Juma v Nyongesa, Budalangi Constituency Returning Officer & 2 others (Election Petition E001 of 2022) [2022] KEHC 14359 (KLR) (27 October 2022) (Ruling)
Neutral citation:
[2022] KEHC 14359 (KLR)
Republic of Kenya
Election Petition E001 of 2022
WA Okwany, J
October 27, 2022
IN THE MATTER OF THE CONSTITUTION, THE ELECTIONS ACT 2011, THE ADVOCATES ACT, THE OATHS AND STATUTORY DECLARATION ACT, ORDER 19(7) OF THE CIVIL PROCEDURE RULES, THE ELECTIONS [PARLIAMENTARY AND COUNTY ELECTIONS] PETITION RULES 2017, AND THE ELECTIONS [GENERAL] REGULATIONS 2012
Between
Alfred Maloba Juma
Petitioner
and
Moses Simiyu Nyongesa, Budalangi Constituency Returning Officer
1st Respondent
Raphael BS Wanjala
2nd Respondent
Independent Electoral and Bounderies Commission
3rd Respondent
Ruling
Introduction
1.The petitioner herein, Hon Alfred Maloba Juma, a male adult of sound mind, a citizen of Kenya and a voter at Mubwayo Primary School in Budalangi Constituency, contested in the just concluded general elections held on August 9, 2022 for the position of Member of Parliament on United Democratic Party [UDA] party ticket.
2.The 1st respondent was the appointed returning officer in charge of the elections in said constituency who declared the 2nd respondent as the winner of the parliamentary seat in the said elections.
3.Aggrieved by the results of the said elections, the petitioner filed this petition on September 7, 2022 to challenge the declaration of 
the 2nd respondent as Member of Parliament (MP) on the basis that the said elections were not simple, free, fair and credible as anticipated by both the Constitution and the Election Petition Acts.
the 2nd respondent as Member of Parliament (MP) on the basis that the said elections were not simple, free, fair and credible as anticipated by both the Constitution and the Election Petition Acts.
4.The respondents filed their respective responses and Preliminary objections (PO) to the petitions as follows: -a.Preliminary objection dated September 19, 2022 wherein the 2nd respondent states that the petition is irredeemably defective for non-compliance with rule 9 of the Elections (Parliamentary and County Elections) Petition Rules 2017.b.Preliminary objection dated September 21, 2022 wherein the 1st respondent also challenges the petition based on the basis of non-compliance with section 76(4) of the Elections Act, 2011, and sections 24 and 30 of the Advocates Act.c.The 2nd respondent’s preliminary objection dated October 2, 2022 challenging the court’s jurisdiction pursuant to section 76 of the Elections Act, 2011.d.The 1st respondent’s preliminary objection dated October 5, 2022 on the grounds that the petition offends mandatory provisions of rule 8, 9, 10, 12 and 14 of the Elections [Parliamentary and County Elections) Petition Rules 2017 as read together with sections 2 and 4 of the Oaths and Statutory Declaration Act, order 19 of the Civil Procedure Rules as well as sections 9, 24, 30, 34A and 34B of the Advocates Act.
5.The petitioner filed 2 applications in reaction to the POs, namely:-a.The application dated September 28, 2022 seeking leave to amend the petition so as to include the Independent Electoral and Boundaries Commission as a party to the proceedings.b.The application dated October 11, 2022 for orders to be allowed to substitute the witness affidavits that were sworn by an advocate who did not have a current practicing certificate with qualified commissioner for oaths credentials at the time of commissioning the affidavits.
6.When the petition came up for mention for directions on October 5, 2022, this court noted that the POs’ challenge to its jurisdiction to hear and determine the petition. In line with the adage that jurisdiction is everything without which the court must down its tools, directions were issued that the POs be considered first as their determination would have a bearing on whether or not the court could proceed to entertain the applications and the petition.
7.This ruling is therefore in respect to the respondents’ POs which parties canvassed the by way of written submissions. The parties’ respective advocates highlighted the submissions at the hearing.
The 1st Respondent’s Submissions.
