Election Petition E001 of 2022

Case Metadata
Case Number:	Election Petition E001 of 2022
Parties:	Wanjohi & 2 others v Independent Electoral and Boundaries Commission & 3 others
Date Delivered:	11 Nov 2022
Case Class:
Court:	High Court at Nairobi (Milimani Law Courts)
Case Action:	Ruling
Judge(s):	Martin Muya
Citation:	Wanjohi & 2 others v Independent Electoral and Boundaries Commission & 3 others (Election Petition E001 of 2022) [2022] KEHC 15358 (KLR) (Election Petitions) (11 November 2022) (Ruling)
Court Division:	Election Petitions
County:	Nairobi
Disclaimer:	The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Wanjohi & 2 others v Independent Electoral and Boundaries Commission & 3 others (Election Petition E001 of 2022) [2022] KEHC 15358 (KLR) (Election Petitions) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15358 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Election Petitions

Election Petition E001 of 2022

M Muya, J

November 11, 2022

Between

Sameul Nduhiu Wanjohi

1^st Petitioner

Peter Waihenya Macharia

2^nd Petitioner

Stanley Kyalo Muli

3^rd Petitioner

and

Independent Electoral and Boundaries Commission

1^st Respondent

William W. Gachihi, the Constituency Returning Officer Starehe

2^nd Respondent

Albert Gogo the County Returning Officer Nairobi City

3^rd Respondent

Amos Mwago Maina

4^th Respondent

Ruling

1.By a notice of motion application dated the October 24, 2022 and which is premised under articles 48, 159 and 258 of the Constitution of Kenya 2010, sections 76 (4) of the Elections Act No 24 of 2011, rules 15 (1) (c), 2, 19 (1) and 36 (b) of the Elections (P arliamentary and County Elections) Petition Rules 2017, section 100 of the Civil Procedure Act cap 21, order 8 rules 1 (1), 3(1)(5) and 5 (1) of the Civil Procedure Rules 2010.

2.Seeks the following orders:-1.That the honourable court be pleased to hear the motion in priority to the petition (spent).2.The honourable court be pleased to extend the time within which the 1^st petition can amend the petition.3.The honourable court be pleased to grant the 1^st petition leave to amend the petition dated September 9, 2022.4.In the event that leave is granted this court be pleased to deem the petition amended on 24 October 2022 attached to the 1^st petitioners affidavit in support of this motion as duly filed.5.Such other or further orders and direction to be issued and or granted in the matter and as this honourable court deems just and convenient.

3.The 1^st petitioner has listed 15 grounds which are reproduced as hereunder:-1.On the August 9, 2022 elections were held by the 1^st respondent in respect of the member of National Assembly Starehe Constituency and the 2^nd respondent subsequently announced results on August 12, 2022 of which it declared the 4^th respondent as the winner.2.The 1^st petitioner being a registered voter in Starehe Constituency in the just concluded plebiscite had initially through a petition dated September 9, 2022 Impugned the entire conduct of the said elections and the ultimate declaration of results for being carried out in flagrant violation of the Constitution and electoral laws.3.The petition challenges the process through which the 1^st , 2^nd and 3^rd respondents prepared for and conducted, the election and how they arrived at the decision on the eventual winner4.The 1^st petitioner has through a notice of change of advocates dated September 29, 2022 and filed in this honourable court secured the representation of alternative legal representation so as to appropriately ventilate the cause of action.5.At the time of engaging legal counsel, the 1^st petitioner had received responses from the respondents, and in particular the 1^st and 2^nd and 3^rd respondents affidavits and other evidence which were not clear and or comprehensible at the time.6.The envisaged further particulars have been necessitated by the issues raised by the respondents themselves in hard copies of their documents subsequently, served upon the 1^st petitioner of which it is important to address.7.The proposed amendment are absolutely necessary for the proper administration of justice, for the effective use of judicial resources and to wholly present the petitioners’ case before the Honourable court for determination.8.The proposed amendments do not have the effect in any way of adding or substituting a new cause of action from that which is already contained in the petition dated September 9, 2022.9.The petitioner has proposed amendments with a view to ensuring that injustice is not visited upon any party.10.The honourable court has the power to issue any administrative orders before or during the hearing prescribing the timelines for certain actions such as that anticipated in the instant motion.11.The Elections Act empowers this honourable court to decide all matters that come before it without undue regard to technicalities.12.The election laws anticipate that interlocutory matters in connection with a petition challenging the results of a parliamentary election, such as the instant case shall be heard and determined by this honourable election court.13.The proposed amendments are vital to enable the court make a just determination as to whether the said elections were held in accordance with the principles laid down in the Constitution and in the written law, and whether the non-compliance alleged in the petition substantially affected the results of the election14.The motion has been brought without unreasonable delay and in any event before conclusion of pretrial conference15.No prejudice will be suffered by an party should the amendment be allowed.

