The 3rd Respondent contended that there should be no further proceedings herein until the issue of the deposit is fully investigated and necessary verification carried out to confirm whether the deposit was made and made within time.

11. It is further stated that the bank deposit slip is not signed by the teller.  The 3rd Respondent’s bid in paragraph No. 8 of the further affidavit to refer to the contents of an affidavit in Garissa E.P. No. 6 of 2017 Idris Abdi Abdullahi is Ahmed Bashone & 2 otherswas unsuccessful as the said paragraph of the affidavit was struck out by the court as being extraneous to the application at hand.

12. The 1st and 2nd Respondents did not file any papers in opposition to the application.

13. The application was argued orally.  I have considered the application and the said submissions.

14. It is not in dispute that the triplicate receipt No. 0325423 dated 30th October, 2017 which is the case file copy was brought to court by the Petitioner’s counsel after the instant application was filed. Counsel for the 3rd Respondent informed the court on 31st October, 2017 that he was willing to withdraw the application upon the receipt of the official receipt under the cover of a letter from the Deputy Registrar.  The court directed the Deputy Registrar High Court, Garissa to avail certified copies of the deposit receipt.  The Deputy Registrar supplied the court with the certified copy of the duplicate receipt which is the Accounts copy and a certified copy of the bank deposit slip Ref. No. B82AC43112A24C1B9AE paid by J. M. Waiganjo & Co (Petitioners counsel) through cheque No.000158 for the deposit of the sum of Ksh.500,000//= in the Judiciary Account No 1184367264 at KCB Bank Ltd.  Kimathi Street Nairobi on 14th September, 2017.  The said bank deposit slip reflects that the “cheques will be given value when paid.” The copy of the receipt reflects the names of the parties herein.

15. The 3rd Respondent’s counsel has submitted that there is possible non compliance and that the matter should be investigated further by obtaining the bank statement.  It is noted  that the issue of the certification of the bank slip and the obtaining of the bank statement have come in by way of the depositions made in the further affidavit and by way of the submissions made in court.  There was no such application made before this court on 31st October, 2017 when the 3rd Respondent’s counsel applied for the official receipt to be forwarded to this court from Garissa Court under cover of letter by the Deputy Registrar.

16. Raising the matter about one month later during the hearing of the application was also rather late in the day taking into account the strict timelines provided by the law. The 3rd Respondent had the option of applying for a certified copy of the bank deposit slip and for the certified copy of the bank statement to be obtained from the bank before the hearing of the application.  The 3rd Respondent was also at liberty to inspect the deposit register.

17. On the face of it, the bank deposit slip availed by the Deputy Registrar reflects that the Ksh.500,000/= deposit was made on 14th September, 2017.  In the absence of any other evidence to the contrary, I hold that the said deposit was made within the timelines provided by the law.

18. The delay in the issuance of that official court receipt has been satisfactorily explained.  This is a petition that was filed in the High Court, Garissa. The Ksh.500,000/= deposit was made in the account of Garissa Law Courts.  The official receipt was issued by Garissa Law Courts.  The petition is being heard in Nairobi as per the Gazzettement of the hearing by the Honourable the  Chief Justice of the Republic of Kenya. If the 3rd Respondent had any questions regarding which date the file was moved from Garissa court to this court, all that was required was an application to be made for the Deputy Registrar to file an affidavit accordingly and if necessary be cross-examined on the content of the same.

19. With the foregoing, I find no merits in the application dated 19th October, 2017 and the same is dismissed with costs.

20. The application dated 21st November, 2017 was filed in court on the same day by the 3rd Respondent, Anab Gure Mohamed.  The application is brought under rule 8(1)(c) & 15 of the Elections (Parliamentary and County Elections Petition rules, 2017 as read together with Section 76 (4) of the Election Act 2011 and all other enabling provisions of the law.  Principally the application seeks orders that the petition dated 5th September, 2017 and filed on the same day be struck out with costs to the 3rd Respondent.  Secondly, that the court do make any ancilliary cost orders under Sections 78 & 74 of the Election Act 2011.

