1.In this election petition dated 8th September 2022 and filed on 9th September 2022 by the petitioner Siyad Abdille Abdullahi, the 4th Respondent Ahmed Abdullahi Mohamed has filed a Notice of Motion dated 26th September 2022, pursuant to section 75(1) and (3) of the Elections Act 2011, Rules 2 and 8 of the Elections (Parliamentary & County Elections) Petitions Rules 2017(hereafter the Election Petitions Rules), as well as Order 51 Rule 1 and Order 19 Rule 19 of the Civil Procedure Rules 2010, seeking the following orders –A.The petitioner’s petition dated 8th September 2022 and the Supporting Affidavit (s) filed therewith be struck out in their entirety.B.Consequent to the striking out, these proceedings be terminated, andC.The 4th respondent/applicant be awarded the costs of this application and the proceedings.
2.The application has grounds on the face of the Notice of Motion that the petitioner violated the Election Petitions Rules and Elections Act by the non-joinder of necessary parties (the elected Deputy Governor) and, mis-joinder of parties (County Returning Officer – Nyamira County). It is also a ground that under prayer “C” of the petition, the petitioner sought relief against George Kiomburi Ndungu the elected Member of the National Assembly Juja, who was not a party herein.
3.The application is supported by the affidavit of Ahmed Abdullahi Mohamad Jiir the 4th respondent/applicant, sworn on 26/09/2022 in which it is deponed that contrary to the Elections Act and Election Petition Rules, the 3rd respondent herein named in the petition was the Returning Officer (CRO) of Nyamira County a non-party to this suit thus making the election court as presently constituted to lack jurisdiction to entertain the matter. Annexed to the affidavit is the relevant Gazette Notice which contains names of Constituency Returning Officers marked as “AAM 01”.
4.The applicant deponed also that the petitioner made allegations of a criminal nature against the said wrong Constituency Returning Officer thus inviting this court to make findings against a person who is a stranger to this petition and election.
5.The applicant also depones that the petitioner failed to join the Deputy Governor as a party to these proceedings, which, according to the applicant, rendered the petition fatally defective.
6.The applicant further depones that under prayer “C” of the petition, the petition seeks issuance of a declaration to the effect that “George Kiomburi Ndungu” was not validly elected, yet the said person is not a party to this petition, and is infact, the elected Member of the National Assembly for Juja Constituency. Annexed to the affidavit is the relevant Gazette Notice listing persons elected to the National Assembly marked as “AAM – 02”.
7.It is further deponded by the applicant in the said affidavit, that paragraphs 91,92 and 93 of the petitioner’s supporting affidavit to the petition contains statements which amount to hearsay, contrary to the Evidence Act and the Oaths & Statutory Declarations Act, as the said paragraphs contain information from undisclosed sources and from facebook accounts.
8.The applicant concludes the affidavit by deponing that although striking out of pleadings is a draconian action, courts are enjoined to do so where pleadings are hopeless and incapable of being cured.
9.In response to the application, the 1st respondent (Independent Electrol & Boundaries Commission hereafter IEBC), filed a replying affidavit sworn on 11th October 2022 by Abdul Ali Mohammed the County Returning Officer – Wajir County (3rd respondent), in which it is deponed that the petition is fatally defective for failing to indicate the results of the election being challenged, the manner in which and the date on which the results were declared. It was also deponed that the petitioner failed to state the number of votes cast in favour of each candidate who participated in the election, as well as the total number of votes cast in contravention of the election laws.
10.It is also deponed in the said affidavit that the legal requirements on stating results being mandatory, the petitioner had no choice but to comply with the same, and that failure to comply with the legal requirements rendered the petition defective.
11.It is deponed further in the affidavit, that the failure of the petitioner to join the Deputy Governor as a party violated the elections laws and was also contrary to the right to fair hearing enshrined under Article 50 of the Constitution and thus fatal to the petition.
12.The 2nd respondent and Anthony Njoroge Douglas did not file responses to the application.