4.This application is opposed by 1^st , 2^nd and 3^rd respondents on the following grounds.1.The annexed draft amended petition introduces new grounds of the petitioners cause of action, substantially remodeling the petition.2.The honourable court is devoid of the power and discretion to grant such amendments to a petition outside the 28 days provided for in section 76 (1) (b) of the Elections Act and article 87 (2) of the Constitution and (3) election petitions are sui generis and are guided by the specialized regime of law the Elections Act and Rules. The Civil Procedure Act and Civil Procedure Rules 2010 do not apply to the election petitions unless expressly provided for.The 4^th respondent has filed a notice of motion application dated October 26, 2022 seeking the following orders1.That the following affidavits filed by the 2^nd and 3^rd petitioners filed on October 24, 2022 be struck out of the record of these proceedingsa.Michael Mbanya Waithogo Sworn on October 7, 2022.b.Ali Mohamed Salat sworn on September 29, 2022.c.Erick Kaliani Omunyini sworn on September 29, 2022.d.Hillary Lumwaji Ashivoke sworn on September 30, 2022.e.Nelson Kamau Wairima sworn on September 30, 2022.2.That the 2^nd and 3^rd petitioner bear the cost of the application.The grounds are:a.That article 87 (2) of the Constitution of Kenya 2010 requires election petitions, apart from the presidential ones to be filed within 28 days after the declaration of the elections results by the 1^st respondents.b.That the rule 12(4) of the Election Parliamentary and County Elections) Rules 2017 Requires the affidavit in support of the petition and the affidavits of witnesses to be filed together with the petition.c.That by the time the affidavits were filed on October 24, 2022 the time for filing of the petition and the accompanying affidavits had lapsed and the filing amounts to filing of the petition outside of the constitutional timeline which this court has no jurisdiction to extend.d.That rule 12(8) of the Elections (Parliamentary and County Elections) Petition Rules 2017 prohibits a witness from testifying unless his or her affidavit was filed as required by the rules except with leave of the court and for sufficient reason.e.That the 2^nd and 3^rd respondent did not have the leave of court to file affidavit out of time.f.That there was no sufficient reason given as to why the affidavits were filed outside time.g.That the affidavits would embarrass and delay fair trial of this matter if they were admitted.h.That it would be prejudicial to the respondents if the affidavits filed out of time were admitted.

5.The amended petition is supported by the affidavit of the 1^st petitioner whose averments reflect the same grounds as found in the body of the application.The 2^nd and 3^rd petitioners in their response supporting the application dated October 24, 2022 state as follow:-a.That the petition dated October 9, 2022 contained all the vital information required to be included in a petition as per the provisions of rule 8 of the Election (Parliamentary and County Elections) Petition Rules 2017.b.That the amendment of pleadings can be allowed at any stage with leave of the court and at the courts discretion.c.That the matter is still at pre-trial stage, with no hearing date set, thus any necessary amendments to the petition would not in any way occasion injustice to the parties and cause prejudice to the respondentsd.That the provisions of section 76 (4) of the Elections Act are not restrictive but are subject to the courts discretione.That the affidavit sworn by the 1^st petitioner on October 24, 2022 does not seek to introduce new evidence nor seek to alter and change the nature of the petition nor is it a departure from the original cause.f.That the paragraphs being introduced are within the principles governing amendments.

6.The 2^nd and 3^rd petitioners seek to introduce affidavits on alleged election offences and malpractices.Those affidavits are from:a.Michael Mbanya Waithogo Sworn on October 7, 2022.b.Ali Mohamed Salat Sworn on September 29, 2022.c.Erick Kaliani Omunyinyi sworn on September 29, 2022.d.Hillary Lumwagi Ashivoke sworn on September 30, 2022.e.Nelson Wairima Sworn on September 30, 2022.

7.Their contention is that article 159 of the Constitution read together with section 80 (1) (d) of the Elections Act 2011 are supportive of the view that the courts ought to hear and determine petitions without undue regard to technicalities

8.The 1^st petitioners submissions.The 1^st petitioner has singled out two issues for determination by his court.(i)Whether the amended petition introduces new grounds of the petitioners’ cause of action, substantially remodeling the petition.(ii)Whether the legal frame work to amend the petition has lapsed.

Whether The Amended Petition Introduces New Ground Of The Petitions Cause Of Action Substantially Remodeling The Petition:

9.It is the contention by the 1^st petitioner that the respondents have not singled out the new grounds of the petition introduced and Secondly, how the amended draft has substantially remodeled the petition. Reliance is placed on the case of Mohamed Balala & 11 others v Ag & 7 others [2012] eKLR

10.As for the 4^th respondents replying affidavit sworn on October 26, 2022 it is submitted that no new petition, cause of action or evidence has been introduced through the proposed amendment.It is further contended that the 4^th respondent’s reference to rule 19 (2) of the 2017 Rules is erroneous as same refer to a new Petition , and none is being sought in the proposed amendment.The 1^st petitioner avers that they are seeking an extension of time to amend the petition dated September 9, 2022. They concede that section 76 (4) of the Election Act anticipates an amendment within 28 days but this section ought not to be interpreted and applied strictly”It is also denied that the proposed amendment in reliefs 4 and 5 of the petition would fundamentally change the orders sought from the election court. That no new reliefs have been sought perse but an addition of 9 polling stations meant for scrutiny. It is argued that this is not a fundamental change.That the cited authority of Gerald Iha Thoya v Chiriba Daniel Chai & another [2018] eKLR is distinguishable in that what is before the court is merely a draft and or proposed amended petition, leave of the court is yet to be granted, no extension of time to file has been granted and the petition itself is yet to be filed in court or served upon the parties.

