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CLEMENT KUNGU WAIBARA & another v FRANCIS KIGO NJENGA & 3 others [2013] eKLR

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Election Petition 15 of 2013

IN THE MATTER OF THE ELECTIONS ACT, LAWS OF KENYA

AND

IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY) ELECTIONS PETITION RULES

AND

IN THE MATTER OF THE ELECTION FOR THE MEMBER OF PARLIAMENT, GATUNDU NORTH CONSTITUENCY

HON. CLEMENT KUNGU WAIBARA.………....….……….. 1ST PETITIONER

HENRY NJENGA MBOTE…………………….…………2ND RESPONDENT

V

HON. FRANCIS KIGO NJENGA…………………..…….1ST RESPONDENT

RETURNING OFFICER GATUNDU                                                                     

NORTH CONSTITUENCY………………………….……2ND RESPONDENT

THE INDEPENDENT ELECTORAL &                                                                  

BOUNDARIES COMMISSION (IEBC)………………….3RD RESPONDENT

ATTORNEY GENERAL……………………………….….4TH RESPONDENT

RULING

 

BACKGROUND

1.   The petition in this matter emanates from the election of the 1st Respondent as MP for Gatundu North Constituency, Kiambu, in the general election held on 4th March 2013. It is a joint petition of the two petitioners.  It is not disputed that the election result was declared by the 3rd Respondent under Gazette Notice in Vol CXV-No 45 on 13th March, 2013. The 1st and 2nd Petitioners were declared to have garnered 4,842 votes and 2,715 votes, respectively. The 1st Respondent was declared the winner with 24,866 votes.

2.   The Petition seeks, inter alia, annulment of the election for non- compliance with the law; production and scrutiny of the marked register; orders for the recount of the votes; and the holding of another or fresh election. The petition was filed on 18th April 2013, thirty six (36) days after the election result was declared.

3.   All but the 4th Respondent filed responses to the petition. At the Status Conference held on 10th May, 2013, however, the 4th Respondent indicated that it would file a response on issues of law regarding its participation. This has not been done to date.

MOTION

4.   The Motion subject of this ruling is by the 2nd and 3rd Respondents. It was filed on 10th May, 2013. It seeks the striking out of the petition on the following grounds:

        “ i). The petition is unconstitutional and offends the provisions of Art 87(1) (sic) of the Constitution

        ii).The Petition offends Section 77 (1) of the Elections Act, 2011.

        iii). The Petition is thus an abuse of the court process and the court lacks jurisdiction to hear and determine it”.

5.   All the other parties were granted leave at the Status Conference to file, by 17th May, 2013, responses to the Motion herein, together with their submissions on the motion.   The Applicant was granted until 18th May, 2013, to file submissions, in reply thereto.

6.   The 1st Petitioner, by a Motion under certificate of urgency filed on 15th May, 2103, sought an extension of time to file and serve his petition. The court declined urgency, but in the interests of justice, allowed the 1st Petitioner to file a fresh Replying Affidavit to incorporate the circumstances for his delay in filing the petition. This was to be done by 17th May, 2013, together with his submissions. The 1st Petitioner complied.

7.   In quick succession, the 2nd Petitioner then filed a Notice of Motion under urgency. It is indicated as having been filed on 17th May, 2013, and also seeks an extension of time to file and serve the 2nd Petitioner’s petition. That motion has not been heard to date. Whilst this ruling was being written, however, the 2nd Petitioner filed his submissions to the Motion on 21st May, 2013, without leave of the court. Equally, the 1st Respondent without leave of the court, also filed a notice of motion on 22nd May, 2013, seeking to strike out the Petition. That motion has also not been heard.

APPLICANT’S CONTENTIONS

8.   The Applicants, represented by Mr Murugara, premised their arguments in this motion on four main limbs.

9.   The first limb is that the Petition is unconstitutional as it was filed in breach of Article 87(2) of the Constitution, being eight days out of time. Counsel referred to the Supreme Court’s decision in Petition No. 5 of 2013 Raila Odinga v IEBC, Uhuru Kenyatta and Ors where that court stated at paragraph 216 that the Constitution provides strict time-lines within which certain actions have to be taken in an election petition – what it described as “ …a disciplined trial process”.