21. The application is based on the following grounds:

“1. That the Petitioner has failed to comply with the mandatory requirements of Rule 8(1) (c) of the Elections (Parliamentary and County elections) Petition rules, 2017, by failing to state the results of the election, rendering the Petition fatally defective, bad in law and incompetent.

2.  That the defect is incurable by dint of Section 76(4) of the Elections Act 2011;”

22. The application is supported by the affidavit of Anab Gure Mohamed, the Women’s Representative for Garissa County in the National Assembly.  It is stated that the actual results of the election the subject of this petition have not been stated in this petition contrary to the provisions of rules 8(1)  (c) of the Elections (Parliamentary and county elections) petition Rules 2017. That the petition is therefore incurably defective as it lacks fundamental basis for the complaints made by the petitioner and that without the result there will be no outcome of the election to relate any evidence of irregularities to.

23. It is further stated that the defect cannot be cured by way of amendment as no amendment was carried out within the time prescribed by Section 76 (4) of the Election Act, 2011.  It is further averred that the defects cannot be cured by the filing of a supplementary affidavit because if a petition does not contain all the essentials of a petition the furnishing of particulars would not validate it.   It is further stated that in the circumstances of this case although petitions are of considerable public interest, the petition ought to be considered within the realms of the law.

24. The application is opposed.  It is stated in the replying affidavit sworn by the Petitioner Shukra Hussein Gure on 23rd November, 2017 that the forms 39A which the 1st and 2nd Respondents published in the portal have been attached to the petition. That the results and the process are being contested.  That the rules do not provide for actual results and that it is therefore difficult to comprehend what the 3rd Respondent means by actual results. That the complaint in the petition is that the results pronounced are not known to the Petitioner save for the declaration that the 3rd Respondent was the winner as the 1st Respondent failed to disclose and publish the results. That the Petitioner has filed an application requesting to be supplied with the original forms 39A,39B & 39C.

25. It is further stated that all the Respondents have filed their answer to the petition without any difficulty and that failure to state the declared result if at all is envisaged by the law.  That if the court exercises it’s discretion not to strike out the pleadings it will not occasion the Respondents any prejudice. It is further averred that the petition is of great public interest on the conduct of the 1st Respondent and therefore the court ought to disregard technicalities of procedure and dismiss the application with costs.

26. The 3rd Respondent in response filed a further affidavit sworn on 27th November, 2017 stating that the Petitioners advocates had in the course of the proceedings herein indicated to the court that the Petitioner was out of the country and was not expected back until the 24th November, 2017, yet the replying affidavit was sworn on 24th November, 2017.  The 3rd Respondent applied for the Petitioner to be summoned to court for cross-examination and production of her travel documents for verification thereof.  It is further stated that the actual results were declared by the Returning officer and a certificate issued to the winner on 10th August, 2017.  That the Petitioner was fully aware of the results declared by the time the petition was filed on 5th September, 2017 but failed to state the results in the petition.  That consequently the petition ought to be struck out as the court lacks jurisdiction to entertain the same.

27. The 1st and 2nd Respondents did not file any papers in response to the application.

28. Before the application was heard the Petitioner, Shukra Hussein Gure was cross-examined on the contents of her replying affidavit sworn on 23rd November, 2017.  During the said cross-examination, the Petitioner maintained that the signatures in the said affidavit and in the affidavit sworn on 5th September, 2017 in support of the petition are both her signatures and pointed out that the only difference in her view is the size of the two signatures with one being in smaller sized letters. The Petitioner’s evidence is that she was in her advocate’s office during the signing of the affidavit sworn on 23rd November, 2017.  That another person whom she did not know also walked into the same office after she was done with the signing of the said affidavit and she left the advocate and the said person together.

29. The question is whether the said affidavit was properly commissioned in accordance with the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya.  The Petitioner’s evidence is that she did not know the person who walked into her advocate’s office and that there was no other person in that office except herself and her advocate.  Without the evidence of the Commissioner for oaths it is difficult to tell whether he witnessed the actual signing or found the Petitioner had already completed appending her signature.  I would say the same regarding the questions on who was present at the table where the petition was signed outside Garissa Law courts.  I am convinced by the uncontroverted evidence by the Petitioner that her advocate Mr. Irungu and other people who she did not know were at the table when she signed the petition and the same was stamped at the same table but she did not know the name of the other person who was with Mr. Irungu. Based on the evidence by the Petitioner, I am satisfied that the affidavits in question were properly commissioned.  There is no requirement that the commissioner for oaths is known to the deponent.  The affidavits in question are therefore properly on the record.

