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High Court at Mombasa

Election Petition 1 of 2013

PHILIP MUNGE NDOLO.....................................................................................PETITIONER





Before court is the Notice of Motion application dated 28th May, 2013 and filed in court on 29th May, 2013 by which the 1st respondent/applicant sought the following orders:

“1.  THAT the petition be struck out and dismissed.

2.  THAT the cost be provided for by the petitioner.”

Following directions made by this court on 7th June, 2013 the above mentioned application was heard together with the Notice of Motion application dated 5th June, 2013 and filed in court on 5th June, 2013 by which the 2nd and 3rd respondent/applicant sought the following orders:

“1.  THAT this Honourable court does strike out the petitioner’s further affidavits of evidence dated 15th May, 2013 and in particular, strike out the supporting supplementary and further affidavits of Mercy Njoki Karanja, Rhoda Kimetu, Shadrack Kyuli Kimeu, Elizabeth Kanini Wambua, Matuku Mulei, Paul Malusi and Festus John Nguuwe.

2.  THAT the petitioner be ordered to pay the costs for this application with any accrued interest thereof.”

As stated earlier it was directed that the two applications be heard and determined together but I will now proceed to analyze each application individually. 

Notice of motion dated 28th May, 2013

By this application the 1st respondent/applicant sought orders that the whole petition be stuck out and dismissed. MR. ABEID advocate for the applicant argued that the petition as filed on 3rd April, 2013 was defective for failure to comply with the mandatory provisions of Rule 10 of the Elections (Parliamentary and County Election) Rules insofar as it failed to include in the petition the results of the election for Member of National Assembly for Changamwe Constituency. Counsel further argued that failure to comply with Rule 10 rendered the whole petition incurably defective and was therefore fatal.

The petitioner/respondent through his lawyer MR. MUTISYA strenuously opposed the application to strike out. Counsel submitted that the petition is legally compliant and cites Article 159 (2) (d) of the Constitution of Kenya as a basis for not striking out the said petition. MR. NYAMODI who appeared for the 3rd respondent associated himself with the submissions made by Mr. Abeid for the applicant.

From the submissions made before me two main issues arise for determination with respect to this first application.

(1)    Is there a breach of Rule 10 of the Election Rules as alleged?

(2)    Does such breach (if any) render the whole petition incurably defective and therefore fatal?

1.   Does this petition breach Rule 10 of the Election (Parliamentary and County Elections) rules?

The precise rule which the applicant claims has been breached by this petition is Rule 10 (1) (c) which provides:

“10 (1)  An election petition filed under rule 8 shall state

(a)     ……………………………….

(b)     ……………………………….

(c)     the results of the election, if any, and however declared

(d)    ……………………………….”

I do agree with counsel for the applicant when he submits that the jurisdiction of court to determine an election petition is based on the results of the election in question, which results must be placed before the election court. It is central to establish which results are being challenged. The words used in Rule 10(1)(c) is that the results ‘if any’ are required to be included in the petition. My understanding of the phrase ‘if any’ is that results – ‘if any are available’ – are to form a part of the petition. In this case by 3rd April, 2013 when this petition was filed the results which were available to the petitioner were such results as had been declared by the I.E.B.C. which is the statutory body mandated to conduct elections in Kenya and the only body mandated by law to declare election results. These available election results as contained in the Kenya Gazette dated 13th March, 2013 have been annexed to the main petition as “PMN2”. Those results availed by I.E.B.C. show clearly at page 175 that one OMAR MWINYI was declared the winner of the Changamwe seat for National Assembly Representative. It is clear that this is the election which is being challenged. In addition the petitioner did annex to the petition a document PMN’8’ which is a schedule showing the number of votes each aspirant garnered at each polling station. This schedule is basically a compilation of the results which are contained in the official Form 36 generated by I.E.B.C. The same schedule was produced by the 2nd respondent.   I.E.B.C. in their response to the petition and no challenge has been made by the respondents to the authenticity of this schedule. It is therefore incorrect for one to state that the results were not included in the petition.

Rule 10(1)(c) did not make it a requirement that the detailed results i.e. the results indicating the number of votes garnered by each candidate be attached to the petition. Once again such detailed results would have been the exclusive preserve of the I.E.B.C. There is evidence by way of a letter dated 28th March, 2013 that counsel for the petitioner wrote to the I.E.B.C. seeking to be furnished with amongst other things “all form 35’s” for each polling station (including the steams).   This letter to the I.E.B.C. as court was informed by counsel remains unanswered to date. It would not have been possible nor could it have been expected that the petitioner avail to the court that which he does not have.

