1.The joint Notice of Motion by the County Returning Officer and the Independent Electoral Boundaries Commission (hereafter the 3rd and 4th respondents) craves three principal reliefs: Firstly, for extension of time to file and serve their response to the petition; secondly, that upon expansion of the time, the attached witness affidavits be deemed to be properly filed and served; and, thirdly, that the applicants be granted a further 3 days leave to formally file some other witness affidavits annexed as “drafts”.
2.The application is dated 8th October 2022 and premised on the deposition of their learned counsel, Mr. D. Muyundo, and another affidavit by Anthony Njoroge Douglas all sworn on even date.
3.While the motion finds favour in the eyes of the 1st and 2nd respondents, it is obviously and strenuously opposed by the petitioner.
5.Rule 11 (1) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 states as follows:
6.Rule 19(1) goes further to provide that:
7.The overriding objective of the election court is captured in Rule 4 (1) thus:
8.Rule 5(1) further provides that:
9.It is thus clear from Rule 19 that power reposes in the election court to vary timelines on matters prescribed by the Rules or by the court. In Charles Kamuren vs Grace Jelagat Kipchoim & 2 Others, Court of Appeal at Nairobi, Civil Appeal 159 of 2013  eKLR the learned judges held:
11.When I juxtapose those principles against the facts here, I find as follows: The IEBC has displayed a pattern of delays that are ill explained. It concedes that it was properly served with the amended petition through The Standard newspaper of 12th September 2022. It did not file a response within the prescribed time. In fact, its learned counsel only appeared in court on 11th October 2022 at noon with the above motion. It was on the day nominated for a pre-trial conference.
12.The delay is casually explained away as resulting from failure to be served with the hard copies of the petition in reasonable time; and, that its potential witnesses were casual employees scattered in various parts of the country.
13.True, the petitioner did not avail hard copies of the petition in good time. In Ruling No. 2 in this petition delivered today, I observed as follows-
14.But the applicant’s counsel freely conceded that he finally received the hard copies of the petition on or about 21st September 2022. The delay between that date and the 11th October 2022 is too lengthy. I have reached the conclusion that the delay is not well explained. The test was well explained in Ivita v Kyumbu  KLR 441: If the delay is prolonged and ill-explained it is inexcusable.
15.However, I have taken into consideration that the 4th respondent is a public body. In conjunction with its County Returning Officer (the 3rd respondent) it conducted the impugned election. Some of the primary reliefs sought are against those two respondents. If the petitioner’s pending motion for scrutiny is allowed, the 3rd and 4th respondents would be primary actors in the exercise. Needless to say, the IEBC retains custody of key election materials and results of the election.
16.Despite its despicable conduct in responding to the petition, I am also alive that denying part of the reliefs sought would greatly prejudice the 1st respondent whose election is sought to be overturned. But whereas I am prepared to extend time to respond to the petition and to admit the affidavits attached to the pleading, I decline to entertain further delay in the prayer “to be granted a further 3 days leave to formally file some other witness affidavits annexed as drafts”.
17.My final orders are thus as follows-a.That time be and is hereby extended within which the 3rd and 4th respondents ought to have filed their response to the petition, replying affidavit and other witness affidavits attached to the Notice of Motion dated 8th October 2022 to the intent that they will be deemed to have been filed and served within the required time.b.That the prayer to be granted 3 days leave to formally file other witness affidavits annexed as drafts lacks merit and is disallowed.c.That costs shall be in the petition.It is so ordered.