Farah v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition Appeal E007 of 2023) [2023] KECA 1024 (KLR) (14 July 2023) (Ruling)
Neutral citation:
[2023] KECA 1024 (KLR)
Republic of Kenya
Election Petition Appeal E007 of 2023
HA Omondi, KI Laibuta & GWN Macharia, JJA
July 14, 2023
IN THE MATTER OF THE CHALLENGE OF THE VALIDITY OF THE ELECTION OF MEMBER OF NATIONAL ASSEMBLY FOR MANDERA NORTH CONSTITUENCY
IN THE MATTER OF GARISSA ELECTION PETITION NO. E001 OF 2022
Between
Bardad Mohamed Farah
Appellant
and
The Independent Electoral and Boundaries Commission (IEBC)
1st Respondent
The Returning Officer, Mandera North Constituency
2nd Respondent
Abdullaih Bashir Sheikh
3rd Respondent
(Being an Appeal from the Judgment of the High Court of Kenya at Nairobi (Gitari, J.) dated 3rd March 2023 in Election Petition No. E001 of 2022)
Ruling
1.In the general elections held in August 2022, the 1st respondent, the Independent Electoral and Boundaries Commission (IEBC) conducted elections for Mandera North Constituency where the appellant (Bardad Mohamed Farah) and the 3rd respondent (Abdullaih Bashir Sheikh) contested the seat of Member of the National Assembly. The 2nd respondent, the Returning Officer, Mandera North Constituency, declared the 3rd respondent as the winner with 9,214 votes, and that the appellant had garnered 6,999 votes.
2.Aggrieved by the outcome, the appellant filed a petition at the High Court challenging the results announced by the 2nd respondent, on the basis that the elections were not free and fair as they were conducted in a manner contrary to the principles outlined under article 81 of the Constitution and section 39 of the Election Act and Regulations, which included inter alia, deliberate manipulation of KIEMS Kits by various presiding officers; deployment of the complementary identification system to facilitate irregular ballot marking, stuffing and exaggerated voter turnout in favour of the 3rd respondent; unilateral alteration of certain polling stations and removal of election materials to other polling stations by the 1st and 2nd respondents; voter bribery and undue influence instigated by the 3rd respondent and aided by various presiding officers and the 2nd respondent; ferrying of voters to various polling stations; and that the 1st and 2nd respondents, alongside the Mandera County security apparatus, meting out violence on agents and candidates whenever objections were raised regarding the election process.
3.The appellant urged this court to make an order for the delivery of all the election materials, including all the ballot materials, all forms, all Polling Station Diaries and KIEMS Kits with respect to the election; a recount, re-tally and verification of all the polling stations within Mandera North Constituency; alternatively that the declared result of the election be rendered invalid, null and void; that the 3rd respondent be held to have violated sections 9 – 12 of the Elections Offences Act and be held to be lacking in personal integrity, character and suitability to hold public office; order do issue that the 1st respondent conducts a fresh parliamentary election for Mandera North Constituency; and costs.
4.The respondents opposed the application, with the 1st and 2nd respondents contending that the petitioner did not present a set of results other than what was declared and announced by the respondents; that the orders sought are wide in scope and not within the ambit of the original petition; that no sufficient basis had been laid out to warrant the orders sought, that the petitioner was not specific as to the particular polling station, with respect to the alleged malpractices, thus rendering that limb of the prayers speculative; that the few incidences where there were challenges in the use of KIEMS Kits were remedied by use of legally laid down procedures before resorting to use of manual registers to identify voters; and that the 3rd respondent won the elections fairly, and with a clear margin.
5.The trial Judge found that there was a basis for partial scrutiny and recount in the listed polling stations, but that there was no basis to order scrutiny, recount and re-tallying in all polling stations in the entire constituency; that the allegation of manipulation of the KIEMS Kits was rebutted by the scrutiny report; and that there was no evidence to support the allegations of voter bribery, ferrying of voters, or eruption of violence in any of the polling stations. Ultimately, the court held that there were no irregularities or illegalities that substantially impacted the results announced by the 2nd respondent and, accordingly, the elections were substantially conducted in a free, fair, transparent, and credible manner, and in accordance with the Constitution and the electoral laws. In view of the foregoing, the trial court dismissed the appellant’s petitions with costs to the respondents.
6.The appellant challenges the decision on 17 grounds of appeal, the main issues being scrutiny and/or recount; and that the costs awarded were manifestly disproportionate, unreasonable and excessively high.
7.Opposing the appeal, the 1st - 3rd respondents raised two separate but similar preliminary objections, each urging us to strike out the Memorandum of Appeal on the grounds that the appeal is incompetent, having been filed out of time. They submitted that section 85A of the Elections Act and rule 9(1) of the Court of Appeal [Election Petition] Rules, 2017 require that an appeal from the high court in such an election petition be filed within 30 days of the decision of the high court.
8.The 3rd respondent contends that the appeal is an abuse of the court process, having been filed on April 10, 2023, seven (7) days out of time from the date the impugned judgment was delivered. The judgment having been delivered on March 3, 2023. Therefore, failure to comply with the timelines extinguished the right to appeal as the language and tenor of section 85 of the Elections Act is couched in mandatory terms, and does not give room for this Court to extend time. In support of this position, the 3rd respondent draws from this Court’s pronouncements in the case of John Munuve Mati v Returning Officer, Mwingi North Constituency & 2 others [2018] eKLR where the Court stated:
9.We are urged to find that this court lacks jurisdiction to hear and determine the appeal, and that the appeal should be dismissed in limine.
