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HASSAN ABDALLA ALBEITY V ABU MOHAMRD ABU CHIABA & ANOTHER[2013]eKLR

REPUBLIC OF KENYA

High Court at Malindi

Election Petition 9 of 2013

IN THE MATTER OF THE ELECTIONS ACT, 2011

AND

IN THE MATTER OF THE ELECTIONS OF THE SENATOR

OF LAMU COUNTY
 
BETWEEN
 

HASSAN ABDALLA ALBEITY..………………...………..PETITIONER

VERSUS

ABU MOHAMRD ABU CHIABA.........................1ST RESPONDENT

THE INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION………....……...….2nd RESPONDENT

 
RULING

1.        In the General Elections held on 4th March 2013, Hassan Abdalla Albeity, the Petitioner herein was one of the candidates for the seat of Senator Lamu County together with eight other candidates who included the 1st Respondent Abu Mohamed Abu Chiaba.

The elections were conducted and supervised by the 2nd Respondent, the Independent Electoral and Boundaries Commission (IEBC). After the conclusion of the elections, the 1st Respondent was declared as the duly elected Senator for Lamu County and was gazetted as such by the 2nd Respondent on 13th March 2013.

2.        The Petitioner was dissatisfied with the conduct and outcome of the said elections. He filed this Petition on 3rdApril, 2013 in which he sought the following orders:-

“(a)     An order for scrutiny, recount and retallying of all the Senatorial votes cast in each polling station in Lamu County.

(b)      The 1st Respondent, ABU MOHAMED CHIABA was not duly elected.

(c)      An order that the Petitioner having gathered the greatest number of votes cast for Senator’s election is duly elected Senator for Lamu County.

(d)       Costs of the Petition be awarded to the Petitioner.”

3.        Upon being served with the Petition, the Respondents entered appearance and duly filed their responses to the Petition in compliance with the Elections (Parliamentary and County Elections) Petition Rules, 2013 (the Rules).

Thereafter, each of the Respondents filed separate applications inviting the court to strike out the Petitioner’s Petition on grounds that the Petitioner had failed to comply with mandatory provisions of the law as stated in the Rules.

4.        The application filed by the 1st Respondent is dated 24th May 2013 and it sought the following orders:-

“1.      That the Petition be struck out.

2.        That alternatively, this Honorable Court strikes out and expunges from the records the contents of paragraph 8(ii), 9, 13,15, 17, 18, 19, 20, 28, 29, 30, 31,and 32 of the Petition.

3.        That this Honourable Court strikes out and expunges from the records the contents of paragraph, 8, 9, 15, 16, 17, 21, 22, 23, 26, 27, 28 of the supporting affidavit of Hassan Abdalla Albeity.

4.        That this Honourable Court strikes out and expunges from the records the contents of paragraph 13 and 14 of the affidavit of Mohamed Ahmed Ali.

5.        That the cost of this application be provided for.”

5.        The application is premised on twenty grounds stated on its face which can be summarized as follows:-

(1)     That the court lacks jurisdiction to hear and entertain the Petition as it is invalid and incurably defective for failure of the Petitioner to comply with mandatory provisions of the law in that:

(a)       The petitioner failed to join the Returning Officer as a Respondent in the Petition thus contravening Rule 2 of the Rules which makes Returning Officers necessary and mandatory Respondents in Election Petitions.

(b)       That the Petitioner failed to state the results of the elections and thus failed to comply with Rule 10 (1) (c) of the Rules.

2.        That the Petitioner in his Petition, supporting affidavit and witness affidavits annexed to the petition have adversely mentioned the Returning Officer, Deputy Returning Officer, Presiding Officers ,Deputy Presiding Officers and other persons who are strangers to the 1st Respondent without making them parties to the Petition.

3.        That the 1st Respondent will not be accorded a fair trial as he will not have opportunity to examine the said persons and it is imperative that paragraphs that mention or touch on persons not party to the Petition be expunged from the court record.

4.        That the Petitioner’s action of failing to enjoin persons adversely mentioned in the Petition as parties amounts to a violation of the principles of natural justice.

5.        That it is only fair and in the best interest of justice and fairness that the orders sought be granted as prayed.

6.        In the application filed by the 2nd Respondent dated 19th May 2013, the 2nd  Respondent prays that the Petition be struck out with costs on grounds that:-

“(i)     The Petition is fatally defective for want of form and content due to failure by the Petitioner to state the election results and the date and manner of declaration of the said results and other information required to be included.           

(ii)     The Petition is in contravention of the Election Petition Rules particularly Rule 10.

(iii)    That the court has no jurisdiction to entertain the Petition due to (i) above

(iv)    That the Petitioner’s claim in the Petition are not supported by evidence or particularized.”         

The application is supported by the affidavit sworn by Moses Kipkogei on 20th May, 2013 in which it was deposed that besides failure to disclose the elections results and the date and time of their declaration, the Petitioner had also failed to include prayers that are mandatory in Election Petitions.

7.        The Petitioner opposed the two applications through grounds of opposition dated and filed on 31st May, 2013. And in a bid to counter some of the prayers sought in the 1st Respondent’s application, the Petitioner filed a Notice of Motion dated 24th May, 2013 seeking orders that:-

“(1)     The Court be pleased to summon and compel the court attendance of Jonathan Kazungu Ngowa, the Lamu Deputy Returning Officer, as a witness and be examined by either party and/or the court on any matters touching on him in the Lamu Senatorial Election.

(2)       The court be pleased to summon and compel the attendance of any other person concerned in the election as may be necessary.

(3)       Costs of this Application be provided for.”