30. Rule 8 of the Election Petition Rules provides for the contents of an election petition.  The said rules stipulates:

“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, it any, for the petitioner which shall be the address for service.

31. The bone of contention is whether rule 8 (1)(c) is coached in a mandatory fashion and whether  the petition should be dismissed for non compliance. The parties  in their rival submissions referred the court to the case of Hassan Ali Joho & another Suleiman Said Shahbal & 2 others [2014] eKLR where the Supreme Court in a petition challenging the result of the election stated the declared results of an election are a key component in an election petition.

32.  It was submitted for the 3rd Respondent that paragraph 4 and 14 of the petition reflects that the declared results were known to the Petitioner, yet there was failure to state the same in the petition.  On the other hand, the Petitioner referred the court to paragraph No. 4 of the petition as the one that states the declared results.  The said paragraph No. 4 states: “The 3rd Respondent was the candidate of the National Assembly Women Representative Garissa County Candidate of Jubilee Party in the august 2017 elections and was declared the winner of the said elections by the 2nd Respondent on the 10th day of August 2017. ”

33. Considering the use of the terms “If any and however declared”in rule 8 (1) (c) my view is that the said rule envisages a situation where for example there could even be no results declared or results declared in a manner that is different from what is provided by the law.  The Petitioner’s contention is that what was declared is what is reflected in the petition. The issue therefore becomes an evidential one to be established during the hearing of the petition.

34. On whether the rules particularly rule 8 (1)(c)are mandatory or whether the court can exercise discretion and accommodate a petition that has failed to comply with the rules,  I have considered rule 4 & 5 of which provide as follows:

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

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

5(1) 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.

(2)  ..........”

35. I have also considered the provisions of Section 80(1) (d) of the Act which gives the Election Court powers to decide all matters that come before it without undue regard to technicalities. My view is that the objective of these provisions of the law is to facilitate the just resolution of an election dispute.  Rule 5(1) specifically gives the court the discretion to determine the issue of failure to comply with the Rules.

36. I have also considered the authorities cited by the counsels. Clearly there are two schools of thought that emerge from the decisions of the High Court. That is the school of thought in favour of exercise of discretion, for example in the following cases:

-Washington Jakaya Midiwo v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR

- Thomas Matwetwe Nyamache v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR

-Wavinya Ndeti & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR

- Caroline Mwelu Mwandiku v Patrick Mweu Musimba & 2 others [2013] eKLR

37. In William Kinyanyi Onyango v Independent Electoral and Boundaries Commission & two others [2013] eKLRthe court held as follows:

“In my considered opinion, the Petition Rules 2013 were meant to be handmaidens, not mistresses of justice.  Fundamentally, they remain subservient to the election Act 2011 and the Constitution.  Section 80(1)(d) of the elections Act 2011 enjoins the court to determine all matters without undue regard to technicalities.  Rules 4 and 5 of the Petition Rules 2013 have in turn imported the philosophy of the overriding objective of the court to do substantial justice. Certainly, Article 159 of the Constitution would frown upon a narrow and strict interpretation of the rule that may occasion serious injustice.  This is not to say that procedural rules will not apply in all cases; only that the court must guard against them trumping substantive justice.......”

38. In the case of Caroline Mwelu Mwandiku v Patrick Mweu Musimba & 2 others [2013] eKLR it was stated –

“39. The guiding principle in consideration of this matter is the overriding objective of the Rules which is stipulated under rule 4(1) of the Rules as “to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act”. This objective is best realized by the election court having regard to the purpose and mischief that the rule seeks to cure and the prejudice that would be occasioned by insistence on the strict compliance with form.  Rules 5 further obliges this court and the parties to conduct proceedings before it to achieve the following aims, a) the just determination of the election petition; and (b) the efficient and expeditious disposal of an election petition within the timelines provided in the Constitution and the Act.