13.In response to the application, the petitioner filed a replying affidavit sworn by himself on 12/10/2022, in which he denies violating the Elections Act and Election Petition Rules. He denied misjoinder of parties, or non-joinder of parties as alleged and states that the 3rd respondent was the County Returning Officer, and that the mere appearance of the name of the Returning Officer of Nyamira County was immaterial, as the petition was challenging the gubernatorial election of Wajir County, and that in any case, the title “County Returning Officer” appears on the said petition. It was deponed further that the Governor being the person whose election was complained of, there was no necessity of joining the Deputy Governor as a party.
14.The petitioner also denied in the affidavit that any relief had been sought in the petition against George Kiomburi Ndungu under prayer “C” of the petition as alleged.
15.The application was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by Nchogu, Omwanza & Nyasimi advocates for the 4th respondent/applicant, the submissions filed by Garane & Somane advocates for 1st and 2nd respondents and the submissions filed by Ndegwa & Ndegwa advocates for the petitioner.
16.I note that in the written submissions, counsel for the applicant identified the following issues for determination –a.Is the petition incompetent/defective for non-joinder and misjoinder of parties?b.Whether the petition is incompetent on account of defective reliefs sought therein.c.Is the petition incompetent/defective for want of election results?d.Can the foresaid defects be cured by an amendment?
17.On issue (a), whether the petition is incompetent for non-joinder and misjoinder of parties, the applicants counsel refers to the meaning of “Respondent” under Rule 2 of the Elections Petition Rules 2017, and submits that in a gubernatorial election petition, the respondents have to be Governor Elect, the Deputy Governor Elect, the County Returning Officer, the Independent Electoral and Boundaries Commission (IEBC), and any other person whose conduct is complained of. Counsel submits that, in the present petition, there is a fatal non-joinder of the Deputy Governor elect as a party, as well as a fatal mis-joinder of a strange County Returning Officer Anthony Njoroge Douglas.
18.Counsel submits that the word used for the nomination of a Deputy Governor before elections under Article 180(5) of the Constitution for election of Governor being “shall”, the requirement for such nomination is mandatory, and as such failure of a Governor to nominate a Deputy Governor in the first place would deprive the gubernatorial candidate the clearance to vie in the election. Thus according to counsel, once the IEBC declares a Governor elect as duly elected, any election petition filed to challenge that election must enjoin the Deputy Governor Elect as a party.
19.In this regard, counsel cites the case of Mwamlole Tchappu Mbwana –vs- IEBC & 4 Others (2017) e KLR wherein the court (Thande J.) held that the Deputy Governor was a necessary party to an election petition filed against election of a Governor as he/she cannot be expected to vacate office on the basis of an order made in proceedings in which he/she had no notice.
20.Counsel also cited the case of Samuel Kazungu Kambi –vs- Nelly Ilongo County Returning Officer – Kilifi County & 2 Others (2018) e KLR where the court (Korir J.as he then was) affirmed the decision in the Mwamlole Tchappu case (supra), and stated as follows –97.In my view, the manner in which the Constitution is drafted does not envisage a situation in which the election of the Governor is nullified and that the Deputy Governor remains undisturbed. Two elections are indeed held for the Governor and Deputy; one by popular vote and another one by nomination but they are so conjoined to the extent that once the election of the Governor is invalidated, that of the Deputy Governor is also voided. Removal of a Governor from office through an election petition may have been one of the reasons behind the enactment of Article 182(4) of the Constitution which provides for the possibility of both the office of the County Governor and that of the Deputy County Governor becoming vacant thereby requiring one election for the office of County Governor.It is thus not possible for a Deputy Governor to stick around once the election of the nominating authority (the Governor) is invalidated.98.Therefore, a person who seeks to remove a Governor from office through an election petition must make the Deputy Governor a respondent, for a successful petition not only affects the election of the Governor but also invalidates the election of the Deputy Governor. Failure to include the Deputy Governor as a respondent will therefore render such a petition incurably defective for it seeks to invalidate the election of a Deputy Governor through the back door. The fate of such a petition is to have it struck out.
21.Counsel also relies on the case of Moses Mwicigi & 14 Others –vs- IEBC & 5 Others (2016) e KLR, and the case of Kipkalya Kiprono Kones –vs- Republic & Another – Ex- Parte Kimani Wanyoike & 4 Others (2006) e KLR for the submissions that both the Supreme Court and the Court of Appeal affirmed the position that the only way to remove a person elected or nominated to Parliament or the County Assembly, is through an election petition. Counsel thus contends that the non-joinder of the Deputy Governor, and the gazetted County Returning Officer Wajir County as parties herein rendered the petition fatally defective.