10.Under the second limb, learned counsel submitted that there had been a breach of  Section 77(1) of the Elections Act. That provision, he urged, is couched in mandatory terms obligating a petitioner to file a petition within 28 days from the date the results are declared. He stated that this provision derives its authority from Article 87 (2) of the Constitution, and thus there is no inconsistency between the substantive law and the Constitution. Counsel emphasized that time lines set by the Constitution and the statute are not mere procedural technicalities, but substantive imperatives. He referred to the case of James Muriithi Ngotho & 4 Others v. Judicial Service Commission [2012] eKLR and China Sichuan Corporation for International Techno-Economic Co-operative (Sietco) v. Kigwe Comlex Limited [2013] eKLR.

11.The third limb concerns jurisdiction. It was learned Counsel’s submission that the Petition having been brought in contravention of the Constitution and the Elections Act, the court lacks jurisdiction to entertain the same. He referred to the case of Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd 1989 KLR 1. There, the Court of Appeal held that jurisdiction is everything, and that a court which has no jurisdiction must down its tools. He thus concluded by stating that the Petition offends the Constitution of Kenya and the Elections Act, 2011 and as such should be struck out with costs to the respondents.

12.Finally, Mr. Murugara submitted that the legitimate expectations of the respondents would be breached if the petition proceeds with the petition in its current status. In this regard, Counsel referred to the case of Republic v. Kenya Revenue Authority ex parte Aberdare Freight Services Ltd [2004] eKLR.

PETITIONERS’ CONTENTIONS

13.The 1st Petitioner was represented by Mr Ondieki. In opposition to the motion, he filed a replying affidavit sworn by Hon. Clement Kungu Waibara dated 17th May 2013. In his submissions, the 1st Petitioner contends that Article 87(2) of the Constitution of Kenya, 2010 has to be read holistically to give meaning to the values and principles in the Preamble, Article 10, Article 159 (2) (d) and Article 259 (9) of the Constitution of Kenya, 2010.

14. Learned Counsel contends that Article 259(9) as read with Article 159 (2) (d) cures any mistakes of time. Further, that Rule 20 of the Elections (Parliamentary and County) Petition Rules, 2013 contemplates extension of time. In this regard, Learned Counsel referred to International law and Conventions stating that they allow extension of time and the administration of justice without undue regard to procedural technicalities. With regard to Article 259(6) of the Constitution, Learned Counsel submitted that they believed that Sundays and holidays would not be included when counting the 28 days.

15. Mr. Ondieki further stated that the Petitioner faced a number of challenges in raising the required security for costs, and that both Petitioners were engaged in lengthy discussions on whether to present a single petition which ultimately contributed to the delay in filing the same.

16.Further, the 1st Petitioner contended in his affidavit that he filed the petition within the stipulated time as provided under Article 87(2) and Section 77(1) of the Elections Act. He contend that his belief was informed by the fact that upon reading Article 259 (6) of the Constitution, Sundays and holidays were not to be included when counting the 28 days. Article 259(5) of the Constitution provides that;

“In calculating time between two events for any purpose under this Constitution, if the time is expressed-

a). as days, the day on which the first event occurs shall be excluded, and the day by which the last event may occur shall be included;” (Emphasis supplied)

17.In addition,, Article 259 (6) of the Constitution provides that;

“If a period of time prescribed by this Constitution for any purpose is six days or less, Sundays and public holidays shall not count when calculating the time.(Emphasis supplied

18.The petitione’rs argument here appears hollow and unconvincing because even a casual reading of the said provision readily indicates that only the first day in a number of days of a timeframe is excluded and the last included. Further that the exclusion of Sundays and public holidays only arises when   the timeframe in issue is six days or less.

19.The 2nd Petitioner also opposes the motion. However, there is no affidavit on record in opposition to the same. As earlier stated, however, he filed his submissions outside the timeframe ordered by the court.

20.In those submissions, the 2nd Petitioner states that the court has jurisdiction to admit the present Petition and hear the matter substantively. He relies on Article 259 (9) of the Constitution as well as Rule 20 Elections (Parliamentary and County) Petition Rules, 2013. The 2nd Petitioner has further relied on the case of Henry Gatura & 3 others v. Charles Ogina & Others [2011] eKLR.

21.Like the 1st Petitioner, the 2nd Petitioner submits that the unavailability of funds for the Petition caused the delay in filing the same. Further, that the substantive hearing of the Petition would in any way prejudiced by its admission for hearing. The 2nd Petitioner also submits that any prejudice suffered by the respondents can be compensated by costs. To this, he cites that the case of Commissioner of Income Tax v. Kencell Communications Limited [2013] eKLR.

