REPUBLIC OF KENYA

IN THE HIGH COURT  OF KENYA AT KAKAMEGA

ELECTION PETITION NO.  10 OF 2017

GILPHINE MOKEITA OMWENGA.....................................................................PETITIONER

VERSUS

INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION.........1^ST RESPONDENT

ISAAC KIPLAGAT RUTTO.....................................................................2^ND RESPONDENT

MOSES MALULU INJENDI...................................................................3^RD RESPONDENT

(FOR MEMBER OF NATIONAL ASSEMBLY MALAVA CONSTITUENCY).

RULING

(On the petitioner’s Application dated 6/12/2017 for leave to withdraw the petition.)

1. This Election petition is dated the 7/9/2017 and filed on the same day. The petitioner describes herself as a registered voter in Malava Constituency, Kakamega County who voted in the 8/8/2017 General Elections. She brought  the petition in her own right  and capacity as a registered voter.

2. The 1^st Respondent is the Independent Electoral & Boundaries Commission established under Article 88(1) of the constitution of Kenya and is charged with the conduct and supervision of the Election as prescribed in Article 88(4) of the constitution and other Electoral laws.

3. The 2^nd Respondent was the Returning Officer appointed by the 1^st Respondent to officiate the conduct of the election for Malava Constituency.

4. The 3^rd Respondent was a candidate, with others, for the position of Member of the National Assembly who was declared the winner with majority votes in the said Election on the 10/8/2017. He was sworn in as the duly elected Member of the National Assembly for Malava Constituency on the 31/8/2017.

5. The petition was filed on the 7/9/2017 within the time frame under the constitution and the Election Act No 24 of 2011 and the Rules made thereunder.

The grounds upon which the petition was  brought are stated  as follows:

(i) Lack of transparency, accountability   and verifiability in conducting the Member of National Assembly elections in Malava Constituency.

(ii) Failure to secure the Election .

(iii) Undue influence, Bribery and pre- election events.

(iv) Verifiability of the Election.

6. In support of the petition, the petitioner filed her supporting affidavit with numerous annextures on the 7/9/2017 and  sought  the following orders and declarations:

a. The 1^st and 2^nd Respondents failed, neglected and or deliberately refused to conduct the Malava Constituency Member of National Assembly election in a manner consistent with the Constitution of Kenya, 2010; Election Act No. 24 of 2011 and other electoral laws.

b. The 1^st and 2^nd Respondent committed irregularities and illegalities, inter alia, in the transmission of results for the election of the Malava Constituency Member of the National Assembly.

c. The electoral irregularities and illegalities committed by the 1^st and 2^nd Respondents seriously affected the integrity of the impugned election thereby invalidating the entire election of member of national Assembly of Malava Constituency.

d. There be a scrutiny and recount of the results recorded  in the aforesaid Member of National Assembly election for Malava Constituency in the Election held on the 8^th August , 2017;

e. There be a scrutiny of the polling station diaries and actual voter’s Registers including KIEMS Kits used at all Polling Stations within Malava Constituency during the said election of Member of National Assembly;

f. The results of the election for Member of National Assembly Malava Constituency held on the 8^th August , 2017 in Malava Constituency be declared invalid , null and void;

g. It be determined that the 3^rd Respondent has not been validly elected declared , published and sworn in to be the Member of the National Assembly for Malava Constituency;

h. Such election offences and electoral malpractices on the part of the  2^nd and 3^rd Respondents and the persons named in paragraph 16 (ii) (e) herein above as disclosed and  found by this Honourable Court be reported to the Director of public prosecutions for appropriate action as well as their respective government employers for appropriate disciplinary action including summary dismissal.

i. The Honourable Court  do find that the 3^rd Respondent has committed serious electoral  offences and order him barred from participating in subsequent elections for a periods of at least five (5) years or as the Court may deem just and expedient.

j. The Respondents be ordered to pay your Petitioner’s costs of and incidental to this petition ; and

k. Such further, other and consequential orders as this Honourable Court may lawfully make. 

7. On the 28/9/2017 the petitioner filed an application seeking for (a) orders of scrutiny and recount of all votes cast all polling stations in the constituency, (b) access to information and (c) leave to file further affidavits in support of the petition. On the 1/12/2017  I allowed the petitioner  to file  her further supporting affidavit to the petition and eight  witness affidavits, which was done.

8. On the  16/11/2017, the 3^rd Respondent  approached the court by an application seeking that the petition dated 7/9/2017 be struck out based on various grounds  among them  and deponed to in the supporting affidavit admitted illegalities on the part  of the petitioner and  maintaining that the proceedings could not be maintained as founded on  wrongs by the petitioner. Upon hearing the application, I declined to strike out the petition by a ruling delivered on the 1/12/2017 on the basis  that the petitioner ought to be given a chance to ventilate her petition and  observed that not all evidence in support  of the petition had been illegality and unlawfully obtained evidenced by the evidence on record and that striking out the entire petition would not only  be draconian  but  would also deny the petitioner her electoral rights as enshrined in Article 38 and 81 of the  2010 constitution.

