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MOSES WANJALA LUKOYE V BERNARD ALFRED WEKESA SAMBU& 3 OTHERS[2013]eKLR

REPUBLIC OF KENYA

High Court at Bungoma

Election Petition 2 of 2013

IN MATTER OF THE ELECTIONS ACT NO 24 OF 2011 AND THE REGULATIONS

AND

IN THE MATTER OF THE ELECTION FOR MEMBER OF THE NATIONAL ASSEMBLY FOR WEBUYE EAST CONSTITUENCY

AND
IN THE MATTER OF AN ELECTION BY                                                                                               

MOSES WANJALA LUKOYE........................................................................................PETITIONER

Versus

BERNARD ALFRED WEKESA SAMBU............................................................1ST RESPONDENT

JOYCE WAMALWA                                                                                                                              

RETURNING OFFICER, WEBUYE EAST CONSTITUENCY............................2ND RESPONDENT

INDEPENDENT ELECTORAL AND                                                                                                    

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

THE FUND MANAGER, WEBUYE CONSTITUENCY                                                                        

DEVELOPMENT FUND......................................................................................4TH RESPONDENT

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RULING
Request for documents

[1]        The Petitioner through his counsel, Prof Sifuna applied on 17.5.2013 to file and serve  a request for documents. The court granted the counsel’s request and made the  following order:

“Prof Sifuna to file and serve request for documents. Parties are at liberty to file any objection to one or more of the particulars or documents requested for by the Petitioner”.

[2]        Pursuant to that order, Prof Sifuna filed and served four different sets of request for  documents each directed to the respective respondent who should provide the   documents. Different documents were sought from the various respondents.

[3]        When the petition came up for hearing on 16.6.2013, Prof. Sifuna told the court that  he was ready to commence the hearing but he needed the Respondents to comply with the request for documents that he had served on each one of them.

RESPONDENTS OBJECTED

[4]        No sooner had the Prof. stated his desire to see the Respondents comply with the request for documents, than Mr Onsando raised an objection thereto. The objection  was directed at the procedure adopted by the Professor in filing the request for documents. He submitted that he ignored the request for the following reasons:

            a)         The request was improper having not been made during the pre-trial   conference;

            b)         The court had not issued an order that documents be produced by the   1st Respondent.

            c)         There was no specific order for production of documents contained in   the request.

            d)         There is no provision under the Election Rules, 2013 for a request of   the nature the Petitioner has made. The only procedure on request and  production of documents is in the Civil Procedure Rules which do not  apply to election petitions.

            e)         Even under the CPR and the Evidence Act, where such a request is made and the maker does not comply the remedy is that the person                                     applying may produce copies that he may have.

            f)       Looking at the nature of the documents sought, the request is vexatious as those documents are irrelevant to these proceedings. Allowing the                        request will be to allow introduction of new evidence.

[5]        Mr Mutubwa fully supported the application by Mr Onsando. Except he added that:

            a)      The request has no basis in law. It is not anchored anywhere in the Election Petition Rules 2013. The document filed and served on the              Respondents is therefore, foreign document unknown to the applicable rules. The election Rules are a complete regime of law.

            b)   That the procedure adopted by the Petitioner could be rooted in the  Civil Procedure Rules and those rules on request for documents   have    not been incorporated into the Elections Petition Rules, 2013.

            c)       That the Petitioner has not laid any ground to show why he needs the documents. The Petitioner has also not told the court why the request    was not made at the pre-trial conference.

            d)         Rule 17 of the Election Petition Rules, 2013 acts against such interlocutory matters, especially when they are not made at the Pre-    trial Conference. This is because we are in an adversarial system where  the Petitioner is prohibited from using the court to fish for evidence.

            e)         The Petitioner is taken to have had a water tight case, with all evidence   he needed to mount the petition. He cannot be allowed to use a request  for documents to get further evidence.

            f)         The request is not an application and even with great creativity, it   cannot pass for an application. It is because it has no grounds on which              it is founded.

            g)         That all forms 35 and 36 were provided to the Petitioner and the court.  They were also provided with voter registers on areas of dispute, thus,  IEBC has discharged its obligation under the law. IEBC is not,  therefore, under any duty in law to provide registers for stations that  are not in dispute.

            h)         That one of the requests is for reports by IEBC officials which reports  have not been identified in the request. The request on that aspect is              vague and does not allow anybody to ascertain the reports being  sought.