10.It is further argued that we should not even entertain the inclination towards extending time. The respondents relied on this Court’s decision in the case of Wavinya Ndeti v IEBC & 4 others [2014] eKLR, where the Court addressed the issue of extension of time under section 85 A and stated as follows:
11.In addition to the foregoing, the 3rd respondent also drew our attention to the distinction between timelines for filing appeals under the Court of Appeal Rules and the appeals filed under the Court of Appeal [Election Petition] Rules as was enunciated in the Munuve Mati case (supra).
12.The appellant acknowledges that, indeed, the judgment in the high court was rendered on March 3, 2023, and that the record of appeal was filed on April 10, 2023. However, the appellant maintained that, that notwithstanding, it was still within the 30 days timeline provided under section 85A of the Elections Act.The appellant further contends that, by March 10, 2023, this appeal was already filed and a case number assigned to the appellant, who had lodged the notice of appeal as well as paid for security for costs. In this regard, the appellant submits that the definition of filing an appeal is to be regarded as the date on which the record of appeal is filed, and by counting calendar days in the normal manner; and that the last day the record of appeal ought to have been filed was on April 4, 2023. (if time is computed to include public holidays and Sundays the respondent’s objections would be sustainable).
13.Counsel for the appellant argued that reprieve is offered under section 57 of the Interpretation and General Provisions Act, (Cap 2), which excludes Sundays and public holidays in the computation of time. On the other hand the appellant concedes that the Court of Appeal (Elections Petition) Rules, 2017 (2017 Rules) do not make provision in regard to computation of time, but urges us to adopt the approach stipulated under rule 4 of the 2017 Rules, which allows this court to apply the Court of Appeal Rules, (2022 Rules), where there is no applicable provision in relation to election petition appeals. In addition, counsel submitted that we must make a bold step and take recourse in rule 3 of the 2022 Court of Appeal Rules, which are a mirror provision to section 57 of the Interpretation and General Provisions Act in the computation of time to exclude all Sundays between 3rd March and 4th April, 2023 as well as the period between April 7 - 10, 2023, and find that the instant appeal was filed in time. In support of this contention, counsel urged the Court to find succor in the case of John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR.The appellant maintains the position that the notice of appeal dated March 10, 2023 was filed within the 30 days period, and that he had made a request to be supplied with the proceedings, certified copy of the Judgment as well as the decree in timely but that these copies were later availed only between April 14 - 19, 2023, after several protestations and the high court only availed copies of proceedings between April 14 - 19, 2023 after several protestations by the appellant.
14.The appellant seeks refuge in the pronouncements of this Court in Ferdinand Ndung’u Waititu v Independent Electoral & Boundaries Commission (IEBC) & 8 others [2014] eKLR where Kiage, JA., while acknowledging that there can be no competent appeal until the four items are lodged within the time stipulated namely:(a)A memorandum of appeal, in quadruplicate,(b)The record of appeal, in quadruplicate(c)The prescribed fee; and(d)Security for costs of the appeal and, yet, in his considered view:
15.Whereas we respect this very eloquently reasoned approach by the learned Judge, we, cannot ignore the pronouncements of the Supreme Court in Lemanken Aramat v Harun Meitamei Lempaka & 2 others [2014] eKLR which stated thus:
16.We are of the considered view that the timelines are clearly set, and that what constitutes a complete record of appeal is also well laid out under rule 9 (1) of the Court of Appeal (Elections Petition) Rules, 2017. We take note that these rules do not make provision in regard to computation of time, but hasten to add that election petitions are sui generis, and that, where the Rules make no provision in that regard, then the fallback statute is, in our view, not section 57 of the Interpretation and General Provisions Act, but section 85 A of the Elections Act, which provides:
17.We can only echo the language and tenor in the Munuve Mati case (supra) when considering the suggested applicability of the Court of Appeal Rules that:
18.This is only fortified by the echo in Wavinya Ndeti (supra), that the language and tenor of the provision, when read alongside the constitutional time frames set for determination of electoral disputes, indeed leaves no wriggle room to second guess the significance of giving a strict meaning to the computation of time, each ticktock of the clock’s hand, waves the ominous threat of rendering an election court bereft of jurisdiction. It is a little late in the day to pretend to reinvent the manner of computation, or even to depart from what really constitutes a complete record of appeal. We have no doubt in our minds that the High Court delivered its judgment on March 3, 2023, and the appeal was filed on April 10, 2023, seven days late.
19.It is clear to us that an appeal from the high court has to be filed within 30 days as stipulated by section 85A of the Elections Act. As recently stated in Jane Wambui Mwaura v IEBC & 2 others, Civil Application No. 18 of 2018 (UR 13/2018:
20.Enough said, reinventing the wheel is not an available option to us, and the upshot of the foregoing is that the preliminary objections raised are merited, and are hereby sustained. Consequently, we find that the appeal herein is incompetent and is hereby struck out with costs to the respondents.
DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF JULY, 2023.H. A. OMONDI............................................JUDGE OF APPEALDR. K. I. LAIBUTA............................................JUDGE OF APPEALG. W. NGENYE MACHARIA............................................JUDGE OF APPEALI certify that this is a true copy of the originalSigned DEPUTY REGISTRAR