22.With regard to the misjoinder of Anthony Njoroge Douglas, the Nyamira County Returning Officer, counsel cites the case of Ali Hassan Joho & Another –vs- Suleiman Said Shahbal & 2 Others (2014) e KLR wherein the Supreme Court held as follows –
23.Counsel contended further that as the petitioner herein also pleaded election offences against a wrong party (Anthony Njoroge Douglas) who is a stranger to the elections in Wajir County, the petition is incurably defective on that account.
24.With regard to issue (b) relating to seeking defective reliefs, counsel for the applicant submitted that it was absurd for the petitioner to come to this court to challenge the victory of one candidate, and yet seek orders against another candidate (George Kiomburi Ndungu) who is not a party in the proceedings. Counsel relied on the case of Ismael Suleman & 9 Others –vs- Returning Officer – Isiolo County, IEBC & 4 Others (2013) e KLR for the submission that such defect cannot be just a mere mis-description, but a fatal error, and contended that, the court stated that –
25.Counsel thus submits that, as the petitioner herein does not know the election results he seeks to challenge, the 4th respondent/applicant should not be subjected to defend himself to an ambiguous petition. Counsel argues that, as the law only assists those who are vigilant and not the indolent, the petitioner should have acted with precision and complied with the requirements of the Elections Act 2011 regarding the prayers sought. Counsel further relied on the case of Moses Mwicigi (supra), and contended that, though conventional wisdom was that procedure was the handmaiden of justice, where procedure was overlooked by a litigant, the court should not hesitate to declare the attendant pleadings incompetent.
26.With regard to issue (c ) relating to the petitioner not including the election results is the petition, counsel submits that Rule 8(1) (c ) of the Election Petition Rules, required the petitioner to state the full election results, in the petition, and not merely the results obtained by winner the (4th respondent), as happened herein. On this, counsel relied on the case of Omar Juma Mwakamole –vs- IEBC & 2 Others (2017) e KLR wherein the court (Njoki Mwangi J.) stated as follows –46.This court after considering the provisions of Rules 8 and 12(2) of the Elections Parliamentary and County) Petition Rules 2017 finds that they are couched in mandatory terms. Rule 8 gives a step by step guidance on what must be included in the election petition and so does Rule 12(2). The said rules are aimed at giving petitions a degree of uniformity, consistency and to rationalise the manner in which pleadings are drafted, or else there would be all manner of variants whereby important elements that ought to be included in election petitions and affidavits in support thereof would be excluded. In my view the rules were not drafted in a way to give room to petitioners to pick and choose the information that they should include in a petition or what to exclude. They are very simple “Do It Yourself (DIY)” guidelines which are meant to be followed by even laymen in the drafting of petitions.47.The results of any election forms the basis upon which a petitioner brings his complaint. When election results are not pleaded, the petitioner omits a critical aspect of his complaint from his pleadings. In essence it leaves the respondent to go fishing for information which should have been availed by the petitioner from the outset. With the burden of proof in election petitions being placed at a higher pedestal than that of balance of probabilities, the election results being challenged form the centre point from which all the other issues of the complaint stem from; and upon which a petitioner builds his/her case to establish why the candidate who was declared the winner, should not have been so declared.
27.Counsel also relied on the case of John Michael Njenga Mututho & Ann Njeri Kihara & Others (2008) I KLR 10, wherein the court stated, inter alia as follows –
28.Finally on the results, counsel for the applicant relied on the case of Evans Nyambaso Zedekiah & Anor –vs- IEBC & 2 Others (2013) e KLR, and Mbaraka Issa Kombo –vs- IEBC & 3 Others (2017) e KLR and the case of Jimmy Mbala Kazungu –vs- IEBC & 2 Others (2017) e KLR, and contended that in these and several cases, the courts have found election petitions to be fatally defective for failure by the petitioner to plead the election results.
