Winning election petition no easy task

By Beauttah Omanga

Almost one year after the General Election, some election petitioners are still hoping to make it to the august House.

A record 40 petitions were filed against declared winners.

Despite an assurance by Chief Justice Evan Gicheru in July that courts would speed up the petition cases, few have been concluded.

Justice Gicheru had asked judges to clear the cases expeditiously.

"It is not good for an election case to go on until Kenyans go to another election. Justice needs to be done so that people know their fate and decide the next step," he said.

So far, only two cases have been dealt with exhaustively — that of former Bomachoge MP Zephaniah Nyangwara who won against Joel Onyancha and former Naivasha MP Jayne Kihara, who lost her petition against John Mututho.

Technicality

In most cases, election petition cases are struck out on technicality.

On Wednesday, the High Court threw out a case filed by Lang’ata parliamentary loser Stanley Livondo.

Livondo (PNU) had moved to court to contest Prime Minister Raila Odinga’s victory. The court ruled that he had failed to serve Raila as required by law.

At the start of the hearings in April, most MPs with petition cases against them got a reprieve as courts knocked out petitions on technical grounds. However, some lost bids to have cases against them struck out.

Some MPs claimed they had been served irregularly and wanted the courts to save them the agony of a full hearing.

Many raise preliminary objections to seek adjournment.

For instance, a lawyer may argue the client’s life is in danger and hence cannot appear in court to testify.

Leeway

A court, as is the tradition, will grant leeway sought and set another hearing date.

However, what is most striking is the perennial aborting of election petition cases. Some cite lawyer incompetence for this.

LSK vice chairman James Mwanu says advocates are not entirely to blame for the technicalities that lead to petitions failure.

"In most cases, petitioners hire advocates when it’s too late. Due to time constraints, an advocate can miss out key aspects of the suit and when the case comes before a judge, it is dismissed," he says.

He says the law permits a petitioner to sue an advocate for incompetence.

"But proving such a case against an advocate is, honestly, a tall order. Proving incompetence on the part of a learned friend is no joke," adds Mwamu.

Nairobi based lawyer Cecil Miller notes courts cannot on their own punish an advocate, even if they sense incompetency unless an aggrieved party seeks their intervention.

"The work of a judge is to deal with the case and a matter at hand. A judge can dismiss a case on any technicality, including an omission by an advocate. But if a petitioner feels let down by the advocate, just like it happens in the medical profession, a client can sue and seek interpretation by the court," says Miller.

Former MP Paul Muite says both the courts and some lawyers are to blame for the high number of cases being dismissed on technicalities.

Muite blames courts for failing to properly interpret some sections of the electoral laws.

"Some of the judges are purely mechanical. They fail to interpret properly the objectives of the very petition laws they use to deal with electoral matters," he explains.

He says judges have powers to penalise lawyers who fail to draw suits as expected.Muite says the law requiring personal service is an impediment to justice sought by petitioners.

"It is high time Cabinet ministers are served through the Attorney General and in the case of MPs, such service can be done through notices," he says.

He argues the 28-day period after election in which a petitioner is allowed to move to court is too short although it is meant to ensure quick action for the aggrieved party.

Miller says advocates, in most cases, are not given adequate briefing by their clients while drawing the suit and cannot entirely be blamed.

"Clients, in a rush to beat a deadline, forget some vital documents which must also be filed in court alongside the main suit.

"In such incidences, advocates cannot pay costs since they are not parties to the suits but merely representatives of the parties," says Miller.

Some judges admit that many petitioners have strong cases that stand high chances of succeeding if they go for full hearing.

A case in point is that of Kirinyaga Central’s Daniel Karaba who sought to overturn the election of John Ngata Kariuki as area MP. The case was knocked out on technicalities.

Lady Justice Mary Kasango struck out the petition on the grounds that Ngata Kariuki had not been personally served with petition papers as required by law.

Electoral laws

Before 1999, electoral laws allowed serving election petition papers personally or in other ways. These other ways could include advertisement, registered post or pinning of documents on doorsteps.

But in 1999, a Court of Appeal verdict over Kibaki’s petition against former President Moi’s election in the 1997 General Election changed things.

A five-judge bench dismissed the petition on the grounds that Moi was not served in person within 28 days after publication of the parliamentary election results.

Consequently, the ruling that bastardised Kibaki’s case before full hearing means MPs whose elections have been disputed can get away with it by simply "disappearing" on learning someone is about to serve them with petition papers.

Interestingly, the same Court of Appeal, in September 2005, dismissed the 1999 verdict as one arrived at erroneously and that the bench then had acted in ignorance.

Seven appellate judges, Riaga Omolo, Philip Tunoi, Erastus Githinji, Emmanuel Okubasu, Onyango Otieno, William Deverell and Philip Waki ruled that the 1999 decision did not rule out alternative modes of service.

And yet, they declined to revisit and overturn the earlier verdict that denied Kibaki the chance to get a full hearing.

Even after Parliament amended the electoral laws via an amendment to the National Assembly and Presidential Election Act in 2007, re-introducing substituted service in the event of problems with personal service, the courts interpretation has been that the new law is meant to be applied only after a petitioner first tries personal service and fails.

And the petitioner’s failed efforts must be proved.

Shoddy work

Besides, there are other strange technicalities traceable to shoddy work by lawyers.

On July 2005, Mr Justice Muga Apondi, sitting in Nakuru, dismissed a petition by Kanu’s Luka Kigen challenging the election of Narc’s Alicen Chelaite as Rongai MP.

The judge cited a mix up in Chelaite’s names on the petition documents.

According to the ruling, Chelaite’s actual names should have been documented as Alicen Jematia Ronoh Chelaite and not Chelaite Alicen Ronoh as had been presented.

Other omissions cited were that Kigen had failed to state when the election was held and the results.