8.Mr Ngaywa, learned counsel for the 1st respondent, submitted that the petition, offends the mandatory provisions of rule 8, 9, 10, 12 and 14 of the Election (Parliamentary and County Elections) Petition Rules 2017 (hereinafter “the election petition rules”) as read together with sections 2 and 4 of the Oaths and Statutory Declarations Act, order 19 of Civil Procedure Rules as well as sections 9, 24, 30, 34A and 35B of the Advocates Act.
9.The 1st respondent took issue with the fact that the petition was not accompanied by affidavits whose oaths are administered by qualified persons. He noted that the affidavit in support of petition as well as witness affidavits were sworn before one Ms Macrine Boisabi Mochama who had no valid practicing certificate and was therefore not certified to practice law at the time she administered the oaths. It was the 1st respondent’s case that the affidavits commissioned by an unqualified person are fatally and incurably defective, incompetent and bad in law thus rendering the petition that it supports incurably and fatally incompetent. For this argument, the 1st respondent cited the decision in the case of David Wamatsi Omusotsi v The Returning Officer Mumias East Constituency & 2 others, High Court Kakamega Election petition No 9 of2017 [2017] eKLR where the court held that:-
10.Counsel also cited the decision in Fl star Limited v The Delphis Bank Limited (under Statutory Management) CA 58 0 2006 where the court relied on the decision in Kenya Commercial Bank Ltd & another v Kewa Hotels Ltd and held that: -
11.It was submitted that the effect of affidavits sworn before unqualified person renders the affidavits as mere statements that fall short of express and clear provisions of law. Reliance was also placed on the decision in Githui Mwangi and 2 others v Jubilee Party and 11 others (2018) eKLR, where the court observed that: -
12.The 1st respondent further faulted the petitioner for failing to enjoin the Independent Electoral and Boundaries Commission (IEBC) (hereinafter “the Commission”) as a respondent to the petition. It was submitted that this failure amounted to a violation of the mandatory provisions of rule 9 of the rules thus rendering the petition incompetent and a violation of the commission's right of natural justice. It was submitted that the IEBC is not only a necessary party in an election petition, but a mandatory party under the said rule. For this argument, the 1st respondent cited the decision in Mbaki & others vnMacharia & another [2005] 2 EA 206, where the Court of Appeal stated that:-
13.The 1st respondent noted that IEBC will be adversely affected should the petition succeed as it will be expected to hold a by-election, yet it did not participate in the proceedings to dispel allegations against it. He added that it will be unfair and dishonest to entertain this petition to conclusion without any notice to IEBC as this will result in failure of natural justice. Reference was made to the decision in Nyongesa & 4 others v Egerton University College (1990) KLR 692 where the court observed that: -
The 2nd Respondent’s Submissions
14.Mr Gichaba, learned counsel for the 2nd respondent, added his voice to the 1st respondent’s submissions and maintained that the petition is incurably defective non-compliance with mandatory Election Petition Rules, to wit; rule 13 which required the petitioner to deposit security for costs within 10 days of filing the petition, rule 9 which states that the commission shall be a respondent in every election petition and rule 10 on service of the petition upon the commission in the manner prescribed in rule 10; and
15.Regarding the requirement for deposit of security for costs within 10 days of filing the petition under rule 13, counsel noted that the petitioner deposited the security for costs on September 17, 2022 which was 1 (one) day after the expiry of the 10 days. It was submitted that failure to comply with the timelines set in the said rule rendered the petition is incurably defective, incompetent and improperly before the court.
16.The 2nd respondent echoed the 1st respondent’s submissions regarding the failure, by the petitioner, to enjoin the IEBC in the petition as required under rule 9 of the rules. It was submitted that since IEBC is the body charged with the responsibility of conducting elections, it is a necessary party under the said rule and must be a party in any election petition. Counsel submitted that in the absence of the IEBC from the petition, the court lacks the jurisdiction to adjudicate on the matter. Reference was made to the case of James Kirimi where the petitioner did not sue the winner in the election and the court held that failure to enjoin the winner rendered the petition a nullity.
17.The 2nd respondent argued that it would be absurd and legally impractical to construe rules 9 and 10 of the rules otherwise than as mandatory and peremptory. He added that without the Commission, all the allegations in the petition on the voting, tallying and declaration of results cannot be substantively answered or justly determined; and further, that the orders sought by the petitioner on the said processes can also not be implemented or effected without the commission.