On The 2^nd Issue As To Whether The Legal Time Frame To Amend The Petition Has Lapsed?

11.It is submitted that the law to amend election petitions has undergone tremendous metamorphosis and that the old Jurisprudence on strict interpretation of section 76 (4) of Elections Act has been replaced by a more liberal interpretation.Reliance is placed in the case of Mariam Nevi Befaki v Independent Electoral and Boundaries Commission and 2 others [2017] eKLR which is on the same proposition.Reliance is also placed on the case of Ishmael, Suleiman and 9 others v Returning Officer Isiolo County IEBC & 4 others [2013] eKLR and the case of Amina Hassan Ahmed v Returning Officer Mandera County & 2 others [2013] eKLR but it is submitted these cases laid down principles of law at the contemporary stages of elections which jurisprudence ought to be taken cautiously in that:1.That said principles were laid down before the enactment of the Elections (Parliamentary and County Elections) Petition Rules 2017 which now enlarge the window for amendment of election petitions.2.The said principles are an affront to the constitutionally envisaged principles of access to justice and fair hearing3.The nature of prayers that prompted the establishment of the said principles are materially different from what the 1^st petitioner is seeking in this petition

12.It is further submitted that the legal parameters that restrict amendments are founded on the nature of amendments that fall under the category which:-a.Strive to remodel the petitionb.That are on a fishing expedition for evidencec.Tend to revive a fatally defective petitiond.Prejudice other partiese.That its not correct as argued by the 4^th respondent that the Civil Procedure Act and Rules do not apply on election petitions unless specifically provided.

13.That article 87 (2) of the Constitution 2010 has stipulated timelines for filing of a petition but its not a closed – door provision.That the amendments sought are particularization on corruption and illegal practices mentioned in paragraph 16 and no new models of the petition have been introduced.

14.Amendments under para 28A particularize instances of violence already mentioned in paragraph 23 that amendments under paragraph 36A and 39A particularize the provisions of law breached by the respondents which provisions emanate from statutes and regulations already mentioned in the original petition.

15.Paragraph 37A amendments particularizes, issues mentioned in the original Paragraph 37.

16.That amendments under paragraph 40 A are introduced in para 15 (a) and (4) of the original petition.

17.Reliefs 4 and 5 which are prayers for scrutiny and recount are contained in the petition dated September 9, 2020 and are not new reliefs.

Submissions By The 1^st, 2^nd And 3^rd Respondents

18.They have singled out issues for determination thus:-1.Whether the court has jurisdiction to grant leave for amendments as proposed2.Whether the said proposed amendments introduce new ground3.Whether the instant application should be allowed in the circumstances.4.It is submitted that the election law on amendment is provided under section 76(4) of the Election Acts. Reliance’s is placed on the case of Ismael Suleiman & others v Returning Officer Isiolo IEBC & 4 others [2013] eKLR

19.That election petitions are sui generis with a specialized regime. That the application ought to have been made within 28 days after publication of results.Reliance is placed on the case of Musa Sirma v Independent Electoral Commission & 2 others [2017] eKLRThe Case of Gerald Iha Thoya v Chiriba Chai [2018] eKLRThe case of Nahashon Akunga v Independent Electrol and Boundaries Commission & 2 others [2017] eKLR where it was held:-“That is was imperative for a party to know with precision where irregularities or misdeeds took place and that the seeking to add new polling stations was countaced as a fishing expedition”

20.It is further submitted by the 1^st 2^nd and 3^rd respondents that was filed after the lapse of 45 days since of the 28^th days window set by law and 70 days after the declaration of the results.

Submissions By The 4^th Respondent

21.The 1^st petitioner filed a notice of motion dated October 24, 2022 seeking to amend the petition as originally filed. That on the same day October 24, 2022 the 2^nd and 3^rd petitioners filed five affidavits in support of the original petition. The 4^th respondent then filed a notice of motion application dated October 26, 2022 seeking the striking out of the affidavits which were filed out of time and without leave of the court and without sufficient reason.

22.Issues for determination have been singled out thus:-a.Whether this court has power to allow the amendments sought by the 1^st petitionerb.Whether the proposed amendment petition is fatally defective for being unsupported by affidavits of the petitioners.c.Whether the affidavits filed out of time should be struck out.