29.With regard to issue (d) on whether the defects can be cured by an amendment, counsel for the applicant submits that the defects herein are incurable, and as such the petition and affidavit should be struck out in their entirety, and relied on the case of Gakenia –vs- Kimani & 2 Others (2008) 2 KLR wherein Mwera J. stated as follows –
30.On his part, counsel for the 1st and 2nd respondents in their submissions, identified two issues for determination as follows –a.Whether the failure of the petitioner to comply with Rule 8(1), (c ) and (d) and (f) and Rule 12(2) (c) of the Elections Act (Parliamentary and County Elections) Petitions Rules is fatally defective to his petition.b.Whether the failure to include the Deputy Governor as respondent in these particular proceedings could make the petitioner’s petition fatally defective.
31.With regard to issue (a) on the failure to plead the full election results, counsel submitted that Rule 8 of the Election Petition Rules, provides for the content and form of an election petition, and section 2 of the Elections Act defines election results, and in addition Regulation 87 of the Elections (General) Regulations, 2012 provides for public declaration of the election results for the position of County Governor.
32.Counsel submitted that the provisions of the Elections Act and Election Petition Rules were derivatives from the Constitution and failure to comply with them amounted to a violation of the Constitution. Counsel emphasized that the provisions of thelaw being couched in mandatory terms, had to be complied with, and cited the case of Hassan Ali Joho & Anor –vs- Suleman Ali Shabal & 2 Others (2014) e KLR wherein the Supreme Court stated as follows –
33.Counsel submitted also that the mandatory obligation to plead the results of an election was addressed in the case of Amina Hassan Ahmed –vs- Returning Officer Mandera County & 2 Others (2013) e KLR wherein the court (Onyancha J.) stated as follows –
34.In addition to the above cases, counsel for the 1st and 2nd respondent cited the Indian case of Jyoti Basu & Others -vs- AIR 1982 SC 983 in which the Indian Supreme Court held that the principles of common law and equity have no place in election petitions, unless applied by the relevant statute.
35.With regard to issue (b) on the failure to join the Deputy Governor in the election petition as a party, counsel submitted that the omission to include the Deputy Governor herein was a fatal mistake, as it would go against the right of the Deputy Governor to be accorded a fair hearing as enshrined under Article 50 of the Constitution.
36.Counsel also relied on Article 189(5) & (6) of the Constitution, to submit that the position of Governor and Deputy Governor being intertwined, an election petition has to include both as parties and cited the case of Joel Makori Onsando –vs- IEBC & 4 Others (2017) e KLR wherein the court (Omondi J.as she then was) stated that –
37.On their part, the petitioner’s counsel, identified two issues for determination in their submissions as follows–a.Whether the petition offends the cardinal rules of pleadings, the Elections Act, Elections (Parliamentary and County Elections) Petition Rules or is an abuse of the court process.b.Whether the Honourable Court should strike out the petition.
38.Relying on Rule 9(a) of the Election Petition Rules, counsel submitted that, the only necessary party to be joined in an election petition challenging the election of Governor is the IEBC, and that if the Deputy Governor feared that his fundamental rights would be infringed, he should seek to be joined as interested party.
39.Counsel also relied on Rule 2 of the Election Petitions Rules, and submitted that election petition can only be brought against the person whose election is complained of. Counsel contended that as the IEBC did not conduct elections for a Deputy Governor, and since section 39 (1A) of the Elections Act did not provide for the election and declaration of results for the Deputy Governor, such Deputy could not be a party to an election petitions. Counsel also relied on the case of Wavinya Ndeti & Anor –vs- IEBC & 2 Others 2017 e KLR wherein the court (Muchelule J. as he then was ) stated as follows –
40.Counsel also relied on the case of Lesrima Simeon Saimanga –vs- IEBC & 2 Others (2017) e KLR wherein (Wandoh J.) held that a Deputy Governor is to be enjoined in an election petition only where his conduct is complained of, as the person who is elected through votes is the Governor.
41.With regard to the complaint on mis-joinder of a wrong County Returning Officer, counsel for the petitioner submitted that there was no such mis-joinder of a stranger in the petition, as it was the County Returning Officer who was sued. Counsel relied on the case of Zephir Holdings Ltd –vs- Minosa Plantations Ltd, Jeriah Matagaro & Ezekiel Misango Mutisya (2014) e KLR in which the court held – that a suit cannot be dismissed merely for misjoinder of a party.
