1.William Samoei Ruto, (the applicant) has been named as the 9th respondent in Petitions E002, E004, and E005 respectively. By three separate applications all dated the August 27, 2022, he seeks to strike out firstly, the names of the 3rd to 8th respondents in Petitions E004 and E005 respectively, and secondly, the names of the 3rd to 8th and 13th respondents in Petition E002.
2.Regarding the 3rd to 8th respondents in the three petitions, the applicant submits that the said respondents, being members of the 1st respondent, an independent constitutional and corporate entity, cannot be sued in their individual capacity. In support, the applicant cites section 15 of the IEBC Act, 2011 which insulates and protects the respondents, from being personally liable for any acts done in good faith and in the execution of the 1st respondent’s powers, functions and duties.
3.As for the 13th respondent in Petition E002, the applicant submits that the said respondent has no role in this petition, unless this court grants leave for him to be joined as a Friend of the court. Further, the applicant argues that the Supreme Court (Presidential Election) Rules, 2017 do not envisage the 13th respondent as a respondent in a petition challenging the Presidential Elections.
4.We have considered the applications and written submissions in support thereof. It is not lost on us that one of the main grounds on which the three petitions are based is that the 1st respondent of which the 3rd to 8th are members, failed to perform its functions under article 138(3)(c) of the Constitution. This failure as claimed by the petitioners, was occasioned by the exclusion of the 5th to 8th respondents from the verification and tallying process by the 2nd respondent.
5.This claim is based on a highly publicized Press statement by these very respondents disowning the declaration of the Presidential Election results by the 2nd respondent. This statement by the four respondents brings them squarely within the ambit of grievance by the petitioners. The latter cannot be faulted for seeking to place before the court any evidence emanating from the four. To use section 15 of the IEBC Act, as a shield, would be tantamount to suppressing evidence by the applicant.
6.Regarding the application to strike out the 13th respondent from Petition E002, it is also not lost on us that the said respondent is the Attorney General of the Republic of Kenya. The holder of such an office, has more capacity than any other litigant in this Country to fend off any attempts to join him in proceedings to which he ought not to be a party. As the Attorney General, he does not need the aid of the 9th respondent to accomplish such a routine task.
Accordingly, We Make the Following Orders:i.The three applications by the 9th respondent dated August 27, 2022 and filed on August 28, 2022, are hereby dismissed.ii.No Orders as to Costs.