Whether This Election Court Has Power To Allow The Amendment Of The Petition

23.It is submitted that timelines are critical to all election petitions other than a presidential election petition in that:-a.The petition has to be filed within 28 days after the declaration of results, andb.The matter ought to be heard and determined within six months after filing

24.That rule 19 (2) of the Elections (Parliamentary and County Election Petition Rules, 2017) does not grant the court power to extend time within which a petition is to be filed.That the proposed amendment by the 1^st petitioner if granted would amount to giving him a backdoor opportunity to file a petition out of the set constitutional timelines.

25.The 4^th petitioner cites on the case of Ismael Suleiman and 9 others versus Returning Officer Isiolo County Independent Electoral & boundaries Commission and 4 others [2013] eKLR where it was held:-“ The petitioners are in a way seeking to introduce new evidence to the petition after the period allowed had lapsed. That such evidence ought to have been filed alongside with the petition. Failure where of leave ought to have been sought before the expiry of 28 days within which to file the petition. The application by the petitioners is after the expiry of the said period. This court cannot in view of the stringent provisions of the Election act and the Constitution extend the period sought. It has no Jurisdiction to do so.”

26.Reliance is also placed on the case of Amina Hassan Ahmed v Returning Officer Mandera County & 2 others [2013] eKLR where it was held:-"In my view and finding, neither the Elections Act nor the rules donate any provision for amendment of an election petition except for the limited window found in section 76 (4) of the Election Act 2011 which states:-A petition filed in time may, for the purpose of questioning a return or an election upon an allegation of an election offence, be amended with leave of the court within the time within which the petition questioning the return or Election upon that ground may be presented”

27.In the case of Gerald Iha Thoya v Chiriba Chai & another [2018] eKLR It was held that:-"In my view what the law restricts is an amendment that will lead to the remodeling of the petition. Such an amendment can only be done with the authority of the court and within 28 days from the date of declaration of results of the election the petitioner is challenging.I do not think that the Election Act bars minor amendments that will not shift the foundation of a petitioners cause of action.”That section 76(4) of the Election Act is clear that amendments can only be made within 28 days from the declaration of results and only for question of a return or upon allegation of an election offence.

28.Further that the application herein was made more than 2 months after the declaration of the returns and of the amendments were allowed, the respondent would have a corresponding leave to respond to the petition and this would eat into the time allowable for hearing and determining an election petition which is six months.

29.It is submitted that the petitioner appears to suffer under the illusion that the general civil procedure principles are applicable in an election petition whereas election petitions are sui genesis.

30.What would be the result of allowing the filing of an amended petition which is unsupported by affidavits of the petitioners.

31.It is not in dispute that the three petitioners filed one petition that was supported with their affidavits. It is also not in dispute that the proposed amended Petition is not supported by the affidavits of the petitioners.

32.That the 1^st petitioner seeks to amend a petition he filed with the 2^nd and 3^rd petitioners without first obtaining authority from the 2^nd and 3^rd petitioners

33.The 4^th respondent cites the authority of the case of Gerald Thoya v Chiriba [2018] eKLR where it was held:-“Therefore on the question as to whether the election court was correct in striking out the amended petition, my answer is that the court was right in striking out the amended petition since the same was incomplete as it was not accompanied by an explanatory affidavit. Such an affidavit could have adopted the previous supporting affidavit and introduced the statements of the witnesses in the latest edition of the petition. There was therefore no proper pleadings before the election court.”

34.Whether the affidavits filed out of time by the 2^nd and 3^rd petitioners ought to be struck out rule 12(4) of the Elections Parliamentary and County Elections Petition Rules require that the affidavits in support of the petition and the affidavits of witnesses to be filed together with the petition.It is submitted that by the time the 2^nd and 3^rd Petitioners filed theirs in question pleadings had closed, as all the respondents had filed their responses. That the law does not anticipate filing of pleadings outside the time frame given except with leave of court and for sufficient reason.

35.Further that rule 12 (8) of the Elections (Parliamentary and County Elections) Petition Rules 2017 prohibit a witness from testifying unless his or her affidavit was filed as required by the rules except with leave of court and for sufficient reason. The 2^nd and 3^rd petitioners did not provide the reasons why the said affidavits were filed out of time.

36.It is 4^th respondents submission that the petitioners ignored the essence of seven days and argue that the court is yet to sit for pre-trial conference, ignoring the fact that a party seeking such further evidence to be produced ought to have made the application before the lapse of the seven days.Further if the affidavits were to be allowed at this point it would be prejudicial to the respondents since the affidavits have remodeled the petitioners case and the respondents would require time to restructure their responses to the new issues raised in the affidavits.

Issues For Determination(i)Whether the proposed amendment falls within the confines of the electoral laws(ii)Whether the said proposed amendments introduced new grounds.(iii)Whether the affidavits filed by the 2^nd and 3^rd petitioners should and ought to struck out.

37.The Constitution at article 87(2) provides for the time frame in which election petitions must be filed. The article stipulates that:"Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission’’

38.An interrogation of the Elections Act 2011 at section 76(4) states that:"A petition filed in time may, for the purpose of questioning a return or an election upon an allegation of an election offence, be amended with the leave of the election court within the time within which the petition questioning the return or the election upon that ground may be presented.’’

