REPUBLIC OF KENYA

High Court at Kitale

Election Petition 10 of 2013

JOYCE NAMUNYAK THE RETURNING OFFICER,  ENDEBESS CONSTITUENCY...1ST RESPONDENT.

INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION................................2ND RESPONDENT.

ROBERT PUKOSE..........................................................................................................3RD RESPONDENT.

          Proceedings in an election petition are “sui-generis” and flow from the Constitution and the legislations pertaining to elections, so said the first and second respondents in their opposition to this application dated 15th May, 2013 by the petitioner. Indeed, the application is made under Rules 4, 5 and 20 of the Election (Parliamentary and County Elections) Petition Rules and Articles 48, 50 and 159 of the Constitution.

The application is essentially for extension of time for depositing further security in the sum of Ksh. 400,000/=. Apparently, at the time of filing this petition on the 10th April, 2013 the petitioner deposited a sum of Ksh. 100,000/= instead of Ksh. 500,000/= as required by the Elections Act No. 24 of 2011 and the rules made thereunder.

The reason for such failure was that the petitioner had been misled by the court registry into depositing the lesser amount. All the three respondents oppose the application. The first and second respondents in particular contend that this court lacks jurisdiction to extend time within which security is to be deposited as the discretion under Rule 20 of the Elections Rules is only limited to enlarging time within which to do those things which are supposed to be done under the Rules and not the Elections Act.

The third respondent's contention is that the application is an abuse of the court process and that Article 159 of the Constitution was not intended for such abuse of the court process.

          Learned counsel, Mr. J.M. Wafula, argued the application on behalf of the petitioner while the learned counsels, Mr. Gumbo and M/s Bitok, opposed the same on behalf of the first and second respondents and the third respondents respectively.

Having heard all the sides, the issue arising for determination is firstly, whether the court has jurisdiction to extend time under Elections Act and secondly, whether time should be extended to the petitioner to deposit further security in the sum of Ksh. 400,000/=.

With regard to the first issue, Section 78 of the Elections Act, provide that:-

(1)             “A petitioner shall deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petitioner under this part.”

(2)             “A person who presents a petition to challenge an election shall deposit:-

(b) Five hundred thousand shillings in the case of petition against a member of Parliament or a County governor; or

(3)             “Where a petitioner does not deposit security as required by this section, or if an objection is allowed and not removed no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent's costs.

Rule 11 (1) of the Election rules provide that:-

                             “Within ten days of the presentation of a petition

                             under these Rules, a petitioner shall deposit security

                             for the payment of costs that may become payable

                             by the petitioner in the manner provided for under

                             Section 78 of the Act.”

The foregoing provisions of the Elections Act and Rules are clear. The Rules are made under the Act which provides for the payment of security within ten (10) days. The requirement is “exported” to the Rules via Rule 11 (1).

Therefore, the requirement to deposit security is an act supposed to be done both under the Elections Act and the Elections Rules. Consequently, this court has the necessary jurisdiction to extend time within the meaning of Rule 20 of the Elections Rules which provides that:-

                             “Where any matter is to be done within such time

                             as provided for in these Rules or granted by the court,

                             the court may, for purposes of ensuring that no

                             injustice is done to any party, extend the time within

                             which the thing shall be done with such conditions as

                             it may think fit even though the period originally

                             provided or granted may have expired.”

Thus, the court's power to extend time is discretionary and exercisable only for purposes of ensuring that no injustice is done to any party.

This brings us to the second issue for determination.

In that regard, it is not disputed that the petitioner failed to comply with the requirement of Section 78 of the Elections Act. He deposited only a sum of Ksh. 100,000/= instead of Ksh. 500,000/=, required for a parliamentary election. He alleges that he was misled into depositing the lesser amount by the court Registry i.e. the court staff at the Registry.

