REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA AT NAIROBI
(Coram: Maraga, CJ and P, Mwilu, DCJ and V-P, Ibrahim, Ojwang, Wanjala, Njoki and Lenaola, SCJJ)
PRESIDENTIAL PETITION NO. 1 OF 2017
BETWEEN
1. RAILA AMOLO ODINGA.........................................1ST PETITIONER
2. STEPHEN KALONZO MUSYOKA...........................2ND PETITIONER
AND
1. INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION............................1ST RESPONDENT
2. CHAIRPERSON, INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION......................2ND RESPONDENT
3. H.E UHURU MUIGAI KENYATTA....................3RD RESPONDENT
(Being an application under Rule 17 of the Supreme Court (Presidential Election Petition) Rules, 2017 and all other enabling provisions of the law)
RULING
[1] This is an application by way of Notice of Motion dated 26th August, 2017, seeking to strike out and/or expunge from the Court record documents filed by the 1st, 2nd and 3rd respondents, which were not served upon counsel for the petitioner. The documents sought to be expunged from the record are:
(a) The 3rd respondent’s response to the petition dated 24th August, 2017;
(b) Volume 1 and 2 of the analyses of Winnie Guchu dated 24th August, 2017;
(c) Volumes 1 and 2 of the affidavit of Mr. Davis K. Chirchir sworn on 24th August, 2017;
(d) The affidavits of Mr. Davis K. Chirchir sworn on 24th August, 2017 in reply to Mr. Godfrey Osotsi’s Affidavits 1 and 2 and the affidavit of Mr. George Kegoro;
(e) The affidavit of Winnie Waceke Guchu dated 24th August, 2017 in reply to the ffidavits of the 1st Petitioner, Dr, Nyangasi Oduwo and Olga Karani;
(f) The affidavits of Mary Karen Sorobit dated 24th August, 2017 in response to the affidavits of Mohamed Noor Barre, Moses Wamuru;
(g) Benson Wasonga and Ibrahim Muhamud Ibrahim;
(h) The affidavit of H.E. Uhuru Muigai Kenyatta dated 24th August, 2017;
(i) The affidavits of Brian Gichana Omwenga dated 24th August, 2017; in reply to the affidavits of Koitamett Ole Kina and Aprielle Oichoi
(j) The affidavit of Dr. Karanja Kibicho dated 24th August, 2017;
(k) The affidavit of Andrew Wakahiu dated 24th August, 2017;
(l) Volumes 1 and 2 of the Report of the list of stations where the number of registered voters matches the number of rejected votes by Winnie Guchu Waceke dated 24th August, 2017;
(m) Volumes 1, 2 and 3 of the analysis of the alleged numerical discrepancies in the affidavit of Dr. Nyangasi Oduwo dated 24th August, 2017;
(n) The affidavit of Brian Gichana Omwenga dated 24th August, 2017;
(o) A volume ‘2’ of the analysis of form 34B;
(p)A list of documents for service;
(q) A consolidated analysis of alleged numerical discrepancies in the affidavit of Dr. Nyangasi Oduwo;
(r) Volumes 1 and 2 of the 1st and 2nd respondent’s responses to the petition;
(s) The Kenya Gazette Special Issue Vol. CXIX-No. 86;
(t) Exhibit WWC-4(c);
(u) Volumes 1, 2 and 3 of IEBC Forms 34B.
[2] The ground upon which the application is based is that; the documents in question were served out of time contrary to Regulation 11(1) of the Supreme Court (Presidential Election) Regulations which provides that:
“Upon service of a petition under Rule10, a respondent who wishes to oppose the petition may within four days of service of the petition file and serve a response which shall...”
[3] It is the applicant’s argument that time is of the essence in a Presidential Election Petition and that the delay in serving the said affidavits, annexures and responses prejudiced the petitioners’ right to adequately consider and reply to the issues raised. To support his argument, the applicant relies upon this Court’s Judgment in Raila Odinga and 5 Others v. Independent Electoral & Boundaries Commission and 7 Others, Election Petition No. 5 of 2013.
[4] Mr. Awele, Counsel for the applicant submitted that, in addition, the respondents have failed to seek leave to file and serve the impugned responses and affidavit out of time.
[5] In response to the submission that the petitioner’s advocate’s office was closed, counsel submitted that the respondent ought to have made prior arrangements to ensure that the office remained open. The applicant urges the Court to allow this application.
[6] Mr. Nyamodi, counsel for the 1st and 2nd respondent relied upon the sworn affidavit of Moses Kipkogei a legal officer with the 1st respondent who stated that; he accompanied the process server to the offices of Murumba and Awele Advocates and on arrival at approximately 11.45pm they found the office closed. Consequently, service was effected the next day. He submitted that the petitioners’ advocate ought to have availed himself for purposes of accepting service on the night of 24th August 2017 in the same way the Court had gone out of its way to indulge all the parties as they filed their documents. In addition, Counsel for the 1st respondent also went out of his way to accept service at night when the petition was filed. Counsel submitted that the Raila case, was not applicable to the facts that gave rise to the present application.
[7] Mr. Nyamodi urged the Court to find that the delay of service was beyond his fault and dismiss the application.
[8] Mr. Ngatia Counsel for the 3rd Respondent submitted that no prejudice was suffered by the petitioners as the delay was only a few hours.
[9] He urged the Court to consider the peculiar circumstances around this case and excuse the delay in serving. He relies upon this Court’s ruling in the case of Raila Odinga and 5 Others v. Independent Electoral and Boundaries Commission and 7 Others, Election Petition No. 5 of 2013 and the reasoning in Nicholas Kiptoo Arap Korir Salat v. Independent Eectoral and Boundaries Commission and 7 Others, (2014) eKLR.
[10] We have considered the application, the affidavit in support thereof, and submissions of counsel. The nature of this application is such that were it to be granted, it would dispose of the entire case of the 1st, 2nd and 3rd respondents at this preliminary stage. Such a drastic consequence in our view cannot be justified if the scales of justice are weighed in favour of all the parties to this petition. For the same reasons we have dismissed applications dated 25th August, 2017 by the 3rd respondent and 26th August, 2017 by the 1st respondent this particular application must suffer a similar fate.
ORDERS:
(i) The Notice of Motion dated 26th August, 2017, is hereby dismissed.
(ii) Costs to abide the Cause.
DATED and DELIVERED at NAIROBI this 27th Day of August, 2017.
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D. K. MARAGA P. M. MWILU
CHIEF JUSTICE and PRESIDENT DEPUTY CHIEF JUSTICE and
OF THE SUPREME COURT VICE-PRESIDENT OF
THE SUPREME COURT
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M. K. IBRAHIM J. B. OJWANG
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
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S. C. WANJALA N. S. NDUNGU
JUSTICE OF THE SUPREME COURT JUSTICE OF THE SUPREME COURT
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I. LENAOLA
JUSTICE OF THE SUPREME COURT
I certify that this is a true copy
of the original
REGISTRAR
SUPREME COURT OF KENYA