Okoba Johanes Boy v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 16 (KLR)

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT BUSIA

ELECTION PETITION NO.3 OF 2017

BETWEEN

OKOBA JOHANES BOY...................................................................PETITIONER

=VERSUS=

THE INDEPENDENT ELECTORAL 

AND BOUNDARIES COMMISSION......................................1^ST RESPONDENT

THE CHAIRPERSON OF THE INDEPENDENT                                                         

ELECTORAL & BOUNDARIES COMMISION........................2^ND RESPONDENT

THE HONOURABLE OMANYI FELIX OPONDO…….............3^RD RESPONDENT

R U L I N G.

This  is a ruling on the Notice of Motion dated 10^th November, 2017 by the 3^rd  petitioner filed by Okutta and Co. Advocates for orders that;-

1. The Amended petition dated 5^th October, 2017 and or election petition dated 4th September  be and is hereby dismissed for want of compliance.

2. That  costs of the petition be paid by the petitioner to the Applicant.

The petition  is supported by the sworn affidavit of Felix Opondo the 3^rd  Respondent and the grounds on the face of the  application;-

a) That  the petitioner  did not pay the requisite security for cost of Kshs.100,000/= within  prescribed time or at all.

b) That  the purported amended petition was filed without leave of court and is therefore an abuse of the due process of  court and

c) That  the amended  petition was not filed within 28 days of declaration of Results and hence  a misnomer.  Earlier there was a Notice of Motion  dated 3^rd November, 2017 by the Applicants’/1^st and 2^nd Respondents for orders that:

1. The petition be dismissed and/or struck out.

2. That the Applicant be granted costs for this application and the petition.

It is supported by the grounds on the face of the application.

1. That on the 6^th of September, 2017, the Petitioner filed a petition contesting the Member of County Assembly Election Bunyala Central, Budalangi Constituency  held on the 8^th August, 2017.

2. That the Petitioner failed to provide security for costs as required under the Election Act, No. 11 of 2011 and Elections (Parliamentary and County Rules Elections) Petitions Rules, 2017.

3. That security for costs is a pre-condition to the validity of an election petition to deter frivolous challenges to elections results.

4. That failure to deposit the security for costs within the stipulated period, renders the petition fundamentally defective.

5. That cost be granted.

The application is supported by their annexed Affidavit of Peter Tiyo duly sworn on 6^th November, 2017.  On 16^th November, 2017 the Petitioner filed Replying Affidavit dated 16^th November, 2017.  The parties filed their written submissions which included list of authorities.  Section 78 of the Election Act provides as follows;-

A Petitioner shall deposit security for payment of costs that may become payable by the petition not more than 10 days under the presentation of their petition.

One  hundred thousand shillings in the case of a petition  by a member of the County Assembly.  It  is clear that the requirement  under Section 78(1)  and 2 (c) that the petitioner did not deposit Kshs.100,000/= within  10 days of filing petition  was not complied.

He did not also comply with Rule 33 (1)  of the Election Parliamentary and county Election petition which stipulates that security of costs  must be made within 10 days. He claims to have done so on 8^th November, 2017 after two months.

He never sought any leave to deposit the amount or given any explanation  why he was late and or seek to lift  the objection for late payment.  The fact that  the same was lodged at the Registry does not assist the petitioner.  On the issue of the Amended petition dated 5^th October, 2017, the same   was not done  with  the leave of the court which decrees that all petitions must be filed within 28 days after the declaration of the Results.  The Petitioner did not seek leave.

After considering all the proceedings and the submissions, l find that the petitioner did not follow the procedure by seeking  leave to deposit costs at that time.  I find  that this is a substantive issue which wrests the  court of its jurisdiction to hear  it.  He  had an opportunity to applying for extension of time to pay the security later or give  an explanation for late payment.  He failed to do so.  He also failed to seek for leave to amend the petition outside the pre-requisite time. These are not mere  technicalities which can be cured by Section 159 (2)  of the Constitution.

I find  that the amended petition without leave is irregular and will therefore dismiss it.  I also  find that under section 78 of the Election Act the petitioner failed to comply with the same  and proceed to dismiss the petition. For  want  of security of  costs and for non-compliance with  seeking leave to amend the  petition before doing so.  On the issue of costs as provided by Section 78(4) of the Election Act and find the circumstance  of the entire petition is dismissed with costs to be paid by the petitioner to the Respondents 1^st, 2^nd and  3^rd Respondents as the law governing petitions.

Okutta for 3^rd Respondent  and H.R. For Inbembe for IEBC.

Dated, signed and delivered at Busia  this 5^th day of December, 2017.

W. K. CHEPSEBA

CHIEF MAGISTRATE.

In the Presence of;

Petitioner - Makokha  holds brief for Kuloba.

Respondents - Okutta for 3^rd Respondent and holds brief for 1^st and 2^nd Respondents.

Counsel of Petitioner - Kuloba & Wangila  & co. Advocates.

Counsel for Respondent  - Mukele  Moni & Co Advocates  for 1^st and 2^nd     Respondents.

Okutta for 3^rd Respondent.

W.K. CHEPSEBA

CHIEF MAGISTRATE,

BUSIA.