Said v Maitha & another

Court of Appeal, at Mombasa March 17, 2000

Gicheru, Akiwumi & Shah JJ A

Civil Appeal No 237 of 1999

(Appeal from the Ruling of the High Court of Kenya at Mombasa (Hayanga J) dated 15th October, 1999 in Election Petition No 1 of 1998)

Election Petition – procedure – accounting for all ballot papers issued – statements by presiding officer to be deposited by Registrar of the High Court at least 48 hrs before hearing of election petition – “scrutiny” of ballot papers – meaning of scrutiny.

Civil Practice and Procedure – recalling of court order – power of the Court – meaning of “proceedings” – whether ruling constitutes “proceedings”

The appellant was the unsuccessful candidate at the parlimentary election held in Kisauni constituency on December 29, 1997. The first respondent was declared to be the successful candidate at the said election by the Returning Officer who was the second respondent. On March 18, 1999, the superior court allowed the appellant’s application for scrutiny and recount of the votes cast at the elections. The recount and scrutiny was carried out by the parties in the presence of, among others, the Deputy Registrar of the superior court. The differences between the parties as regards the re-count of votes properly cast was the subject of arguments before the superior court. After hearing all parties and scrutinizing the disputed votes, the High Court ruled that the vote margin in favour of the first respondent which initially stood at 534 stood reduced to 52 which reduction, however, did not affect the result of the election. On May 17, 1999, the appellant’s counsel sought leave to make submissions, not on the re-counted number of votes but on some aspects of the scrutiny. This application was opposed by counsel for the two respondents on the ground that such submissions would touch on matters already ruled on and may as well be matters res judicata. On this application, the High Court ruled that the appellant was at liberty to submit on matters other than the vote re-count. The appellant submitted on the issue of lack of the presiding officer’s statements as required by law on which the Court ruled that the appellant ought to have filed a written application to avoid the election on ground of non-compliance with rule 19 of the Election Petition Rules. This appeal, therefore, challenged the rulings of May 17, 1999 and May 20, 1999.

Held:

1. The combined effect of regulations 34 and 22 of the Presidential and Parliamentary Elections Regulations is that at the end of the whole exercise the ballot0êapers issued are duly accounted for. It is for this reason that rule 19 of the National Assembly Elections (Election Petition) Rules provides that amongst the documents the Returning Officer delivers to the Registrar of the superior court not less than fortyeight hours before the hearing of an election petition are statements by the presiding officer made under the provisions of regulation 33(2) of the Presidential and Parliamentary Elections Regulations.

2. The term “scrutiny” means a reviewing of the ballot papers following a court order and would necessarily involve re-count of votes.

3. The Court has power to recall an order before it is perfected to amend the same so as to rhyme with the intention of the Court.

4. Any ruling comes as a result of proceedings, that is, application and arguments, and must, therefore, be a part of the proceedings. It would be erroneous to say that a ruling is not part of the proceedings when it emanates from the proceedings.

5. Whilst it is always desirable to wish to end any litigation, it is equally desirable that a party ought to be allowed to canvass fully any relevant germane point he may have.

Appeal allowed.

Cases

1. Lakhamshi v Assanand & Sons [1957] EA 82

2. Re, Harrison’s Share Under a Settlement [1955] 1 All ER 185

Statutes

1. National Assembly and Presidential Elections Act (cap 7) section 28

2. Presidential and Parliamentary Elections Regulations (cap 7 Sub Leg) regulations 22, 33(2); 34; 34(1)(c); 38; 41

3. National Assembly Elections (Election Petition) Rules (cap 7 Sub Leg) rule 19

4. Civil Procedure Act (cap 21) section 80

5. Civil Procedure Rules (cap 21 Sub Leg) order XLIV rule (1)(b)

Advocates

Mr Kapila for the Appellant

Mr Mukele for the Respondents