[2017] KEHC 2546 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARISSA

ELECTION PETITION NO. 7 OF 2017

IN THE MATTER OF THE ELECTION ACT, NO. 24 OF 2011 LAWS OF KENYA,

THE ELECTIONS (GENERAL) REGULATIONS MADE THEREUNER AND THE POLITICAL PARTIES ACT NO. 11 OF 2011

AND

IN THE MATTER OF: ELECTION OF MEMBER OF NATIONAL ASSEMBLY, DADAAB CONSTITUENCY

BETWEEN

ABIKHEIR ABDULLAHI DUBOW...........................PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION....................1ST RESPONDENT

ISAACK MUHUMED MOHAMUDRETURNING OFFICER

DADAAB CONSTITUENCY........................2ND RESPONDENT

MOHAMED DAHIR DUALE........................3RD RESPONDENT

RULING

1. The Notice of Motion is dated 6th October 2017 and is brought under Articles 35,81,8 of the Constitution, Section 39, 44 Section 80 (3)(d) Section 82 of the Elections Act No. 24 of 2011, Section 27 Independent Electoral and Boundaries Commission Act No. 9 of 2011 [ Rev.2016]; rules 28 and 29 of the Elections ( Parliamentary and Country Rules Elections) Petitions Rules, 2017 Access to Information Act; the Elections ( Technology) Regulations, 2017 (Legal Notice No. 68); and all other enabling provisions of the Law.

2. The applicant seeks the followings orders;

i. The Court be pleased to issue an order for re-count and scrutiny of the votes received by the candidates at the following polling stations

a. Saretho Primary School

b. Kumahumato Centre

c. Abakile Centre

d. Ahmed- Qalow Dam Abakaile Ward

e. Libahlow Village

f. Alikune Primary School

g. Hamey Borehole

h. Dagahley Centre

i. Malaylay Primary School

j. Borehole 2

k. Madahgesi Wells Damajaley Ward

l. Damajale Primary School

m. Damajale Abak Water Pan

n. Daryoley Dam

o. Borehole 5

p. Lebisigale Centre Labasigale Ward

q. Dertu Village Centre

r. Kabobei Dam Dertu Ward

s. FAF Kalala Dam

t. Harahara Post Office

u. Kadakso Wells Liboi Ward

v. Kulan Primary School

w. Malaylay Centre

x. Daadab Primary School

y.Daydey Primary School Dadaab Ward

z. Ifo Borehole

3. That the 1st Respondent provides the Petitioner/Applicant and the Court with Kenya Integrated Elections Management Systems (KIEMS) report of all the polling station in Dadaab Constituency for Scrutiny as follows;

i. Count of identified voters by each KIEMS Kit used at Dadaab Constituency;

ii. Soft copy of IDs captured in each KIEMS Kit used at Dadaab Constituency and/ or count of voters who voted alpha-numerically

iii. Specific GPRS location of each KIEMS Kit used during the Dadaab Member of Parliament Election for the period between and including 5th August 2017 and 11th August 2017;

iv. Import testing certification in relation to all KIEMS Kits used at Dadaab Constituency;

4. That 1st Respondent be compelled to give access to and supply to the Court and to the Petitioners, certified photocopies for the original forms 35A prepared at and obtained from the Polling Stations and Presiding Officers at Dadaab Constituency.

5. That the 1st Respondent be compelled to give access to and supply to the court certified photocopies of the original forms 35B prepared at and obtained from Dadaab Constituency Tally Centre and the Returning Officer.

6. That the Court grants leave to the Petitioner/ Applicant to file any further or supplementary affidavit as may be necessary arising from the aforesaid information.

7. The application is premised on the grounded stated on the face of the application together with the supporting affidavit of Abdikheir Abdullahi Dubow the applicant.