          The failure by the petitioner to deposit the entire amount (i.e. Ksh. 500,000/=) effectively meant that he failed to deposit the security. The reason given for such failure is not satisfactory. A checklist allegedly relied upon by the court staff to mislead the petitioner related to County Assembly Petitions. It was completely unrelated to this petition. In any event, the checklist from unknown quarters or from un-authorised quarters was devoid of any legal effect. It was incapable of superceeding or ousting the clear provisions of the Elections Act and Rules. This is a fact which ought to have been in the knowledge of the petitioner's advocate who confessed in his supporting affidavit that he was the one who had actually paid Ksh. 100,000/= after being misled by the Registry staff. This was a clear indication of his ignorance of the new electoral laws and his mistake ought not be visited on the petitioner.

The big question is whether the petitioner should be allowed to deposit the outstanding balance of the security notwithstanding his lack of satisfactory reason for failure to deposit the entire amount.

The requirement to deposit security is a matter of law whereupon time is of essence. However, the overriding objective of the electoral rules is to facilitate the just, expeditious, proportional and affordable resolution of election petitions under the Constitution and the Act.

Articles 48, 50 and 159 of the Constitution are embedded in this application.

Article 48 provides that:-

                             “The state shall ensure access to justice for all

                             persons and, if any fee is required, it shall be

                             reasonable and shall not impede access to justice.”

while Article 50 (1) provides that:-

                             “Every person has the right to have any dispute

                             decided in a fair and public hearing before a

                             court or, if appropriate, another independent and

                             impartial tribunal or body.”

          Access to justice and fair hearing are fundamental rights enshrined in the Constitution and so is the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the election for any elective public body or office established under the constitution (see, Article 38 (2))       

The Constitution, not being an Act of Parliament and being the Supreme Law, its provisions and in particular the provisions relating to fundamental rights ought to be interpreted in a broad and liberal manner. It would therefore be more ideal to look into this application more from a Constitutional perspective rather than a statutory perspective if only to protect and promote the values and principles of the Constitution. This would be in keeping with the provisions of Article 159 (2) (e) of the Constitution rather than Article 159 (2) (d) which provides that:-

                             “Justice shall be administered without undue regard to procedural technicalities.”

Herein, we are more concerned with matters of substantive law rather than procedural technicalities.

In any event, the operating words in Article 159 (2) (d) are “undue regard”. The words should be interpreted in plain language with a purposeful approach.

Overstretching Article 159 (2) (d) would be tantamount to trashing any obligation imposed by statutory law. After all, procedural rules are the handmaidens of justice.

In the case of Raila Odinga vs. I.E.B.C. & Others (2013) eKLR, the Supreme Court said that Article 159 (2) (d) of the constitution simply means that a Court of Law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from the court.

Be that as it may, in Baku & Another vs. A.G. (2005) 2 E.A5, the Constitutional Court of Uganda stated that:-

                             “The significance of having fair hearing in elections

                             petitions cannot be overemphasized. The resolution of

                             electoral disputes not only affects the perception of the

                             population on the independence of the judiciary but

                             also on the fairness of the electoral process in the

          From all the foregoing, it becomes apparent that injustice will be done to the petitioner if his rights to access justice, fair hearing and free and fair elections are “blocked” by reason of his failure to deposit security or adequate security especially considering that the respondents shall not suffer prejudice if time is extended and that they all have pending applications dated 23rd May, 2013 (third respondent) and 27th May, 2012 (first and second respondents) for extension of time within which to file their respective responses to the petition.

Apparently, all the respondents filed and served their respective responses to the petition out of time.

In sum, this application by the petitioner is allowed on condition that he deposits the balance of the outstanding amount (i.e. 400,000/=) forthwith and in any event not later than midday on the 5th June, 2013. In default, the respondents may move the court under Section 78 (3) of the Elections Act for the dismissal of the Petition.

Further, and so as to do justice to the respondents, their respective applications dated 23rd May, 2013 and 27th May, 2013 for extension of time and/or to file their responses to the petition out of time are hereby granted.

The responses already filed may be deemed to have been lawfully and properly filed and served. 

Each party shall bear own costs of this application.

[Read and signed this  4^th day of June  2013.]

J.R. KARANJA.