18.The 2nd respondent maintained that if the application to amend the petition is allowed, not only would the petition be filed out of time with regard to the Commission, but that the petition would also filed out of time with regard to all the respondents. It was submitted that the application to amend the petition so as to include the commission ought to be denied as it is a back door attempt to file a fresh petition and to serve it out of time in contravention of the law.
19.The 2nd respondent argued that the petition is fatally defective and void as the time to amend the petition has lapsed. He asserted that because of the defects in the petition, the court lacks the jurisdiction to hear and determine it or to hear and determine any application stemming therefrom.
The Petitioner’s Submissions
20.Mr Katwa Kigen, learned counsel for the petitioner, submitted that the preliminary objections and the petitioners applications to amend the petition to add IEBC and to substitute the affidavits commissioned by an unqualified advocate are inter-twined as a determination of the applications will effectively settle the objections raised in the case.
21.The petitioner conceded that there are defects/lapses in the petition regarding the failure to name IEBC as a respondent in the petition and the commissioning of affidavits by an advocate who did not possess a current practising certificate. It was however the petitioner’s case that superior courts have in various decisions addressed all the issues raised in the POs and found them not to be fatal to an election petition.
22.On the issue of failure to name IEBC as a respondent, the petitioner argued that defect was not fatal as he had named the Returning Officer (RO) as respondent. According to the petitioner, the RO is one and the same as the Commission. Counsel cited the decision of the Supreme Court in Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others [2016] where the court held that: -
23.The petitioner also referred to the case of Raila Odinga v IEBC and 4 others petition (No 5 of 2013), for the argument that the court should apply article 159(2) (d) of the Constitution to administer substantive justice, instead of focusing on technicalities of procedure or form. according to the petitioner, procedural technicalities include matters of extension of time, filling up missing particulars and documents in petitions, amendments, substitution, etc.
24.The petitioner argued that the oversight to mention IEBC as a respondent is a matter of procedure and form, not substance.
25.The petitioner also cited the case of Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others [2018] eKLR, where the Court of Appeal considered the effect of non-compliance with rule 8 of the petition rules which required the petitioner to state the particulars of the results of the election in the pleadings and held that the petition should be sustained in public interest so as to not drive a litigant and the public interested in the petition from the seat of justice. The court also held that the petition should be dismissed only if it has no chance of success with no merit in law and in factThe court said:-
26.On the issue of affidavits commissioned by an advocate whose certificate has not been renewed, the petitioner cited the Supreme Court’s decision in National Bank Limited v Anaj Warehousing Limited (2015) eKLR (the Anaj Warehousing Case) and the other cases including the High Court in cases Henry O Nadimo v IEBC and 2 others 2013 ekLR, (b), Muriithi J in Kisii election petition No 7 of 2013 Eng. Peter Kimori Maranga & another v Joel Omagwa & 2 others where the courts stated that:-i.That such document by unlicensed advocate do not render the document, or the pleading fatal. Rather, leave should be granted to replace themii.That the law makes the offending advocate culpable. But the law does not state what happens to the documents, hence the interest of justice is inclined to sustain the documents, unless they were made by an advocate who has been struck out the role of advocates or otherwise is a person who is not qualified as an advocate at all.iii.That the Constitution and statute do not prescribe for an affidavit as a condition precedent to make a petition complete. Rather, it is the rules committee. The rules of the rules committee cannot terminate a petition as fatal.iv.Courts should not punish innocent litigants and parties whose mistake is to believe that a given advocate has a practising certificate.v.In National Bank Limited vs Anaj Warehousing Limited (2015) eKLR (the Anaj Warehousing Case), the Supreme Court held that no document should be dismissed because an unlicensed advocate made it.
27.On whether the defects in the petition can be cured through an amendment, the petitioner cited several authorities alongside the relevant provisions of the Election Act and the Elections Petition Rules for the argument that courts have, in the past, allowed amendment of petitions. Further reliance was placed on article of 159 of the Constitution as the ultimate law which requires courts, in the interest of substantive justice, to allow amendments. The petitioner therefore urged this court to decline the preliminary objections and find that it has the jurisdiction to consider/allow the pending applications.