8. The applicant in his supporting affidavit avers as follows that; he vied for Member of National Assembly Daadab Constituency on the 8th of August 2017. He was returned 2nd with 5977 votes against the 3rd Respondent’s 9515 and subsequently the 1st Respondent declared the 3rd Respondent as the elected Member of Parliament Daadab Constituency vide Gazette Notice No. 8239 published on the 22nd of August 2017. He filed this petition on the 5th day of September 2017. The results published in the Kenya gazette notice no. 8239 was different from the results announced in the constituency tallying centre. The Kenya Gazatte showed the 3rd Respondent garnered 9359 votes contrary to 9515 votes as announced at the Constituency tallying centre. He came across a marked ballot paper in his favour that was stamped rejected, the ballot paper was recovered at Labasigale ward. He received it from a resident of the said ward hence putting to question the security of the voting materials and the election process. It is therefore his plea that the Court grants the orders sought so as to examine the packets of spoilt ballot papers, the packets of counterfoils of used ballot papers the packets of counted ballot papers, the packets of the rejected ballot papers pursuant to Rule 29 of the Elections ( Parliamentary and County Elections) Petitions Rules 2017. The 1st Respondent failed or neglected to display the ballot papers to the agent during counting hence the need to recount. The results declared at polling stations were fundamentally different from those announced at the Constituency tallying centre in several polling stations including the following stations;

a. Saretho Primary School

b. Kumahumato Centre

c. Abakile Centre

d. Ahmed- Qalow Dam Abakaile Ward

e. Libahlow Village

f. Alikune Primary School

g. Hamey Borehole

h. Dagahley Centre

i. Malaylay Primary School

j. Borehole 2

k. Madahgesi Wells Damajaley Ward

l. Damajale Primary School

m. Damajale Abak Water Pan

n. Daryoley Dam

o. Borehole 5

p. Lebisigale Centre Labasigale Ward

q. Dertu Village Centre

r. Kabobei Dam Dertu Ward

s. FAF Kalala Dam

t. Harahara Post Office

u. Kadakso Wells Liboi Ward

v. Kulan Primary School

w. Malaylay Centre

x. Daadab Primary School

y.Daydey Primary School Dadaab Ward

z. Ifo Borehole

9. He believes that the results declared at the polling stations of the aforesaid polling stations were fundamentally different from those announced at the tally centre. That since he was denied copies of the Form 35A and his agents denied the opportunity to verify the entries by signing. He believes that the said forms 35A were altered in favour of the 3rd Respondent. The 1st and 2nd Respondent declared results that were flawed and illegal as they marred with the excess of votes cast in comparison with the registered voters in some polling centres, duplication and double entry of votes in the final tally sheet, the differences in vote cast in forms 35A with those with the final tally sheet, the final omission of the Petitioner’s votes in some polling centre in the final tally sheets contravenes Article 86 of the Constitution. The information and data sought is crucial to demonstrate that the 1st Respondent did not conduct a free, fair, secure, verifiable accountable and transparent election. The Petitioner has no way of securing the information and data that is exclusively in the 1st Respondent’s possession, except through a Court order. That the Court is also vested with discretion under Section 82 (1) of the Election Act to make an order on its own motion for a recount or scrutiny of votes if it considers that such scrutiny or recount is necessary to enable it arrive at a just and fair determination of the petition. That the Election Petitions are inquisitorial in nature hence the power of the Court to grant the orders sought suo motto. The recount and scrutiny will assist the count determining the valid votes cast in favour of each candidate and facilitate the expeditious disposal of this election petition. No prejudice shall be occasioned on the Respondents if the orders are granted.

