1.The Notice of Motion before the court is dated December 4, 2020 and filed on December 14, 2020 under section 24 of the Supreme Court Act and rule 23 of the Supreme Court Rules, 2012 (now repealed). It seeks the following substantive orders:i.A declaration that the issues raised in Petition No 5 of 2018: Hon Anne Mumbi Waiguru & another v Hon Martha Wangari Karua & 2 others were fully determined by this honourable court in its judgment delivered on August 6, 2019 in Petition No. 3 of 2019: Hon Martha Wangari Karua v Independent Electoral and Boundaries Commission & 3 others.ii.That parties be directed to bear their own costs in this matter and the proceedings at the Court of Appeal.
2.The application is supported by an affidavit sworn on December 4, 2020by Paul Nyamodi, advocate for the applicants. Opposing the application, the 1st respondent filed a replying affidavit sworn by Martha Wangari Karua on December 18, 2020 as well as Grounds of Opposition dated December 18, 2020.
3.On March 29, 2018, the applicants moved to this court via Petition No 5 of 2018, dated March 28, 2018 to challenge the Court of Appeal’s judgment in Nyeri Election Appeal No 1 of 2017 delivered on March 2, 2018. The appellate court had allowed the 1st respondent’s appeal against a High Court judgment, which struck out her petition challenging the election of the 1st applicant. The Court of Appeal remitted the petition to the High Court and ordered the High Court to hear it on merit.
4.The applicants filed a Notice of Motion dated March 9, 2018 in this court seeking a stay of execution of the Court of Appeal’s order of March 2, 2018 allowing the respondents’ appeal and remitting the petition to the High Court for hearing and determination. In support of their application for stay, the applicants argued that the High Court lacked jurisdiction to hear the petition de novo given the express provisions of section 75(2) of the Election Act as read with article 87 of the Constitution. The 1st respondent raised a preliminary objection of June 25, 2018 to the petition arguing that the applicants had lost interest in prosecuting the petition, having failed to comply with the directions of the Deputy Registrar. The 1st respondent also argued that the appeal would be in vain as the dispute had already been remitted to the High Court for hearing.
5.This court, in a ruling delivered on March 28, 2018 dismissed the application for stay with no orders as to costs as the question before it was awaiting determination by the High Court.
6.The parties to this application attended court for mentions before the Deputy Registrar to determine compliance on April 30, 2018, July 4, 2018, and July 6, 2018. On July 6, 2018, the parties ‘by consent’ agreed to withdraw the Petition of Appeal No 5 of 2018. The consent to withdraw was recorded by the Deputy Registrar and subsequently adopted as this court’s judgment (Justice Isaac Lenaola (SCJ).
7.Subsequently, the 1st respondent challenged the consent withdrawing the petition vide a Notice of Motion Application dated September 5, 2018 and filed on September 6, 2018. On December 17, 2019, this court set aside the consent orders. Regarding the status of the 1st respondent’s preliminary objection, the court found that the same was spent and the applicants were condemned to pay costs.
8.Later, the parties herein attended court for a mention before the Deputy Registrar on November 3, 2020 where Mr Nyamodi and Mr Baraza were present for the applicants, Ms. Martha Karua holding brief for Mr Imanyara for the 1st respondent and Ms. Njeri Machage holding brief for Mr Kathungu for the 2nd and 3rd respondents. Mr Nyamodi indicated to the court that the petition had been reinstated. In response, Ms. Martha Karua indicated that she had no objection with the withdrawal of the petition but needed costs. On the other hand, Njeri Machage confirmed that the 2nd and 3rd respondents had no objection with the withdrawal of the petition. Counsel for the applicants opposed the 1st respondent’s claim for costs. Ultimately, the Deputy Registrar directed the applicants to file written submissions on costs and a formal notice of withdrawal.
9.On December 4, 2020, the court received a letter from the 2nd and 3rd respondents’ advocates stating that they would leave it to the court to determine the issue of costs.
a.The applicants’ case
10.The applicants’ main argument is that the issues raised in the instant appeal were fully determined by this court in its judgment delivered on August 6, 2019 in Petition No 3 of 2019: Hon Martha Wangari Karua v Independent and Electoral Boundaries Commission & 3 others (hereinafter referred to as Petition No 3 of 2019). According to the applicants, the main issue for determination is whether the High Court had jurisdiction to hear and determine the 1st respondent’s Election Petition after the lapse of the six months prescribed by article 87(1) of the Constitution and section 75(2) of the Elections Act. The applicants urge that this issue was determined by the High Court in its ruling delivered on April 6, 2018. Further, that the same issue was determined by the Court of Appeal on December 20, 2018 and finally by this court on August 6, 2019 in Petition No 3 of 2019.
11.The applicants submit that the issues raised herein were the same as those raised in Petition No 3 of 2019 and were fully determined in this court’s ruling delivered on March 2, 2018, which Ruling advised parties to follow the normal appellate mechanism in addressing their grievances. They maintain that the 1st respondent cannot claim any success in the matter to justify an award of costs and that each party should bear its costs.
b.The 1st respondent’s Case
12.The 1st respondent urges that the application is bad in law (as the rules cited in the notice of motion are not applicable); lacks merit; is an abuse of court process; that the applicants are guilty of material non-disclosure; and that the application is brought in bad faith.
13.In response to the applicants’ submissions, the 1st respondent submits that although there is a similarity in some of the issues, an appeal cannot be determined by way of an interlocutory application unless such an application contests its competency which is not the case here. In her opinion, the instant appeal has to be canvassed and determined by the court in the usual manner for the court to issue final orders including orders as to costs. More so, this court cannot apply orders in a different appeal to the present appeal without a full hearing.
14.It is also submitted that this court is not bound by its decisions and upon persuasion, or on its motion, can develop the law and revisit and vary its own decisions. Placing reliance on the decision of the East African Court of Justice in Martha Wangari Karua v The Attorney General of the Republic of Kenya & 2 others, Reference No 20 of 2019, the 1st respondent urges that she is eager for an opportunity to canvass her position and have the same dismissed.
15.The 1st respondent also submits that a contested appeal cannot be disposed of by way of an interlocutory application and that it ought to proceed to a full hearing. She concludes her submissions by urging this court to dismiss the application with costs and if the applicants are no longer interested to prosecute it, she can have an opportunity to apply for its dismissal with costs for want of prosecution.