Ambiguous law? Same scenario, varied rulings

By Wahome Thuku

Kenya: Following the March 4, General Election, two petitions were filed at the Malindi High Court, challenging the outcome of the elections in Lamu County.

One of the petitions was filed by a voter, Mr Aboub Ali, challenging the outcome of Lamu East parliamentary elections. Aboub asked the court to order a recount and examination of the parliamentary votes cast and then determine which candidate was validly elected.

According to the Independent Electoral and Boundaries Commission the seat was won by Mr Sharif Athman Ali.

Aboub named IEBC as the first respondent and Returning Officer Adhan Nuri Berhe as the second respondent. He did not name the MP as a respondent saying he did not have any complaint against him or any candidate. The case went before Justice Luka Kimaru.

On May 16, the MP applied to be enjoined in the petition. He was allowed in as the third respondent with no objection. He then filed an application to have the petition struck out on among other grounds that the petitioner had not named him in the first instance as a respondent.

Athman argued through his lawyers, that under Rule 2 of the Election Petition Rules 2013, a successful candidate must be made a party to the petition. Failure to do so rendered the petition incompetent.

IEBC and Berhe supported the application saying it was mandatory for the winner to be enjoined as a party.

The Law as it is

Rule 2 states that “respondent” means (a) the person whose election is complained of, (b) the returning officer, (c) the commission and (d) any other person whose conduct is complained of in relation to an election.

Aboub argued Rule 2 only defined who may be a respondent and does not provide that a winning candidate must be one. He said only Rule 9(a) made the IEBC a mandatory respondent in any petition. Rule 9(a) states that; The commission shall be a respondent in an election petition.

The MP maintained there could be no competent petition where the winning candidate is not enjoined as a party.

Justice Kimaru agreed.

First he cited Article 105(1)(a) of the Constitution, which requires the court to determine if a person has been validly elected as MP.

“It is clear from the above article when a court is hearing an election petition, the main issue is the determination of the question whether a person has been validly elected,” said Justice Kimaru.

He held that a successful candidate was a mandatory party in an election petition besides the IEBC. “It is not by accident or coincidence that the said Rules list the person whose election is complained of as the first person who shall be a respondent.”

He went on, “This court is of the considered view that in any election petition the petitioner has no choice but to include the person whose election is complained of as one of the respondents. Such a person is a mandatory respondent. The argument that it’s only IEBC, under Rule 9, which is a mandatory party to a petition does not therefore hold.”

Kimaru said it would have been different if the petitioner had decided to enjoin the Returning Officer.

For that and other reasons he allowed the application by the MP, declared the petition as incurably defective and struck it out. He ordered the petitioner to pay up to Sh600,000 as costs to the IEBC and Berhe and upto Sh200,000 to the MP.

A similar issue arose in the second petition challenging the election of Mohammed Abu Chiaba as Lamu senator. The petition was filed by one of the candidates Hassan Abdalla Albeity seeking scrutiny, recount of senatorial votes cast in Lamu, a declaration that Chaiba had not been duly elected and an order that he was the duly elected senator having garnered the largest number of votes.

This time the petitioner named Chiaba as the first respondent and the IEBC as the second respondent.

The two respondents filed separate applications to have the petition struck out. Among other grounds Chiaba argued Albeity had failed to comply with Rule 2 by failing to enjoin the County Returning Officer as a respondent.

He argued the Rule made Returning Officers necessary and mandatory respondents in election petitions.

Chiaba argued that the petitioner had adversely mentioned the Returning Officer, presiding officers and their deputies without enjoining them as parties in the petition. Failure to enjoin the Returning Officer as a respondent invalidated the petition.

Fair trial

He submitted that Rule 2 read together with Rule 9 made the winner, the IEBC and the Returning Officer mandatory parties.

Chaiba claimed he would not be accorded fair trial if he was not given a chance to examine the mentioned persons. IEBC supported the argument.

Albeity’s lawyers argued that Rule 2 did not provide a list of the mandatory respondents but only defined the term “respondent”.

Failure to enjoin the Returning Officer did not make the petition incompetent as it was only the IEBC which had to be a mandatory respondent in any petition.

He fell back to the Aboub case.

“If the petitioner was to enjoin returning officers, presiding officers, county returning officers and polling clerks there would be about 500 respondents in the petition,” the lawyer submitted.

Presiding judge, Lady Justice Cecilia Githua held that Rule 2 did not set out a list of mandatory respondents in a petition.

Point of departure

“A cumulative reading of the two Rules (2 and 9) leaves no doubt that the intention of the drafter was to make the IEBC a necessary and mandatory respondent in election petitions,” she reasoned. “My take is that Rule 2 gives petitioners leeway to choose who among the persons listed in the Rule should be enjoined as a respondent in their petitions depending on the complaint and grounds relied upon to challenge the election outcome.”

In a clear departure from Justice Kimaru’s position, Githua said, “Rule 9(a) makes it clear it is only the IEBC who is a compulsory respondent in every election petition.”

The judges then dealt in detail with other grounds for seeking to have the petition struck out.

She ruled that the applications had no merit and dismissed them with costs to the petitioner.

That meant that Albeity’s petition had to continue, and indeed, it’s still being heard.