Returning to the wording of Rule 10 (1) (c), whereas counsel for the applicant submits that the word ‘shall’ makes this a mandatory provision, I am inclined to find that the use of the words ‘if any’ provides some leeway to the petitioner. The rule appears to take into account the possibility that at the time of filing the petition the petitioner may or may not be in possession of the results. I find it highly unlikely that the drafters of these rules would have intended to impose upon a litigant such a strict liability to produce documents and/or information which would not ordinarily be in his possession.

Rule 10(1)(c) of the Election Rules cannot be read and interpreted in isolation from the other election rules. Rule 8(1)(a) of the same Election Rules dictates that an election petition must be presented in a set format being Form EP1. Rule 10 having been drafted in compliance with Rule 8 cannot be read on its own. The two rules must be taken as applicable in concert. Rule 8 provides for the format of the petition whilst Rule 10 provides for the contents. Form EP1 does not make it a requirement that results be declared – it only requires that the person declared as the winner be named in the petition. 

As such some confusion arises due to the fact that Form EP1 omits some of the details which are required by Rule 10(1)(c).   The drafters of Form EP1 ought to have been more sensitive to the requirements of Rule 10(1)(c). The petitioner has demonstrated that this petition complies with Form EP1. He cannot be made to suffer for the apparent ambiguity between the two Rules.

I have considered the case law to which I have been referred by counsel. In the case of JOHN MICHAEL NJENGA MUTUTHO –VS – JAYNE NJERI WANJIKU KIHARA & 2 OTHERS [2008]e KLR the Court of Appeal did strike out the petition due to a failure to declare results. However, that case is distinguishable from the present one on two grounds. Firstly, as I have already found, the petitioner did in this case declare the results, such as were available to him, through the annextures to his petition. Secondly, the Mututho case was decided before the promulgation of the new Constitution in 2010 which ushered in a new dispensation including the repeal of the old Election Act Cap 7 Laws of Kenya and a new Election Act 2011 containing new rules and procedures was enacted. In view of a new jurisprudential order strict adherence to technical requirements is no longer desirable.   Article 159 (1)(d) of the Constitution obliges courts to administer justice “without undue regard to technicalities”. Similarly, the overriding objectives of the Election Rules contained in rule 4(1) which provide as follows:

“4(1)   The overriding objective of these rules is to facilitate the just expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act.” 

In line with this overriding objective this court must ask itself what if any prejudice has been suffered by any party due to the failure to provide a detailed tally of results in the petition. The clear answer is that no prejudice whatsoever has been visited on any party. There is no question at all which election result is being challenged. Similarly, I.E.B.C. did in compliance with Rule 21(b) file all the Form 35’s relating to the election of National Assembly member for Changamwe constituency. There is therefore no doubt whatsoever as to what these results were.

Finally, based on the foregoing, I find that the petitioner did infact comply with the law.   More precisely the petitioner did comply with Rule 10(1)(c) in that he did declare such results as were available to him at the time of filing the petition. It is instructive to note that this application was filed almost 90 days after the petition was filed and it was filed after the 1st respondent had already filed his response to the petition. The application is clearly an afterthought. In any event I find no merit in the same and I decline to strike out this petition. The notice of motion dated 28th May, 2013 is hereby dismissed with costs to the petitioner/respondent.

Notice of motion dated 5th June, 2013

By this application the 2nd and 3rd respondents are seeking orders to strike out the petitioner’s further affidavits on the basis that the same introduces new evidence, not contained in the main petition. The petitioner was granted leave by the court under rule 17 to file further affidavits. Corresponding leave to respond was granted to the respondents.

On his part the petitioner opposes this application and argues that no new causes of action are being introduced as the further affidavits filed in pursuance of leave are only an expansion of the petition and supporting affidavits. Rule 17 of the Elections (Parliamentary and County Elections) Rules 2013 provides as follows:

17(1)(i) Within seven days after the receipt of the last response to a petition, the court shall schedule a pre-trial conference with the parties in which it shall

(a)   ………………………

(b)   ………………………

(i)   Give directions as to the filing and serving of any further affidavits or to the giving of additional evidence.”