On the same date, the Petitioner filed a second Notice of Motion seeking an order for scrutiny and recount of votes cast in the Lamu County Senatorial Election before hearing of the oral evidence of witnesses.

8.        In the Pretrial Conference held on 29th May 2013, the court directed that the applications filed by the Respondents be argued together and that the Petitioner’s application seeking summoning of witnesses be argued in opposition to the 1st Respondent’s application.

This decision was informed by the fact that the two applications filed by the Respondents sought identical orders of striking out the Petition on by and large similar grounds and the aforesaid Notice of Motion filed by the Petitioner appeared to be an answer to some of the issues raised by the 1st Respondent in his application dated 24th May 2013. The court also directed that the Petitioner’s application for scrutiny and recount of votes be held in abeyance to be revisited in the course of the trial if need be.

9.        The three Applications were canvassed before me on two days namely on 4th June, 2013 and on 10th June, 2013 by learned counsel representing each of the parties namely Mr. Ndegwa for the Petitioner, Mr. Balala for the 1st Respondent and M/s Muragori for the 2nd Respondent .These applications are the subject of this Ruling.

10.      In support of the 1st Respondent’s application, Mr. Balala submitted that the Petition was incurably defective for its failure to comply with Rule 10 of the Rules. In particular, counsel submitted that the Petitioner had failed to comply with Rule 10(1)(c) which requires petitioners to state the results of the Election however declared and Rule 10(1)(b) which requires disclosure of the election date in the Petition. He claimed that these requirements are not discretionary but are mandatory and that this can be seen from the use of the word “shall\' in the Rules. He asserted that results go to the content and not form of the petition. He relied on the case of JOHN MUTOTHO v JANE KIHARA CIVIL APPEAL NO. 102 OF 2008 where the Court of Appeal held that details required to be included in Petitions if omitted made the Petition incomplete and renders it defective. He further submitted that Rule 10(1)(c) envisages detailed results and not just a declaration of the person who won the elections. It was thus his position that failure to state detailed results made the Petition incurably defective and it ought to be struck out.

11.      On the issue of non joinder of the Returning Officer, it was Mr. Balala’s view that failure to join the Returning Officer as a Respondent was fatal to the Petition. He urged that Rule 2 makes a Returning Officer a necessary and mandatory party to Election Petitions and failure to join him as such in this petition especially where adverse allegations had been made against him invalidated the Petition. For this proposition, he relied on the case of MUDAVADI V KIBISU (2008)1 KLR 14 (EP). He further asserted that Rule 2 read together with Rule 9 makes the person who won the IEBC and the Returning Officer mandatory parties. He drew a distinction between the IEBC, Returning Officers and Presiding Officers saying that they are different parties as can be seen from a reading of Rule 2 of the Rules and Article 86 of the Constitution.

12.      It was further submitted on behalf of the 1st Respondent that failure to enjoin the Returning Officers, Presiding Officers and other persons adversely mentioned in the paragraphs in the Petition and affidavits sought to be expunged from the court record amounted to a violation of the rules of natural justice as these persons had not been served with the Petition and they will not have an opportunity to respond to the allegations made against them

13.      In addition, Mr. Balala submitted that it would be prejudicial to the 1st Respondent for the petitioner to use allegations against other people unconnected with the Respondent to challenge his election. To buttress this point, he relied on the cases of CHIEF (DR.) UGWU NWAFOR UJAM V CHIEF KEN NNAMANI &ORS (2003) LPPELR-CA/E/EPT/2/2003 and GENERAL MUHAMMUDU BUHARI & ANOR V ALHAJI MOHAMMED DIKKO YUSUF & ANOR, (2003) LPELR/EP-SC.116/2003.

14.      For the reasons aforesaid, Mr. Balala urged the court to strike out the petition and in the event that the court was not inclined to do so, he urged the court to expunge from the record the content of paragraphs in the petition and in the affidavit sworn by the petitioner and one of his potential witnesses shown on the face of the application as they referred to the conduct of persons who were not parties to the petition.  

15.      Ms. Muraguri presented the 2nd Respondent\'s case. On her part, she associated herself with the submissions made by Mr. Balala regarding the Petitioners alleged failure to comply with requirements stated in Rule 10 of the Rules concerning the content and form of the Petition.

            She claimed that the Petitioner had failed to disclose his address for service, date and results of the elections.

It was Ms. Muraguri\'s submission that paragraph 1 of the petition only stated the advocates address and not that of the petitioner as required by Rule 10 (1)(a). She submitted that paragraph 6 of the petition and paragraph 4 of the petitioner\'s affidavit only stated that the Returning Officer returned the 1st Respondent as the winner of the election and thus failed to comply with Rule 10 (1) (c) of the Election Rules. She further contended that the candidates in the elections were not named as well as the manner in which the results were declared. Counsel asserted that the word “shall” has been used in Rule 10 and the provision was mandatory and not a matter of discretion. She added that one of the prayers in the petition sought an order that the petitioner having garnered the greatest number of votes be declared as the winner making disclosure of the results vital as it went to the substance of the petition. She thus concluded that failure to disclose results rendered this petition incompetent and urged me to strike it out with costs. She relied on the case of AMINA HASSAN AHMED v RETURNING OFFICER, MANDERA COUNTY AND 2 OTHERS, GARISSA ELECTION PETITION No. 4 of 2013.

16.      Another reason why the Petition should be struck out according to Ms. Muraguri is that the petition raises serious allegations of malpractices in the election process, yet the Petitioner did not include a prayer seeking an order for fresh elections to be held in the event that the court eventually found that the election was marred with malpractices and that its conduct failed to comply with electoral laws. She argued that this Court is bound by the prayers sought in the petition and a court cannot grant orders which had not been sought by the Petitioner. In her view, proceeding with the hearing of the Petition as filed may be an exercise in futility and it ought to be struck out at this stage.  