42.Counsel also relied on the case of George Mbogo Ochillo –vs- IEBC & 2 Others (2018) e KLR where the court (Chemitei J) stated that –
43.Thus counsel for the petitioner submitted that, in case this court finds any deviation or lapses in the pleadings herein, the court should not take the draconian step of striking out the petition.
44.I have considered the application, the responses and submissions filed on all sides. I note that Anthony Njoroge Douglas who has been a subject of contention did not file response or participate in the prosecution of the application. In my view, the issues of determination by this court are as follows –i.Is there misjoinder or non-joinder of parties in the petition? If so what is the effect?ii.Were the election results pleaded, and if no, is the omission fatal?iii.Does the petition contain hearsay evidence? How should such evidence be treated?iv.Does the petition contain defective reliefs? If yes, what is the effect if any?v.What orders should be granted by this court?
i. Is there misjoinder or non-joinder of parties in the petition? If so what is the effect?
45.With regard to misjoinder, the complaint raised is that the heading of the petition describes the 3rd respondent as – “Anthony Njoroge Douglas, County Returning Officer” Anthony Njoroge Douglas is said to be a complete stranger.
46.I note that from documents filed in the present application, it has demonstrated by the applicant that Anthony Njoroge Douglas was indeed the County Returning Officer – Nyamira County and not the County Returning Officer – Wajir. It is noteworthy however, that the said Anthony Njoroge Douglas has neither responded to the petition or application nor participated in these proceedings, while the County Returning Officer Wajir Adan Ali Mohamed has sworn an affidavit to oppose the application. I thus take it that the said Anthony Njoroge Douglas was not served with the petition and application.
47.In my view, from the evidence placed before me, the appearance of the name Anthony Njoroge Douglas as part of the description of the 3rd respondent herein was a result of careless copy pasting which would not cause any prejudice on anybody, as the 3rd respondent herein was actually the County Returning Officer, which description appears in the petition as 3rd respondent. Such County Returning Officer was for Wajir and he filed an affidavit. I thus find that the name Anthony Njoroge Douglas erroneously appearing on the petition, did not make the petition fatally defective.
48.I now turn to the complaint of non-joinder, which relates to the failure of the petitioner to join the Deputy Governor as a party. I am aware that there are conflicting High Court decisions on the failure of a petitioner in an election petition to join the Deputy Governor as a party. There are court decisions which hold that a Deputy Governor be joined only when there exist complaints against him/her. There are also court decisions holding that failure to join the Deputy Governor as a party is fatal to an election petition, as it means that the said Deputy Governor will be condemned unheard.
49.I take the view held by Korir J., as he then was, in Samuel Kazungu Kambi –vs- Nelly Ilongo County Returning Officer Kilifi County & 2 Others (2018) e KLR echoing (Thande J.) in the earlier case of Mwamlole Tchappu Mbwana –vs- IEBC & 4 Others (2017) e KLR, that the way and Constitution was drafted conjoins the Governor and Deputy Governor in the election, in such a way that the removal from office by way of election petition, will mean removal of the Deputy as they either win together or lose together.
50.They are, as they say, sailing in the same boat, and they either float together or sink together. Of course, in my view, where the Governor is to be removed through other processes like impeachment under Article 182 of the Constitution, the situation is very different because the Deputy Governor will not be affected However, if the removal is through an election petition under Article 87(2), both should be joined as parties in the case.
51.I hold the view that, as a person of whom it is known constitutionally that he/she will be affected by the outcome of the election petition, as envisaged under Article 87(2) of the Constitution, the Deputy Governor must be joined as a party in an election petition filed against the Governor, otherwise the petition will be defective for denying him the right to be heard. In this regard, I am in full agreement with what was stated by (Omondi J) as she then was, in Joel Makori Onsando –vs- IEBC & 4 Others (2017) e KLR, wherein the learned Judge stated that not joining the Deputy Governor as a party to an election petition for removal of Governor will amount to violating a party’s right to fair hearing under Article 50 of the Constitution of Kenya.
