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JACINTA WANJALA MWATELA v I.E.B.C. & 3 others [2013] eKLR

REPUBLIC OF KENYA

High Court at Mombasa

Election Petition 2 of 2013

JACINTA WANJALA MWATELA…………..………..…....…PETITIONER

VERSUS

                                                                             1. I.E.B.C.

                                                                             2. THE COUNTY RETURNING OFFICER (TAITA/TAVETA)

                                                                             3. THE SECRETARY I.E.B.C.

4. JOHNSON MTUTA MRUTU………………………..RESPONDENTS

 

RULING

Before court is the Notice of Motion application dated 30th May, 2013 and filed in court on 3rd June, 2013, in which the 4th Respondent/Applicant prays for the following orders:

“1.    THAT this Honourable court be pleased to extend the time within which the 4th respondent should have filed and served affidavits in response to the petition.

2.      THAT this Honourable court be pleased to deem the affidavits prepared on behalf of the 4th respondent in reply sworn on 31st May, 2013 to have been filed and served within the time extended by the court.

3.      THAT this Honourable court be pleased to extend the prescribed period by three (3) days from the date of the court order granting extension, the time within which the 4th Respondent may file and serve any further affidavits in response to the petition.

4.     THAT this Honourable court be pleased to issue such order or directions as may meet the ends of justice in these proceedings.”

The Petitioner/Respondent filed her Grounds of Opposition to this particular application which Grounds of Opposition were dated 13th June, 2013.

The application was argued orally by MR. KEMBOY Advocate on 14th June, 2013. MR. KITHI counsel for the petitioner made submissions in reply whilst MR. SIMIYU h/b for MR. KHAGRAM appeared for the 1st, 2nd and 3rd Respondents.

Briefly by this petition filed in court on 5th April, 2013, the petitioner JACINTA WANJALA MWATELA seeks to challenge the election of JOHNSON MTUTA MRUTTU (the 4th Respondent herein) as the duly elected Governor of Taita-Taveta County. The petitioner effected service of the petition through a Newspaper advertisement in the Daily Nation which is a local daily of national circulation. The said advert was posted twice first in the Daily Nation of 15th April, 2013 and later in the Daily Nation of 17th April, 2013 (more on this later).

The 4th Respondent, whose election as Governor of Taita-Taveta County is being challenged by this petition, filed a response to the petition dated 30th April, 2013. Accompanying this response were the affidavits of the 4th Respondent himself and one (1) witness namely Alexander Kubo Mwangeka.  By this application the 4th Respondent seeks an extension of time within which to file additional witness statements. It is worth noting at this point that in making his submissions in support of the application Mr. Kemboy indicated that the 4th Respondent would be abandoning prayer No. (3) of the Notice of Motion.

Mr. Kemboy in his submissions raised several arguments in support of this application. I will now proceed to consider each ground individually.

1.    SERVICE OF THE PETITION

Unlike previously where service of an election petition had to be effected personally upon the incumbent, the current Elections (Parliamentary and County Elections) Petitions Rules 2013 (hereinafter referred to in abbreviated form as the ‘Elections Rules’) provide that service is deemed to have been properly effected by way of an advertisement in a local Daily Newspaper of National circulation [see Rule 13(1) and (4)]. To this end the Petitioner did elect to effect service by way of an advertisement placed in the Daily Nation of 15th April, 2013.   The 4th Respondent argues that this first advert did not meet the requirements with regard to the dimensions and font size as required in form EP3. For this reason the advert of 15th April, 2013 was too small and was easy to overlook thus the 4th Respondent did not notice the same.

Mr. Kithi for the Petitioner concedes that the first advert did not meet the requirements set out in the Elections Rules thus the Petitioner did place a second advert in the Daily Nation of 17th April, 2013 which provided adequate notice of the petition. I have looked at both adverts. The first advert of 15th April, 2013 was indeed rather small and may have easily been overlooked. The second advert of 17th April, 2013 was certainly larger and more prominent. It would have been hard to miss. I do agree with counsel for the Petitioner that any incumbent, anticipating a petition being filed against their election and exercising due diligence would certainly not have failed to notice this second advert. The 4th Respondent had just participated in and won a hotly contested election.  Elections in Kenya are very emotive affairs. I do not buy the theory that the 4th Respondent having won the election would chose to rest on his laurels and did not anticipate any challenge to his election. It cannot be the case that as deponed by the 4th Respondent in his supporting affidavit dated 31st May, 2013, he only became aware of this petition when counsel for the petitioner just happened to bump into his own advocate and mentioned the existence of the petition. I am not persuaded that the issues advanced with respect to service provide persuasive enough grounds for the failure of the 4th Respondent to file his affidavit in time.

2. NON-COMPLIANCE WITH RULE 7 OF ELECTION RULES

Mr. Kemboy raised the ground that the petitioner failed to deposit sufficient copies of the petition in the Election Registry, therefore even having received notice of the existence of the petition the 4th Respondent claims to have been unable to secure a copy of the petition so as to enable him to prepare his response and file witness affidavits in a timely manner. Rule 7 of the Election Rules provides that a person who has been elected has an option to either file with the Registrar an address for service in anticipation of an election petition or Rule 7(3) provides for service of all notices and proceedings by leaving copies at the office of the Registrar. The 4th Respondent claims that the Petitioner failed to comply with Rule 7(3) by leaving a copy of the petition in the Registry thus he had to embark on a search for the chambers of the Petitioner’s advocate in order to secure a copy of the petition before he could adequately craft his response thereto. Once again I find this explanation for delay to be unconvincing. Firstly, the petition which was readily available in the Registry contained the full address of the Petitioner’s counsel thus no search was required to find the chambers. Secondly, there is no evidence of any attempt made by the 4th Respondent by writing to Mr. Kithi to seek to be supplied with a copy of the petition. As such in my view the issues being raised by the 4th Respondent regarding service of the petition are excuses rather than persuasive reasons to explain his delay in filing his witness affidavits within the required time. Any incumbent exercising due diligence would not have required so much time to secure a copy of the petition filed against his own election. I find no merit whatsoever in the above grounds, as a basis for the delay in filing witness affidavits.