17.      While supporting the 1st Respondent’s application, M/s Muraguri advanced the view that failure to comply with Rule 2 requiring joinder of a Returning Officer is an issue of substance and not a technicality. She referred me to the case of ABOUB ALI v INDEPENDENT ELECTRORAL AND BOUNDARIES COMMISSION, MALINDI ELECTION PETITION NO. 12 OF 2013 in which Kimaru J struck out the petition for failure to enjoin a necessary party. 

18.      On behalf of the petitioner, Mr. Ndegwa opposed the two applications.   He started off his submissions by contending that the two applications were attempts by the Respondents to avoid dealing with the merits of the Petition by seeking to have it struck out on technicalities.   He relied on Article 159(2)(d) of the Constitution which requires that justice be administered without undue regard to technicalities. He claimed that even the Elections Act at Section 80(d) and Rules 4(1) of the Rules have emphasized on the need to administer substantive justice without undue regard to procedural technicalities.

Mr. Ndegwa argued that the Rules and principles in the constitution governing settlement of electoral disputes are very new and all the authorities cited by the Respondents especially from the Court of Appeal related to technical justice where issues were resolved by reference to technicalities and they were therefore bad law. It was his position that an election petition is not a contest between two candidates. That it is an inquiry by the court to determine whether the person declared as the winner was validly elected. He submitted that the Petition complies with the form and content outlined in Rule 10 of the Rules and that substantive justice required that it be heard on merit.

19.      Addressing the issue of failing to state election results, Mr. Ndegwa pointed out that the petition at paragraph 6 and 10 disclosed the results. He further submitted that the requirement of stating the results has since been overtaken by events since the 2nd Respondent has already brought the results as contained in form 35 and 36 as required under Rule 21(b) of the Rules, which now form part of the court record. He relied on the cases of WAVINYA NDETI v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 4 OTHERS, (2013) eKLR, CAROLINE MWELU v PATRICK MUSIMBA (2013) eKLR (2013) eKLR all of which held that failure to state results was not fatal to the validity of a petition. He claimed that the MUTOTHO v KIHARA case (supra) is now bad law because it was decided before Article 159 of the constitution and Section 80 of the Election Act came into force.

20.      On the claim that the nonjoinder of the Returning Officer rendered the petition defective, Mr. Ndegwa submitted that Rule 2 was not mandatory and was just an indication of who may be joined in an election petition. He stated that Rule 2 only says who the Respondents in an election petition should be and the word “and” or shall” has not been used to show that the persons listed therein are necessary parties.   Thus the nonjoinder of the Returning Officer did not make the Petition incompetent. It was his position that only the IEBC and the Candidate who is returned as the winner are mandatory parties because the candidate has a legal interest in the outcome of the petition; and IEBC because Rule 9 of the Rules has specifically provided that the Independent Electoral and Boundaries Commission (IEBC) shall be a compulsory party in every Election Petition. It was therefore Mr. Ndegwa\'s submission that the Returning Officer and any other person whose conduct is complained off are not mandatory parties and they must not be enjoined as Respondents in all Petitions.

21.      He referred the court to the authority of ABUOB ALI v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (supra) where the court noted that the argument that a petitioner can choose between enjoining the IEBC or the Returning Officer has merits. It was Mr. Ndegwa\'s argument that the reason why the Returning Officer and any other person complained of are not mandatory parties is obvious because interpreting Rule 2(d) of the Rules to mean that all parties adversely mentioned be joined as Respondents in a Petition would result in an absurdity. That if the Petitioner was to enjoin presiding officers, returning officers, county returning officer, and polling clerks there would be about 500 Respondents in the Petition. He referred the Court to the scenario obtaining in Nigeria where the Nigerian Election Act of 2002 had a provision which required any person whose conduct was being complained of to be made a party to an Election Petition. The position was that no Petitioner was able to comply with it. He relied on the case of MUHAMMADU BUHARI v CHIEF OLUSEGN OBASANJO & 265 OTHERS (2003) LPELR-SC.133/2003 and DR. OLUSEGUN AGAGU v DR. RAHMAN OLUSEGUN MIMIKO CA/B/EPT/342A/08 to demonstrate the legal position in Nigeria.

22.      It was thus Mr. Ndegwa\'s submission that where like in the present case the IEBC has been joined as a party, the Presiding and Returning officers need not be joined as Respondent\'s. The Election officers being employees of IEBC, he argued,were Agents of the commission and the law was that one does not need to sue an Agent where there is a disclosed principle who is already a party to the proceedings. For this proposition, he relied on the case of OTUNBA ADEDIPUPO A. DINA v OTUBNA JUSTUS OLUGBENGA DANIEL & ORS (2009) LPELR-CA/1/EPT/GOV/M/40/2008. He also relied on the Indian case of SHRILAL JANVA v UDAI RAM DHAKAD, AIR 1981 Raj 251 where it was held that even if allegations were made against a Returning Officer, he was not a necessary party since he has no legal interest in the petition and that no orders can ever be made against him. Mr. Ndegwa submitted that the law was the same in Malaysia and referred the court to the case of AMARASINGHE v AZATH SALLY &OTHERS C. A. 1074/2002 where it was held that a Returning Officer is not an affected party as he may have general interests but not personal legal interest and thathis non joinder could not invalidate a Petition.

Back home, Mr. Ndegwa relied on the persuasive authorities in KITUO CHA SHERIA v JOHN NDIRANGU KARIUKI AND ANOR (2013) e KLR and HOSEA KIPLAGAT v SAMMY KOME MWAITA & OTHERS (2013) e KLR.

