Paul Odhiambo Okello v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 59 (KLR)

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT BUSIA

ELECTION PETITION NO. 7 OF 2017

PAUL ODHIAMBO OKELLO................................................PETITIONER

=VERSUS=

1. INDEPENDENT ELECTORAL AND                                                        

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

2. ROSELYNE A ONYANGO......................................2^ND RESPONDENT

3. OUMA MOSES PIUS............................................3^RD RESPONDENT

R U L I N G.

This is a ruling in respect of the Petitioner’s Application dated 7^th December, 2017 and the 3^rd Respondents application dated 13^th November, 2017.

The Petitioners application is seeking for the following orders:-

i. That the petitioner’s application be heard together with the 3^rd Respondents application seeking for orders for the cross-examination of the petitioners process server Stephen Otagel Ofula.

ii. That  the court do find that the Affidavits dated  26/9/2017 by  Owiti C. Ochieng and that  of Ouma Moses Pius dated 19/9/2017 be struck out as being evidence  of perjury.

iii. That the  two deponents be summoned to court for cross-examination  of their  contents  of their affidavit.

iv. The court  to strike out the Respondents  Reply to  the Petition and order that the petition proceed uncontested.

The 3^rd Respondents Notice of Motion dated 13/11/2017 seeks  for orders  that;

I. The Petitioner  failed to comply with the mandatory  provision of section 77(2)  of the Elections Act 2011 and Rules  10 and 12 (13)  (4)  and a of the Election. (Parliamentary and County  elections) Petition  Rules 2017 as pertain, to form and service of Election Petitions.

II. The Petition in its entirely be striking out on the grounds that service thereof and the form of the Petition is unprocedural, irregular, Incompetent and fatally defective respectively.

III. The costs of this Application and the entire proceedings be awarded to the Respondent.

Both applications are supported by  the grounds on the face of the Application and the supporting affidavit of Paul Odhiambo Okello, the petitioner and Ouma Moses Pius the 3^rd Respondent respectively. 

In response to the 3^rd Respondents application the petitioner filed grounds of opposition dated 19^th November, 2017 and Replying affidavit  dated 20^th December, 2017. The 1^st and 2^nd Respondents also filed a Replying Affidavit  to the Petitioners Application and Replying Affidavit dated 20^th December, 2017 and a supporting Affidavit  dated in respect of the 3^rd Respondents application.  The third  Respondent also filed a Replying Affidavit in response  to the Petitioners  application.

The parties  thereafter filed their submissions. The Petitioners filed his submissions and aver that  Section.159 2(d)  of the Constitution emphasized  that technical issues cannot override the substance of a case and merits thereof and should be heard and that even if the  petition is struck out the Amended Petition will still remain on record. They  also urge the court to find that the Affidavits of Advocates Owiti counsel for the 1^st and 2^nd  Respondents and the Affidavit of the Respondent are couldn’t  admission that they were served with the petition and that they also  sought leave  file their Response. The  1^st and 2^nd Respondents on their part submit that all the documents served  upon them  were signed, stamp and dated  by the 1^st Respondent and that the petitioner was not served and that is why it was never stall signed or dated nor stamped. They admit that they were served with the undated Amended Petition and that the application to cross examine the  deponent is – to distract the court and that failure to serve the petitioner  is dated.  They rely on the – of AYUB J. MWAKESI VS  MAKOMERE CHRITAN AL &  2 OTHERS 2008)EKLR.

The 3^rd Respondent also put in their submissions and aver that they were never served with the original petition but were served with undated Amended  Petition filed on 8^th September, 2017 and they  have indicated in the opening  paragraph of their Response that they were responding to the amended Petition.  They also submit  that upon perusal of the Affidavit  of service and on Cross –examination of the process server, he admitted that  the 3^rd Respondent  accepted documents by signing dated and indicating  the time of 2.30 pm  but was unable to explain  why all documents filed  on 6^th September, which includes   the petitioner does not bear  the date  signed and  time received while those filed on 8^th September , 2017 bear  their signature, date and time. The Respondent received  and that the stamp filed on 0 – 6 includes the petition and the  supporting Affidavit by the petitioner and those filed  on 8^th  are served. The urge the court to find that  upon  failure to serve the original  petition the petitioner violated S.77 of  the Election Act.

They submitted that on the issue of the undated Amended Petition and the documents herein, they were served without leave of the court and are not properly on record and urge the court to dismiss the petition application and to strike out  the  petition  with costs. They attached herein list of allocate in support of their submissions.

The issue to be determined is whether their petition dated 6^th September, 2017 was served upon the Respondents as required by Article 87(a) of the constitution and S.77 (2) of the Election Act and Rules - Having given through evidence of the process server on cross-examination he has not given  a satisfactory answers/explanation on why the petition  was not singed, stamped and dated by the 1^st and 2^nd Respondents.  There  is also no good explanation why the 3^rd Respondent  did not  date, sign  and indicate the time they  were served  it only leads to the  conclusion process server and/ or that the petitioner did not serve  the Respondents with the petition. It is clear from the Respondents. Reply that they were responding to the Amended Petition and not the Petition. The fact that they Respondents filed their Response does not legalize the fact that they were not served and responded can’t stop    them from rating the issue and cannot cure it by responding  to it.

The petitioner rely on the constitution Article 159 (2)  that even if  it was  it was not served , it was a mere technicality  which should not stop the petitioner to be heard and the case  to be heard onand  this case to be determined on merits.  As  stated severally in decided  case. i.e re-election  petition are special jurisdiction and matters and has specific rules on service  and must strictly complied  with this rule, S. 77 (i) . Failure to serve is not  a procedural technicality which can  be cured by that above provisions of the Constitution.

The amended petition is not properly on record as leave was not sought before it was filed as required by the rules.

From the foregoing, I find that the petitioners  Application dated 7^th December, 2017 has not  merit and proceed to dismiss  it. I allow the 3rd Respondents application dated 13^th November, 2017 by finding  that Petitioner  did not  do serve the Respondents with the petition  and is a fatal omission and goes to the root of  the petition.  The petition  dated 6/9/2017 is therefore  struck out with costs to the Respondents.

The amended petition filed without leave is also struck out  with costs  to the Respondents.

WILLIAM K. CHEPSEBA – CM.

23/1/2018.

In the presence of  Makokha for  3^rd petitioner also  holding  brief for Owiti  for the 1^st and 2^nd Respondents.

In the presence of  Mr. Ashioya advocate for Respondents. Petitioner present in person.

W.K. CHEPSEBA  - CM

.23/1/2018.