A commissioner for oaths who works for a firm that represents a particular Petitioner is not allowed to have that Petitioner's affidavits sworn before her.

Stephen M Mogaka v Independent Electoral & Boundaries Commission & 2 others

Election Petition 2 of 2017

High Court at Nyamira

J A Makau, J

December 14, 2017

Reported by Beryl A Ikamari

Jurisdiction-jurisdiction of the High Court-categorization of a dispute-circumstances in which a matter would be considered to be an employment dispute-whether a dispute touching on the commissioning of affidavits by an unauthorized person was an employment dispute-where it was necessary to determine whether an advocate who commissioned the affidavits of a certain Petitioner's witnesses worked for the firm which drew and filed all of the Petitioner's documents-Constitution of Kenya 2010, articles 162 & 165.

Electoral Law-election petition-interlocutory application-time of hearing and determining interlocutory applications in election petitions-requirement that interlocutory applications capable of being made before the commencement of the hearing of an election petition, be heard and determined at the pre-trial conference-what would amount to an interlocutory application?-Elections (Parliamentary and County Elections) Petitions Rules, 2017, rules 15(1)(c) & 15(2).

Statutes-interpretation of statutory provisions-commissioner for oaths-powers of a commissioner for oaths-unauthorized acts by a commissioner of oaths-where the commissioner for oaths worked for a firm of advocates that represented the Petitioner whose supporting affidavit and witness affidavits were sworn before her-whether those affidavits would be struck out and expunged from the court record-Oaths and Statutory Declarations Act (Cap 15), section 4(1).

Electoral Law-election petition-supporting affidavit and the Petitioner's witness affidavits-time of filing the petition and the accompanying affidavits-whether the applicable timelines could be extended-effect of having a supporting affidavit and the Petitioner's witness affidavits struck out and expunged from the Court record-whether the petition could proceed to the hearing stage-Elections (Parliamentary and County Elections) Petitions Rules, 2017, rules 8(4)(b), 12 (3) & 12(4). 

Brief facts

The Petitioner was an aspirant in the August 8, 2017 elections for Member of National Assembly, West Mugirango Constituency. There were 14 aspirants in that election and the 3^rd Respondent emerged as the successful candidate and was declared duly elected as the Member of the National Assembly for the constituency. To challenge that outcome, the Petitioner filed a petition together with 6 affidavits from his witnesses.

The affidavits were sworn before Mercy Moragwa Mogusu Advocate (the advocate) and Commissioner for Oaths, at Nairobi by some witnesses and at Nyamira by other witnesses. The 2^nd Respondent made an application for the 6 affidavits and the Petitioner’s supporting affidavit to be struck out and for the petition to be dismissed for want of evidence. The basis for seeking the striking out the affidavits was that section 4 of the Oaths and Statutory Declaration Act barred an advocate from commissioning documents drawn by her own firm of Advocates.

Against the application, the Petitioner raised a preliminary objection stating that the Court lacked jurisdiction to determine it as it required the Court to make a determination as to whether the advocate who commissioned the affidavits worked for the firm that drew the Petitioner's documents. The Petitioner said that such a determination was within the exclusive competence of the Employment and Labour Relations Court. The Petitioner also stated that the application, pursuant to rule 15(1) (c) of the Elections (Parliamentary and County Elections) Petitions Rules 2017, ought to have been determined at the pre-trial stage and not after the commencement of the hearing of the petition.

Issue

1. Whether the High Court had jurisdiction to determine the application.
2. Whether an application whose determination could have the effect of determining a suit conclusively was a form of an interlocutory application.
3. Whether a dispute about the commissioning of affidavits by an unauthorized person was an employment dispute.
4. What was the effect of having an advocate who worked for a firm, that represented a particular Petitioner, having that Petitioner’s affidavits sworn before her?
5. Whether an election petition which was filed together with a supporting affidavit and witness affidavits which were struck out could be heard by the Court.