Analysis and Determination
28.I have carefully considered the pleadings filed herein, the respondents’ preliminary objections, the submissions to the POs together with the law and the authorities that were cited. The main issue for determination is whether the POs are merited. In determining the merits of the POs, this court will consider the following questions: -i.Whether the petition herein is fatally defective on the basis that the affidavits in its support were commissioned by an advocate who did not have a current practicing certificate.ii.Whether the failure to deposit security for costs within the prescribed timelines renders the Petition fatally defective and a nullity.iii.Whether the petition is fatally defective for non-compliance with the provisions of rule 9 of the Elections (Parliamentary and County Elections) Petition Rules 2017, for not citing the IEBC as a respondent. Depending on the finding on this issue, the court will also consider if the said non-compliance can be corrected through an amendment of the petition so as to include the IEBC as a respondent as has been proposed by the petitioner through the application dated…….
Preliminary Objection
29.The petitioner submitted that the issues raised by the respondents do not fall under the purview of a preliminary objection as they consist of facts that have to be ascertained and that their determination will entail the exercise of judicial discretion. It was the petitioner’s case that matters in issue can be cured by amendment and/or submission.
30.The respondents, on their part, maintained that the issues raised in the POs are pure points of law and undisputed facts that go to the jurisdiction of the court to hear and determine the petition. It was submitted that a determination of the POs will have the effect of disposing of the entire petition. It was the respondents’ case that the issues raised cannot be determined through the exercise of judicial discretion.
31.What constitutes a preliminary objection was discussed in the famous case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, where Law J.A and Newbold P (both with whom Duffus V-P agreed), respectively at 700 and 701, held as follows:-
32.In the present case, I note that one of the points raised by the respondents is that the petition is void ab initio for failing to comply with the provisions of rule 9 of the Election Rules. The respondents argued that this court lacks the jurisdiction to hear and determine the petition or any subsequent application arising from it.
33.It is trite that jurisdiction is everything without which the court must down its tools. This was the holding of the court in the famous case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) where the court stated that: -
34.In Hassan Nyanje Charo v Khatib Mwashetani & 3 others [2014] eKLR, the Supreme Court of Kenya held that:-(53)An example of a preliminary objection given in the Mukisa Biscuits case, is an objection to jurisdiction. The current notice of preliminary objection raises two issues falling in such a category, namely—i.that this court lacks jurisdiction to hear and determine this matter, as it derives from proceedings that were a nullity, and were void ab initio; andii.that the petition from which this application emanates was filed out of time, and in contravention of article 87(2) of the Constitution.54.The two issues crystallize into a single question, as to whether this court has jurisdiction to admit the application for review, when it was filed outside the constitutional timelines specified in article 87(2).55.The clear point of law raised is whether the court has jurisdiction to entertain an application that springs from a matter filed outside the 28 days for filing an election petition. A negative answer to that question has been returned by this court in several cases: the Mary Wambui case; the Lisamula case; and in Lemanken Aramat v Harun Meitamei Lempanka & Two others [2014] eKLR. It is evident that a question as to whether a court has jurisdiction to determine an appeal filed outside the 28 days’ time-frame, is a “pure question of law”, and falls within the principle in the Mukisa Biscuits case.”
35.Guided by the principles espoused in the above cited authorities, I find that a clear point of law has been raised over the jurisdiction of this court to hear and determine the petition. The respondents have questioned the court’s jurisdiction to hear a petition filed without the inclusion and service of the petition upon the IEBC as a respondent. There is also the question of whether the court can entertain an application filed outside the 28 days allowed, by the Elections Act, for filing and application to amend the petition.
Defective Affidavits
36.The respondents’ case was that the petition is incurably defective as it is supported by affidavits that were commissioned by an advocate who does not hold a current practicing certificate.
37.The petitioner conceded that the affidavits were commissioned by an advocate who did not have a current practicing certificate but went on to contend that the defect in the affidavits was not fatal and could be cured through an application to replace the said defective affidavits with those that are commissioned by a qualified advocate.