3. DIFFICULTY IN REACHING/TRACING WITNESSES

The other reason advanced by the 4th Respondent for his failure to file the witness affidavits in good time is the fact that upon receiving notice and copies of the petition, he had to embark upon a search for his witnesses and secure their attendance to depone the affidavits in question. It is claimed that the witnesses all hail from the expansive Taita-Taveta County where road network and communication lines are poor. Thus it was quite a task for the 4th Respondent to trace and secure his witnesses. Mr. Kithi for the Petitioner counters this argument by stating that the Petitioner also hails from the same county yet she was able to assemble her witnesses and obtain their affidavits in a timely manner. The distinction here would be that the Petitioner had a period of 28 days to file her affidavits and probably took steps immediately after the election to consolidate her evidence and witnesses. The 4th Respondent on the other hand probably swung into action only upon receiving notice of the petition against him and had a shorter period of time being 14 days to avail his response and witness affidavits. He court does also take judicial notice of the fact that Taita-Taveta County is very expansive and like many other parts of this country is plagued by poor (and in some cases non-existent) road network as well as poor telephone communication link, making it somewhat difficult to trace and secure witnesses within a short period of time. This in my view amounts to a somewhat plausible explanation for the delay.

Having considered the grounds which the 4th Respondent relied upon this court must also consider the question of whether the extension of time sought is legally permissible.   A response to a petition includes both the statement in response as well as any accompanying affidavits. The 4th Respondent did file his response dated 30th April, 2013 together with his own and one witness affidavit. Rule 14(1) of the Election Rules provides that the response to petition is to be filed within fourteen (14) days of service of the petition.   In this case taking 17th April, 2013 (the date of the second advert) as being the effective date of service the fourteen days would run from the following day being 18th April, 2013 and expire on 1st may, 2013.  Since 1st May, 2013 is a Public Holiday in Kenya by operation of Article 259(7) the expiry date would move to the next working date being 2nd May, 2013.  Thus I find that the response filed on 30th April, 2013 was filed within time. In his own affidavit dated 30th April, 2013 the 4th Respondent at paragraph (3) gave notice of his intention to seek leave to file further affidavits out of time. Rule 20 of the Election Rules provides:

“Where any matter is done within such time 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.” [my own emphasis]

Thus there exists a clear legal basis for this court to extend the period beyond the 14 days allowed for filing of affidavits in response. Rule 20 must be read together with Rule 4 of the same Rules which provides:

“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.”

Therefore in considering whether or not to exercise its discretion in favour of the Respondent, the court must bear in mind the overriding objectives of the Elections Act and must also consider what if any prejudice may be suffered by a denial of such an extension. The 4th Respondent being the incumbent has the greatest stake in this petition and its outcome. He must be granted a fighting chance, so to speak. To shut out his witness affidavits would be tantamount to shutting the 4th Respondent’s evidence out of the petition. This would certainly cause him great prejudice. On the other hand I am not persuaded that the Petitioner stands to suffer any real prejudice if the extension sought is allowed. The affidavits for which extension is being sought have already been filed and served upon the Petitioner. She therefore has full notice of their content. It has been argued by Mr. Kithi that the 4th Respondent ought to have first sought and obtained the extension before proceeding to file the said affidavits. However, to my mind this is not a fatal procedural defect. The 4th Respondent may have acted presumptively in filing the affidavits before the time extension had been granted, but it was essential that the affidavits be availed to enable court assess their content which would be one of the determining factors on whether or not to grant the extension. I am also mindful of the provisions of Article 159(1)(d) of the Constitution which exhorts courts to administer substantive justice without undue regard to technicalities.

All in all the goal of this Election Court (and indeed any court) is to ensure that justice is done to both parties in any dispute. In the case of HAMISI –VS- TOBIKO HCEP NO. 5 OF 2013 Hon. Justice Kimondo held as follows: 

“The principles to be distilled from those cases are that the court should strike a reasonable balance, negligent and deliberate lapses should not go unpunished, inadvertent technical procedural goofs should not be elevated to a fetish. Fundamentally the court should have regard to the need to do justice in the circumstances of each case.” [my own emphasis]

In the circumstances of this case whilst I do find that there was certainly a lack of due diligence on the part of the 4th Respondent nevertheless the interests of justice demands that the time extension sought be allowed. As such I do allow this application and I do extend time for filing of the witness affidavits by the 4th Respondent. Consequently, the affidavits dated 31st May, 2013 and filed in court by the 4th Respondent are all deemed as properly filed.  Since this application was necessitated solely by the actions of the 4th Respondent, I do order that he bears the costs for the same.

It is so ordered.

          Dated and delivered in Mombasa this 20th day of June, 2013.

M. ODERO
JUDGE
 
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