10. The respondents opposed the petitioner’s application. The 1st and 2nd Respondent filed a replying affidavit sworn by Isaack Muhumed Mohamud the Constituency Returning Officer for Dadaab Constituency. He deponed as follows that; though the applicant has set out the respective polling area/centres he is not specific as to the exact polling station out of the 56 he is praying for scrutiny and recount of votes. That most of the polling areas the applicant is seeking a recount has not been mentioned in the Petition. The order of scrutiny sought is an attempt to expand the scope of the Petition as it is a request that extends beyond what was pleaded in the Petition and the evidence produced by way of the petitioner’s affidavit and is beyond the limited scope of scrutiny orders. That the units referred to are not polling stations but polling centres and a polling centre consists of more than one polling station. The application is a backdoor Petition intended to bring up issues outside the limitation period of filing petitions. Rule 29(4) of the Elections (Parliamentary and County) Petition Rules 2017 is clear that scrutiny is limited to polling stations where the results are disputed. That after the Supreme Court directed the 1st Respondent to conduct fresh Presidential Elections the 1st Respondent secured all the KIEMS kit used in the previous election and commenced the process of reconfiguring the same for the purposes of the fresh presidential elections and the kits have been dispatched throughout the country in readiness for the upcoming presidential poll. The KIEMs Kit is fitted with Secure Digital Card (SD Card) containing the polling station biometric database and the National alphanumerical database (whole country). The SD card contains the polling station voter detail and any other activity that is carried out on the KIEMS kit which does not itself contain any voter data. The data and the information in the SD card can only be accessed through the KIEMS kit. The 1st Respondent is vested with the duty of safe keeping and preservation of all election materials. The form 35A are public documents available and accessible to anyone either on request at the 1st Respondent’s office and also from the public web portal of the 1st Respondent. It’s not for the Respondent to prove the case of the Petitioner. The Petitioner had agents who had at their disposal the declaration forms duly signed by the 1st Respondent’s Presiding Officer and the party/ candidate’s agent who retained copies of the same. The Form 35B requested for has been availed and that the authenticity of the same is for the hearing and ought not be dealt with on an interlocutory basis. The purpose of scrutiny is to investigate whether the allegations of irregularities and breaches of law complained of in the pleadings are valid and not to aid the Petitioner’s search for new grounds not pleaded in the Petition. That similar prayers are sought in the Petition and to allow the same would amount to a preliminary determination of the matter, the application is a fishing exercise and should be dismissed with costs to the 1st Respondent

11. The 3rd Respondent file Grounds of Opposition to the application dated the 6th of October 2017. The grounds are as follows;

i. The Petitioner’s prayer to be supplied with the KIEMS report as well as Forms 35A’s and Form 35B’s is not grounded on any evidence but is a fishing expedition for any evidence, calculated to create an avenue for the Petitioner to expand his case.

ii. The prayer for production of copies of electoral material by the Petitioner is a blanket prayer covering all the polling stations in Dadaab Constituency and fails the requirement that such a prayer should be specific to a polling station in the constituency.

iii. The Petitioner’s supporting affidavit to the application is riddled with generalised allegations not backed by any evidence, the Petitioner has failed to lay any basis for the grant of orders sought and the instant application ought to be dismissed with costs to the 3rd Respondent.

iv. The application is premature as the Petitioner has not laid any basis to warrant the grant of orders of scrutiny and recount of the vote as well as scrutiny of the electronic voter identification system. The Petitioner has not contested any votes as announced in all polling stations and recorded in Forms 35A.

12. The Petitioner/ Applicant filed submissions. On the law the applicant submitted that the jurisdiction to grant the orders sought is pegged on Sections 82 of the Elections Act, Rules 28 and 29 of the Elections (Parliamentary and County Elections) Petition Rules 2017. That at paragraph 11 of the applicant’s supporting affidavit he contends that annexture “AA6” is a ballot paper marked rejected in his a favour was recovered at Labasigale ward that the court needs to examine the packets of rejected ballots papers and the spoilt votes. That scrutiny is not limited from the wording of Rule 29(4). That the court can take judicial notice of the fact that the 2017 elections was conducted electronically and hence the prayers for the provision of the KIEMs kit. That under Article 35 of the Constitution, Section 4 of the Access to Information Act 2016 ( No.13 of 2016), Section 27 of the Independent Elections and Boundaries Commission Act 2011 ( No. 9 of 2011) , the Elections ( Technology ) Regulations, 2017 Regulations 15,16 and 17 provide for the right of the applicant to access the information in custody of the 1st Respondent. That in the Raila Amolo Odinga & another vs IBEC & 2 others [2017] eKLR the Court ordered a scrutiny of the technology and the Court held that “The Access to Information Act, also defines the term ‘information’ to include all records held by a public entity or a private body, regardless of the form in which the information is stored, its source or the date of production”.On the principles of granting recount or scrutiny the applicant relied on the case Gatirau Peter Munya vs. Dickson Mwenda Kithinj & 2 others which was cited with approval in the Raila Amolo Odinga case 2017. In the said case the Court set out the guiding principles with respect to scrutiny and recount of votes in an election. The applicant also relied in the case of Nathif Jama Adama v. Abdikhaim Osman Mohamed & 3 others Petition No.13 of 2014. In the 2 cases the Courts held that scrutiny could be applied for any stage and before the determination of the petition, that the same should be carried out to enable the court arrive at a just and fair determination and that the court has to have sufficient reasons in the context of the pleadings or evidence or both and that if scrutiny is ordered it has to be conducted in specific polling stations in which the results are disputed or where the validity of the vote is called into question in term of Rule 33 (4) of the Rules. It was further submitted that election petitions are inquisitorial in nature and the court should inquire and examined the allegations as pleaded in the petition. The Petitioner referred to the Indian Case of Arikala Narasa Reddy V. Venkata Ram Reddy Reddygari & Anr the Supreme Court held that;