            I)         That there is no basis for requesting for names of all polling officers  without specific complaints having been levelled against all the  presiding officers. In the absence of ascertained complaints towards the  Deputy Presiding Officers and Presiding Officers, It will be                                     inappropriate to make the request for their names.

            I)         The request for a list of the members of ODM and UDF parties is  baseless. The list is not relevant to the proceedings. How will a list for                       members of ODM for Nyando be relevant? IEBC is not the repository of information on party membership. The Registrar of Political parties              and the leadership of those parties are repository, but unfortunately  none is a party in the suit. It must be shown that IEBC is the custodian                      of documents sought.

            k)         Right of information under Article 35 of the Constitution has been   limited by the regulations thereto in relevance, admissibility and to the                         pre-trial stage.

            l)          For those reasons the request should be dismissed.

[6]        Mr Ojuro also supported the submissions by Mr Mutubwa and Osando. He added that the Petitioner was not even present during pre-trial conference. The election Rules are   made under the authority provided for under section 96 of the Elections Act which requires that such requests be made in the pre-trial conference. Failure to comply with the Rules makes the request an abuse of court process.

[7]        Mr Onjuro submitted further that the court issued administrative directions that such   issues shall be raised during the pre-trial conference. The check list that the court send      also stated that such interlocutory matter will be raised during the pre-trial conference.

[8]        Moreover, the Constitution places a time limitation for determining election petitions. It is six months and the time is running out fast. These kinds of interventions by the Petitioner will only eat away the constitution. The only way to move forward is by     dismissing the request. People of Webuye Constituency also need to know the   outcome of the petition without delay.

[9]        Ojuru opines that the Professor should have invoked sections 68 and 69 of the  Evidence Act to produce secondary evidence. He termed the request by the Petitioner  to be very strange, and does not conform to the Elections Act and Rules. The Petitioner is not saying that he has copies and that the Respondent should provide the originals. The Petitioner should have come to court when he has collected enough evidence to sustain his petition. He has the burden of proof.

[10]      The request is kind of investigative and is turning the court into an investigator. This  is wrong as the court is an arbitrator.

[11]      He further urged that the request has sought for documents that the 4th Respondent has  no custody of, and should be disallowed.

Prof. Sifuna Responded

[12]      Professor Sifuna responded. He told the court that the counsel for the 4th respondent is     raising matters that are already spent. The court ordered for the filing of the request which was served accordingly on the parties. The Respondents should have filed  affidavits indicating that they do not intend to supply the documents sought by the Petitioner.

[13]      The Professor also submitted that there rules that govern request of documents. He relied on the case of Joho v Nyange [2008] KLR (EP) – by Justice J.B Ojwang that;  whereas the court is exercising a special jurisdiction, where there is a lacuna the court  can fall back to the Civil Procedure Rules. He reiterated that they have requested for  copies of, and not the original documents. He did not see anything wrong if the 1st             Respondent supplied the Petitioner with a copy of his ID card, voter’s card, or      resignation letter from his earlier position in ODM.

[14]      He said that none of the advocates have told the court that their clients have refused to     comply with the request for documents. None has also shown that the documents sought are irrelevant and will be introduction of new evidence. He cited as an  example the allegation that the 1st Respondent was a member of UDF which supports  his bid that the Respondent should give the information on his membership. The    request was made as the best available mechanism to obtain information; a fact that    the court appreciated when it allowed the filing of the request. The court should   follow the dictates of Rules 4 and 5 of the Election Rules by invoking its inherent   jurisdiction in order to meet the ends of justice.

[15]      The professor submitted that the rule 17 (2) relates to interlocutory and not to such a request which is not an interlocutory application. He faulted the argument by Mr      Mutubwa on that aspect. He was of the view that the Petitioner had not commenced  giving evidence as at the time the request was filed and served. It could, therefore, be taken to mean that the court intended to deal with the request before the hearing  begins today i.e. 16.6.2013.