23.      It was Mr. Ndegwa\'s position that there was no non-joinder and even if there was, it would not affect the validity of the Petition or any paragraph in it. On the claim that the petitioner had violated the rules of natural justice, Counsel submitted that the Returning officer and all persons working under him (presiding officers and polling clerks) adversely mentioned in this petition are already parties by virtue of being employees of the Commission (IEBC) and also that they have already presented their defence. He observed that the County Returning Officer, Silvano Buko has sworn a replying affidavit at page 1-7 of the 2ndRespondent\'s answer and had responded to all allegations of fact madeagainst him and officers working under him. In any event, he submitted, a person who has no legal interest in a matter has no right to be heard in the first place.

24.      Finally, in arguing the petitioner’s application dated 24th May 2013, Mr. Ndegwa apparently disowned the prayers in the application particularly prayer 1.   He stated that the petitioner did not in fact require the Lamu Deputy Returning Officer Mr. Jonathan KazunguNgowa to be summoned by the court as a witness. He added that the application had been made solely for the benefit of the 1st Respondent who had claimed that he was likely to be prejudiced if persons adversely mentioned were not available to respond to the allegations made against them.

25.      In rejoinder, on the issue of non joinder of the Returning Officer, Mr. Balala alleged that Mr. Ndegwa had misled the court by citing to it authorities from the commonwealth without disclosing that the legal position in those Countries by statute was different from the legal position in Kenya. That if the court were to rely on those authorities, it will be unfaithful to the law since Rule 2 is very clear on who should be a Respondent in an Election Petition. He reiterated that Article 159 of the Constitution should not be misused by overlooking procedural law. He urged the court to find that Rule 10 is about substance not form and that failureto comply with theRule as well as to enjoin a Returning officer as a Respondent rendered the petition incompetent and liable for striking out.

Responding to the Petitioner’s application, Mr. Balala informed the court that the 1st Respondent did not also require the Deputy Returning Officer Lamu County as a witness in this Petition and that the application amounted to an abuse of the court process. 

26.      Having carefully considered the three applications as well as the submissions made by counsel on record and all the authorities cited, I find that six issues emerge for determination by this court which are the following;-

(i)           Whether the failure to join the Returning Officer as a Respondent renders the petition incurably defective.

(ii)          Whether the Petition is incompetent and incurably defective for failure to comply with requirements of Rule 10 by failing to state the election results, the petitioner’s address for service, date of the declaration of results and the manner in which they were declared.

(iii)         Whether the prayers sought are sufficient to sustain the Petition.

(iv)         Whether the Respondents are entitled to the orders sought in their respective applications.

(v)          Whether the court can exercise its discretion to summon witnesses as prayed in the Petitioner’s application.

(vi)         Who bears the costs of which application.

I will deal with each of these issues separately.

27.      Starting with the first issue, I find that it is not disputed that the Petitioner herein did not join the Returning Officer for the senatorial elections in Lamu County as a Respondent in his Petition. It is the 1st and 2nd Respondents case that non-joinder of the Returning Officer as a party was fatal to the Petition since it amounted to failure by the Petitioner to comply with the law specifically Rule 2 of the Rules which makes it mandatory for a Returning Officer to be joined as a Respondent in Election Petitions.

            The Petitioner’s case is that non joinder of the Returning Officer as a Respondent cannot invalidate a petition since Rule 2 just outlines who qualifies to be a Respondent in election petitions but does not make such joinder mandatory.

28.      I have perused Rule 2. I with respect disagree with the position taken by the Respondents that the Rule sets out a mandatory requirement that a returning officer must be made a party to an election petition. In my view, Rule 2 does not lay down any Rule which sets out a list of mandatory Respondents in election petitions. A casual perusal of the Rule reveals that it is the interpretation section of the Rules which provides the meaning of words and terminologies used in the entire Rules. For the avoidance of doubt, I will reproduce the relevant part of Rule 2 which deals with the definition of the term Respondent. It states that:-

“Respondent” in relation to an election petition means-

“(a)     the person whose election is complained of;
 
(b)       the returning officer;
 
(c)       the commission; and

(d)       any other person whose conduct is complained of in relation to an election.”

Rule 2 cannot be read in isolation. It must be read together with Rule 9(a) which states in no uncertain terms that the commission referring to the Independent Electoral and Boundaries Commission (IEBC) should be made a party to all Election Petitions filed under the Elections Act.

Rule 9 states as follows:-

‘’The Commission shall –

(a)           be a Respondent in an election petition filed under the Act.”

(b)          ……..

A cumulative reading of these two Rules leaves no doubt that the intention of the drafters of the Rules was to make the IEBC a necessary and mandatory Respondent in Election Petitions and that is why Rule 2 only defines the term Respondent and Rule 9(a) proceeds to specifically state that the IEBC “shall” be a Respondent in each election petition. My take is that Rule 2 gives Petitioners leeway to choose who among the persons listed in the Rule should be joined as a Respondent in their petitions depending on the complaints and grounds relied upon to challenge the election outcome.

Rule 9(a) makes it clear that it is only the Independent Electoral and Boundaries Commission (IEBC) who is a compulsory Respondent in every Election Petition.

29       I am in complete agreement with my learned sister Mutende J, when she said in WILSON MBITHI MUNGUTI v PATRICK KING’OLA & ANOR, MACHAKOS ELECTION PETITION NO, 9 OF 2013 that:

“The rules makes it mandatory for the commission to be included in every petition as a respondent , Rule 2 is a definitive Rule as aforestated, it may be viewed as one that does not obligate the petitioners to include all the parties mentioned save where the party should be answerable following the relief sought. This would cause one to think that the case here is that (other than the commission) parties may not necessarily be made party to the petition unless circumstances demand.”