“ Before the court permits the recounting, the following conditions must be satisfied;

i.The court must be satisfied that a prima facie case is established;

ii.The material facts and full particulars have been pleaded stating the irregularities in counting of votes;

iii.A roving and fishing inquiry should not be directed by way of an order to re-count the votes;

iv.An opportunity should be given to file objection; and

v.Secrecy of the ballot should be guarded.”

13. It was further submitted that since the applicant contents that result declared at the polling stations were fundamentally different from those announced at the tallying centre and he was denied copies of form 35A hence he deserves the order for scrutiny though acknowledging that the right to scrutiny and recount does not rely as a matter of course. The applicant also relied on the Judicial Bench Book on Election Dispute Resolution at paragraph 4. 6.5. 6 provides;

“ an order for scrutiny or recount will usually be made where there are several errors, alterations and/or omissions on forms 35 and 36 (now forms 35A and 35b of the Elections (General) Regulations, 2012) (Richard Kalembe Ndile & another V. Patrick Musimba Mweu & 2 others, Election Petitions (Machakos) Nos. 1 and 7 of 2013).That forms 35A were altered owing to the alterations the applicants agents were denied copies of the same and therefore an order of recount and scrutiny will assist the court to investigate the allegations of irregularities and breaches of the law complained of are valid and also in determining the valid votes cast in favour of each candidate.

14. The 1st and 2nd Respondents submitted as follows; that the statutory and underpinning for scrutiny is found in section 82 of the Elections Act and Rules 28 and 29 of the Election (Parliamentary and County Elections) Petitions Rules sets out the limits of scrutiny. That Section 82(2) of the elections Act provides that where the votes at the trial of an election petition are scrutinised only the following votes shall be struck off

i. The vote of a person whose name was not on the register or list of voters assigned to the polling station at which the vote was recorded or who had not been authorized to vote at that station;

ii. The vote of a person whose vote was procured by bribery, treating or undue influence;

iii. The vote of a person committed or procured the commission of personation at the election;

iv. The vote of person proved to have voted in more than one constituency;

v. the vote of a person, who by reason of conviction for an election offence or by reason of the report of the report of the election court, was disqualified from voting at the election; or

vi. the vote cast for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification, or after sufficient public notice of the disqualification or when the facts causing it were notorious.

15. That from the petition no reference has been made by the petitioner to the circumstances of Section 82(2), which would then warrant an order for scrutiny in the circumstances. The Respondent relied on the case of Kakuta Hamisi v Peris Tobiko & 2 others [2013] eKLRwhere Justice Kimondo held that the court is better suited to make the order after receiving evidence at the trial and in the case of Hassan Ali Joho Vs Hotham Nyange & Anania Mwasambu Mwaboza, the court held that as a general rule, scrutiny is appropriate where the margin of votes between candidates is very low. That the court is at liberty to order full or limited scrutiny. That the order is directed largely by the evidence and circumstances of each case. Reliance was also made in the Gatirau Peter Munya (supra) on the guiding principles guiding scrutiny and Section 82 of the Elections Act and Rule 33 of the Elections Petitions Rules. It was submitted that in exercising its discretion to order for a recount or scrutiny of votes the court should have sufficient reasons in the context of the pleadings or the evidence or both and that the right to scrutiny and recount does not lie as a matter of course. That where a party makes an order for scrutiny or recount of votes such scrutiny or recount if granted it is to be conducted in specific polling stations in respect of which the results are disputed, or where the validity of the vote is called into question in the terms of Rule 33 (4) of the Election (Parliamentary and County Election )Petition Rules. That Rule 29(2) provides that an election court may, if it is satisfied that there is sufficient reason , order for scrutiny or recount of votes. The Respondent relied on in the case of Nathif Jama Adam V Abdikhaim Osman Mohamed & 3 others [2014] eKLR where the Supreme Court held that;