[16]      In any event, the Rules envisage the making of interlocutory applications even during  the trial. He cited the example of interlocutory applications for scrutiny or recount   which should be made during the hearing.

[17]      Election petitions are matters of public interest, and the public wants to know whether      the 1st Respondent won the election. The Petitioner was not, therefore, seeking new     evidence but was merely following on the right that IEBC as a public body should     make full disclosures of all the public documents and information it holds. There were  over 72 people who were said to have been assisted to vote and so the public needs to       know how the voters were assisted to vote, by whom and whether the exercise was conducted in accordance with the law. IEBC being the constitutional body in the  service of all the citizens of Kenya, including the Petitioner should be able to give information in form 32 on the matters above.

[18]      The order for the filing of the request for documents has not been reviewed and so it   must be obeyed.

[19]      According to the professor, the rules do not recognise the check-list filed herein. It is merely an administrative instrument which cannot attract any penalties if a party does  not file it. It is not even one of the statutory forms provided in the Rules.

[20]      With regard to the 4th Respondent, he submitted that the request is directed to the fund manager who is the party in the proceedings seeking a list of all proposed projects and  bank accounts that are relevant to the petition. The Petitioner has pleaded that the 1st Respondent used CDF to campaign. The 4th respondent has confirmed that he even  made other payments other than that to Muji Secondary School. All these payments          were made during the campaign period. George Shibanda is the 4th Respondent and  should provide the documents.

[21]      Due to the reasons he has given, substantive justice requires that the Petitioner should  be allowed the documents sought.

Replies by Onsando, lubeleliah and Ojuru

[22]      Onsando told the court that the matter came up for mention and so no substantive  orders could have been issued by the court on 15.5.2013. There was no formal  application on which the request was obtained. Further, he submitted, the request was  filed on 24.5.2013 after the order the Petitioner claims allowed him to make the request.

[23]      There is a problem on the production of documents sought by the Petitioner as the  documents do not relate to the issues before the court. They should have been sought at the pre-trial conference for they are matters of evidence. They have been sought too   late in the day.

[24]      In response to the earlier assertion by the Professor that by implication and election           disputes are in the nature of civil proceedings, Mr Onsando stated that the true            position of the law is that election proceedings are sui generis. The proceedings are    governed by the Election Rules, 2013 which constitute a complete legal regime for       determination of election disputes.

[25]      Mr Lubulelah supported the submissions by Mr Onsando, Mr Mutubwa and Mr .Ojuru. He emphasised that the request by the Petitioner is a fishing expedition and thus an abuse of the process. It should be resisted by the court. It is also an attempt to defeat the whole idea of time management.

[26]      Mr Ojuro closed. He cautioned that the scope of Article 159 has been decided by the Supreme Court and should not be misused by parties to fish for evidence through  court process.

COURT’S DETERMINATION

[27]      I have considered all the submissions of the parties. The order of the court made on  17.5.2013 is very clear. It allowed the Petitioner to file and serve a request for            document. The order was made upon an oral application by Prof Sifuna in the  presence of Kituyi Advocate who was holding brief for Onsando and Ojuro             Advocates.

[28]      That order also anticipated objections-that has come to pass. That is why it provided  that parties are at liberty to file objections to the request. The respondents have surely  raised objections to the request and have extensively submitted on the matter, hence,  this ruling.

ISSUES

[29]      From all the submissions of the parties, I can identify the following as being the issues  for determination by the court:

            a)         Whether or not the request filed offeds the law, especially the Election Rules 2013;

            b)         Whether there has been any basis laid for the request.

            c)         Whether the documents sought are relevant to the issues in the petitions;

            d)         Whether the Petitioner has pleaded matters in the petition which would  entitle him to make the request for documents.

            e)         Whether the Respondents should supply the documents sought, and if  so, which ones.

Does the request offend the law?