22.Having considered the parties’ submissions and the documents and authorities relied upon by them, I consider the issues requiring the determination of this court to be as follows:

i)     Whether Article 259(9) of the Constitution avails for extension of time for the filing of an election petition;

ii)    Whether the Petitioners’ failure to file their petition on time is a mere procedural lapse or impairs the court’s jurisdiction to entertain the petition.

WHETHER ARTICLE 259(9) AVAILS FOR EXTENSION OF TIME FOR FILING A PETITION

23.Article 87(2) of the Constitution  provides as follows:

 “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.” (Emphasis supplied)

24.This provision is mirrored in Section 77(1) of the Elections Act, No 24 of 2011, which provides as follows:

“A petition concerning an election, other than a presidential election, shall be filed within twenty eight days after the declaration of the election results by the Commission”

The effect is that both the Constitution and the substantive statute are in accord, and there was no dispute on this point.

25.Indeed, under the Elections Act almost all forms of petitions must be filed within twenty eight days. This includes petitions to question the validity of an election (Sec. 76(1)(a)); petitions to seek a declaration that a seat in parliament has not become vacant (Sec. 76(1)(b)); petitions questioning a return or election on a ground alleging a corrupt practice (Sec. 76(2); petitions questioning a return or an election on an allegation of an illegal practice or alleging a payment of money (Sec. 76(3).

26. Parliament, in its wisdom and in pursuance of the constitutional imperative of timeliness in resolving electoral disputes Article 87(1), decided that there are only two types of petitions which need not have a twenty eight day time-frame. The first is a petition to seek a declaration that a seat in Parliament has become vacant – which may be presented at any time (Sec. (1)(c)); and the second is a supplementary petition under Sec 76(5), being a petition to add to an already timeously filed petition, grounds contained in Sections 76(2) and (3) of the Elections Act.  

27.It was not seriously disputed that Article 87(2) and Section 77(1), aforesaid, create a positive and irrefutable obligation on the part of a petitioner to file a petition within the twenty eight day petition window provided for. The Applicant’s argument was that the timeframe creating the petition window is a constitutionally mandatory and strict period, so that it cannot be extended. The Applicant went as far as to argue that failure to adhere to the strict timelines would amount to “subverting the Constitution”, phraseology of the Supreme Court found at paragraph 216 in the Raila Odinga case (supra).

28.The Petitioners’ reply was that Article 259(9) read together with Article 159(2)(d) allows the court to extend time for filing a petition. Article 259(9) provides as follows:

““If any person or State organ has authority under this Constitution to extend a period of time prescribed by the Constitution, the authority may be exercised either before or after the end of the period, unless a contrary intention is expressly mentioned in the provision conferring the authority.”

The question is whether this provision can be construed to allow extension of time in light of Article 159(2)(d) which requires that :

“…justice shall be administered without undue regard to procedural technicalities”

29. In interpreting the Constitution, this court is guided by Article 259 (1)which provides that:

 “This Constitution shall be interpreted in a manner that-

         (a) promotes its purposes, values and principles;

          (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

         (c) permits the development of the law; and

         (d) contributes to good governance.”

          Article 259(3) of the Constitution of Kenya 2010provides that:

“Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking….”

30.In interpreting constitutional provisions, it is trite that they must be construed in a holistic, purposeful and contextual manner – that is with an eye clearly focused on a harmonized interpretation rather than on what any single provision states. From this perspective, the court’s interpretation must take into account all the constitutional principles and nuances relative to elections. These cover the electoral system, electoral legislation and electoral disputes.

31.I concur with my learned brother Odunga J, in Mombasa Election Petitions Nos. 4 & 9 of 2013 Consolidated- GIDEON MWANGANGI WAMBUA and HASSAN NJANYE CHARO v. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION, JUMA MUSA and KHATIB ABDALLA MWASHETANI where he analyses a string of authorities on constitutional interpretation, and concludes at paragraph 90 of his ruling as follows:

“The Constitution is to be interpreted both contextually and purposefully since it is an ambulatory living instrument designed for the good governance, liberties, welfare and protection of all persons in Kenya. The task of expounding a Constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and easily repealed. A Constitution by contrast is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and when joined by a bill or charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. Therefore it would not be correct in my view to interpret the provisions of the Constitution with reference to rules and regulations if to do so would lead to rigid interpretation rather the liberal approach which is expected in Constitutional interpretation”.

