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DUFFUS, P.
[1] This is an appeal from an interlocutory ruling of the Election Court
sitting as a division of the High Court of Kenya. No point was taken by the
parties as to the jurisdiction of this Court to hear the appeal. We,
however, asked the advocates to address us on this matter. Mr. Slade
appearing for the appellant addressed us at some length and so did Mr.
Potter, Q.C. of the Attorney-General’s Chambers who appeared for the second
respondent, the returning officer. Both advocates agreed that this Court did
have jurisdiction. The election petition is to determine whether Peter
Frederick Kibisu has been validly elected as a member of the National
Assembly.
[2] Section 44 of the Constitution states that the High Court shall have
jurisdiction to hear and determine any question relating to membership of
the National Assembly and declares that such determination shall not be
subject to appeal. The relevant part of section 44 states: ¬
"44.
The High Court shall have jurisdiction to hear and determine any question
whether¬
any person has been validly elected as a member of the National Assembly, or
the seat in the National Assembly of a member thereof has become vacant.
[3] An application to the High Court for the determination of a question
under subsection
(a) of this section may be made by any person who was entitled to vote in
the election to which the application relates or by the Attorney-General.
(3)….
(4)Parliament may make provision with respect to ¬
the circumstances and manner in which, the time within which and the
conditions upon which an application may be made to the High Court for the
determination of a question under this section 9 and
the powers, practice and procedure of the High Court in relation to any such
application.
The determination by the High Court of any question under this section shall
not be subject to appeal."
[4] Mr. Slade stressed that under subsection (5) that it was only the
determination of any question under this section that should not be subject
to appeal and that there are only two questions dealt with in this section
and that is whether under subsection (l) (a) any person has been validly
elected as a member of the National Assembly or whether under subsection (l)
(b) the seat of any member in the Assembly has become vacant. He submitted
that the appeal in this case was only on an interlocutory ruling on a matter
of procedure and that the jurisdiction of this Court to hear this appeal is
that given by the Civil Procedure Code (Cap.5). Section 66 of this Code
provides:¬
"66. Unless otherwise expressly provided in this Ordinance and subject to
such provision as to the furnishing of security as may be prescribed, an
appeal shall lie from the decrees or any part of decrees and from the orders
of the Supreme Court to the Court of Appeal for Eastern Africa."
[5] Then section 75 specifically provides for appeals from orders and states
inter alia:
"75. (1) An appeal shall lie as of right from the following orders, and
shall also lie from any other order with the leave of the court making such
order or of the court to which an appeal would lie if leave were granted..."
[6] The order in this case does not fall within any of those orders
specifically set out in section 75, but the election court which made the
order the subject of this appeal granted the appellant leave to appeal to
this Court. We would also refer to the provisions of the National Assembly
and Presidential Elections Act 1969 (Act 13 of 1969). Section 19 of that Act
provides for the Constitution of an election court as follows: ¬
"19. Every application to the High Court under the Constitution to hear and
determine a question whether:
(a) any person has been validly elected as President
(b) any person has been validly elected as a member of the National Assembly
or
(c) the seat in the National Assembly of a member thereof has become vacant,
shall be made by way of petition, and shall be tried by an election court
consisting of three judges."
[7] Election court is also defined by section 2 as:
¬”’election court' means the High Court in the exercise of the jurisdiction
confer¬red upon it by subsection (1) of section 44 of the Constitution;"
[8] It is clear therefore that the election court is a division of the High
Court consisting of three judges of the High Court and that this petition to
the election court is in fact a petition to the High Court.
[9] We are therefore of the view that this Court has jurisdiction to hear
this appeal by virtue of sections 66 and 75 of the Civil Procedure Act and
that this appeal is not on a question which amounts to a determin8tion of
any question under section 44 of the Constitution of Kenya. We were referred
to various English authorities but with respect those authorities are not of
much assistance as the question of our jurisdiction depends solely on the
interpretation of the relevant section of the Constitution and of the laws
of Kenya and these in our view clearly define our jurisdiction to hear this
appeal.
[10] This appeal may be considered under two heads ¬
(i) The ruling that the Returning Officer was not a party to the petition
and further that he had not been served.
(ii) Whether the Election Court correctly held that the petitioner could not
adduce evidence that would amount to a complaint against the conduct of a
presiding officer or deputy presiding officer.