30.      Another reason why the Returning officer is not a mandatory party in election petitions is that by virtue of Rule 3 of the Elections (General) Regulations (the regulations), a returning officer is an appointee of the IEBC which is established under Article 88 of the Constitution of Kenya 2010 with the express mandate of conducting and supervising elections in Kenya. It is common knowledge that the IEBC is a body corporate and just like all other juristic persons, it functions through its employees and appointed Agents.

Under Rule 2 of the regulations, an election officer means a person appointed by the commission to assist in conducting an election under the regulations and includes, inter alia, a Returning officer, Deputy Returning officer, a Presiding Officer and Deputy Returning Officer. This means that the County Returning officers, Constituency Returning officers, Presiding officers and their Deputies in the conduct of their legitimate duties while conducting elections in their respective electoral areas on behalf of IEBC act as agents of IEBC and their actions or omissions with the exception of willful misconduct or actions that may attract penal sanctions are in law the actions of IEBC: see MACHARIA V ELECTORAL COMMISSION OF KENYA & 3 OTHERS ELECTION PETITION No, 11 of 1998 [2008] KLR (EP) which expounded on the Agency relationship between Returning officers and the defunct Electoral Commission of Kenya,the predecessor to IEBC which had the same mandate as IEBC.

31.      It is important to point out that the Returning officer for the Senatorial Elections in Lamu County was the Lamu County Returning Officer. County Returning officers are appointed under Rule 4 of the Regulations and their mandate inter alia is to tally results received from constituencies in the County for the election of among others the Office of the President, County Governor and the Senator and to make the final declaration of the tallied results by announcing the winner of the elections.

This means that while the IEBC was accountable for the conduct of free, fair and credible elections in the whole country, the County Returning Officer was accountable for the proper conduct of the elections including the tallying and counting of votes at the county level.

In the circumstances, I am in agreement with the submission made by Mr. Ndegwa that as the Returning officer was an Agent of IEBC, the non -joinder of the Returning officer as a Respondent could not invalidate the petition since his disclosed principal was already a party. In my view, the Petitioner had an option of joining both the IEBC and the Returning officer as Respondents or choose to proceed against the IEBC on its own as the principal of all the officers who conducted elections on its behalf considering that ultimately, it is the body which is constitutionally mandated to conduct and supervise elections in Kenya.

This is not to say that a Returning officer is not a relevant and necessary party in an election petition. Far from it. The point I am making is that the failure to join a Returning officer cannot render an election petition incompetent or incurably defective. The position would have been different if it was IEBC which had not been made a party since by virtue of Rule 9(a), this would have automatically made the petition incurably defective and a candidate for striking out.        

32.      I must now distinguish the authorities relied upon by the Respondents for the proposition that non joinder of a Returning Officer is fatal to the Petition. The case of MUDAVADI v KIBISU (supra) was decided on the basis of the old electoral law Regime specifically the National Assembly and Presidential Elections Act (now repealed.)

The said law did not provide for who should be Respondents in Election Petitions. Our current procedural law governing the presentation of Election Petitions as stated in the Rules of 2013 not only provides a catalogue of possible Respondents but also specifies that the IEBC and not the Returning officer will be a mandatory Respondent in all Election Petitions.

The facts in ABOUB ALI v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION(supra) were different from those in the instant petition.

In that case, the nonjoinder complained about was the omission to join as a Respondent, the candidate who was declared and gazetted as the winner of the elections in Lamu East Constituency. In our case, the nonjoinder concerns the failure to join a Returning officer as a Respondent.While ruling that a successful candidate was a necessary and mandatory party in the Petition, Kimaru J stated that:-

“It will not matter whether the Petitioner consider the successful candidate as a busybody. The Constitution, the Election Act and the Election Petition Rules require that the successful candidate be made a party to the petition because such candidate is the primary target of such Election Petition. He is the one who will be first person to suffer the consequences of the nullification of the election result. Where the Petitioner does not include the successful candidate as a party in the Petition, such petition lacks legal substratum and is liable to be struck out. For the court not to do so it will be engaging in an exercise in futility because any adverse finding affecting the successful candidate would mean that such occupant of the National Assembly seat would have been condemned unheard. This is a cardinal principle of the law which the court cannot breach.”

In the instant case, the Returning Officer has no legal interest in the Petition, no prayers have been sought against him and he is not likely to be affected by any verdict that may be made in the determination of the

Petition. With due respect to the Respondents, I did not find these authorities relevant to the issues raised in the applications under consideration.

33.      As a collorary to the issue of nonjoinder of parties, it was argued on behalf of the 1st Respondent that since adverse allegations have been made against persons who have not been made parties to the petition including the Returning Officer, the 1st Respondent’s case will be prejudiced since the people so mentioned will not have an opportunity to address allegations made against them and this amounts to a violation of the rules of natural justice. Relying on Rule 2(d), Mr. Balala maintained that those people ought to have been made parties to the petition.He urged the court to strike out the petition for non joinder of necessary parties or alternatively to expunge from the record all those paragraphs in the petition and witness affidavits where those persons have been mentioned adversely.