32. Again, in the Ugandan case of Tinyefuza v. Attorney General Constitutional Appeal NO. 1 of 1997, the court stated that:

The entire Constitution has [to] be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountancy (sic) of the written Constitution.

33.Further, the court in Tinyefunza cited with approval the passage in the case of Republic v. El Mann (1969) EA 357 in CRAIES ON STATUTE LAW (6THEdn.) at page 66 which reads:

“The cardinal rule for the construction of Acts of parliament is that they should be construed according to the intention expressed in the Acts themselves. ‘The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to inquire what is the subject-matter with respect to which they are used and the object in view.’ ”

34.The Constitution provides at Article 81 the general principles which underpin the electoral system. These include: the freedom of exercise of political rights, gender inclusivity, disabled person inclusion, universal suffrage based on fair representation and equality of vote, and free and fair elections. With regard to electoral legislation, the key principles are found in Art 82(2) and include: voting that is simple, transparent and which takes into account special needs. None of these principles concern extension of time or delay in filing a petition.

35. With regard to electoral disputes, which are the more relevant aspect in our discussion, the constitutional principles that guide parliamentary legislation thereon are found in Article 87sub-articles (1) to (3). The principles may be summarized as follows: the principle of ”timely settlement of electoral disputes; the principle of time-bound dispute initiation; and the principle of ease of service of petitions. It is to be noted that, with regard to electoral disputes, the Constitution is silent on the question of delayed filing or extension of time in relation thereof. Thus, in interpreting Article 259(9), the court must be faithful to its letter and spirit and give effect to its objectives and the wider applicable principles. 

36.A complete appreciation of the framework within which the constitutional timeframes for petitions are set is necessary. Article 105(2) creates another window – that for hearing and determination of a question whether a person has been validly elected. That window period is six months from the date of lodging the petition. The Elections Act at Section 85, again faithfully mirrors the constitutional timeframe.

37.It is against the principles discussed earlier and these timeframes, that this court must properly appreciate Article 259(9) in relation to extension of constitutional timeframes or windows. This provision is, very aptly, contained in Chapter 17 under the part on “Construction of the Constitution”.

38.For emphasis, I repeat Article 259(9) here:

“If any person or State organ has authority under this Constitution to extend a period of time prescribed by the Constitution, the authority may be exercised either before or after the end of the period, unless a contrary intention is expressly mentioned in the provision conferring the authority.” (Underlining inserted for emphasis)

39.The court, as a body established under Article 165 of the Constitution, is a state organ as defined in Article 260 thereof. The question in this case is whether the court does have authority to extend the constitutional electoral disputes time-frames for filing a petition, or for determination of a petition? I have carefully perused the Constitution to see whether such authority is granted to the court. I do not find any provision creating such authority.

40.What I would have expected to find is a constitutional provision in the lines of Article 261(2) so empowering the court. By way of example, that provision gives such powers to the National Assembly in the following terms:

…the National Assembly may, by resolution supported by the votes of at least two-thirds of all the members of the National Assembly, extend the period prescribed in respect of any particular matter under clause (1) by a period not exceeding one year”. (Underlining added).

Similarly, Article 261(6) empowers the High Court, where there has been failure by Parliament to enact legislation within the constitutionally allotted time, to order Parliament to do so within such time as may be prescribed in the court’s order, and to report progress to the Chief Justice.

41.It bears repeating, therefore, that timeframes which can be extended under Article 259(9) are only those that are set in the constitution and where there is an express constitutional permission for such extension.

42.The secondary question that naturally arises is whether Rule 20 of The Elections (Parliamentary and County Elections) Petition Rules can aid the petitioner to cure the lateness in filing the petition as suggested by the Petitioners. Rule 20 provides as follows:

“ Where any matter is to be done within such timeframe as provided for in these Rules or granted by the court, the court may for purposes of ensuring that no injustice is done to any party, extend the time within which the thing shall be done with such conditions as it may consider fit even though the period initially provided or granted may have expired.” (Underlining added).  