52.In my view, the issue is not so much whether there are specific complaints raised against the Deputy Governor, in the election petition, but whether he/she is likely to be adversely affected by the decision in the case. Since in the gubernatorial election petition the Deputy Governor is likely to be adversely affected by the court decision, the provisions of Article 50 of the Constitution of Kenya, with regard to fair hearing do apply, and thus it is the duty of the petitioner to join him/her as a party and not for the Deputy Governor, to apply later to court to be joined as an interested party. I thus find that the petition herein is fatally defective for not joining the Deputy Governor as a respondent.
ii. Were the election results pleaded, and if no, is the omission fatal?
53.On the issue of election results, it is noteworthy that the petitioner merely stated in the election petition documents filed, the number of votes garnered by the 4th respondent the applicant herein, whose election is being challenged. This position is not disputed.
54.Under paragraph 10 of the petition, the petitioner stated that –
55.Under paragraph 7 of the supporting affidavit to the petition, it is deponed as follows –
56.The requirement for including the election results in an election petition, is provided under Rule 8 of the Election Petition Rules, which states as follows –8 (1) An election petition shall state –a.The name and address of the petitioner,b.The date when the election in dispute was conducted,c.The results of the election, if any, and howsoever declared.d.The date of the declaration of the results of the electione.The grounds on which the petition is presented; andf.The name and address of the advocate, if any, for the petitioner which shall be the address for service.
57.In my view, Rule 8(1) (c) of the Election Petitions Rules above, envisaged that the votes garnered by all candidate who contested the disputed election, should be pleaded in the election petition. As it is, however there is no pleading on record to show who was contesting against the 4th respondent and what each garnered, thus there is no basis on which a witness can come to court and testify that the declaration of the 4th respondent as the winner was an error, which needs to be corrected by the court.
58.I fully agree with the reasoning in the case of Omari Juma Mwakamoli –vs- IEBC & 2 Others (2017) e KLR –wherein (Njoki Mwangi J.) stated as follows –
59.The Supreme Court also in the case of Hassan Ali Joho & Another –v- Suleman Said Shabal & 2 Others (2014) e KLR emphasized the importance of pleading the quantitative results of the elections when it stated as follows :
60.In my view, therefore, in not pleading the full quantitative results of the subject election in the petition herein, the petitioner has disabled himself from the ability to prove through evidence, why the 4th respondent should not have been declared the winner. The failure to plead the full results was thus a fatal defect to the petition filed herein, and the petition cannot stand on that account.
iii. Does the petition contain hearsay evidence? How should such evidence be treated?
61.I now turn to whether there is hearsay evidence in the affidavit filed with the petition. The paragraphs referred to by the applicant are 91, 92 and 93 of the supporting affidavit, and the contention is that the depondent of the affidavit either did not disclose the source of the information or relied on facebook information.
62.In my view, even assuming that some averments in the said affidavit were hearsay evidence, such defects can only affect those specific paragraphs of the affidavit, and not the entire affidavit or the main petition. I thus find that the petition herein cannot be fatally defective merely because of an allegation that three paragraphs of the supporting affidavit contain hearsay evidence.
iv. Does the petition contain defective reliefs? If yes, what is the effect if any?
63.With regard to the issue of defective reliefs, the contention is that prayer (C) of the petition lists George Kiomburi Ndungu as the person against whom a declaration is sought to issue.
64.In response, the petitioner, in submissions, denied the reference to the above name. I have myself perused the prayers in the petition dated 8th September 2022 and filed on 9th September, 2022. The said prayer reads as follows –(c) A declaration do issue that the 4th respondent one AHMED ABDULLAHI MOHAMED herein, whose election is questioned, was not validly elected as the County Governor – Wajir County in the concluded General elections.
65.I thus agree with the petitioner that the alleged defective relief does not exist. I find that the complaint has no basis and I dismiss the same.
66.To conclude therefore, I find that the election petition herein is fatally defective due to failure of the petitioner to join the Deputy Governor as a respondent, and the failure by the petitioner to plead the complete quantitative election results as mandatory required by law in the pleadings.
v. What orders should be granted by this court?
67.Following from the above considerations, I allow the Notice of Motion application dated 26th September 2022 and order as follows:-i.The petitioner’s petition dated 8th September 2022 and the supporting affidavit (s) filed therewith be and are hereby struck out.ii.Consequent upon the striking out, these proceedings be and are hereby terminated.iii.The 4th and 1st respondents are awarded the costs of the application and proceedings against the petitioner.