[11] Part VI of the National Assembly and Presidential Elections Act
provides for the due presentation and hearing of election petitions. Section
20 deals specifically with the presentation and amendment of the petition.
The Election Petition Rules 1961 still apply to National Assembly and
Presidential Election Act. We would first refer to the definition of
"respondent" in rule 2 of the Rules, this states:
"2. In these Rules, unless the context otherwise requires ….'respondent', in
relation to an election petition, means the person whose election or
nomination is complained of, and, if the petition complains of the conduct
of a returning officer, includes that officer."
[12] Mr. Slade first submitted that once the conduct of the returning
officer was complained of he automatically became a respondent and that as
his conduct had been complained of in this petition that he was a respondent
and there is no need for this to have been formally stated in the petition.
[13] Mr. Potter agrees that the returning officer automatically became a
respondent in these circumstances and that there is no provision for him to
be named in the form of the petition set out in these Rules but he submitted
that if the petitioner desired to proceed against the returning officer as
the respondent then he must be served in accordance with the provisions of
Rule 15. Rule 15 provides:-
"15. Notice of the presentation of a petition, accompanied by a copy
thereof, shall, within ten days of the presentation of the petition, be
served by the petitioner on the respondent. Such service may be effected
either by delivering the notice and copy aforesaid to the advocate appointed
by the respondent under rule 10 of these Rules or by posting the same in a
registered letter to the address given under rule 10 of these Rules of such
time that, in the ordinary course of post, the letter would be delivered
within the time above mentioned, or if no advocate has been ap¬pointed, or
no such address given, by a notice published in the Gazette stating that
such petition has been presented, and that a copy of the same may be
obtained by the respondent on application at the office of the Registrar."
[14] In his submission Mr. Slade submitted that Rule 10 and Rule 15 are so
closely bound together that they must be read as one. With respect though,
Rule 10 only applies to persons elected or nominated for election and does
not apply to the returning officer, while Rule 15 specifically deals with
service of the petition on a respondent which must in our view in the
circumstances of this case, include the returning officer.
[15] The returning officer has in this petition had various complaints made
against his conduct both in his own capacity and as being the person
responsible for the conduct of the election. We are of the view therefore
that the returning officer should have been served in accordance with Rule
15 and this means by a notice published in the Gazette. It is agreed that no
notice to this effect was published within the specified time. We are told
that such a notice was published on the 27th February, 1970 which would be
completely out of time. Mr. Slade also suggested that the returning officer
would be automatically represented by the Attorney-General but with respect
we cannot agree.
[16] The Attorney-General is required by section 24 of the National Assembly
and Presidential Elections Act, 1969 and. also by Rule 34 of the Election
Petition Rules, 1961 to attend the trial but this is not for the purpose of
representing the returning officer although he can of course do so as he has
in this case.
[17] We are therefore of the view that the learned judges of the election
court were correct in finding that the returning officer had not been served
as he should have been in accordance with Rule 15. The effect of this is
that the returning officer was not properly brought before the election
court as a party to these proceedings and we are of the view that the
election court were correct in holding that while the petition may proceed,
the parties would not be permitted to raise or pursue any matter that could
be construed as a complaint against the conduct of the returning officer. In
its judgment the election court said: ¬
"In the result we find that a returning officer, as a party to a petition
must necessarily be made a respondent and service on him must be effected in
accordance with Rules 10 and 15 of the Rules. The returning officer in this
case was not made a respondent to the petition and service on the named
respondent was not service on the returning officer. That making the
returning officer a respondent being an amendment to the petition, and the
time for amending the petition having expired before the named respondent
was served the returning officer can neither be said to be a party to the
petition, nor can he now be made a respondent to the petition."
[18] We agree as we have stated that the returning officer was not served
but it is our view that he was automatically a respondent to this petition
having regard to the complaint made against his conduct as returning officer
and in this respect he need not have been specifically named in the petition
so to this extent we agree that the petition need not have been amended but
on the other hand, as we have stated, he must be served as a respondent and
be brought before the court in accordance with the Rule 15 and this was not
done. Mr. Potter has pointed out that no application was made to the
election court for leave to serve the returning officer out of time.