43.This provision clearly allows only for extension of time for timeframes provided for in the Rules or those granted by the court. A close perusal of those Rules on aspects of the filing of a petition, particularly Rules 8 to 12 thereof, shows that no timeframes are indicated for filing of petitions. Rule 20 is therefore inapplicable for reliance for the extension of time for filing of a petition. Indeed, had there been such a rule it would be in breach of the constitutional provision dictating and circumscribing the timeframe for such filing.

44.In summary, the twenty eight days for filing petitions are prescribed by provisions entrenched in the Constitution. This court’s authority is derived from the Constitution. It must pay obeisance to the supremacy of the Constitution, and is duty bound to uphold it and promote its purposes, values and principles. Accordingly, I am unable to agree with the Petitioner on this issue that either Article 259(9) or Rule 20 of the Rules is applicable to allow for time extension for filing the petition. I so hold.

45.I am fortified in my holding above in light of the fact that even in respect of seeking an amendment to a petition, the law only allows the same within the narrow window and limited circumstances found in Section 76(4) of the Elections Act, 2011 which states: -

“A petition filed in time may, for the purpose of questioning a return or an election upon an allegation of an election offence, be amended with the leave of the election court within the time within which the petition questioning the return or election upon that ground may be presented

In other words an amendment is only allowed if the petition was filed within the twenty eight days prescribed by the Act for filing an election petition. These strict rules exemplify the constitutional principle earlier discussed for timely settlement of electoral disputes under Article 87(1). 

WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN THE PETITION

46.Having come to the conclusion above, that the court cannot extend the constitutional window for filing a petition, I must now decide the Applicant’s question whether the court has jurisdiction to entertain the petition. I am mindful of the caseof Motor Vessel “SS Lillian”, (supra), in which the Court of Appeal succinctly set out the principles and context for determination of jurisdiction. In that case Nyarangi, JA stated, inter alia:

“….Jurisdiction is everything. Without it, a court has no power to make one more step….A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

47. I am not satisfied that the correct question here is one about jurisdiction, which inquires into whether the court is competent and has the legitimacy and authority to handle the petition and take a position thereon in any regard. For without jurisdiction, this court can take no further action in the matter and must instantly down its tools.

48.I think there is a distinction in this case. This is an election court. It is duly empowered to determine petitions, in accordance with the enabling statute, the Elections Act. This dispute has been filed in respect of an election under that Act. It is before the proper court. However, the petition has not been filed in accordance with the constitutional and statutory requirements for filing petitions. The court cannot merely down its tools as if it has no power to act. It must act. How to act is the real question.

49.Where a party files a document in contravention of the constitutional prescription, and there is no legal lifeline available to bail it out with, the court has the power and obligation to declare so. In the case of The Speaker of the National Assembly vs. Karume [2008] 1 KLR 426, it was held that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. That case is the locus classicus on that position.

50.Again, it was held in Chelashaw v. Attorney General & Another [2005] 1 EA 33, that,without rules of practice and procedure the application and enforcement of the law and the administration of justice would be chaotic and impossible. Their absence or non-adherence would lead to uncertainty of the law and to total confusion, since laws serve a purpose and they enhance the rule of law. Here what is at stake is not a mere rule of procedure but a constitutional requirement

51.Thus, where a party sets out to challenge the constitutionality or legality of an act, and it ignores the procedure set out for doing so, notwithstanding the fact that the Court has jurisdiction to determine the matter, the court may properly decline to grant the orders sought, since to do so would amount to abetting an abuse of the process of the Court. Here, the Petitioners have failed to follow the correct procedure. To the extent that the procedure is a constitutional imperative the court cannot process their plea.

52.On this score the Applicant sought that the petition be struck out with costs. I am aware that striking out a petition or any other action is a draconian measure. It is to be exercised sparingly and only in the clearest cases where the action is hopeless. There are many decided cases on this point, the locus classicus of which is D.T. Dobie & Company (Kenya) Limited v Muchina [1982] KLR 1 There, Madan, J.A. (as he then was) stated:

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it”

53.I am also aware of the decision in Steven Kariuki v. George Mike Wanjohi and 2 others Nairobi, High Court Petition No 2 of 2013 (unreported), where my brother, Kimondo, J, stated that in the unique circumstances of an election petition where political rights are at stake, the principle of restraint against striking out becomes paramount.