Held

1. Article 165 of the Constitution provided for the jurisdiction of the High Court. The High Court would not have jurisdiction over maters reserved for the exclusive jurisdiction of the Supreme Court or the Employment and Labour Relations Court or the Environment and Land Court.
2. The Court was not being asked to determine a dispute between an employee and an employer. It was being asked to make a finding of fact as to whether the impugned affidavits were commissioned by an unauthorized person in light of the provisions of the Oaths and Statutory Declarations Act.
3. An interlocutory application was capable of resulting in the final determination of a matter on a point of law. An interlocutory application would be an application filed and heard before a final decision was made on a matter. Therefore all applications filed before the making of a determination on the election petition were interlocutory applications notwithstanding the eventual outcome, except where the application was on a point of law.
4. Rule 15 (1) (c ) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 provided that an election court would schedule a pre-trial conference with the parties and determine interlocutory applications in the pre-trial conference. Further, under rule 15 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 an election court would not allow any interlocutory application to be made on conclusion of the pre-trial conference, if the interlocutory application could have, by its nature, been brought before commencement of the hearing of the Petition.
5. At the conclusion of the pre-trial conference, the Court directed that any further applications be brought by way of formal application. The Court did not close the door for the filing of interlocutory applications before the commencement of the hearing of the petition. The 2^nd Respondent's application was filed after the conclusion of the pre-trial conference but before the hearing of the petition.
6. The 2^nd Respondent offered satisfactory reasons as to why the application was not made at the pre-trial conference. The hearing of the petition had not commenced. There was no breach of rule 15 (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017. An application for striking out a petition which was purely based on a point of law was capable of being filed at any time before the conclusion of the hearing of the petition.
7. There was sufficient evidence indicating that the while applying for her 2017 practicing certificate, the advocate declared her place of work as M/s. Musyoki Mogaka & Co. Advocates and gave those particulars to the Law Society of Kenya. If she changed her place of work it was up to her to inform the Law Society of Kenya. The information in the Law Society of Kenya website was credible, correct and updated and it was a true reflection of where that advocate was working. Otherwise, she would have sworn an affidavit to controvert that information.
8. The information on the Law Society of Kenya website in relation to three other persons, Agonda Jacqueline Adhiambo, Gisembe Paul Nyamweya and Mwea Dorcas Wanjiru, indicating that they worked for M/s. Musyoki Mogaka & Company Advocates, did not mean that the Law Society of Kenya's website was incredible or unupdated. It was information which provided the last known contacts declared by those persons.
9. What the Court was dealing with in the election petition was not an issue of technicalities. It was an issue of non-compliance with the law regarding commissioning of affidavits under the Oaths and Statutory Declarations Act. Articles 10, 12, 19 – 22, 159 (2) (d) of the Constitution of Kenya 2010 and schedule 6 of the Constitution of Kenya 2010, did not exempt a party from complying with the provisions of the law. The Court was obligated to interpret and apply the law. It could not shut its eyes to non-compliance with the law or forgive the non-compliance.
10. Considering that the advocate did not swear an affidavit to controvert the assertion that she worked at Musyoki Mogaka and Company Advocates and the Petitioners only offered an affidavit that was evasive, diversionary and argumentative, on a balance of probabilities it was proven that at the time of commissioning the 7 impugned affidavits, Mercy Moragwa Mogusu worked at Musyoki Mogaka and Company Advocates.
11. Contrary to the provisions of section 4(1) of the Oaths and Statutory Declarations Act, the advocate in question, being an Advocate practicing law in the firm, that was acting for the Petitioner, had the supportive affidavit of the Petitioner as well as the six witnesses affidavits sworn before her. That constituted a failure to comply with the law.
12. The swearing of the 7 affidavits offended statutory provisions and it was not a mere irregularity, it was neither a defect in form nor a technical irregularity as it went to the root of the substantive issue before the Court. It was an irregularity which was incurably defective. All the affidavits commissioned by an unauthorized person were defective and ought to be struck out and expunged from the record of the Court.
13. Rule 8(4)(b) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, provided that a petition had to be accompanied by a supporting affidavit sworn personally by the Petitioner. Rule 12 (3) and 12(4) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 provided that the petition would also be filed together with the affidavits of the Petitioner's witnesses. The affidavits of the Petitioner's witnesses and the supporting affidavit were part of the petition. They had to accompany the petition and they could not be filed after the timelines set for filing the petition had lapsed.
14. The fact that the Petitioner's supporting affidavit and the affidavits of the Petitioner's witnesses had been struck out and expunged from the record, meant that the petition was not supported by any affidavit and it could not proceed to hearing without the affidavits being on record.
15. The timeline within which a petition and all accompanying documents ought to be filed was 28 days from the time of the declaration of the results of the elections. The High Court had no jurisdiction to extend timelines for the filing of further affidavits or fresh affidavits after the expiry of that timeline and neither could it re-admit expunged or struck out affidavits.

Preliminary Objection dismissed and Notice of Motion allowed.