Sila Samuel Mulwa v Independent Electoral and Boundaries Commission,Wafula Chebukati, Shida Tsuwi Alphonse & Paula Kahindi Katana [2017] KEHC 1743 (KLR)

REPUBLIC OF KENYA

IN THE ELECTIONS COURT AT MALINDI ELECTION PETITON NO 11 OF 2017

IN THE MATTER OF THE ELECTION ACT, 2011

AND

IN THE MATTER OF ELECTIONS ( PARLIAMENTARY AND COUNTY ELECTIONS ) PETITIONS  RULES, 2017

AND

IN THE MATTER OF THE ELECTION FOR KALOLENI CONSTITUENCY

BETWEEN

SILA SAMUEL MULWA ....................................................PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND BOUNDARIES

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

WAFULA CHEBUKATI ...........................................2ND RESPONDENT

SHIDA TSUWI ALPHONSE..................................3RD RESPONDENT

PAULA KAHINDI KATANA ....................................4TH RESPONDENT

RULING

1. Vide a Notice of Motion application dated 28th September ,2017, the 4th  Respondent  seeks to have the petition struck out, or alternatively dismissed with costs. The application is premised on thirteen grounds, numbered  alphabetically, with ground No(l) challenging the jurisdiction  of this court.

2. The jurisdiction of this Honourable court is derived from the  Constitution,  Statute and the rules made there under. The Honourable court was seized     with jurisdiction to hear and determine all the questions in the  election  petitions by virtue of it being gazetted bide Kenya Gazette Notice dated 15th  September, 2017, and  by virtue of section 8 of the election Act, 2011, the  Honourable court has jurisdiction to address all the  disputes relating to the petition.

3.  This special procedure was adopted by the drafters of the legislation to prevent  idle arguments and mischief since an election court is a special court dealing with the rights of  collective  individuals within strict  timelines. So that, if such arguments are allowed to creep into Election petitions, the court would  abandon citizens without redress where there are genuine grievances.

4.  I therefore  hold that this court is seized with jurisdiction to hear and   determine the petition before it so that it can answer whether or not the legal   requirements and rules of procedure were complied with  by the parties  before it. Having  stated this, I wish to say that this court  has jurisdiction to  determine the application before it.

5. From the grounds set out on the face of the application and the supporting affidavit sworn by the 4th Respondent PAUL KAHINDI KATANA, the main despite is that there are  two petitions filed  in court and that the second  petition is  improperly before court. It is averred that the petitioner  unprocedurally and unlawfully filed a second petition without complying with rule 21 of the Elections ( parliamentary and County Election) Petitions Rules,2017. The second grievance is that,  this second petition was an amended petition  and was filed  outside the  stipulated time  under the Constitution and Statute.

6. The facts of the dispute are set out in the affidavit of the 4th Respondent and the  Petitioner's response. The salient features therein is that  the 4th  Respondent was served with the petition through an advertisement in the    Daily Nation  newspaper of Thursday September14,2017. He personally proceeded to the  registry at the Malindi High Court  to  collect copies of    the summons and petitions on  instructions by his advocate. And upon  arrival at the said  registry, the 4th Respondent was furnished with copies of the petition, witnesses' affidavits and every other documents in the file (Exhibit marked "PKK-3") which he took to his advocates on record. And a  perusal of the said documents  revealed that he had been given copies of  documents drawn by M/s Gatundu and company , Advocates. Whereas the advertisement had been caused by the firm of M/s Mwaniki, Gitahi   &Partners.

7.  Upon receipt of the documents, the  4th Respondents counsel sent a formal request by  email to Mwaniki Gitahi &Partners on 17th September, 2017    using the email address seeking to be supplied with soft/scanned copies of the petition and witnesses' affidavits (Exhibit " PKK-4")  but there was no response. And on 18th September,2017 the 4th Respondent's  advocate wrote a letter to the  Deputy Registrar of the High court at Malindi, requesting for , among others;

(a) certified copies  of the  petition filed by Gatundu & Co. Advocates and

(b) certified copies of The petition filed by Mwaniki Gitahi & partners. ( Exhibit "PKK-5")

Again, no response had been received by the advocate from the Deputy  Registrar at the date of  affidavit.