9. However, guided by the legal principles stated in the cases Priscilla Nyambura vs  Marathon Corporation Kenya Ltd & 3 others (2008) eKLR and Charles  Mwangi Kagomia Vs Dhraj D. Popat & another (2006) eKLR  that  a court of law cannot be permitted to enforce an illegality , nor should it allow  a party to benefit from an illegality , I proceeded to order to be struck out , some of  the petitioner’s evidence contained in her affidavits and  obtained by herself while illegality  and unlawfully accessing , entering and being present at the  electoral restricted areas being  the polling stations and tallying centre  within  the constituency as she was  neither a candidate nor an agent , but only a candidates spouse which did not give her authority to access observe or participate in the  collating and tallying  of votes at the tallying centre.

10. Further , by an oral  application by the 1^st and 2^nd Respondents  on the 5/12/2017 , the Respondents  sought to withdraw some of their documents as filed  being Forms 35As and Polling  Station Diarys as well as  Form 35B. Upon consideration , the application  was allowed by the court as a party’s  documents belong to them and the party is  at liberty to withdraw  its documents when  and as they may wish. Following therefore, numerous paragraphs in the petitioners affidavits in support of the petition were withdrawn. See my Rulings dated 4/12/2017 and 5/12/2017.

11. The petitioner’s case then proceeded for hearing after Pre-Trial Directions and Settlement of issues were taken on the 1/12/2017. Besides the petitioner, three (3) witnesses testified and the petitioners case was closed, despite having indicated that nine witnesses would testify.

12. On the 6/12/2017  when the 1^st and 2^nd Respondents  case was scheduled to start ( for hearing ) , the petitioner  gave Notice of  Intention to Withdraw the petition under Rule 21 of the Election petition Rules 2017, and proceeded  to file the necessary application as provided under the said Rules.

In her application to withdraw the petition dated 6/12/2017 and brought Under Rules 21 and 22 of the Rules ,and section 23 of the Elections ( Parliamentary and County ) Petitions Rules 2017,  the petitioner stated grounds for the move as having been prompted by the striking  out  of substantial  affidavit evidence contained in her affidavits in support of the petition and the Respondents withdrawal of  some of their documents from the record , and thus could  not sustain the petition nor  a cause of action against the Respondents.

As mandated under, the 2017 the Election Rules stated above , the Notice of  Intention to withdraw the Election  Petition was advertised in the  Daily  Nation Newspaper of the 19/12/2017.

13. The 1^st and 2^nd Respondents pursuant to the notice proceeded to file their response to the Application on the 19/12/2017  supporting the withdrawal  and by his supporting affidavit sworn on the 18/12/2017 , the Returning officer for Malava  Constituency and 2^nd Respondent Isaac Kip;angat Rutto  supported the withdrawal  and deponed that no agreement  or terms of any kind had been made nor any undertaking had been entered into , in relation to the withdrawal of the petition  as provided under Rule 22(2) of the Rules.

He however prayed for costs of shs. 2.0 million.

14. The 3^rd Respondent in his response to the application lauded the petitioner’s  decision and notice to withdrawal the petition by his affidavit sworn on the 8/1/2018. By his advocate Mr. Luseno, he told  court that the 3^rd Respondent  did not wish  to seek for costs of the withdrawn petition saying that he wished to unite the people of Malava Constituency and work with the other  contestants for their benefit.

15. I have considered the petitioners application to withdraw the petition and the grounds put forth for the decision.  I have also considered that the Respondents have supported the application by their Responses. I am also satisfied that the mandatory  Procedure and  steps stated under Rules 21 and 22 of the Elections ( parliamentary and County Elections ) petition  Rules 2017 have been complied  with .

The notice of intention to  withdraw the petition  was advertised in the Daily Nation Newspaper of the 19/12/2017  pursuant to Rule 22(2) of the Rules . I am also satisfied that the  Respondents , in their Responses to the application by their affidavits have  also complied  with Provisions of  Rule 21(6) of the Rules to the extent that “ to the best of my knowledge and belief, no agreement or terms of any kind has been made and no undertaking has been entered into, in relation to the withdrawal of the petition “  

16. As  at 11/1/2018 when the application for withdrawal came up for  hearing , no person had come up or applied to be substituted as the petitioner in place of the petitioner  who had applied to withdraw the petition – in terms of Rule 24(1).

There being no objection from any party in the petition ,and no person  having applied to be substituted as a petitioner in the petition ,and having been satisfied  that all legal requirements have been complied with , I have no reason  whatsoever to deny the petitioner her wish , to withdraw the  petition for  reasons stated in her supporting affidavit to the application and as captured  above.

The application for leave to withdraw is therefore allowed as prayed.

17. Costs:-

The 3^rd Respondent, Moses Malulu Injendi told the court  that he does not wish to be awarded costs as he seeks to unite the people of Malava Constituency as their Member of National Assembly.