54.The unique circumstances and nature of a petition were, in my humble view, well described by the Supreme Court of India in the case of Jyoti Basu & Ors v. Debi Bhosal & Others reported in AIR 1982 SC,983. The court there held that:

“.....An Election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, the Court is put in a straight jacket....” (Underlining added for emphasis).

55.Thus, the Indian jurisprudence propounds that an election action is one in which the court is put into a strait jacket by virtue of being special jurisdiction wholly under statute. I am persuaded that the approach of the Supreme Court of India provides apt guidance on the way in which Kenyan courts should view election petitions.

56.The Supreme Court of Kenya in the Raila case, (supra) although it did not use the same language, applied a similar approach which, although it was in respect of the more time-restrictive presidential petition, is useful by parity of reasoning, as follows:

“The Supreme Court’s jurisdiction is also limited in time-span. A petition contesting the election of a president does not set-off an open ended course of litigation without time-frames. The applicable time-frame within which any challenge to the election must be filed, served, heard and determined, is prescribed under the Constitution. (para 209);

“….The requirements of such a disciplined trial-framework fully justifies the unlimited exercise of the court’s discretion in making orders that shape the course of the proceedings….” (para 214)

 “The rigid time-frame for the resolution of presidential- election disputes was not, in our opinion, conceived in vain art the time of the constitution-making process…it is clear that expedition is of the essence in determining petitions relating to the Presidential elections” (para 217)

57.The Supreme Court was extremely cognizant of the importance of time-frames into which all the actions in the proceedings are strait-jacketed. At Paragraph 218 of the decision in Raila’s case the court expressed itself thus:

“ …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. The time-lines for the lodgment of evidence in a case such as this, the scheme of which is well laid out in the Constitution, were in our view, most material to the opportunity to accord the parties a fair hearing and to dispose of the grievances in a judicial manner”. (Underlining added)

58.The Court of Appeal in the case of John Michael Njenga Mututho v. Jayne Njeri Wanjiku Kihara & Two Others, Nakuru Court of Appeal, Civil Appeal No. 102 of 2008, at pages 7 and 8, stated:

The law has set out what a petition should contain and if any of the matters supposed to be included is omitted, then the petition would be incurably defective…..

Election petitions are special proceedings. They have detailed procedure and by law they must be determined expeditiously’

59.I am persuaded that notwithstanding the caution of Madan, JA, in the D.T. Dobie case, election disputes are special proceedings under constitutional or statutory embodiment, and should be treated as such. Where, as in this case, there is failure to comply with the constitutional requirements and no excepting provisions are available to remedy the failure and rescue the proceedings, it must lead to a declaration by the court that the petition is incurably defective, and should be struck out. I so hold.

60.The outcome is that I find in favour of the Applicant that there is no legal basis for extension of time to file the petition; and in the result that the petition should, and is hereby, struck out with costs to the Respondents.

61.Rule 36 (1) of the Elections (Parliamentary and County Elections) Petition Rules 2013 provides as follows:

“36 (1) The Court shall, at the conclusion of an election petition, make an order specifying –

a)   the total amount of costs payable; and

b)   the person by and to whom the costs shall be paid ”.

62. As determined by this court, costs shall be payable by the Petitioners. It is noted that the documents filed herein are the petition, Respondents’ responses thereto, the Applicant’s motion herein and the 1st Petitioner’s certificate of urgency, and parties’ submissions and authorities. Since the proceedings have terminated at their infancy, before the hearing of any witnesses, and taking into account the complexity and nature of the matter, and having regard to the fact that counsel were appointed by parties and appeared at the Status Conference and may appear at the reading of this Ruling, and in exercise of my discretion herein, I hereby cap the reasonable costs of the respondents at one half of the security for costs herein deposited pursuant to Section 78 of the Elections Act. Such costs shall, pursuant to Rule 35 of the Elections (Parliamentary and County Elections) Petition Rules, 2013, be recovered from the said security after taxation of the respondents’ bills of costs by the Registrar.

63. It is hereby directed that a certificate of this determination do issue to the Independent Electoral and Boundaries Commission and the Speaker of the National Assembly as provided under section 86(1) of the Elections Act.

Orders accordingly

Dated, signed and delivered this 27th day of May, 2012

R.M. MWONGO,.…................................................... JUDGE

        

Read in open court In Presence of Parties/Representative as follows:

a)           ……………………………………………………………………….

b)           ……………………………………………………………………….   

c)         ………………………………………………………………............
 
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