[19] Mr. Slade agrees that no such application was made but states that he
might still ask the election court for leave in the event of this court
upholding the ruling of the election court as to the effect of Rule 15. This
question does not now therefore really arise on this appeal but it would
appear unlikely that the election court would now grant an extension of time
especially having regard to its decision in the Okova Election Petition,
No.3 of 1970, which followed the decision of the Privy Council in similar
circumstances in a case from Malaysia (see Devan Nair v. Yong Kuan Teik
(1967) L.R. 2 A.C. 31). There is then the question as to whether the
election court were correct in ruling that it would not permit th0 parties
to raise any matter that could be construed as a complaint in the conduct of
the returning officer including here the conduct of a presiding officer or
deputy presiding officer.
[20] The answer to this question must depend on the interpretation of our
law and Rules. Both parties however re1ied on English Authorities as having
some persuasive value. Mr. Slade referred especially to the case of Harmon
v. Park and Another (1880-1) 6 Q.B.D. 323 and especially
Lord Selborne, L.C.'s judgment to the effect that the words “complains of
the conduct" must mean an imputation of misconduct of the returning officer
himself.
[21] On the other hand, Mr. Potter referred us to the general statement of
the law in Halsbury's Laws of England (Third Edition) Vol. 14 page 255 where
the author said:
“Where however a parliamentary election petition complains of the conduct of
a returning officer he will, for all the purposes of the Act, except as
regards the admission of respondents in his place, be deemed to be a
respondent. The allegation against the returning officer need not
necessarily be one of willful misconduct, and he may be joined as a
respondent where the acts or omissions or negligence complained of are not
personal but are those of his subordinates.”
[22] The author refers to a number of cases in support of his statement and
refers to the Harmon v. Park case as being against the statement. Here again
the question depends solely on the interpretation of our own law. We would
first refer to the National Assembly and Presidential Elections Act. Section
13 provides for the issue of a writ under the hand of the Speaker of the
National Assembly addressed to the returning officer of each constituency.
Then section 14 enacts that the returning officer shall proceed to hold the
election. Section 14 states:
"14. (1) After a notice has been published in the Gazette under section 12
of this Act, every returning officer shall proceed to hold election
according to the terms of such notice and in accordance with the
Regulations.
After receiving a writ under section 13 of this Act, the returning officer
to whom it is addressed shall proceed to hold the Parliamentary election
according to the terms of the relevant notice published under subsection (3)
of the said section and in accordance with the Regulations."
[23] Then section 2 of the Act defines returning officer as ¬
“‘returning officer' means person appointed under the Regulations for the
purpose of conducting any election under this Act;"
[24] The National Assembly and Presidential Elections Act is the Act under
which Parliamentary elections are held and this Act specifically appoints
and charges the returning officer with the conduct of the election. It is
true that returning officers must have assistance to conduct the elections
and the Parliamentary and Presidential Elections Regulations, 1969 does
provide for such assistance but it is the returning officer whom the law
recognizes and gives the responsibility of conducting the elections.
[25] There is a supervisor of elections who is appointed by the Minister
under section 3 of the Act but he has specific and statutory duties and
these do not include the duty of conducting the election in a constituency.
Regulation 10 provides for the appointment of a. presiding or deputy
presiding officer by the returning officer and the regulations set out the
powers and duties of a presiding officer. It is necessary to consider the
purpose of an election petition and the reasons why the Election Petition
Acts and Rules provide for such a petition.
[26] An election petition has really only two purposes and that is to
either:
(1) Determine whether a person has been validly elected either as the
President or as a member of the National Assembly or
(2) Whether a seat in the National Assembly has become vacant.
[27] In so far as this case is concerned the purpose of this election
petition is to determine whether Mr. Kibisu has been validly elected as the
member of Vihiga constituency.
[28] There is no question here as to the default or personal liability of
the returning officer or of other election officers except in so far as the
election court is charged under section 31 to report to the Speaker whether
any election offences have been proved. The substantive question here in so
far as the returning officer is concerned is whether his conduct of the
election has been properly and legally carried out and this must refer not
only to his own conduct but to the conduct of those election officials
assisting him to carry out the election. It is our view therefore that the
correct interpretation of the words “the conduct of a returning officer” in
the definition of the respondent in Rule 2 of the Election Petition Rules,
1961 must include both his own acts and the: acts of the presiding officer
or deputy presiding officer who are in fact really assisting the returning
offic3r in the conduct of the election in each constituency. We therefore
dismiss this appeal with costs to be paid by the petitioner to both
respondents. |
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