MIXED FORTUNES FOR MPs FACING ELECTION PETITIONS

By Michael Murungi

July 2008

John Michael Mutotho v Jayne Njeri Kihara & 2 others [2008] eKLR

Joel Omagwa Onyancha v Simon Nyaundi Ogari & another [2008] eKLR

Court of Appeal at Nairobi

June 6 & June 11 2008

It has been a month of mixed fortunes for the few sitting MPs against whom election petitions have been filed. While the petitions against Magarini MP Amason Kingi Jeffah and his Kitui West counterpart Charles Mutisia Namai have been dismissed, two other MPs have failed in their bids to block the continuation of the hearing of the petitions filed against them. Naivasha MP Hon. John M. Mututho and his Bamachoge counterpart, Hon. Joel Onyancha have lost their separate applications asking the Court of Appeal to temporarily halt the hearing of their petitions pending the hearing of the appeals they filed against certain decisions made by their respective election courts.

The petition against against Hon. Mutotho was filed in the High Court in Nakuru in February by former MP. Jayne Kihara. Hon. Mututho had asked the Court of Appeal to temporarily order Lady Justice Martha Koome to halt the hearing of his election petition while he appealed against a decision made by the Judge. The decision against which Hon. Muthoto intended to file an appeal was a refusal to strike out the petition on the ground that Mrs. Kihara had failed to comply with a provision of law requiring that the results of the election should be expressly stated in the petition. Justice Koome had found no merit in Hon. Mutotho’s application and dismissed it before giving fresh dates for the continued hearing of the petition. Hon. Mutotho then hurriedly lodged a notice of appeal in the Court of Appeal and an application asking that the hearing of the petition should stop while the appeal was being determined.

Hon. Onyancha, on the other hand, has been defending himself against an election petition filed in the High Court at Kisii by two petitioners, Simon Ogari and Zephania Nyagwara. Early in February this year, Hon. Onyancha had filed an application asking the presiding judge, Justice Daniel K. Musinga, to dismiss the petition because it had not been personally served on him as required by law. The judge had considered the application and in a ruling delivered on March 13, dismissed it after coming to the conclusion that the petition had been properly served. Hon. Onyancha intended to appeal against that decision and before he could do that, he asked the Court of Appeal to stay the proceedings in the High Court pending the hearing and determination of the intended appeal.

Ordinarily, in an application for stay of proceedings pending appeal, a long line of previously decided cases have established that the person making the application should satisfy the court on two matters. Firstly, that on the face of it, the intended appeal was an arguable one and not frivolous, and secondly, that if the proceedings in the High Court were not halted, he would be so prejudiced that even if his appeal was to succeed, the victory would be without meaning – i.e. the success of the appeal would be rendered nugatory.

The Court of Appeal, which was comprised of Appeal Judges R.S.C Omolo, P.K. Tunoi & J.W. Onyango Otieno, did not find any merit in Hon. Muthotho’s application. Even if it was to assume that he had an arguable appeal, the Court observed, there were no special factors showing that the success of the appeal would be rendered nugatory if the hearing of the petition was to continue.

A differently constituted bench of the Court later expressed similar sentiments in dismissing Hon. Onyancha’s application. Appeal Judges P.K. Tunoi, E.O. O’Kubasu and E.M. Githinji observed that even if the appeal was to succeed while the petition proceeded, it would only render the proceedings in the High Court unnecessary and an appropriate order for the payment of litigation costs would be made to appease the aggrieved party. Moreover, the Court felt that to allow Hon. Onyancha’s application would defeat the principle that election petitions should be decided expeditiously.

Esposito Franco v Amason Jeffah Kingi [2008] eKLR

High Court at Malindi (Justice N.R.O. Ombija)

July 10, 2008

Francis Mwanzia Nyenze v Charles Mutisya Nyamai [2008]eKLR

High Court at Machakos (JusticeI. Lenaola)

June 9, 2008

It was a sigh of relief for Hon. Kingi Jeffah and Hon. Charles Nyamai after the petitions against them were dismissed, though the petitioners may choose to exercise their right of appeal. The petition against Hon. Kingi was filed in the High Court at Malindi by Esposito Franco who alleged that the elections for Magarini Constituency had not been conducted in accordance with the law as they were marred by violence and disruptions of the vote counting process. However, Hon. Kingi had filed an application asking Justice N.R. Ombija to dismiss the petition on the ground that the petitioner had not deposited Kshs. 250,000 in court as security and that he had not served the petition within 28 days from the date of publication of the election results as required by law. The results had been published in a Kenya Gazette Notice dated December 30, 2007 and as the court found, this meant that the petition should have been served by January 27, 2008. Instead, the petitioner had only served the petition on Hon. Kingi on February 1, 2008 which was out of the time prescribed by law. On that account and also owing to the petitioner’s failure to deposit the money in court, Hon. Kingi’s application was allowed and the petition against him was dismissed.

In Hon. Onyancha’s case, Justice I. Lenaola sitting at Machakos ruled that the petitioner, Francis Mwanzia Nyenze, had failed to exercise due diligence in ensuring that the petition had been personally served on the MP. Though the Judge agreed that a petitioner may resort to other forms of serving the petition such as through an advertisement in a newspaper, this should only be done after all reasonable efforts to personally serve it on the respondent have failed as in the case of a respondent who evades service by going into hiding. Similarly, the petition was struck out with an order that the petitioner should pay the costs to the respondents.