8. Further , the 4th respondent in his affidavit pointed out  salient differences,   in the petition that he was given at the court registry on 14th September,2017, being; as  on 19th September, 2017  being as deponed  at  paragraph 15 of the supporting affidavit;

"(a) in the petition given to me the 3rd Respondent is named as "the  Kaloleni sub county returning officer " and the 4th respondent is  named  simply as " Paul Katana".

(b) In the  petition in the court file , the 3rd Respondent is named as  "Shida Tsui Alphonse" while the 4th Respondent  is now named as "Paul Kahindi Katana"

(c) although both petitions bear the court date an stamp of 206 September,2017,the two petitions are both not in the court file.

9. Since there was no response from either the firm of Mwaniki Gitahi &  Partners or the Deputy Registrar, the  4th respondent prepared and filed  a response to the petition he had been given on 21st September,2017.   Meanwhile, his advocate  sent advocate Paul Buti to the registry at Malindi to  peruse the court file and ascertain the number of petitions in the court  file of Petition No. 11 of 2017. The 4th Respondent avers that he was informed that  Mr Buti  obliged and perused the  said court file where he saw   one petition which is  presently in court file ( Exhibit " PKK-6) and was issued with a receipt of ksh 100/= to confirm the said perusal ( Exhibit   "PKK-7") According to the  4th respondent the petition in the court file now,  was not in the court file on 14th September,2017 and so it could not  have been    filed on 6th September,2017 as presented. Hence his deposition that  the same was irregularly, illegally and unlawfully introduced into the court record.

10. To me, these averments by the 4th Respondent lay the basis  of the  application  in question.

11. The Petitioner, on the other hand responded through a replying affidavit  sworn on 10th October,2017. The main high lights of this response are  captured at paragraphs 19 of the said replying affidavit.  Although the  petitioner opposed the 4th Respondents application, at paragraph 19 of his replying affidavit  states as follows;

"THAT, I deny the allegations made in paragraph 4 to 8 of the said affidavit and  I aver that the same are not true for the following reasons;

(i) That I instructed my previous  advocates Gatundu and Company,  Advocates, to prepare  and file this  petition and on 6th September, 2017  he  showed me the petition which he had  prepared and gave me to sign ready for filing. However Mr Gatundu was at the time drunk and unsteady.

(ii) That  Mr Gatundu had prepared 12 petitions and  due to his condition a  colleague prepared another  which I also signed  ready for    filing.

(iii) That on perusal of the  two sets of petitions 1 and the two advocates agreed to file  the second  petition but inadvertently  Mr Gatundu filed  he first petition instead.

(iv) That at the same time of filing Mr Gatundu's colleague realized the mistake and requested he registry to withdraw the first petition and filed the second petition.

(v) That  there is only one petition which was filed on 6th September,2017and served on 14th September,2017 and that is the   petition herein".

He admitted that  the second petition  prepared by Mr Gatundu's colleague is   the  one which was served through the news paper advert on 14th September,2017 but they requested the registry to allow them withdraw the   first one and file this one.

12.  To support his application, the 4th Respondent's counsel filed  skeleton submissions together with a list and  bundle of authorities on 30th October,2017 while the petitioner filed his list of five (5)  authorities on 10th  October,2017. The 1st and 2nd  Respondents counsel filed their list of three    (3) authorities on 9th November,2017.

13. The applications by the 4th Respondent were  canvassed on 31st of October,2017 and the petitioners' applications on 9th November ,2017. Mr Aboubakar represented the petitioner, Mr Omondi appeared for the 1st and 2nd Respondents and M/s Soweto appeared for the 4th Respondent.

Submissions by 4th Respondent's counsel.

14. In her  oral submissions , M/s Soweto, counsel for the 4th Respondent addressed court on the nature of election petitions which she said  are governed by a special  regime of laws, they are not ordinary civil suits and are to be heard and determined within  strict timelines set in the Constitution and at a standard  that is higher than in  ordinary suits. She  also stated that elections petitions involve high stakes  so that when people come to court, they  know what is expected of them to  meet one hand but on the other hand, what people are willing to do in order to succeed in such high   stakes  environment.

15. She submitted that the main ground the petition is sought to be struck out is the undisputed  fact that the petitioner filed two petitions, although he claims  that one petition was withdrawn immediately upon filing.

16. M/s Soweto, in her submissions referred extensively to the  petitioner's  replying affidavit and juxtaposed  it with the 4th Respondents supporting affidavit to  bring out the issues in  dispute.