39.Further the law on amendment of pleadings in election petitions as captured at page 75 of the Judiciary Bench Book on Electoral Disputes Resolution is that:“4.6.2.1 An election petition filed in time and based on allegations of election offences may be amended with leave of the election court (s 76(4) of the Elections Act, 2011). The application for leave/amendment must be made and granted within the time prescribed for challenging the relevant election, ie, within 28 days of the declaration of the results of the election (s 76(4) of the Elections Act, 2011; Ismail Suleman & 9 others v Returning Officer Isiolo County & 2 others, Election Petition (Meru) No 2 of 2013; Charles Nyaga Njeru v Independent Electoral & Boundaries Commission & another, Chief Magistrate’s Court (Chuka) Election Petition No 1 of 2013).

40.As to whatever shall constitute an amendment must therefore conform to the legal timeline provisions as stated above when it comes to election petitions with the exception of a presidential election petition. as to what may be considered has been considered by the Judicial Bench Book at the following cited paragraphs:4.6.2.2 The courts may allow amendments to correct inadvertent errors and omissions at any stage of EDR proceedings, including appellate stages, where the amendment would not occasion prejudice to any party (Ramadhan Seif Kajembe v Returning Officer, Jomvu Constituency & 3 others, Election Petition (Mombasa) No 10 of 2013). The courts do not, however, usually allow amendments which seek or purport to cure a fatal defect in an election petition, e.g. failure to comply with prescribed mandatory requirements (Amina Hassan Ahmed v Returning Officer Mandera County & 2 others, Election Petition (Garissa) No 4 of 2013; Ismail Suleman & 9 others v Returning Officer Isiolo County & 2 others, Election Petition (Meru) No 2 of 2013). Further, the courts will not allow an application for amendment where such an application is no more than a fishing expedition for evidence (Charles Nyaga Njeru v Independent & Boundaries Commission & another, Election Petition (Chuka) No 1 of 2013).

41.Therefore, it is evident that what the law restricts is an amendment that will lead to the modifying of the petition. Such an amendment can only be done with the authority of the court and within 28 days from the date of the declaration of the results of the election the petitioner is challenging. I do not believe that the Elections Act bars minor amendments that will not shift the foundation of a petitioner’s cause of action. Requests for minor alterations, which do not go to the root of the cause, if brought timeously should be considered by an election court and where appropriate the court should exercise its discretion and allow the amendments.

42.Edward Muriithi, J opined on amendment of election petitions in Musa Cherutich Sirma v Independent electoral and Boundaries Commission & 2 others [2017] eKLR when after considering the decision in Amina Hassan Ahmed that a petition cannot be amended outside 28 days from the date of the declaration of the results states that:“12.While I respectfully agree with the learned judge on the special nature of the section sic petition proceedings and of the limited provision for amendment of a petition for purposes of section 76(4) of the Elections Act, I do not agree that the petition may never be amended for any other purpose including clarifying matters set out in the petition. What an amendment cannot do is to question the election or a return on the ground of an election offence the petition unless it is done with the period of 28 days after the publication of the results in the Gazette. (sic).13.I consider that an election petition may be amended for any other purpose other than for “for the purpose of questioning a return or an election upon an allegation of an election offence,” say to correct dates, names, other particulars and any errors in the petition, any time before hearing giving the respondents time to respond to the amendment, as necessary. The principle of amendment of pleadings in regular civil proceedings, that amendments before hearing should be freely granted if they can be done without injustice to the other side and that there is no injustice if it can be remedied by an award of costs must be applicable to the election petitions. [Eastern Bakeries v Castellino (1958) EA 461.14.Accordingly, a petitioner may amend his petition only to correct any errors in pleading and to the extent that it does not effect amendments “for the purpose of questioning a return or an election upon an allegation of an election offence” or introduce another cause of action which would be time barred under section 76 of the Elections Act. I consider that the requirement of article 159 of the Constitution and section 80 (d) of the Elections Act that the court deals with petitions before it without undue regard to technicalities, must be such as to allow the court some latitude in dealing with applications for amendment which do not go to change, out of the statutorily prescribed time, the root of the cause of action set out in the Petition filed within time.”

43.In my understanding, what the law prohibits is an amendment that will lead to the remodeling of the petition. Such an amendment can only be done with the authority of the court and within 28 days from the date of the declaration of the results of the election the petitioner is challenging. This is in line with Article 87(2) of the Constitution and with section 76(4) of the Elections Act. Minor amendments that will not shift the foundation of a petitioner’s cause of action may be allowed with the leave of the court. Thus, amendments for minor alterations, which do not go to the root of the cause, if brought timeously, should be considered by an election court and where appropriate the court should exercise its discretion and allow the amendments.