[30]      The above question could be put in a more suggesting way; is the relief of request for documents available in the election laws and rules? It then becomes apparent that the  answer to the question will require the court to carefully explore on the nature of     election disputes as public-election disputes. It is also inextricable in answering the question, to consider the overriding objective of the court as a useful guide.

[31]      It has been held many times before that election disputes are sui generis proceedings.See Bungoma Election Petition No. 1 of 2013 [2013] eKLR where the court,  quoting the words of Justice J. B Ojwang, Justice of Supreme Court stated that:

‘’To those categories of action sui generis, we should add public-election disputes.... And no election is of bona fide interest to litigants; on the contrary, elections are of much more substantial interest to the voters and to the public at large.

[32]      In the same case (ibid), the court held that election disputes are not private disputes to  be confined to strict rules of procedure, rather, they are public-interest disputes which        enjoy liberal approach in the interpretation of the applicable law. The legal reasoning   behind this position of the law is that these disputes are imbued with public law  connotations as they carry remedies of a public character.

[33]      If that is the nature of election proceedings, how does the overriding objective of the  court become useful in the determination of the issues before the court? The overriding objective of the court is provided for under rule 4 and 5 of the Elections  (Parliamentary and County Elections) Petition Rules, 2013. Rule 4 and 5 of the Rules  provide:

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.

(2) The court shall, in the exercise of its powers under the Constitution and the Act or in the interpretation of any of the specified in sub-rule (1).

(3) A party to an election petition or an advocate for the party shall have an obligation to assist the court to further the overriding objective and, to that effect, to participate in the processes of the court and to comply with the directions and orders of the court.

5(1) For the purpose of furthering the overriding objective specified in rule 4, the court and all the parties before it shall conduct the proceedings for the purpose of attaining the following aims—

(a)       the just determination of the proceedings; and

(b)     the efficient and expeditious disposal of the petition and in any case not beyond the timelines provided in the Constitution and the Act with respect to election petitions.

(2) The court may, where a party has breached any requirement of these Rules, issue orders, and impose penalties, as the court may consider just and fit including an order for payment of costs.

[34]      On introduction of the overriding objective into our judicial jurisprudence the Court of Appeal in the case of Stephen Boro Gitiba v Family Finance Building Society and Others Civil Application No. Nai 263 of 2009 had this to say;

The overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with and whatever is in conflict with it must give way. A new dawn has broken forth and we are challenged to reshape the legal landscape to satisfy the needs of our time. The court must warn the litigants and counsel that the courts are now on the driving seat of justice and the courts have a new call to use the overriding objective to remove all the cobwebs hitherto experienced in the civil process and to weed out as far as is practicable the scourge of the civil process starting with unacceptable levels of delay and cost in order to achieve resolution of disputes in a just, fair and expeditious manner. If the often talked of backlog of cases is littered with similar matters, the challenge to the courts is to use the new “broom” of overriding objective to bring cases to finality, by declining to hear unnecessary interlocutory applications and instead to adjudicate on the principal issues in a full hearing if possible”.

 [35]     Other cases took similar view, say, the case of John Gakure and 148 Others vs.  Dawa Pharmaceutical Co. Ltd and 7 Others Civil Application No. 299 of 2007, where Waki, JA expressed himself thus:

“Jurisdiction of the Court has been enhanced and its latitude expanded in order for the court to drive the civil process and to hold firmly the steering wheel of the process in order to attain the overriding objective and its principal aims. In the court’s view, dealing with a case justly includes inter alia, reducing delay, and costs, expenses at the same time acting expeditiously and fairly. To operationalize or implement the overriding objective calls for a new thinking and innovation and actively managing the cases before the court, including the granting of appropriate interim relief in deserving cases”.

[36]    But see the emphasis in the above case of John Gakure and 148 Others vs. Dawa Pharmaceutical Co. Ltd and 7 Others that:

“That, however, is not to say that the new thinking totally uproots all well-established principles or precedent in the exercise of the discretion of the court which is a judicial process devoid of whim and caprice. On the contrary, the amendment enriches those principles and emboldens the court to be guided by a broad sense of justice and fairness as it applies the principles. The application of clear and unambiguous principles and precedents assists litigants and legal practitioners alike in determining with some measure of certainty the validity of claims long before they are instituted in court. It also guides the lower courts and maintains stability in the law and its application”.