According  to M/s Soweto, the petitioner is not telling the truth when he avers that;

(i) the first petition was withdrawn because the 4th Respondent  has it  having been furnished with it on 14th September 2017;

(ii) he signed the petition on 6. 9.2017 when at page 12 of the same it is shown "dated at Kilifi this 5th day of September 2017" and  so are other documents.

17.  M/s Soweto went on to submit that given the high stakes in the matter, the  petitioner ought to have  produced the best evidence such as letters, or  affidavits of Mr Gatundu, his colleagues, the registry staff  or Deputy registrar so as to  prove or confirm his  claims, which are serious.

18. Her further submissions are that  their firm has so far received no response    to their requests to be supplied with certified copies of the petition drawn and filed by M/s Gatundu & company, Advocates and certified copies of the petition drawn and filed by the firm of M/s Mwaniki Gitahi & company advocates, by the Deputy Registrar and M/s Mwaniki Gitahi & Partners.

19. M/s Soweto submitted that on14th September 2017, there was only one petition on the court file which was served upon the 4th Respondent, and the 2nd petition, which according to the stamp date was filed on 6. 9.2017, was not on the court record, and the court can therefore not presume that it was filed on 14. 9.2017 without  owning  up  to the  mess the parties have found  themselves in.

20. She  goes on to submit that if the court finds that the  2nd  petition, which is now in court records, was not there on 14. 9.2017 but was introduced  after  this, then it must be presumed that it was filed out of time, since the results  of Kaloleni Constituency were declared on 10. 8.2017.

21.  On the issue of the 1st petition having been withdrawn , M/s Soweto   submitted that  if this was done,  it was done illegally, irregularly and un-   procedurally as there are rules of procedure when it comes to withdrawing a  petition or  amending the same. That  an application for leave to amend or  withdraw should have been made but it was not.

22. M/s Soweto urged the court to divest  itself of the  proceedings and expunge or strike out the petition so as to retain the confidence in the courts.

23. Finally, M/s Soweto  submitted that  they were also challenging the validity and  competence of either petition on the fact that none of them states the   results that are being challenged. as  per  the provisions of rule 8 of the   Elections ( Parliamentary and County Elections ) Petitions Rules, 2017.

24.  To support her arguments, M/s Soweto referred to authorities where the issues they have raised have also been addressed;

1. ISMAEL SULEIMAN & 9 OTHERS  V. INDEPENDENT ELECTORAL BOUNDARIES COMMISSION & 4 OTHERS, HIGH   COURT (Meru)   KLR,where Justice Makau in  dealing with errors that  had  been made by the petitioner when filing their petition and cite the case    of ;

2. STEPHEN KIMANI GAKENA VRS FRANCIS MWANGI AND 32   OTHERS, ELCTION PETITON NO. 1 OF 1998, AT (Nyeri), where Justice J.W.Mwera, as he then  was,  faced with  similar application stated;

" This court is of the view that  the desired amendments were mistakes  in assuming specific places the constituency and some polling stations,  it is always of great importance that respondents  know exactly where  anirregularity or misdeed took place. This is not a trivial matter and a  petitioner who is not careful in drafting his petition, itself not an impossible   task should not demean the importance or the errors he  makes. Once the respondent gets a petition, he embarks on putting together what material he   desires in his defence. He should not be confused and  thrown in disarray by  the  unfortunate errors of the petitioner. If this remains  for hearing as it is, the  pleadings will allude to  Changamwe from or concern Ol-Kalor. This  cannot be. It is trite law that  pleadings accord with evidence. Noting les. So   this petition must go out. Even had the amendment gone through paragraph   7 would  have differed  from the original or TOTAL REGISTERED   VOTERS :541 OR 48589 "A sign of further errors"

3. JOHN MICHAEL NJENGA MUTUTHO VRS JAYNE NJERI WANJIKU KIHARA & 2 OTHERS, COURT OF APPEAL (Nakuru))   Civil Appeal No. 102 OF 2008 (2008) e KLR.

4. HASSAN ALI JOHO VRS SULEIMAN SAID SHABAL & 2 OTHERS, S.C PETITOIN  NO. 10 OF  2013 ( 2014)  eKLR where the issue of the form that is issued by the returning officer being the relevant    instrument for the declaration of results was addressed.

Submissions by  Mr Omondi counsel for 1st and 2nd Respondents.

