Justine Chemtai v Winnie Atieno Nyambok & 3 others [2017] KEMC 92 (KLR)

REPUBLIC OF KENYA

IN THE SENIOR PRINCIPAL MAGISTRATE’S  COURT

AT KIMILILI

ELECTION PETITION NO. 2 OF 2017

JUSTINE CHEMTAI..............................................................PLAINTIFF/RESPONDENT

VERSUS

WINNIE ATIENO NYAMBOK...................................1^ST DEFENDANT/RESPONDENT

FEDERAL PARTY OF KENYA  PARTY LEADER...2^ND DEFENDANT/RESPONDENT

INDEPENDENT  ELCTRORAL AND                                                                                

BOUNDARIES COMMISSION...............................3^RD DEFENDANT/RESPONDENT

AND

THE FEDERAL PARTY OF KENYA........................INTERSTED PARTY/APPLICANT

R U L I N G

By a notice of motion dated 30.10.2017 brought under certificate of urgency, the Petitioner hereinafter called the Applicant seeks the following orders;

1. That the court sets aside the notice to withdraw dated 13.10.2017 and consent recorded on 16.10.2017 (sic).
2. That the court grants the applicant leave to furnish security for this petition  out of time.

The application is supported by an affidavit sworn by the applicant.  The gist of the application is  that the applicant  who had earlier indicated through his advocate that she intended to withdraw the petition in a new twist of events is now desirous of prosecuting the petition.  That the applicant has sought further advise from counsels not on record and she has been duly advised  that the court has jurisdiction to determine  the petition  contrary to earlier advice she got to the  contrary.  The applicant contends that the petition is of utmost public interest  as it  involves representation of the people of Bungoma.  That the applicant and the  people of Bungoma will suffer irreparably  should the court decline to grant the orders sought.  The applicant has deponed that the 1^st Respondent was irregularly gazetted to serve as a nominated MCA  in Kakamega county as well. 

The application was placed before  me on the 31.10.2017  and I did certify the same as urgent . I ordered the same be served for inter parties hearing on the 3.11.2017. 

On the morning of 3.11.2017  the applicant and his counsels appeared.  An affidavit of service by one Emmanuel  W. Ouna   indicated that the 1^st  Respondent, interested party and 3^rd respondent‘s advocates were served on the 1.11.2017.  By the time the application was called out on the 3.11.2017  none of the Respondents, the interested party nor their advocates were present. 

The applicant’s counsel prosecuted his application.  Later Mr. Ayieko for the interested party and 1^st Respondent appeared after the matter was already dealt with.  I note  from the record that he later had  a replying affidavit filed by the 1^st Respondent.  From the replying affidavit the 1^st Respondent opposes the application.  She has deponed that the application is incompetent, devoid of merit, frivolous, vexatious and abuse of the court process.  That the court is already functus  officio.  That the application is an afterthought as it’s main  reasons the petition  was withdrawn was because the petitioner had not complied with  provisions of section 74 of the Elections  Act (sic). 

That the court lacks jurisdiction to set aside  consent  order recorded on the 30.10 2017 (sic).  That the application is made in bad faith ad only intended to frustrate the party (sic). 

The 1^st Respondent further deponed that the petitioner has not come to court with clean hands and that she fraudulently forged documents to fulfill her selfish interest.  That  the nomination of the 1^st Respondent was done in accordance with the provisions of the constitution and all requisite provisions of the law. 

I have carefully considered the Notice of motion dated 30.10.2017.  From the record, it is important   to clarify  that no consent was recorded on the 16.10.2017 or 30.10.2017 as alleged by the 1^st Respondent. On the 16.10.2017, the petitioner’s advocate applied orally to have the petition withdrawn .  The counsels for the interested party and 1^st  Respondent on one hand and counsel for the 3^rd Respondent on the other hand  did not object to the oral application to withdraw.

I reserved a ruling for 19.10.2017.  In my considered ruling delivered on the said date,  I disallowed the oral application to withdraw the petition and directed the petitioner to make a formal  application if she intended  to withdraw   within 5 days from the 19.10.2017.  The reasons   for the decision are clearly spelt out in the ruling. 