 [37]     My view on this matter is that, although election petitions are not private civil disputes, the principles of overriding objective apply with equal force in election  petitions and should be the basis upon which the court could invoke its inherent jurisdiction to take care of cases where the Rules are silent on the particular procedure  necessary to effect a remedy due to a party. But the discretion of the court in invoking the jurisdiction should be exercised in deserving cases only to ensure that the election  dispute is determined properly, effectually and completely as to vindicate the will of            the people in the concerned electoral area. See the useful guide in what Madan, JA  (as he then was) in Chase International Investment Corporation and Another vs.  Laxman Keshra and Others[1978] KLR 143; [1976-80] 1 KLR 891 said that:

“If the circumstances are such as to raise equity in favour of the plaintiff and the extent of the equity is known, and in what way it should be satisfied, the plaintiff is entitled to succeed. When the ghosts of the past stand in the path of justice clanking their medieval chains the proper course of the judge is to pass through them undeterred”.

[38]      We should allow laws to evolve as the country embraces the new Constitution and enacts innovative legislations. Likewise, judicial innovation in the interpretation of laws should give real effect to the various laws that may speak to the question before me. Although request for documents is not expressly provided for in the elections rules as is in the Civil Procedure Rules, it is easily discernible that Part VII of the Elections Act and rule 17(1) is a codification of the equitable remedy of discovery and request for documents. That relief is, therefore, available in election petitions given the objective of our electoral process. Further support of this view is found in the Evidence Act; it applies to election petitions and has provisions on request for documents, especially section 68 and 69, which, therefore, renders untenable the argument that request for documents is foreign to election petitions. I should also refer to the requirement that IEBC should submit to the court the results in respect of the electoral area in dispute as a pointer that request for documents held by IEBC could be ordered in the event IEBC does not comply or has not fully complied with that requirement. The relief of scrutiny also involves production and inspection of documents held by IEBC. It was therefore submitted, and rightly so, that the court has jurisdiction to make orders for supply of documents in an election dispute. This is to be seen within the wide province of discovery, production and inspection of documents for purposes of a judicial proceeding. That is in line with the position I have already expressed, that a court of law should never be helpless in giving effect to a remedy just because there is no express procedure provided for approaching the court. See the case of Ngera v Kenya Wild-Life Services KLR 1 (E&L) pp. 314. But courts should be careful not to allow parties to adopt all manner of procedures which negate all well-established principles and procedures in litigation.

[39]      There is, however, one restriction when it comes to request for documents; that proper       basis should be laid by providing sufficient grounds and materials before the court to  show that there is absolute need to grant the order. Parties should ordinarily, although not invariably, apply for pre-suit discovery under Article 35 of the Constitution rather  than wait to apply for discovery or production of documents in a suit. That course will avoid accusations of fishing for evidence in an existing suit. See the case of Norwich  Pharmaceutical Co & Others vs. Commissioner of Customs and Excise [1973] 2 All ER 943, Lord Reid gave the relevant opinion that:

“The Chief occasion for its [discovery] being ordered was to assist a party in an existing litigation. But this was extended at an early date to assist a person who contemplated litigation against the person from whom discovery was sought, if for various reasons it was just and necessary that he should have discovery at that stage. Such discovery might disclose the identity of others who might be joined as defendants with the person from whom discovery was sought. Indeed in some cases it would seem the main object in seeking discovery was to find the identity of possible other defendants.........So discovery to find the identity of a wrongdoer is available against anyone whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession.”

Has proper basis been laid for the request?

[40]      I have established that the court can allow a party to request for documents or further particulars under the electoral laws. What remains is whether proper basis has been    laid for it. But before I dwell on that issue, I should mention from the onset that it is most desirable and convenient that a party seeking for documents should apply    formally in court. An oral application is quite restrictive. It denies the applicant an opportunity to clearly set out and aptly present the plausible grounds on which he is  applying. Likewise, an oral application does not afford the opposing parties ample    chance to put forth their considered replies. And, finally, the method leaves the court    to prop in the dark in search of the specific references or grounding in the pleadings.    It is tedious. It is also a mean approach for applying for such important documents. It  should be discouraged.