34. Though Rule 2 (d) provides that any other person whose conduct is complained of in relation to an election qualifies to be a Respondent in an election petition, this Rule cannot be interpreted to mean that any person whose conduct is complained of however slightly must be made a Respondent in a petition. Such an interpretation would be illogical as it would lead to a multiplicity of parties in a manner that would impede on the efficient and effective determination of election disputes. It would most certainly hinder the court from achieving the overriding objective of the Rules which is to facilitate the just, expeditious, proportionate and affordable resolution of election disputes under the constitution and the Elections Act. In my view, it is sufficient if the IEBC is joined as a Respondent either on its own or together with any other relevant party who would have a role to play in the just determination of the electoral dispute raised in an election petition.

35. The authorities from other Commonwealth jurisdictions cited by Mr. Ndegwa show that the legal position in Nigeria, India, Malaysia and Zimbabwe regarding persons to be joined as mandatory Respondents in election petitions differs from the legal position in Kenya.

In Nigeria as espoused by the cases of; DR. OLUSEGUN AGAGU V RAHMAN OLUSUGEN MIMIKO & 18 OTHERS (SUPRA), COMRADE ADAMS ALIYU OSHIOMHOLE V CHARLES EHIGIE AIRHIAVBERE & OTHERS (SUPRA) AND OTUNBA ADEDIPUPO A. DINA V OTUNBA JUSTUS OLUGBENGA DANIES AND OTHERS (Supra), The Electoral Act of 2002 made it mandatory for a petitioner to join as respondents all persons whose conduct had been complained of in the conduct of elections. However, this law became untenable as most petitioners were unable to comply with it and in order to minimize its severity and implications; The Electoral Act of 2006 was enacted. The Electoral Act of 2006 while maintaining the requirement that the successful candidate was a mandatory party in election petitions introduced a proviso making it discretionary for the petitioner to join the Independent National Electoral Commission (INEC) as a party and any other person whose conduct is complained of in the conduct of elections, but where such persons are proved to have been agents of the commission (INEC) , their non-joinder would not invalidate the petition.

            In Malaysia under Rules 10 and 15 of the Election Petition Rules, 1954, only the successful candidates are recognized as mandatory respondents in election petitions. See DR. LEE CHONG MENG V ABDUL RAHMAN BIN HJ ADDULLAH AND RETURNING OFFICERS & ORS (2006) 6 MLJ 98.

In India, Section 82 to 86(4) of the Representation of the People Act of 1951, makes provision for persons required to be respondents in an election petition. A reading of these provisions show that only the successful candidate is a mandatory respondent while other candidates against whom allegations of corrupt malpractices are made can be joined as respondents.

In JYOTI BASU & OTHERS V DEBO GHOSAL & OTHERS SUPREME COURT OF INDIA CIVIL APPEAL NO. 1553 OF 1980, the Supreme Court of India stated as follows;

‘The contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. Such is the design of the statute’.

In Zimbabwe, the legal position is that only the returned candidate is recognized as a mandatory respondent in an election petition. See SIMBARASHE V ZIMBABWE ELECTORAL COMMISSION AND ANOTHER, (2008) ZWHHC 45.

            In view of the foregoing, I am persuaded to accept Mr. Balala’s submission that the legal position in the above stated commonwealth jurisdictions as can be seen from the above stated authorities differs profoundly from our electoral law on the issue of mandatory Respondents in election petitions.

36.      The claim that failure to join persons adversely mentioned as parties would prejudice the 1st Respondent’s case as they will not have an opportunity to address allegations made against them is not well founded. I have looked at the petition and has noted that all allegations of electoral malpractices have been made either against IEBC, the Returning officer or Officers working under him, that is, his deputy, constituency Returning officers or presiding officers in charge of polling stations. The court record shows that the Returning officer has sworn an affidavit annexed to the 2nd Respondent’s answer to the Petition. In that affidavit, the Returning officer has responded to each and every allegation of fact made against him and all officers under him.This means that he is a potential witness for the 2nd Respondent and no doubt he will be accorded opportunity to answer all complaints raised regarding the conduct of senatorial elections in Lamu County and the 1st Respondent will have the chance to test his evidence on cross-examination. In the circumstances, it is clear to me that the non-joinder of election officers adversely mentioned in the petition will not violate the rules of natural justice and the said omission is not likely to occasion any prejudice on the 1st Respondent.

37.      Turning now to the 2nd issue which involves a determination whether the Petition is incurably defective for alleged failure to comply with the requirements of Rule 10, I agree with Mr. Balala and M/s Muragori’s submissions that Rule 10 sets out what ought to be the form and content of Election Petitions.

It was submitted on behalf of both Respondents, that this Petition is incompetent and ought to be struck out for the Petitioner’s failure to state his address for service, the results of the election including the date and manner in which they were declared and also the candidates who contested the elections. 

Mr. Ndegwa on his part maintained that the Petition was legally compliant as the Petitioner had satisfied all the requirements of Rule 10.

38.      I think that it is important at this stage to reproduce the entire Rule 10 in order to appreciate its real import.

Rule 10 is in the following terms:-

10. (1) “An election petition filed under Rule 8, shall state-

(a) the name and address of the Petitioner;

(b) the date when the election in dispute was conducted;

(c) the results of the election, if any, and the manner in which it has been declared;

(d) the date of the declaration of the results of the election;

(e) the grounds on which the petition is presented; and

(f)  the name and address of the advocate, if any, for the Petitioner which shall be the address for service.”

39.      As stated earlier, I have read the Petition presented in this case. I am of the view that the claim that the Petitioner did not state the date the election was held, his address for service and the date of declaration of results and the manner in which they were declared is a false allegation.

The Petitioner has clearly stated in paragraph 1 of the Petition, his name and his address for service for purposes of this Petition. He has also stated the date the disputed elections were held at paragraph 4 and the date and manner in which the results were declared in paragraph 6 of the Petition. A reading of paragraph 5 shows that the Petitioner has disclosed the names of candidates who contested the elections.