44.The 2^nd and 3^rd respondent declared the 4^th respondent the winner of the Parliamentary seat on August 12, 2022 to which the petitioners filed their petition dated September 9, 2022 if the need to amend the petition arose it ought to have been done so by latest the October 10, 2022 in keeping within the legal timelines within which to amend their petition in subservience to the aforementioned electoral time frames envisaged under article 87(2), section 76(4) and as echoed in the Judicial Bench Book on elections at paragraph 4.6.2.1. Which states that an election petition filed in time and based on allegations of election offences may be amended with leave of the election court (section 76(4) of the Elections Act, 2011). The application for leave/amendment must be made and granted within the time prescribed for challenging the relevant election, ie within 28 days of the declaration of the results of the election (s 76(4) of the Elections Act, 2011. Filing their draft amended petition on October 24, 2022 is at least two (2) weeks from the time the petition time for amendment expires. It must be stated that rule 19(2) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 denies an election court the power to extend time within which a petition is to be filed or the time within which it ought to be heard and determined.

45.The High Court case of Ismail Suleman & 9 others v Returning Officer Isiolo County Independent Electoral & Boundaries Commission & 4 ot h ers [2013] eKLR pronounced itself as follows:“Where a petitioner wants to seek an amendment, such an application must be filed before the period provided for presenting petitions has lapsed. It is only when application is filed within the said period a court can consider it, otherwise any application filed after 28 days has lapsed cannot be allowed as court has no jurisdiction to do so.”

46.The same sentiments were echoed in Amina Hassan Ahmed v Returning Officer Mandera County & 2 others [2013] eKLR where the court held that:“In my view and finding, neither the Elections Act nor the Rules donate any provision for amendment of an election petition except for the limited window found in section 76(4) of the Elections Act, 2011 which states: -“A petition filled in time may, for the purpose of questioning a return or an election upon an allegation of an election offence, be amended with the leave of the election court within the time within which the petition questioning the return or election upon that ground may be presented.”It is my finding from the above provision that the Elections Act, 2011 does not generally allow amendment of an election petition except where the following terms are complied with: that is to say: -(i)the petition to be amended questions a return or an election result upon an allegation of an election offence and;(ii)the amendment is sought from the election court within the 28 days prescribed by the Act for filing an election petition and;(iii)the election court is willing to exercise its original discretion in favour of granting the amendment sought.The above provision being statutory, must be interpreted and be complied with, strictly, especially because the statute itself, as earlier noted, is a special legislation. To that end, to argue that the Act is silent in relation to issues of amendment of an election petition, as did the Petitioner herein, is in my view, to get astray. This is because the Act has actually loudly pronounced the circumstances when an amendment may be granted by an election court. This also means that section 76(4) of the Elections Act, 2011 has specifically taken away and/or restricted the original jurisdiction of this court to grant leave for amendment of election petitions.”

47.It must be noted that the petitioner did not seek leave to amend his petition nor did he do so within the stipulated time frame and thus cannot be entertained on this score. Time is a key aspect in electoral determination matters. The Court of Appeal in Election Petition Appeal 4 of 2018 Timamy Issa Abdalla v Independent Electoral and Boundaries Commission & 3 others [2018] eKLR stated"As for constitutional timelines, the rationale behind the establishment of mechanisms for timely settling of electoral disputes was well captured in this Court’s decision in Mbaraka Issa Kombe v Independent Electoral and Boundaries Commission (IEBC) & 2 others [2018] eKLR. “The long and short of it being that elections or the electoral process should not be held captive to endless litigation, that is, electoral dispute resolution should be timely. This means that while the court exercises its discretion … it should be careful not to upset constitutional timelines’’

Whether The Said Proposed Amendments Introduce New Grounds

48.In Musa Cherutich Sirma v Independent electoral and Boundaries Commission & 2 others [2017] eKLR (supra) when after considering the decision in Amina Hassan Ahmed (supra) that a petition cannot be amended outside 28 days from the date of the declaration of the results stated that a petition may be amended to correct minor issues such as say to correct dates, names, other particulars and any errors in the petition, any time before hearing giving the respondents time to respond to the amendment, as necessary. Thus a petitioner may amend his petition only to correct any errors in pleading and to the extent that it does not effect amendments “for the purpose of questioning a return or an election upon an allegation of an election offence” or introduce another cause of action which would be time barred under section 76 of the Elections Act.