[41]      Nonetheless, the request has already been made and objections have been raised    which I should determine substantively. A proper basis for grant of request for   documents would entail relevance of the documents sought and proof that those    documents are in possession or custody of the party to whom the request is made. In  deciding whether or not to grant a request for documents, the court may also consider  if production of those documents would involve great difficulty and considerably long  period of time, more so in an election petition which must be determined within six            months set in the Constitution. With regards to documents sought from the 1st      Respondent, I do not see the relevance of the ID card and the Voters Card requested for, to these proceedings. His identity as a Kenyan citizen is not in issue. It is not also in issue that he is a registered voter. Although the Petitioner claims that the 1st  Respondent was a member of two political parties, UDF and ODM in paragraph 9 of the petition, information or documents on that matter should be sought from the  Registrar of Political Parties and the leadership of those parties. The burden of proof         is on the Petitioner to prove the allegations he has made and should obtain information from the right parties or institutions. In these proceedings the Petitioner  has not adduced a prima facie evidence as to create evidential burden on the 1st Respondent that would require him to do certain things in rebuttal of the allegations  by the Petitioner. That request is, therefore, vexatious and irrelevant. The entire  equest is denied. What I find strange is the sixth request for any document  disapproving the fact that the 4th Respondent is the brother-in-law of the 1st Respondent. The less I say about it the better.

[42]      With regard to the request to 2nd and 3rd Respondents, it was not disputed by the  Petitioner that Form 35 and 36 were supplied to him by the IEBC. During pre-trial conference it was generally agreed amongst the parties present that IEBC shall supply   the court and all the parties with the statutory forms they hold on the results of the disputed electoral areas. They were also to provide in soft form the Principal Voters    Register. I decry the Professor was not present during the early part of the pre-trial    conference. As I have said above, list of members of UDF and ODM parties should be           sought from the Registrar of Political Parties and the leadership of those parties. I do  not also see any relevance of the list of all Presiding and Deputy Presiding Officers in   the Republic or of all Party Agents for Webuye Constituency in the absence of  specific and defined charges on each of the Officers or the Party Agents who were  engaged in the electoral process at the time. The Petitioner should point out the    specific allegations and the particular officer or agent concerned. It is most untidy to  ask for a list of all Presiding and Deputy Presiding Officers of IEBC in the Republic.

[43]      The request to the 4th Respondent does not also meet the thresholds of the law. He was     sued in his personal capacity. I made it clear in my earlier ruling that the Fund or the    CDF Board is a separate legal entity and could not be responsible for criminal acts  committed by the manager, i.e. the 4th Respondent. All the documents sought are official documents of the CDF which should only be obtained under the relevant Act  from the Board. I do not see how a request for documents could be directed to the 4th Respondent in his capacity to produce accounting documents of the Fund. I do not           wish to say more especially on the cheque that was subject of the ruling delivered on  16/6/2013 given the nature of that ruling.

[44]      It is, therefore, my view that the Petitioner has not placed enough material before me for the grant of the orders sought in the request for documents herein. I must,    however, reiterate that an order for supply of documents ought not to be made in order  to assist a party who does not have sufficient material to build up his case. It ought  only to be made where a proper basis has been laid as to pull a preponderant weight  towards granting it. The documents should be sought to prove a matter in issue and  which has been clearly pleaded.  

[45]      I find and hold that no proper basis has been laid for the production of documents  sought. For the reasons above I disallow the requests. Orders accordingly

Dated, signed and delivered in open court at Bungoma this 18th day of June, 2013.

F. GIKONYO
JUDGE
In the presence of:
Khisa- CA
Mutubwa for 2nd and 3rd Respondents
Ojuro for 4th Respondent
Onsndo Osiemo Advocates for 1st Respondent
Petitioner represented by Professor Sifuna.
 
F. GIKONYO
JUDGE
 
 
 
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