25. In his  submissions, Mr Omondi, counsel for the 1st and 2nd Respondents supported the 4th  respondent's  application  dated 28th September, 2017 that had been made by the petitioner when filing their petition, and associated  himself  with  submissions by M/s Soweto counsel for the  4th respondent, in support of the said  application in which the curt is being urged to  dismiss   the petition herein.

26. In addition, Mr Omondi submitted that  by the petitioner's own disposition   at  paragraph 19 (i) of the replying affidavit, there is no  petition signed and dated by him on 6. 9.2017. He also  pointed out  that there were no receipts for the 2nd  petition on record.

27.  Generally, Mr Omondi's submissions were in line with M/s Soweto's on the grounds upon which they are seeking  to have their petition declared  incompetent  and defective.

Submissions by Mr Aboubakar on the Petitioner.

28.   In his  submissions, Mr Aboubakar relied on his  replying affidavit by the petitioner filed on 10. 10. 2017 in which  the 4th respondent's application is  opposed. He also relied on the list of authorities filed on the same date.

29.  According to Mr Aboubakar, the averments by the 4th respondent  that  there is no proper and  valid petition before court is a general ground. He submitted that  there is a proper petition before court which the 4th Respondent  acknowledges was filed on 6. 9.2017.

30.  Mr Aboubakar highlights paragraphs 5 to 7 of the supporting affidavit and submitted that there is no evidence to  prove that  the 4th Respondent  went   to the registry where he was furnished with  any pleadings, and  moreso because he did not annex a receipt to confirm this.

31.  Mr Aboubakar goes onto submit that the reason the advertisement was done by M/s Mwaniki, Gitahi & company is because there was a notice of change   of advocates filed on 7. 9.2017.

32.  He also submitted that  the 4th Respondent did not disclose in their email to the firm  of M/s Mwaniki Gitahi & Co. Advocates that they had  visited the court registry and served with a copy of petition on 14. 9.2014 and whether did they  had two documents with different particulars.

33. He also submitted that the facts on record  reveal that there was no visit  by the 4th respondent to the court registry on 14. 9.2017 except for the visit by Mr. Buti, advocate on 21. 9.2017, who found the 2nd petition.

34. On the question of whether the Deputy registrar  has discretion to allow one to correct a mistake that may have happened  during filing, as  shown at  paragraph 19 of the petitioner's replying affidavit, Mr. Aboubakar submitted that the  Deputy Registrar  has such discretion derived from the provisions of Article 159 (2) (d) of the Constitution, Section 80 of the Elections Act, 2011,  and  Rules  4 and 5 of the Election Petition Rules. He went on the state  that presenting of a petition is a matter of procedure and  can therefore not be  dismissed on procedural technicalities since it is about parties  pursuing a  right under Article 38 of the Constitution

35. As for the payment for  the 2nd  petition, Mr Aboubakar submitted that this was not necessary as they were not  correcting  mistakes in the  other petition but were filing a 2nd petition. He averred that the only petition on record is the one served on 14. 9.2017 and that the 1st  petition was never served because it was expunged from the record. He went on to state that   even if there were two petitions, the situation  has not been addressed by  the  Election  laws and  neither do the said laws provide for  striking  out   of a petition because there are  two  petitions filed.

36. With regard to the application by the 4th Respondent's counsel that the  petition be struck out on the basis of  being  incompetent since it does not  include  results of the election, he argues that the same is an afterthought as  it was not included as a ground in the application dated 28th September 2017.

37. In response to  the application  by the 1st and 2nd  Respondent  dated 16th    October, 2017, Mr Aboubakar submitted that  the same was  incompetent and bad  in  law in that it is filed on 18th October, 2017 which is after directions had been  given by court on 11. 10. 2017, without leave of court and that it should be struck  out. However in response to what  was raised in  the  said application, Mr Aboubakar submitted that the  petitioner, in filing  his petition, complied with Rule 8 (1) (c)  of the Election Petitions Rules,  2017.

38.  Mr Aboubakar referred to the following  authorities in support of the   petitioner's  response;

1. JOHN MICHAEL NJENGA MUTUTHO VRS JAYNE NJERI WANJIKU KIHARA & 2 OTHERS , COURT OF APEEAL ( Nakuru) Civil Appeal No 102 of 2008 ( 2008 e KLR

2. The  AMINA CASE

3. WAVINYA NDETI VRS IEBC& 4 OTHERS, ELECTION  PETITION NO 4 OF 2013 AT MACHAKOS HIGH COURT

4. BASHIR HAJI ABDULLA VRS HASSAN MOHAMMED NOOR,  ELECTION PETITION NO 4 OF 2013 AT GARISSA HIGH COURT.

5. HOSEA MUNDUI KIPLAGAT VERSUS SAMMY KOMEN    MWAITA  AND 2 OTHERS,  HIGH COURT  OF KENYA AT    NAIROBI ELECTION PETITION NO. 11 OF 2013

These case, according to Mr Aboubakar relate to the issues raised in the  applications that  have been canvassed before court.