49.The proposed amended petition cites the following amendments:a.Paragraph 1: To change counsel from messers Osundwa & company Advocates to Emmanuel Wanyonyi Advocatesb.Paragraph 16: The insertion of ; contrary to section 9 of the Election Offences Act, 2016c.Introduction of paragraph 20A which reads: This was in contravention of section 13H of the Election Offences Act, 2016 as the above-mentioned individuals were allowed to remain in an election centre in clear contravention of provisions of the elections Laws.d.Introduction of paragraph 24A which reads: This is in clear contrast to the provisions of section 11 of the Election Offences Act, 2016.e.Introduction of paragraph 28A which reads: Continuous reports of violence were registered at both the polling stations and the Constituency Tallying Centre including incidences of assault on presiding officers to which Godwin Wamalwa recorded OB REF 67 on August 11, 2022 at Central Police Station while Geoffrey Maturi record OB REF 67 on August 11, 2022 also at Central Police Station.f.Introduction of paragraph 36A which reads: Regulation 62 of the Elections (General) Regulations, 2012 provides for admission to polling stations and in particular stipulates that –1.The presiding officer shall regulate the number of voters to be admitted to the polling station at the same time, and may exclude all other persons except—(c) authorised agents;g.Introduction of paragraph 37A which reads: In particular, the 1st respondent permitted the recruitment as presiding officer of one John Macharia Mathenge whom they knew to be an agent of the 4th respondent contrary to section 15 of the Election Offences Act, 2016.h.At paragraph 39 the insertion of the conjuctive ‘and’ and the striking out of (and Jesicca Murungi Kiriungi (polling station 9 Pangani Girls High School);i.The introduction of paragraph 39A which reads: 39A. Regulation 63 of the Elections (General) Regulations, 2012 provides for keeping order at polling stations and in particular stipulates that1.It shall be the duty of the presiding officer to keep order at his or her polling station.(2)The presiding officer may order the removal of any person who misconducts himself or herself at the polling station, or fails to obey any lawful instructions or orders of the presiding officer and such person shall be removed by the police officer present.(3)A person removed from the polling station under sub-regulation (2) shall not re-enter the polling station during the continuance of the poll without the permission of the presiding officer.4.A person removed from a polling station under sub-regulation (2) may, if charged with the commission in the polling station of an offence, be dealt with as a person taken into custody for an offence by a police officer without a warrant.5.The presiding officer may order the dispersal of any gathering of persons which appears to the presiding officer to be preventing free entry to, or exit from, the polling station or to be intimidating or interfering with voters, and any such order shall be sufficient authority for a police officer, or any other person authorized by the order, to effect the dispersal.(6)The power conferred on a presiding officer and a police officer under sub regulation (5) shall not be limited to the area covered by the polling station only but shall extend to a radius of not more than four hundred meters from the centre of the polling station.(7)The powers conferred by this regulation shall not be exercised so as to prevent any voter who is entitled to vote at the polling station from having an opportunity to peaceably vote at that polling station.j.At paragraph 40 the introduction of a paragraph which reads:Particulars of threats, harassment and intimidationI.Deliberately denying the agents of only one party (UDA) out of the three candidates participating in the Starehe Parliamentary Elections from accessing Polling Stations at the commencement of the elections;II.Unilaterally and in a discriminatory manner arresting the agents of only one party (UDA) out of the three candidates participating in the Starehe Parliamentary Elections. This was contrary to the express provisions of section 12 of the Election Offences Act.At the prayers/reliefs the following amendments were introduced: atk.Relief number 4, 5 and 6 the introduction of nine new polling stations to wit: Kariorkor Social Hall; Kenya Polytechnic University;City Primary School; Moi Avenue Primary School;Juja Road Primary School;Government Vehicle Inspection Unit;Plainsview Primary School;Mariakani Primary School and Our Lady of Mercy Primary SchoolThus, it is these amendments of the draft amended petition dated October 24, 2022 that must be compared with the petition dated October 9, 2022. I agree with submisses by respondents that.

50.At paragraph 20A of the proposed amended petition, the petitioner introduces an aspect of an election offence having been committed in contravention of section 13H of the Election Offences Act, 2016. The allegation had been made but the failure to particularize within the stipulated time would breach constitutional set barriers to particularize and thus would materially alter the same.

51.At paragraph 24A of the proposed amended petition, the petitioner introduces an allegation of an election offence having been committed in violation of section 11 of the Election Offences Act, 2016. I find the same to be introduction of an election offence outside the constitutional set times effectively remodeling the petition.

52.At paragraph 28A of the amended petition, the petition introduces a new alleged fact that presiding officers were assaulted, which is an election offence in itself on par with electoral violence as prescribed by the Elections Act and thus an introduction of a substantially new claim altering, the foundation of the petition.

53.Paragraphs 36A and 39A introduces completely new claim around regulation 62 and 63 of the Elections (General) Regulations 2012.

54.At paragraph 37A the proposed amended petition introduces a fundamentally new claim that a presiding officer by the name of John Macharia Mathenge was an agent of the 4th respondent.

55.Paragraph 40 introduces completely new claims under the theme of particulars of threats, harassment and intimidation which were not present as they present plausible election offences which if introduced would fundamentally change the petition and thus in my view ought not to be allowed.

56.Reliefs 4 and 5 of the reliefs sought, the petitioner has fundamentally changed the orders he seeks from court. The previous order was for the scrutiny of 11 polling stations and the amendment on the aforementioned reliefs touches on the questioning a return for nine new polling stations that were not previously prayed for and thus substantially remodels the petition and fundamentally altering its structure and trajectory.

57.In the case of Ismail Suleman & 9 others v Returning Officer Isiolo County Independent Electoral and Boundaries Commission & 4 others [2013] eKLR the High Court stated that:The petitioners are in a way seeking to introduce new evidence to the petition after the period allowed had lapsed. That such evidence ought to have been filed alongside with the petition failure whereof leave ought to have been sought before the expiry of 28 days within which to file the petition. The application by the petitioners is after expiry of the said period. This court cannot in view of the stringent provisions of the Election Act and the Constitution extend the period sought. It has no jurisdiction to do so.