38.Section 2 of Oaths and Statutory declarations Act, stipulates that only practising advocates may be appointed as commissioners for oaths by the Chief Justice. The said provision stipulates that: -
39.Section 4(1) of the same Act provides for the powers of a commissioner as follows: -
40.Sections 9 of the Advocates Act provides for qualifications to practice as an advocate as follows:-
41.The above provisions are clear that a person is only qualified to act as an advocate if he/she must has been admitted as an advocate with his/her name appearing in the roll and that he/she holds a current practicing certificate. It therefore follows that for a person to administer oath as a commissioner for oaths, she must be qualified to act as an advocate as expressly provided under section 9 of the Advocates Act
42.Section 2 of the Advocates act defines an unqualified person to mean a person who is not qualified under section 9 and includes an advocate who—iv.is not qualified under section 9;v.is not exempt under section 10; andvi.fails to take out a practicing certificate.
43.In the present case, I have already noted that it was not disputed that one Mochama Macrine Boisabi, the person who commissioned the supporting and witness affidavits to the petition was not qualified to administer oaths having failed to take out practicing certificate for the year 2022. The issue that the court has to grapple with is the net effect of the lack of qualifications by the said advocate on the validity of the petition.
44.The petitioner argued that affidavits commissioned by unlicensed advocates are not invalid since a claim and a cause of action belongs to a litigant who is innocent of the want of practicing certificate. It was further argued article 159 of the Constitution encourages administration of substantive justice without undue regard to technicalities.
45.Section 34B of the Advocates Act provides that: -(2)Notwithstanding any other provisions of this Act, nothing shall affect the validity of any legal document drawn or prepared by an advocate without a valid practicing certificate.(3)For the purpose of this section, "legal document" includes pleadings, affidavits, depositions, applications, deeds and other related instruments, filed in any registry under any law requiring filing by an advocate.
46.Order 19 rule 7 Civil Procure Rules provides:-
47.My understanding of the above provisions is that they permit legal instruments and documents prepared by advocates who, even though of good standing, may not have for one reason or the other not taken out current practicing certificates, as long as they have not been struck out of the roll of advocates.
48.The petitioner submitted extensively on this issue of practicing certificate and cited the decision of both the Court of Appeal and Supreme Court of Appeal decision in the case of National Bank of Kenya Ltd v Wilson Ndolo Ayah [2009] eKLR where the Court of Appeal held that pleadings could be struck off where a person had not taken out practicing certificate but when the Supreme Court considered the same question of validity of documents drawn or witnessed by an advocate who did not have a current practising certificate it held that:-
49.A similar holding was made by the High Court in Peterson Ndung’u, Stephen Gichanga Gituro, N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani v Kenya Power & Lighting Company Ltd [2018] eKLR cited with approval by Ngugi J. in R v Resident Magistrate Court at Kiambu Ex-Parte Geoffrey Kariuki Njuguna & 9 others [2016] eKLR where the court declined to dismiss the cases merely because the advocate involved did not have a practicing certificate. The court stated:-
50.The learned judge continued as follows:-
51.I am in agreement with the decision in the above cited cases. I note that there is no way that the petitioner could have known that the advocate who commissioned the affidavits in question did not hold a current practicing certificate. No material was presented before this court to show that the said advocate had been struck out of the roll of advocates. In the circumstances of this case, I find that striking out the affidavits will not be fatal to the petition which the respondents have substantively responded to. I find that the justice of this case will require that instead of striking out the petition, the petitioner be allowed to prosecute his pending application for leave to substitute the said affidavits with those that have been commissioned by a qualified advocate.
Security for Costs
52.The 2nd respondent faulted the petitioner for failing to deposit security for costs within 10 days of filing the petition as required under rule 13 of the Election Petition Rules. Counsel noted that the petitioner deposited the security for costs into the court’s bank account on September 17, 2022 which, in his view, was 1 (one) day out of the stipulated period. It was submitted that failure to comply with the timelines set in the said rule rendered the petition incurably defective, incompetent and improperly before the court.
53.The petitioner did not submit on the issue of security for costs. Be that as it may, this court is still minded to consider the merits of this point of objection.