(j)   …………………………”

The term used in Rule 17(1)(i) is “further affidavit”. The petitioner did not make an application to adduce any new evidence. The application was restricted to and leave was granted only for the filing of ‘further affidavits’. The ordinary meaning of the term further would be “additional” to what is already on record. The main petition was filed together with supporting affidavits sworn by several witnesses. The petitioner would therefore be seeking to explain and/or expand upon the affidavits and evidence already on record. I have carefully perused the new affidavits which have been filed and I have noted the deponents thereof. They have been filed by persons totally different than those who swore the original supporting affidavits annexed to the main petition.   The petitioner is therefore in effect adducing new evidence and introducing new witnesses. Such an action would go contrary to Rule 12 of the Election Rules which provides:

“12(1)   A petitioner shall at the time of filing the petition file an affidavit sworn by each witness whom the petitioner intends to call at the trial

(1)     ……………………………….

(4)     A witness for the petitioner who fails to deliver an affidavit as required by this rule shall not be allowed to give evidence without the leave of court.

(5)    The court shall not grant leave under sub-rule (4) unless sufficient reason is given for the failure.”

The leave granted to the petitioner to file further affidavits under Rule 17(1)(i) cannot amount to a carte blanche for the petitioner to adduce new evidence by introducing witnesses who were not included in the main petition. This would clearly be in contravention of Rule 12(4) and (5). If the petitioner was seeking to introduce new witnesses, counsel ought to have made this clear at the first instance and as required by Rule 12(5) adduced before court sufficient explanation as to why these witnesses were omitted in the petition as initially filed.

It was submitted by counsel for the petitioner that in paragraph 18 of his supporting affidavit the petitioner disputed the election outcomes in all the polling stations within the constituency, therefore the further affidavits which mention polling stations not included in the main petition are admissible. Article 87(2) of the Constitution of Kenya provides –

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.”

Article 87(2) envisages that at the time of filing the petition all matters sought to be disputed and/or raised are included therein. To allow introduction of new witnesses (outside of the original list) and new allegations would be tantamount to extending this 28 day constitutional time limit. Likewise, Rule 10(1)(c) of the Election Rules require a petitioner to clearly set out the grounds and specifics for the petition. As such, this type of omnibus/general allegations cannot be deemed to be admissible.

I am bolstered in this thinking by the ruling of the Supreme Court of Kenya in Petition No. 5 of 2013 RAILA ODINGA & OTHERS – VS – I.E.B.C. AND OTHERS where in discussing the question of leave to file further affidavits the Supreme Court held:

The other issue the court must consider when exercising its discretion to allow a further affidavit is the nature, content and extent of the new material intended to be produced and relied upon. If it is small or 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 new material is so substantial involving not only a further affidavit but massive additional evidence, so 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.”

The prayer made by Mr. Mutisya was for leave to file ‘further’ affidavits. Additional affidavits from the deponents of the original witnesses would have been acceptable. However, the introduction of new witnesses and additional polling stations under the guise of further affidavits cannot be condoned. It must be remembered that all election petitions are subject to the ‘tyranny of time’ (to quote a learned colleague). The respondents were served with the original petition and affidavits. To slap them with new evidence by additional witnesses notwithstanding their having been granted leave to respond cannot be condoned. In the case of WAVINYA NDETI –VS – I.E.B.C. & 4 OTHERS Machakos Election Petition No. 4 of 2013 Hon Justice Majanja held that:

The question as to whether or not to admit additional evidence must be weighed heavily against other important factors necessary for a just and expeditious trial. This is especially so where the determination of the election petition is within strict timelines. The court also ought to guard against a partys’ attempt to sneak in fresh evidence in the guise of ‘additional evidence’ or further evidence’ where the effect is to amend pleadings and set the cause of action on an entirely different path.”

I am in full agreement with the sentiments expressed by my learned brother. The petitioner cannot be permitted to construct their case as they go along. This would prejudice the respondent as it would not be clear what they are to be required to respond to. A look at the new affidavits reveal that they all introduce new witnesses as well as new allegations which were not contained in the original petition and annextures. This was not envisaged by the leave granted. I do agree with the respondents that to allow this would be prejudicial to the respondents as new causes of action are being introduced.   As such I do allow this application and the affidavits of –

-        Mercy Njoki Karanja

-        Rhoda Kimetu

-        Shadrack Kyuli Kimeu

-        Elizabeth Kanini Wambua

-        Matuku Mulei

-        Paul Malusi

-        Festus John Nguuwe

are hereby struck out.

The remaining three affidavits of Mary Nyawera, Mwangi Opar, Daniel Ongonda and Jane Mwandembo though not objected to are in my view equally improper as they have also been sworn by witnesses not mentioned in the original petition. As such I do hereby strike them out as well. This Notice of Motion dated 5th June, 2013 is allowed. Costs to be in the cause.

Dated and delivered in Mombasa this 14th day of June, 2013.

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