Rejoinder by the Respondents

39. In response to the  submissions by Mr Aboubakar, M/s Soweto submitted  that the system of our laws is settled, so that, the authorities petitioner's  counsel has sought to rely on are all court cases, which are not binding  on  this court. She stated that  they had relied on court of appeal and Supreme court authorities which have settled the issues they have canvassed before  this court

40. As for the issue of Article 159 (2) (d) of the constitution, M/s Soweto submitted that this was addressed by the court of appeal in the case of     CHARLES KAMUREN VRS  GRACE JELAGAT KIPCHOIM & 2 OTHERS, COURT OF APPEAL ( Nairobi ) NO. 159 OF  2013 ( 2013) e KLR. where  it was held that   this  Article is not a panacea for every  problem or transgression of the law the way this court  was being invited to do.

41. On question of the challenge, that  the petition is the  incompetent on the basis of results having not been declared, though appears to be a  jungle, the issues of invalidity  and incompetence have been raised over that.

42. All in all, M/s Soweto just reiterated what she submitted before  court in addressing their  application. This was the same observation of the response  by Mr Omondi, counsel for  1st and 2nd  Respondent.

DETERMINATION

43. In considering the application  before this court, I read through the affidavit of the 4th Respondent, the replying  affidavit of the petitioner, the  cited laws and authorities. I also listened to the oral submissions by all counsel on    record.

I find that the following issues arise for determination of the application;

(i)  How many petitions were filed in this petition? And , whether the   petition (s) were paid  for;

(ii) whether the petition was filed within the prescribed period

(iii) whether the withdrawal  or replacement  of one petition with another  was properly done; and if so ,

(iv)whether  the Deputy registrar of the High court has discretion to  allow for such practice.

(v) Whether the petitioner complied with the provisions of rules 8 (1) (c)  and 12 of the Election ( Parliamentary and County Elections)Petitions rules, 2017.

(vi) Is there  a proper  petition on record?

(vii) any orders for costs?

44. From the court record, it is noted that there is a petition dated  5th  September, 2013, filed in court and a receipt issued to that effect. The  court  has also observed that there is no second receipt which was issued by the court upon presentation of the second petition which the petitioner wants to   rely on.

45.  The court  has  also seen a copy of the  amended petition filed on 10th  October, 2017. The position this court takes is that all these actions reflected on the court  record must  be tested against the law.

46.  The law places a burden on the petitioner to file this pleadings within time.

Article 87 (2) of the Constitution of Kenya stipulates time within which a  petition should be brought.

It provides as follows;

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

47. It is not in dispute that the results in the election referred to in this petition    were declared on 10th August,2017 and therefore the last date of filing  the petition was 7th September 2017,

Section  76 (1) (c) provides the same time lines in the same wording as the Constitution and stipulates as follows;

"to question  the validity of an election shall be filed within  twenty eight days  after the  date of declaration of results of the election and served within  fifteen days of presentation".

48.  The petition filed on  6th September 2017, whose  receipt was paid for by the firm of M/s Gatundu &Company advocate and the one which was given  to the 4th Respondent was filed within the prescribed time by the law and is therefore in compliance with the Constitution and statute.

49. The  petitioner has, himself, admitted that there was  switching  or swapping of the petitions on the same day which brings us to the question of whether   the law provides  or allows for such practice by the petitioner.

50.  It is now established  practice that an amendment  has the effect of  substituting a document and  where a party adopts this standard practice, then it is relieved  from paying  filing fees afresh

51.  And where a party  brings  in a new set of documents without reference to  the document already filed on record, it is by law  required to pay full court  fees.

52. I, therefore, find that  the second petition which the petitioner is relying on,   court fees  was not paid for it.  It should be noted that in election petition's, it  is not only court  fees which is required to be paid for , there is also the mandatory requirement to  pay security for costs as  stipulated by Section 78 of the Elections Act, 2011 which provides as follows;

78 (1) "A petitioner shall deposit security for the payment  of  costs that may become payable by the petitioner not  more than ten days after the  presentation of the petition  under this part".