54.Rule 13 of the Election Petition Rules provides that:-13.Deposit of security for costs1.Within ten days of the filing of a petition, a petitioner shall deposit security for the payment of costs in compliance with section 78 (2) (b) and (c) of the Act.2.The security for costs deposited under sub-rule (1) shall-a.be paid to the registrar;b.be for the payment of costs, charges or expenses payable by the petitioner; andc.Subject to the directions of an election court, be vested in, and drawn upon from time to time by, the registrar for the purposes for which security is required.(3)The registrar shall-a.issue a receipt for the deposit under this rule;b.shall file the duplicate of the receipt issued under paragraph (a) in a record kept by him or her;c.keep a record of deposits in which shall be entered from time to time the amount of a deposit and the petition to which the deposit relates;d.Allow any person concerned with the petition to examine the record of deposits. (emphasis added)
55.Section 78 of the Elections Act stipulates that: -78.(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 petition under this part.(2)A person who presents a petition to challenge an election shall deposit –a.One million shillings, in the case of a petition against a presidential candidate;b.Five hundred thousand shillings, in the case of a petition against a member of parliament or a county governor; orc.Once hundred thousand shillings, in the case of a petition against a member of a county assembly.
56.In Henry Okello Nadimo v the Independent Electoral And Boundaries Commission& 2 others [2013] eKLR, the court considered the issue of whether late payment of the deposit by the petitioner is fatal to the petition and held that: -
57.In Lemanken Aramat v Harun Meitamei Lempaka and 2 others (supra) the Supreme Court rendered itself as follows on the issue of timelines in election petitions:-
58.In the present case I note that the petition was filed on September 7, 2022 and the deposit of security for costs made on September 17, 2022. A simple calculation of the number of days reveals that the deposit was made on the 10th day after the filing of the said petition and was therefore within the stipulated timelines.
Failure to Incorporate IEBC as a Respondent
59.The respondent submitted that the petition is fatally defective for non-compliance with the provisions of rule 9 of the Election Petition Rules which mandatorily requires that IEBC be made a respondent in every election petition. The 1st respondent submitted that the IEBC is not only a necessary party in an election petition, but a mandatory party as a respondent. Rule 9 of the Elections Petitions Rules.
60.The petitioner, on the other hand, submitted that he made out a case against the IEBC and the Returning Officer (RO) but inadvertently did not name out the said Commission which managed the parliamentary election, through the 1st respondent, Returning Officer (RO).
61.Rule 9, Election Petition Rules states that: -The commission shall;a.Be a respondent in every petition filed under this rules.b.Be served with a petition filed pursuant to this rules in a manner provided under rule 12 (2)
62.Rule 10 is on “service on the respondent,” and provides that:(2)Service on the Commission shall be by-a.delivery at the constituency, county or head office of the Commission;b.delivery at such other office as the Commission may notify; or (c) an advertisement that is published in a newspaper of national circulation.
63.Article 88(4) of the Constitution stipulates that: -
64.Section 4 of the Independent Electoral Commission Act echoes the provisions of article 88(4) of the Constitution on the responsibilities of the Commission.
65.My understanding of the above is provisions is that the Commission must not only a respondent, in every election petition, but must also be served with the duly filed petition. The rules also specifically provide for the place and mode of effecting service upon the Commission. The rationale for the rules can be found in article 88(4) of the Constitution and section 4 of the IEBC Act. Suffice is to say that IEBC is the body responsible for conducting the elections and is therefore answerable on any issues that may arise in any petition challenging the outcome of an election.
66.In the present case, it was not disputed that the commission was neither enjoined in the petition as a respondent as required by rule 9 nor served with the said petition in the manner prescribe under rule 10 or at all. A perusal of the petition reveals that it was to be served on the 1st and 2nd respondents herein only.
67.The petitioner however argued that that even though the commission was not explicitly named as a party in the petition, IEBC and the Returning Officer (1st respondent) are one and the same party. The petitioner further argued that the omission of IEBC from the petition was a procedural technicality and an oversight that could be cured, under article 159(2) (d), through the proposed amendment wherein he seeks orders to include the Commission to the petition.