What the Petitioner failed to state were the detailed results showing the total number of votes garnered by each candidate out of the total votes cast in the elections.

I agree with Mr. Balala’s submission that what is supposed to be disclosed are the detailed results of votes cast in favour of each candidate and not just a declaration of which candidate won the elections.

This can be discerned from the definition of the term “Election Results” contained in Rule 2 of the Elections Act which states;

‘’Election Results means the declared outcome of the casting of votes by voters at an election.”

40.      Having said that, I find that the question that now begs determination by this court is whether the failure to disclose detailed results is fatal as to render the Petition invalid or incurably defective.

I have recently had the opportunity to state my position in this regard in

           SARAH MWANGUDZA KAI Vs MUSTAFA IDD SALIM & TWO OTHERS MALINDI PETITION NO 8 OF 2013Where I held that Rule 10 (1) (c) by employing the words “if any” makes it clear that the requirement to state results is not mandatory.

The rule envisages a situation where the Petitioner may not have results of the elections by the time of filing the Petition and gives the Petitioner flexibility to include in the Petition the results if they are in his possession such that if the results are not available, failure to disclose them would not make the petition incompetent. It would appear from the court record that the Petitioner did not have the detailed results of the election in his possession by the time he filed this petition. This can be derived from the fact that on 16th April, 2013, the Petitioner through his advocates filed an application under a certificate of urgency seeking to be supplied with forms 35 and 36 by the 2nd Respondent. It is common knowledge that form 36 contains a summary of total votes obtained by each candidate out of votes cast in an election. 

The application was subsequently withdrawn by consent of the parties on 22nd May, 2013 after the 2nd Respondent furnished the Petitioner with the said documents.

In view of the above, the Petitioner could not have included in the Petition details he did not have by the time he was filing the petition and in any event, since disclosure of the results was not a mandatory requirement under Rule 10(1)(c) , I find that the Petitioner’s failure to state the detailed results did not invalidate the Petition.

41.      It is important to note that in this case, the petitioner had disclosed partial results by stating the candidate who won the elections but even in cases where no results had been stated, this court has held that in view of the responsibility imposed upon the 2ndRespondent by Rule 21(b) to furnish election results to the court within fourteen days of being served with the petition, failure to state results did not prejudice the Respondents and did not render the petition incurably defective. See WAVINYA NDETI v INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 4 OTHERS, (2013) eKLR, CAROLINE MWELU v PATRICK MUSIMBA (2013) eKLR (2013) eKLR

42.      Rule 21 (b) was designed to cure the mischief like the one identified in the MUTUTHO v JANE KIHARA case (supra) where the Returning Officer declined to announce detailed results and merely declared‘’this old man was ahead of Mrs. by 100 votes’’

Under the National Assembly and Presidential Elections Act (now repealed) on the basis of which the MUTUTHO CASE was decided, there was no provision compelling the then Electoral Commission to furnish the court with details of the elections and since election results formed the core of an election dispute and was tied to the prayers sought, the court of Appeal held that failure to state results was fatal rendering the petition incurably defective. This position does not apply to the instant case where the election results have been provided to both the court and the parties and now forms part of the court record.

43.      I wish to briefly make an observation that form EP1 which is supposed to contain the form in which Petitions should be presented to the court as directed in Rule 8 does not contain all the details specified in Rule 10 which prescribes the expected content of Petitions.

Form EP1 does not require the Petitioner to disclose his/her address or the detailed results of an election. It merely requires the Petitioner to include his/her name, date of the election, the candidates in the election and who among them was declared the winner.

The disparity between the requirements of Rule 10 and the details specified in form EP1 has created apparent confusion regarding what Petitioners believe should be included in election Petitions.   The said confusion can only be blamed on the drafters of the Rules and cannot be used to penalize Petitioners who comply only with form EP1 in presenting their Petitions by striking them out for failure to conform to Rule 10.

44.      Regarding the submission by the 2nd Respondent that the Petitioner’s omission to include a prayer seeking an order for holding of fresh elections renders the Petition incompetent, I can only say that Rule 10(4) clearly guides Petitioners regarding the reliefs they can seek from the court depending on the circumstances of each Petition. That is why the rule uses the words;

‘’The Petition shall conclude with a prayer requesting the court to make the appropriate relief which may include….” (Emphasis Mine). It does not say that a Petitioner should seek all the prayers mentioned in the Rule.  It is my view that the prayers sought by the Petitioner are sufficient to sustain the Petition as they are designed to conform to the Petitioner’s complaints regarding the conduct of elections for the seat of Senator Lamu County.

In addition Rule 10(4) must be read together with Rule 32(1) which contemplates Petitions which may contain a single prayer for scrutiny and recount of votes.

45.      In view of the foregoing, are the Respondents then entitled to the orders sought in their respective applications?

At the outset, I wish to begin by stating that though Election Petitions are unique in that they are to be resolved using a separate code of electoral laws, the principles for striking out pleadings apply to election petitions in the same way they apply to all other civil suits.

The all encompassing principle is that striking out pleadings is a drastic action that must be employed by a court of law as a last resort since its effect is to chase away a party from the seat of justice without hearing the merits of his case. This principle was succinctly captured by Madan J. in

D.T. DOBIE & COMPANY (KENYA) LIMITED V MUCHINA [1982] KLR 1when   he said at page 9;

 “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’’.