In a strange turn  of events the applicant/petitioner has abandoned her quest  to withdraw the petition.  This court  has no jurisdiction to force a party to withdraw her /his petition. I can only deal with the petition based on the law   and rules governing petitions.  It is therefore my finding that  no orders were made on the 16.10.2017 or on the 30.10.2017  and so there is none to be set aside.

The only issue for determination is whether  this court can grant leave to the applicant/ petitioner to furnish security out of time. 

Rule 11 (1)  of the Elections (Parliamentary and County  ) Petition Rules 2017  requires that a petitioner shall deposit  security for payment of costs that may become payable to the petitioner.  The deposit should be made within 10 days of the filing of a petition.  The deposit for security ought to have been made by 17.9.2017.  The petitioner is seeking   to  deposit security over 53 days after filing her petition.

Section 78 of the Elections Act  provides  that a petitioner shall deposit security  of payment of costs that may become payable by the  petitioner not more than 10 days after presentation of petition. 

A person who presents a petition in challenge of an election shall deposit one hundred  thousand shillings in the case of petition against a member of a county assembly. 

The question is, does the court have jurisdiction to extend time within which to furnish security?

In the case of Fatuma Zainabu  Mohammed   and Ghati Dennita & 10 others  (unreported)  , Murithi Judge in Kisii Election Petition No. 6  of 2013  held,

“ The rules cannot legislate a power of extension of time which is not expressly authorized  under the relevant sections of the statute by the authority of which the rules were made.  There is no express provision under the Election Act 2011 for the enlargement of time to deposit the security for costs.  Accordingly the power to extend time cannot be authorized by the general power under Rule 20(read rule 21) of the Elections Rules to extend time for the doing of any act under the Rules.”  Even with amendments to the Elections Act, there is no provision for the enlargement of time to deposit security.
The decision in the Zainabu Mohamed case ( supra)  was quoted  with approval  by  justice  Sitati R. N.  in the case of Evans  Nyambane  Zedekiah  & another  -vs-  IEBC  and 2 others   Kisii  High Court Election  Petition No. 10 of 2013.  The decision in the 2 cases   are binding on this court.  The upshot of my finding is that the Elections Act does not give power  to the court to extend the time for  making of the deposit.  On this ground  alone, I find that the application must fail and it  is so dismissed. 

However, even if the court had jurisdiction, in the  case of Nicholas Kiptoo Arap Salat  -vs  IEBC  & 7 others,  ( the supreme court civil application No. 10 of 2014  )  the supreme court set the guiding   principles  that a court should consider in exercise of discretion for determination of application for extension of time.  They include;

1. Whether there is  reason for the delay.
2. Whether there will be prejudice suffered by the Respondents if the extension is granted.
3. Whether the application has been brought without undue delay.
4. Whether public interest should be a consideration for extension of time.

Extension of time is not a right of a party. It is an equitable remedy that is only  available  to a deserving party at the discretion  of court.  A party who seeks   extension time has the burden of laying a basis  to the satisfaction  of court. Of course every case has to be considered on the basis of its own  remit. 

The applicant filed the petition on the 6.9.2017. On the 6.10.2017   the applicant appointed her advocate who is still on record.  Even if we were to take into account the fact that the petition was filed by the   applicant    in person, there is no explanation why the advocate never moved the court to seek extension of time to furnish  security.  The parties appeared in court on the 11.10.2017   and agreed  on a date to argue the preliminary issues raised.  The applicant never took cue  from the intended preliminary  issues raised to seek extension  of time.  Instead the applicant sought to orally withdraw the petition. When directed to file a formal application, she brought the current application.  The applicant has a  flippant attitude  and this application appear more of an afterthought . She has failed to satisfactorily  explain the delay and/or that she deserves a discretionary remedy from court. In the entire circumstances of this case, I find that even if the court had jurisdiction, the application fails the  merit  tests. As already indicated herein above  it is disallowed.

DATED AT KIMILILI  THIS 7^TH DAY OF NOVEMBER, 2017

D.O. ONYANGO,

SENIOR PRINCIPAL MAGISTRATE,

7.11.2017