68.My finding is that the requirement for the inclusion of the IEBC to the petition and for the service of the petition on the commission are mandatory requirements going by the wording of the rules through the use of the word “shall” whose mandatory connotation was discussed in Republic v Council of Legal Education & another Ex parte Sabiha Kassamia & another [2018] eKLR where the court held, inter alia, that: -
69.The petitioner urged this court to adopt a liberal approach in dealing with the omission to cite the commission as a respondent and relied on the decision in Mable Muruli v Wycliffe Ambetsa Oparanya (supra) for the argument that the IEBC and the RO are one and the same party. According to the petitioner, the fact that the RO was a respondent in this case means that the commission is a party to the suit.
70.My finding is that the circumstances and context under which the Supreme Court, in the Mable Muruli case (supra), found that the RO and IEBC are one and the same outfit are different and distinguishable from the present case. The issue in dispute in the cited case concerned the performance of relevant duties of the Commission under the Constitution while the present case is about the proper party to be sued in a petition. In the said case, the Court was cautious to explain that the RO is the IEBC only when performing the relevant duties as provided for under the Constitution and the Act. The court rendered itself as follows: -
71.This court takes judicial notice of the fact that ROs are ordinarily not permanent employees of the Commission and are officers hired, on a temporary basis, to perform specific functions during the elections. This means that the tenure of an RO comes to an end at the conclusion of the elections. I therefore find that it is not conceivable that an RO will still be part and parcel of the Commission, for purposes of responding to allegations made in a petition, long after the end of his contract term with the IEBC. No material was placed before this court to show that the RO herein is still an employee of the IEBC or that he brought the petition to the attention of the commission.
72.It is worthy to note that the petition herein challenges the manner in which the elections for the member of parliament for Budalangi Constituency was conducted. As clearly shown in the provisions of article 88(4) of the Constitution, the body mandated to conduct such elections is the IEBC and not the RO who is merely one of the many temporary employees appointed by the Commission to perform its activities on the ground during the elections. I am therefore not persuaded by the petitioner’s argument that the RO is one and the same as the Commission.
73.The petitioner implored this court to overlook his failures and invoke the provisions of article 159(2) (d) of the Constitution so to administer substantive justice instead of considering technicalities of procedure or form. The petitioner argued that the oversight in failing to name IEBC as a respondent is a matter of procedure and form, not substance.
74.The question which arises is whether failure to include the IEBC as a respondent in this petition can be deemed to be a procedural technicality or a substantive issue that goes to the root of the petition and the court’s jurisdiction. In other words, is the failure to cite and serve the commission as a respondent a matter that is curable through an amendment as has been suggested by thee petitioner?
75.I find that the answer to the above question can be found in the provisions of section 76(4) of the Election Petition Act the import of which the court discussed in Amina Hassan Ahmed v Returning Officer Mandera County & 2 others [2013] eKLR as follows: -
76.Similarly, the Indian Supreme Court pronounced itself on the subject in Jyoti Basu & others v Debi Ghosal & others (1982) AIR 983 as follows:-
77.A simple reading of section 76(4) shows that it is possible to amend petitions only with the leave of the court and if the said amendment is done within 28 days from the time of the declaration of the disputed election results. Further, as can be noted from the above cited decisions in Amina Hassan Ahmed (supra) and Jyoti Basu case (supra), the law is settled that an election petition can only be amended, with the leave of the election court, if the amendment is done within the timelines set in the Act.
78.In the instant case, however, I note that the results of the disputed elections were declared on August 10, 2022. The instant petition was filed on September 7, 2022 which fell on the 28th day from the date that the 2nd respondent was declared as the member of parliament for Budalangi Constituency. This is to say that the petitioner filed his petition on the last day of the 28 days granted, by the Act, to any party seeking to challenge the results of an election.
79.The 2nd respondent’s preliminary objection to the petition on the ground that it did not include the commission as a respondent was filed on September 27, 2022. The petitioner filed the application to amend the petition so as to incorporate the commission as a respondent on September 29, 2022.
80.From the above narration of the sequence of events that led to the filing of the application to amend the petition, it is clear that the petitioner sought to correct the anomaly in his petition at least 22 days after the expiry of the 28 days window period that a petitioner is allowed to amend its petition under section 76(4) of the Elections Petition Act. This means that that the grace period within which the petitioner could have amended the petition lapsed on the date of the filing of the petition.