58.On this limb, the Draft amended petition fails. It must also be stated that the draft amended petition must be supported by Affidavits. The authority of Gerald Iha Thoya v Chiriba Daniel Chai & another [2018] eKLR the court stated as follows:“Therefore, on the question as to whether the election court was correct in striking out the amended petition, my answer is that the court was right in striking out the amended petition since the same was incomplete as it was not accompanied by an explanatory affidavit. Such an affidavit could have adopted the previous supporting affidavit and introduced the statements of the witnesses in the latest edition of the petition. There was therefore no proper pleading before the election court.”

Whether The Affidavit Filed By The 2^nd And 3^rd Petitioners Should And Ought To Be Struck Out

59.Affidavits in election matters are governed by the Elections (Parliamentary and County Elections) Petitions Rules, 2017 at rule 12(1) which set out the formats and who depones them and rule 12(4) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 states that affidavits must be filed at the time of filing the petition including witnesses that the petitioner intends to rely on. The 2^nd and 3^rd petitioners filed the affidavits in question, on diverse dates to wit: 29^th and September 30, 2022. The petition having being filed on September 9, 2022, the law anticipates or at the very least expects petitioners to have filed their affidavits with the petition before pleadings had closed, all respondents having filed their responses. The law indeed does not anticipate filing of pleadings outside the timeframe given except, with leave of court and for sufficient reason.

60.This is well comprehended as a reading together of rules 15(1)(h) and rules (12(9) where a court may on application or in Suo moto capacity direct a party to file supplementary affidavits and the directions as to how to go about it. Nevertheless this a discretionary power that is still subservient to constitutional and statute issued time lines. It must not be lost to the court that rules must not stifle justice but rather aid the law. I, once again, turn to Muriithi, J in Inland Beach Enterprises Ltd v Sammy Chege & 15 others [2012] eKLR where he held, inter alia:“…in my view, with the cardinal principle of procedure that rules are handmaids of justice not mistresses; the rules must serve the justice of the case as the court may determine in the circumstances of the proceedings.”

61.I am of the view that given the period in which an election petition ought to be filed with and the requisite and /or attendant documents attendant to it must be subservient to the constitutional as well as the statutory timelines set to do so. Affidavits must be filed with the petition as per rule 12(1). Petitions (with its affidavits consequently) must be filed within 28 days since publication of the results. To derogate from his would be akin to an illegal break-in thru a back-door entry of an invited but grossly late guest, calling at a host’s house at hours beyond the invite. In this scenario, the court, like a host, must exercise discretion, as to how much time has lapsed since the lapse of the invite, the availability and resources to accommodate the guest, and the risk of upsetting and even displacing the other guests who honoured the invite timeously at the host’s house.

62.Simply put constitutional as well as statute law breach shall be made manifest if the affidavits are allowed beyond the set timelines. The authority of Raila Odinga v IEBC & others [2013] eKLR, the Supreme Court held that: -‘‘Article 159(2)(d) of the Constitution was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.’’

63.In the instant matter, the last day for filing affidavits was on September 9, 2022, the day they filed their petition. Everything needed to aid this court in ought to have been delivered by the parties by then with room for exception within the law in place in determining election disputes. Rule 15(1)(h) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 which enables this court to within seven days after receipt of the last response to a petition give schedule a pre-trial conference and may give directions as to filing and serving of any further affidavits which was not adhered to by the 2^nd and 3^rd petitioners and thus were locked out by the 7 day period after the respondents filed their response to the petition.

64.Further , under rule 12(8) of Elections (Parliamentary and County Elections) Petitions Rules, 2017 prohibit a witness from testifying unless his or her affidavit was filed as required by the rules except with leave of the court and for sufficient reason. The 2nd and 3rd respondent did not have the leave of court to file the affidavits out of time and they did not provide the reason why the said affidavits were filed out of time. In this regard, the affidavits viability in this suit wilt and cannot be grafted into the body of either the petition or the.

Conclusion

65.From the foregoing this election court is not satisfied that the application vide notice of motion dated October 24, 2022 has merit and its dismissed with costs which costs will be borne by the 1^st petitioner.

66.The application by the 4^th respondent dated October 26, 2022 seeking the striking out of the 2^nd and 3^rd petitioners affidavits which were filed out of time, without leave of this election court and without sufficient reason is allowed with costs, to be borne out by the 2^nd and 3^rd petitioners.

RULING READ AND DELIVERED IN OPEN COURT THIS 11^TH DAY OF NOVEMBER, 2022.HON JUSTICE M MUYAJUDGEIn the presence of:Counsel for the Petitioners...................1^st Petitioner....................2^nd Petitioner....................3^rd PetitionerCounsel for Respondents....................1^st Respondent....................2^nd Respondent....................3^rd Respondent....................4^th RespondentCourt Assistant: .................HON JUSTICE M MUYAJUDGE

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