In DICKSON KARABA v JOHN NGATA KARIUKI & ANOTHER 2010 eKLR, the court stated that;

“…striking out is a very serious matter, it is draconian and it should be resorted to as an avenue when the cause filed is hopeless or it is meant or intended to abuse the process of the court… The court cannot also exercise inherent jurisdiction, when the exercise will lead to an injustice… …”

I fully associate myself with the above exposition of the law on the principles applicable to striking out pleadings.

46.      In this case, the Petitioner’s Petition is not hopeless. Infact, besides raising triable issues, It by and large complies with all the mandatory provisions in Rule 2 and Rule 10 of the Rules. It is therefore legally compliant in both form and content and there is no basis upon which this court can order it to be struck out. Consequently, the prayer for striking out the petition in the applications filed by the two Respondents fails and cannot issue as prayed.

47.      In his application, the 1st Respondent had also included an alternative prayer for expunging several paragraphs in the Petition and in the Petitioner’s supporting affidavit as well as two paragraphs from the affidavit sworn by Mohamed Ahmed Ali.

The gravamen of the 1st Respondent’s case in support of this alternative prayer is that the paragraphs sought to be expunged make allegations against persons who have not been made parties to the Petition and that if they are allowed to remain on record, the 1st Respondent will suffer prejudice as those people will not be available to respond to the accusations levelled against them. The court takes cognizance of the fact that the law relating to affidavits in Order 19 of the Civil Procedure Rules is applicable to affidavits sworn and filed in election Petitions by virtue of Rule 12 (6) and Rule 15(7) of the Rules.

The law is that affidavits or parts thereof can only be expunged by the court if they are scandalous, irrelevant or oppressive or where the deponent does not disclose the source of information deposed to in the affidavit in question.

I have carefully read the paragraphs sought to be expunged from the Petition, the Petitioners supporting affidavit and the affidavit sworn by Mohamed Ahmed Ali.

The paragraphs sought to be expunged cannot be said to be scandalous, irrelevant or oppressive. They relate to allegations of alleged irregularities and malpractices by the 2nd Respondent through its County Returning Officer, Returning Officers and Presiding Officers. The petitioner and Mohamed Ahmed Ali have in the paragraphs sought to be expunged from their affidavits disclosed the source of their information.

48.      In addition, these paragraphs constitute the Petitioners case which he is under a strict duty to prove but it is not difficult to see why the 1st Respondent would want them struck out. If the court were to strike them out, the whole of the Petitioner’s case would collapse. Luckily for the Petitioner, the 1stRespondent has failed to lay down any legal basis to warrant striking out of those paragraphs. The fact that the said paragraphs name the Presiding and Returning officers who are not parties to the Petition is not in law a basis for taking the drastic action of expunging the said paragraphs from the court record. 

For the foregoing reasons, it is clear that even the alternative prayer in the 1st Respondent’s application is not merited. This then leads me to the finding and conclusion that the two applications filed by the Respondents herein namely application dated 19th May, 2013 and 24th May, 2013 lack merit and they are hereby dismissed with costs to the Petitioner.

49.      Lastly, I now move to consider whether the Petitioner’s application dated 24th May, 2013 is merited. The application seek orders that :-

1.        The court be pleased to summon and compel the court attendance of Jonathan Kazungu Ngowa, the Lamu County Deputy Returning Officer as a witness and be examined by either party and/or the court on any matters touching on him in the Lamu Senatorial Election.

2.        The court be pleased to summon and compel the attendance of any other person concerned in the election as may be necessary.

3 .       Costs of this application be provided for.   

The application was opposed by the 1st Respondent through grounds of objection dated 29th May, 2013 and filed on the same date. The 2nd   Respondent did not oppose the motion.

In a surprise turn of events, Mr. Ndegwa, while arguing the application on 10th June 2013, took the court by surprise when he stated that the Petitioner did not need to call as a witness, Jonathan Kazungu Ngowa, the Deputy Returning Officer who the court was being asked to summon and to compel his attendance in the application. Mr. Ndegwa claimed that the Petitioner had applied for the summoning of that person as a witness solely for the benefit of the 1st Respondent. Mr. Balala, on his part opposed the application noting that the 1st Respondent did not also need the Deputy Returning Officer Lamu County as a witness in their case. I found this scenario rather perplexing and disappointing because the Petitioner had no reason to apply for orders that he did not need in furtherance of his case and he had no business seeking to have a witness summoned for the benefit of either the court or the 1st Respondent. The court has power under Section 80 (b) of the Elections Act to of its own motion compel the attendance of any person as a witness who appears to the court to have been concerned in any election and would be in a position to summon any witness whose testimony appears necessary to assist the court reach a just determination of any petition including the present one if need arises. The 1st Respondent’s case is in the able hands of counsel Mr. Balala who would have moved the court with the application if he considered it necessary.

50.      It now turns out that the court has devoted time, energy and resources to hear and determine an application which was totally unnecessary. The application clearly amounts to an abuse of the court process and it is hereby dismissed with costs to the 1stRespondent.

51.      The upshot of this ruling is that all the three applications are unmeritorious and they are hereby dismissed with costs. Each of the Respondents will bear the costs of the application filed on his/its behalf which are awarded to the petitioner while the petitioner will pay the 1st Respondents costs in his application dated 24th may 2013. It is so ordered.

52.         Finally, I would be remiss if I did not conclude by commending Counsel on record for their industry, thorough research and eloquent articulation of the issues raised in the applications subject of this Ruling.

 
C. W. GITHUA
JUDGE
 

DATEDand DELIVERED at MALINDI this 20th day of June, 2013 in the presence of:-

Mr. Ndegwa for the Petitioner

Mr. Ali for the 1st Respondent and holding brief for Ms. Muraguri for the 2nd Respondent

Court clerk Kagada
 
C.W.GITHUA
JUDGE
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