REPUBLIC OF KENYA

IN THE PRINCIPAL MAGISTRATES COURT AT KARATINA

ELECTION PETITION NO. 1 OF 2017

MACHARIA JAMES SIMPSON NDEGWA…...PLAINTIFF

VERSUS

THE INDEPENDENT ELECTORAL AND BOUNDARIES         

COMMISSION……................................1^ST RESPONDENT

WERU PETER KINYUA………..........….2^ND RESPONDENT

RULING

Factual background

The General Elections in Kenya that were held on 8^th August 2017, where the Petitioner herein was running for the seat of Member of County Assembly (hereinafter referred to as MCA), Ruguru Ward, Mathira Constituency in Nyeri County. The 2^nd Respondent was declared the winner and the MCA of Ruguru Ward by the 1^st Respondent.[1]

The Petitioner having been dissatisfied with the manner in which the elections were conducted and disputing the declared results, filed the petition before this court seeking orders inter alia[2], that there be a fresh election for the position of MCA, Ruguru Ward.

The matter went on for full hearing. The Petitioner called a total of 9 witnesses, the 1^st Respondent called 4 witnesses and the 2^nd Respondent called 3 witnesses.  At the close of the hearing by all the parties, the matter was fixed for mention on 8^th December, 2017 for confirmation of filing of written submissions by the parties herein.

On the mention date, none of the partied had filled their submissions as the full set of the typed proceedings were received late. Parties sought for more time and the matter was adjourned to 27^th December, 2017.

Matter arising

On 27^th December 2017, the court was informed of the sudden and sad demise of the 2^nd Respondent on 12^th December, 2017. The counsel for the Petitioner, Mr. Abubakar sought for court’s direction on how to proceed with the matter, as it was his opinion that the matter had already been overtaken by events.

Issue for determination:

The 2^nd Respondent died while the petition against him was still ongoing. The Petitioner would therefore not have any claim against him as the petition has abated. However, the petition against the 1^st Respondent still survives. The issue for determination is;

a. Whether the petition against the 1^st Respondent should still continue as scheduled

The Petitioner’s claim against the 2^nd Respondent was to have ‘a declaration that the 2^nd Respondent was not validly declared as the winner and that the declaration was invalid, null and void’.[3]

The 2^nd respondent passed on before the matter was determined on merits. Article 194 (1) (a) of the Constitution[4] states;

‘The office of a member of county assembly becomes vacant – if a member dies’

By the death of the 2^nd Respondent, the office of the MCA, Ruguru Ward became vacant on 12^th December, 2017. The Speaker of the Nyeri County Assembly has already declared the seat vacant under Section 19 (3) of the Elections Act.[5] The effect of such a declaration is to have a by election in Ruguru Ward. The main purpose of this Petition was to have the elections conducted for the office of the MCA, Ruguru Ward be declared null and void thereafter resulting to a by - election.

The death of the 2^nd Respondent was an act of God. There shall be a by election on a date to be gazette by the 1^st Respondent. It would therefore serve no practical purpose to proceed with the Petition against the 1^st Respondent. In the event the court would proceed to make a determination, either for or against the Petitioner, the said decision would have been overtaken by events.

In Party of Independent Candidate of Kenya & Ano V Hon. Mutula Kilonzo & 2 others,[6], grey areas were highlighted in the event a decision is made in favour of the Petitioner and the remedies available to the Petitioner where a 3^rd party has already been elected to the office through a by - election.

The available electoral laws are silent on the issue, and this is an area that needs to be looked into towards the growth of jurisprudence in this area. The Elections Petition Rules[7] only provides for a situation where the person whose election is being contested dies before the bearing of a petition.[8]

Court’s findings

From the above, the office of the MCA Ruguru Ward having been declared vacant by the Speaker of the Nyeri County Assembly, and a by - election date likely to be announced soon, the court directs that the petition has been overtaken by events and it would serve no practical purpose to proceed with the petition against the 1^st Respondent.

Costs

Section 84 of the Elections Act states;

‘An election court shall award costs of and incidental to a petition and such costs shall follow the cause’

There was no logical conclusion of this petition due to the demise of the 2^nd Respondent. The provision of costs under the Election Petition Rules[9] does not apply in this situation. Under the prevailing circumstances, each party to bear its own costs.

Dated, signed and delivered at Karatina this 5^th day of January, 2018.

F.W. MACHARIA

SENIOR PRINCIPAL MAGISTRATE