That being the case, the 3^rd Respondent shall not be awarded any costs for the withdrawn petition.

18. The 1^st and 2^nd Respondents have urged the court to award  them costs to the  tune of  Kenya Shillings  2.0 million  for the time taken, preparations, compilation of documents and preparations towards hearing of the petition.

Section 30 of the Election Rules 2017  provides :-

30 (1) The election court may at the conclusion of a petition make an order specifying

a. the total amount of costs payable

b. the maximum amount of costs payable

c. the person who shall  pay the costs under paragraph (a) and  (b) and

d. the person to whom the costs payable under paragraphs (a) and (b) shall be paid .

e. Further, section 30 (2) provides:-

“When making an order under sub rule (1) ,an election court may –

a. disallow any prayer for costs which in  the opinion of the  election court have been caused by vexations  conduct , unfounded allegations or unfounded  objections , on the part of either the petitioner or the respondent , and

b. impose the burden of payment on the party  who may  have caused an unnecessary expenses , whether  that party is successful or not , in order to discourage any such expense.

19. I have considered the manner the Petitioner and the Respondents conducted the partheard petition before me. I cannot say that the conduct of either of the parties was offensive in any way to the court or to each other.

It was to say the least, cordial, and respectable despite the numerous interlocutory applications made by each of the parties.

I commend and thank the parties and their Advocates for the restraint and respect shown to all, and  to the court.

20. However , considering the pleadings as filed by the petitioner at  the very beginning ,it was evident that the petitioner could not sustain the  Petition  against the Respondents especially going by her dispositions in her  affidavits and averments that as a spouse  of one of the candidates,( who lost the election) , she was authorized  to monitor , access  observe and gain entry to all polling stations in the constituency ,and even worse participate  in the collation and tallying of votes at the constituency  tallying centre ,and   being aware that she was not an “accredited person” pursuant to Regulation 85 of the Elections (General ) Regulations 2012 and Regulation 94 (5) thereof, she should have taken this step earlier than at the stage she did.

See Priscilla Nyambura vs marathon Corporation Kenya ltd & 3 others (2008) eKLR , Moses Masika Wetangula vs Musikari Kombo & 2 others petition No. 12 of 2014 (2015 ) eKLR   among others.

21. The petitioner’s conduct, as I stated in my  ruling of the 1/12/2017  could be described as boundering on an election offence under Section 13(h) of the Election offences Act, 2016, that she knowingly and willingly committed.  For  the Record , the petitioner is a trained lawyer and therefore expected to be knowledgeable in legal issues and provisions of the law including electoral laws and offences, thus my statement that she knowingly  and willingly engaged in illegal and unlawful activities. 

That as it may , the petitioner on her own volution  and free  will decided to withdrawal the petition – after  her  case was closed  having called  four witnesses, thus making the petition partheard.

22. There is no doubt  that the Respondents put in a lot of time and resources in taking instructions,preparation , compilation  of documents  and affidavits and the long hours taken during the hearing of the  numerous interlocutory applications and taking the Petitioner’s and the Petitioner’s and her  witnesses evidence.

23. I have considered several  decisions on costs on withdrawn and fully heard  parliamentary petitions among them Abdisalan Mahamed Vs IEBC  & another Garissa  Election petition No. 5 of 2013 ( Garissa) , Kisumu Election petition No. 3 of 2017. Jackton Nyanungo Rangumo vs IEBC & 2 others, Kakamega Election Petition No. 11 of 2017 Hamzah Musuri Kerogo Vs IEBC and another,Henry Okello Nadimo Vs IEBC &2 others Busia Election petition No. 2 of 2013.

The costs awarded in the  above election  petition  were  Kenya Shillings  1.5 million, shs. 3.0 million and shs. 4.0 million respectifully.

In my considered opinion, costs to the 1^st and 2^nd Respondents, capped at Kenya Shillings 2.0 million shall be sufficient.

24. FINAL ORDERS.

1. The petitioner Gilphine Mokera Omwenga is hereby granted leave to withdraw Kakamega  Election petition No 10 of 2017   dated and filed on the 7/9/2017 with costs to the  1^st  and 2^nd Respondents.

2. The 1^st and 2^nd Respondents costs shall be capped at Kenya Shillings Two million , and shall be taxed  and certified by the Deputy Registrar of the court.

3. The security deposit placed in court by the petitioner shall be used to pay the certified costs to the 1^st and 2^nd Respondents.

4. No costs are awarded to the 3^rd Respondent.

5. A certificate of determination of this petition shall issue interms of Section 86 (i) of the Election Act 2011 to the speaker  of the National Assembly .

Delivered, dated and signed in open court on the 16^th day of  January,  2018

JANET  MULWA  

JUDGE

In the presence of

M/s Khateshi holding  brief  for Mrs. Ashioya for.Petitioner/Applicant

M/S Wakoli...…...……..….for 1^st  &  2^nd Respondents

Mr. Luseno.…..……….…..……….for 3^rd Respondent

Lilian & Susan …………….....…..….Court Assistants.