“it emerges that, the primary considerations in determining whether to grant scrutiny, are whether there are polling stations with a dispute as to the election results; whether such a state of affairs has been pleaded in the petition; and whether a sufficient basis has been laid- to warrant the grant of the application for scrutiny. [76] we agree with the Court of Appeal, that the learned trial judge was in error in holding that an order for scrutiny cannot be granted where it is not pleaded. But it is crucial that the polling stations which are the subject of a possible scrutiny would have been already signalled in the pleadings, as having contested results. This is the import of the wording of Rule 33 (1) of the Elections Petition Rules that an application for scrutiny can be applied for at any stage. A foreshadowing of such an application should have been embodied in the main lines of pleading, which mark out the terrain of any legitimate electoral contest.”

16. The 1st and 2nd Respondents submitted that the applicant had not pleaded the polling stations where the results were contested no sufficient basis have been laid for a grant of scrutiny, the Petitioner marshalled enough evidence in support of his application. That the court should be cautious to prevent the applicant from venturing into a game of lottery. That it is evidence that the petitioner has not produced any declaration forms showing the disparity of valid vote counts across the election that they intend to challenge. In any event, the burden of proof must not be allowed to shift from the party who alleges an assertion. The applicant cannot be allowed to rely on forms that he has not produced before court for how then will the court be reasonably expected to make a determination on what has not been put before it. That the Applicant has not made any grounds for compelling the 1st Respondent to produce the declarations forms used in the subject elections. Those result are not in dispute in this petition. That the applicant has not set out clear grounds for the orders sought on the KIEMS kit of the 1st Respondent, as he has not demonstrated the nexus and relevance of the order with/to the Petition and therefore irrelevant to the determination of the same.

17. At the hearing of this application the applicant reiterated what is in their affidavit and submissions. The applicant submitted that the 1st and 2nd respondents responds to the application has misapprehensions as they are not asking for the KIEMS kit but information from the KIEMS kit. That the grounds of the 3rd respondent does not seriously oppose the application. That they are not seeking a blanket order that have sampled a few polling stations for good reason and that there is no opposition by the respondents. The 1st and 2nd Respondents to relied on the affidavits and submissions and reiterated the same, adding that no vote has been contested in any polling station as recorded in the declaration form. That the application is premature and that the petitioner has asked for similar prayers in the petition and that the court cannot determine the petition through a petition when evidence is not called for. On the polling centre it was submitted that a polling centre will have different polling stations and the applicant is not being specific which presiding officer did what and that the applicant has not pointed out the exact polling stations for which the result are impinged. The 3rd Respondent relied on their grounds of opposition and list of authorities which cited three cases namely; Justus Gesito Mugali M’Mbaya vs. Independent Electoral and Boundaries Commission & 2 other [2013] eKLR, Charles Oigara Magere vs. Christopher Mogere Obure & 2 Others [2013] eKLR, Ramadhan Sief Kajembe vs. Returning officer Jomvu Constituency & 3 other [2013]eKLR and Farah Maalim vs. IEBC & 3 others [2017] unreported.The 3rd Respondent submitted that the Applicant has failed to lay basis for the recount and scrutiny. That rules 33 guides the court on how to determine the issue of sufficient reasons. That the polling station cited in the applicant’s paragraph 5 needs to be looked at in context of the petition as well as the results. That paragraph 11 of the applicant’s supporting affidavit has no number or any issues of disputed results. Paragraph 18 relates to the issue of chasing agents and paragraph 30 the word mentioned is a rejected vote which is not ground for recount or scrutiny but a ground for an election offence under the election offence act. That by granting the said orders the court will be entering the applicant’s foot to find out if there was a problem with numbers, therefore the prayer for scrutiny must fail and that the applicant has to choose either to seek recount or scrutiny. That since there is no disputed results have been shown the application is premature and should be dismissed.