By virtue of section 78 (2) (b) of the Election Act, the amount stated to be  paid as a deposit for security of costs is Ksh 500,000/= for members of the National Assembly.

53. I have  perused the court records and find there is no deposit for  security of costs which was deposited for either petition.

54. There was the issue of the petitioner at paragraph 19 (iv) of his replying  affidavit deponing;

"That at the same time of filing Mr Gatundu's colleague realised the mistake and requested the registry to withdraw the first petition and filed the second petition"

From this affidavit, and  even from the submissions by the petitioner's counsel, it is not clear under what circumstances  such withdrawal was done.

55. As put by Justice P. J. Otieno in the case of JACOB THOYA IHA VRS INDEPENDENT,ELECTORAL BOUNDARIES COMMISISON AND 2  OTHERS, ELECTION PETITON NO. 6 OF 2017 AT MALINDI HIGH    COURT, (Which was filed under similar circumstances as this one)

43"...To me filing  the petition in terms of Rule 7 (c ) of the Election   (Parliamentary and County Elections) Petitions Rules, 2017 entailed  the presentation of the petition to the Deputy Registrar and payment of assessed court fees".

43 Now, in my understanding once  parties file documents, the copy they tender to court to form part of the court record ceases to be owned by    them but by the court. They are, hence, not at liberty to deal with such papers as they deem fit without recourse to court. Therefore, even in ordinary litigation the law provides how to deal with  a deficiency in a pleading. It is  by an  amendment either with the  leave of the court or   without the leave before  pleadings close. For  elections petitions, the  remedy is once again by an  amendment within  28 days allowed for  filing petition and only with the leave of the court. Thus, to this court, is the only way to guarantee the integrity of the  court  records so that    incidences like this one here where the  4th Respondent was kept wondering which petition to respond to can be  avoided".

56. I agree with the findings by my brother Judge, in total and only wish to add that  the questions in such circumstances becomes;

Whether there is  a proper, competent and valid petition in this case where the first petition  filed (and which  is acknowledged by the petitioner ) and was not served but was supposedly withdrawn. How was the registry moved to  withdraw or  substitute the petition which had already been filed and become a court record and substitute with another one?

In fact was  the Deputy Registrar involved in the process at all ?

57.  This  court asks this because, Mr Aboubakar stated that  the Deputy Registrar has  discretion to allow for such withdrawal  where a defect is found in the pleadings.  He even cited Article 159 (2) of the constitution in support of this practice.

58.  I have looked at the law and the procedure on whether the Deputy Registrar  or the staff in the registry of  a court have power to substitute documents  and  assign a receipt paid for a different documents to a new documents. I   find that there is no legal backing for this. If this practice  is allowed to happen or is  encouraged, it would  cause accounting problems and become an avenue or  receipe  for  corruption. It would, in fact  create a situation  where the same receipt would be used to chan documents  and pay for several other documents. The result  of this would  then be that the law on amendments would die and the court will be confronted with  storage challenges, especially, in election petition cases, where  bulky documents  are presented for filing.

59. From my observation and consideration of the application and arguments advanced for and against it,  the irregularities that   have been brought  forth, go to the root of this petition and the prejudice caused to the 4th Respondent   is evident. The court equally finds itself in the dilemma which the Respondents are in at the moment.

60. Without going into the other grounds raised, and even considering the otheapplications which have been canvassed before me, the reasons brought out in this applications  have the effect of disposing off the whole petition.

61. I therefore find and hold that application dated 28th September 2017 has merit and allow the same in its entirety .

The  petition herein dated 5th September 2017 and the amended copy dated 9th October, 2017, are hereby stuck out with  costs.

I will  restrict the costs to Ksh 1,000,000/= and apportioned the same follows;

(i) the first  and 2nd respondents to equally share Ksh 500,000 /-

(ii) the balance of Khs 500,000 to be paid to the 3rd Respondent.

It is so ordered.

Ruling delivered, signed and dated this 20th day of November,2017

D. O. CHEPKWONY

JUDGE

In the presence of;

M/s Aboubakar ,counsel for the  petitioner/respondent

Mr Adala counsel holding brief for Mr Omondi, counsel   1st and 2nd Respondents  and M/s Soweto , counsel for  4th Respondent/Applicant

C/clerk- Mwanaidi