40. Rules 4 and 5 are therefore a testament of the provisions of Article 159(2)(d) of the constitution which obliges every court to dispense justice without undue regard to technicalities.  The fact that elections are special disputes governed by special rules does not exonerate the court from this prime obligation to do substantive justice.......”

39. There are circumstances where it has been held that that non compliance with the rules is fatal and leads to the striking out of the petitions. See for example:

- Mbarak Issa Kombo v Independent Electoral and Boundaries Commission & 3 others 29017 eKLR

- Jimmy Mkala Kazungu v Independent Electoral and Boundaries Commission &  2 other [2017] eKLR

- Martha Wangari Karua & another v Independent Electoral and Boundaries Commission & 3 others [2017] eKLR

- Mwamlole Tchappu Mbwana   v Independent Electoral and Boundaries Commission & 4 others [2017] eKLR

40.  I am persuaded by the holdings that state that the court can exercise discretion when there is noncompliance with the Rules. In taking this position I am fortified by the Court of Appeal decision in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission  &  6 others 2013 eKLR where it was stated in the majority judgment as follows:-

“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the court, or which do not 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….

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.

41. When the above petition went to the Supreme Court on appeal it was observed as follows on the issue of form –

“[40] We are clear that an appeal of this kind should not be held to fail on mere account of form. Although the Rules of this Court give guidance on the form which an appeal should take, we are cognizant of the fact that Article 159 (2) (d) of the Constitution accords precedence to substance, over form. Rule 3 (5) of the Supreme Court Rules, 2012 empowers us to invoke our inherent power to make such Orders and directions as are necessary for the attainment of ends of justice, and to prevent abuse of Court process. In this regard, and in order to serve the sanctified task of interpreting the Constitution, and for the purpose of resolving this protracted electoral dispute, we are guided by Article 159(2) (d)- towards saving this appeal for determination on merits. The presentation form in this appeal, by no means violates the mandatory tenets of the Constitution, or the law, so as to compel the striking out of the appeal in limine. Though the petition is presented in its current form, our determination of the appeal will focus only on the issues canvassed, and as determined by the other superior Courts.”

42. The Supreme Court of Kenya in the case of Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission  & 5 others [2016]eKLRhad this to say on the issue of compliance:

“This Court has on a number of occasions remarked upon the importance of rules of procedure, in the conduct of litigation.  In many cases, procedure is so closely interwined with the substance of a case, that it befits not the attribute of mere technicality.  The conventional wisdom, indeed, is that procedure is the handmaiden of justice.  Where a procedural motion bears the very ingredients of just determination, and yet it is overlooked by a litigant, the court would not hesitate to declare the attendant pleadings incompetent.”

43.  In the case of John Michael Njenga Mututho v Jane Njeri Wanjiku Kihara & 2 others [2008] eKLRwhich has been referred to by the counsels for both parties, the Court of Appeal held as follows:

“It is clear from rule (1) (b), above that the issue in any election petition is the result of the election.  It should be noted that other than a statement on capacity to bring the petition and the date of the elections, the only other important factor to be included in an election petition is the result.  The marginal note of that rule makes the position abundantly clear.  It talks about the contents and Form of an election petition………….

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……….

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

44. The Mututhocase was decided in the year 2008 prior to the 2017 Rules.  The position prevailing today both under the Constitution and Election Rules is therefore different.

45. Each case is decided on it’s own facts and circumstances. In the case at hand, the Responses to the petition have been filed. Thus the petition was not hopelessly defective and incapable of being responded to.  The Respondents therefore understood the case that they face and will suffer no prejudice.  The petition has substantially complied with the rules. My view is that it will serve the interests of justice to hear the petition on merits.  The application dated 21st November, 2017 therefore fails.

46. In the upshot, both applications dated 19th October, 2017 and 21st November, 2017 are hereby dismissed with costs to the Petitioner.

Date, signed and delivered at Nairobi this 4th day of Dec, 2017

B. THURANIRAJADEN

JUDGE