81.My finding is that given the special jurisdiction and strict timelines granted to an election court by the Constitution and Elections Act, which jurisdiction restricts the court to strict adherence to the provisions of the Act, there is no room for this court to exercise its discretion and expand the set timelines, so as to allow the petitioner to leave to amend the petition, as would have been possible in an ordinary civil suit that is governed by the provisions of the Civil Procedure Act. I am guided by the decision in Rozaah Akinyi Buyu v Independent Electoral and Boundaries Commission & 2 others [2014] eKLR where it was held that 'courts in Kenya and elsewhere have interpreted electoral law strictly within the corners and confines of the same as electoral law is a special jurisdiction created by the Constitution and statutes, and the civil process is not applicable to the same'. In the said case, the court cited, with approval, the Indian Supreme Court case of Jyoti Basu & others (supra).
82.My further finding is that, in the circumstances of this case, allowing the amendment so as to include the Commission to the suit would be akin to allowing the petitioner to file a fresh suit, as against the Commission, long after the 28 days period granted by the Constitution and the Act has lapsed. On the flipside, continuing with the petition as it is, without the participation of the commission would not only go against the rules of natural justice as envisaged under article 50 of the Constitution, but will also be an exercise in futility as all the allegations in the petition on the voting, tallying and declaration of results processes can only be substantively answered by the Commission. Similarly, the orders sought in the petition, over the processes can only be implemented or effected by the commission.
83.I further find that the provisions of article 159(2) (d) cannot come to the rescue of the petitioner as the failure to incorporate the commission in the case is a fundamental issue that goes to the root of the petition and this court’s jurisdiction. It is my finding that the defect is such that it cannot be corrected through the exercise of this court’s discretion. I find guidance in the decision in Omari Juma Mwakamole v Independent Electoral & Boundaries Commission& 2 others [2017] eKLR where the court tackled similar defects to a petition as in the present case and held that:-
84.I find that the petitioner, as the initiator of this suit, was aware of the prayers that he was seeking in the suit and the party against whom the remedies were sought. The petitioner seeks a raft of orders in the petition that can only be executed by the commission. This court is therefore at a loss as to how the petitioner expected to actualize his claim in the absence of the commission. It is apparent that the petitioner did not find it necessary to name the commission as a respondent in the petition and only realized his mistake 3 weeks after filing the petition when the 2nd respondent raised the PO over the issue. It is also apparent that the petitioner herein took matters for granted and did not pay much attention to the law governing the institution of election petitions. In the process, the petitioner made numerous, careless and costly mistakes along the way. As I have noted in this ruling, the mistakes include non-joinder of the commission to the petition and the commissioning of affidavits by an unqualified advocate.
85.This court is aware of the well hackneyed rule that courts should at all times be slow to strike out a suit and must always endeavor to sustain them. (See Martha Karua case (supra)). In the present case, I have used a 360 degrees approach and considered all the available options that the court could have employed in a bid to rescue the case to no avail.
86.I have found that the Commission is both a necessary and mandatory party to any election petition. I have also found that the Commission was not made a party to the instant suit, and further, that the period within which the petition could have been amended so as to incorporate the commission to the suit has long lapsed. I find that given the court’s special jurisdiction in election petitions, this court does not have the discretion to expand time except as provided for under the election laws.
87.I therefore find that the failure to incorporate the commission as a respondent in this petition and to serve the commission with the petition, in the manner prescribed by the law, dealt a fatal blow to the petition thus rendering it a non-starter, null and void.
88.In the premises therefore, this court holds that the failure by the petitioner to name IEBC as a respondent in the petition renders the petition fatally defective. The requirement for the inclusion of IEBC to the petition is a substantive legal requirement and is not a procedural technicality that this court can excuse or extend time to enable compliance to be made. The petition herein is therefore struck out with costs to the respondents. In view of the fact that the parties had not taken directions on the hearing of the petition, this court caps the costs to be paid to each respondents at kshs 500,000/-.
89.It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF OCTOBER 2022.W. A. OKWANYJUDGEIn the presence of: -Mr. Gichaba and Ms Nyawira Kinyua for 2nd respondent.Mr. Ngaywa for 1st respondent.Mr. Katwa for Petitioner.Court Assistant- Anita/Peter/Sylvia