Determination

18. I have carefully considered the affidavits, submission and the authorities relied on and the law and I find that these are the following issues for determination

i. Whether the court should issue an order for recount and scrutiny order for the votes received by the candidates in the polling stations listed in the application.

ii.Whether the 1st respondent should provide the applicant with the KIEMS kit report of all the polling stations in Dadaab constituency for scrutiny.

iii.Whether the 1st respondent should give access and supply to the court and petitioners certified copies of the original forms 35A and 35B obtained from the polling stations and the presiding officers.

19. The law of scrutiny of votes is set out in Section 82 of the Elections Act. Rules 28 and 29 of the Election (Parliamentary and County Elections) sets out the limit of scrutiny. In the case of Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others (supra) the court set out the guiding principles of scrutiny that it can be done at any stage of the petition and before the determination and that the court in exercising its discretion based on sufficient reasons in the context of the pleading can order for scrutiny. According to the applicant the basis for his application for scrutiny and recount is from paragraph 7, 9, 22, 24,25 and 26 of the petition which go towards the result. The Respondents argue that the prayer for scrutiny is premature. I note that in the petition the said paragraphs touch on the votes cast. The applicant in the application has specified various polling stations. After considering the said paragraphs mentioned by the applicant it is my view that ordering of recount or scrutiny at the stage will be premature, evidence need to be adduced. In the case of Kakuta Hamisi v Peris Tobiko & 2 other( Supra) Justice Kimondo held that a court is better suited to make the orders after receiving evidence at the trial. The Supreme Court held it is the right of a party to seek scrutiny. However in exercising my discretion at this interlocutory stage on whether or not to grant the said orders before evidence is adduced I need to be careful on the impact of the said orders. The court can at a later stage if it finds appropriate revisit the applicant’s prayers for recount and scrutiny.

20. On the 2nd issue of being provided with reports from all polling station in Dadaab Constituency for scrutiny of identified voters, soft copy of id’s captured and specific GPRS location of each KIEMS kit used during the Dadaab member of Parliament election for the period between and including 05th August 2017 and 11th August 2017. I find this prayer too generalised and decline to issue it. The applicant needs to be specific on the polling stations that it seeks to have the KIEMS kits produced for report reading. This issue can be revisited at the pre-trial hearing or main hearing.

21. On the 3rd issue of access to forms 35A and 35B the respondents do not seem to be opposing the said prayer. In the 1st Respondent’s replying affidavit they state that the said forms are public documents and are available to anyone at their offices or the web portal. They also state that form 35B has been availed and that the authenticity or otherwise ought to be dealt with at the hearing. Since the said documents are public documents and noting that the petitioner alleges that the 1st and 2nd Respondents did not issue the said forms upon request and that their agents were chased away, I find that granting the said order will not be prejudicial to any of the parties. I therefore order that the 1st respondent shall give access and supply to the petitioner and the court certified photocopies of the original Forms 35A prepared and obtained from the Polling stations and presiding Officers at Dadaab Constituency. The 1st respondent shall give access and supply to the petitioner and the court certified photocopies of the original Forms 35B prepared and obtained from the Tally Centre and Returning officer at Dadaab Constituency. The court shall guide the time frames within which to comply upon reading the ruling. Prayers 1 and 2 of the application are not granted. Costs shall be in the costs.

Dated, signed and delivered this 3rd day of November 2017

R. E. OUGO

JUDGE

In the presence of:

Mr. Githinji For the Petitioner

Mr. Olaha For the 1st and 2nd Respondent

Miss Lipwop For the 3rd Respondent

Ms. Charity Court Clerk