[2017] KEHC 2440 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION NO. 14 OF 2017

IN THE MATTER OF THE GUBERNATORIAL ELECTIONS FOR WAJIR COUNTY

BETWEEN

AHMED ABDULLAHI MOHAMAD……………...1ST PETITIONER

AHMED MUHUMUD ABDI…………………….…2ND PETITIONER

AND

HON. MOHAMED ABDI MOHAMED ………….1ST RESPONDENT

GICHOHI GATUMA PATRICK ………………....2ND RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION ………………..3RD RESPONDENT

R U L I N G

1. By a Notice of Motion dated 27th September, 2017, the Petitioners have applied for various orders including, delivery to court of various election materials and for scrutiny. The Motion is expressed to brought under Articles 35, 38, 48, 81, 82, 86 and 88 of the Constitution of Kenya,various provisions of the Access to Information Act, 2016, the Independent Electoral and Boundaries Act, section 82 of the Elections Act and Rules 16, 28 and 29 of the Election Petition Rules.

2. The grounds upon which the application is predicated upon are set out in the body of the Motion and the supporting affidavit Ahmed Muhumed Abdi sworn on of 27th September, 2017. Some of these grounds are that; the results produced by the 2nd and 3rd respondent differed with those posted at the 3rd respondent’s official portal; the 2nd and 3rd respondent had failed to produce Forms 32 in respect of declaration of secrecy for assisted voters; that the 2nd and 3rd respondents should allow the audit of the KIEMS used in the impugned election for accountability purposes and that the 2nd and 3rd respondents have been unable to explain the dubious, manipulated and doctored results in specific polling stations.

3. It was further contended that the polling station diaries produced discloses that most presiding officers did not hand over their results to the constituency returning officers; that there is no explanation on how the votes cast exceeded the number of registered voters; that there was massive alteration of the polling station diaries; that the reasons given for unsigned Form 37A’s were similar, related and alike done conveniently to respond to the petition. The Motion set out the various polling stations where the petitioners require the scrutiny to be undertaken.

4. In their written submissions dated 27th September, 2017 which were ably hi-lighted by Mr. Owuor, it was submitted for the petitioners that Article 35(1) of the Constitutionguarantees the right to information which is given effect by the Access to Information Act, 2016 which imposes a duty to disclose information; that section 27 of the IEBC Actprovides for instances when the 3rd respondent may decline to give information in its possession. The cases of Nairobi Law Monthly v Kengen [2013] eKLRand Zebedeo John Opore v IEBC [2017] eKLRwere relied on in support of those submissions.

5. As regards scrutiny, it was submitted that an order for scrutiny is in the discretion of the court under section 82 of the Elections Act; that it can be applied for at any stage of the proceedings; that the test to be applied is sufficient reason and evidence. The cases of Phillip Osore Ogutu [2013] eKLR, Hassan Mohamed Hassan & Another v IEBC & 2 Others [2013] eKLR and Nathif Jama Adan v Abdikhaim Osman Mohamed & 3 Others [2014] eKLRwere cited in support of those submissions.

6. Learned Counsel for the petitioners submitted that the polling stations where results were contested had been pleaded; that the state of affairs and terrain of contest had been pleaded and that sufficient reason and evidence had been adduced to support the orders for scrutiny. Counsel referred to the case of William Maina Kamanda v Margaret Wanjiru Karanja & 2 Others [2008] eKLRwherein scrutiny was ordered on account of falsified and unauthorized alterations made in the declaration forms. It was submitted that in the instant case, there were unsigned Form 37A’s with massive alterations on the polling station diaries.

7. Finally, the court was referred to the decision of the Supreme Court of Kenya in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR on the guiding principles for scrutiny in election petitions. Counsel urged that the application be allowed.

8. The application was strenuously opposed by all the respondents. The 2nd and 3rd respondent opposed the application on the basis of the Replying Affidavit of Patrick Gachohi Gatuma sworn on 23rd October, 2017 and the written submissions dated 6th November, 2017. The two respondents contended that the law allows scrutiny for the purposes of establishing the validity of the votes cast and not for blanket scrutiny as sought in the application; that there should have been sufficient basis laid for scrutiny to be ordered; that scrutiny should not be turned into a fishing expedition.

9. It was further contended that the election materials used in the impugned election are secured in warehouses in the constituencies and are properly guarded in accordance with the law; that the court should take into consideration the economic use, storage and space, integrity of material and bulkiness thereof. That the supporting affidavit is not in support of the application but a response to the Response of the 2nd and 3rd respondent. That the petitioners had not requested the information sought since. The letter relied on was for one Adow Mohamed Abikarand not the petitioners.

10. Ms. Okimaru Learned Counsel for the 2nd and 3rd respondent submitted that since there was no request by any of the petitioners, there was no right to information capable of being enforced in favour of the petitioners. The case of Cornel Rasanga Amoth v William Odhiambo Oduol & Others [2014] eKLRwas relied on for the proposition that the responsibility for safe custody of election materials lies with the 3rd respondent at all times. Ms. Okimaru then referred the court to the decision of the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2013] eKLR for the proposition that for an order of scrutiny to be made, reasons have to be given as to why the material and documents should be scrutinized.

11. As regards the timing of the application, Ms. Okimaru submitted that the same was premature as it should have been made after trial. For this proposition, Counsel referred to the authorities of Justus Gesito Mugali M’Mbaya v Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR and Oscar Amoke Ocholla & 4 Others v Independent Electoral & Boundaries Commission [2017] Eklr.

12. It was further submitted that the petitioners had not advanced sufficient reasons for scrutiny as their allegations had been properly and effectively answered by the 2nd and 3rd respondent; that the requisite forms had been produced and that the petitioners were only involved in a fishing expedition. The case of Gideon Mwangangi Wambua & Another v IEBC & 2 Others MSA Pet. No. 4 of 2013was cited in support of that submission. Counsel urged the court to dismiss the application.

13. On the part of the 1st respondent, the application was opposed on the basis of the Replying Affidavit of Hon. Mohamed Abdi Mohamed sworn on 3rd November, 2017 and the written submissions dated 6th November, 2017. It was contended that since the 3rd respondent had been able to upload from the official online portal of IEBC the information sought by the petitioners, Article 35 of the Constitutionis not applicable. That the petitioners had in any event accessed this information through their witness Dr. Noah Oduor.

14. Mr. Omuganda Learned Counsel for the 1st respondent associated himself with the submissions of Ms. Okimaru and submitted that no sufficient reason had been advanced for the order of scrutiny sought. That the information sought including the register was meant to bolster the petitioners’ case thereby making the application purely a fishing expedition. Counsel referred the court to the case of Rishad H. A. Amana v IEBC & 2 Others Malindi EP No. 6/2013and the Judiciary Bench Book on Electoral Disputes Resolution, The Judiciary2017 on the principles and instances when scrutiny could be ordered. He urged that the application be dismissed.

15. I have carefully considered the affidavits on record, the written submissions and the oral hi-lights thereon by Learned Counsel. I have also considered the authorities relied on by the parties as well as the entire record. This is an application for both disclosure of information and scrutiny. The issues for determination in this application are: whether the applicants have made a case for information to be supplied to them if so what information do they require disclosed and thirdly whether a case has been made for an order for scrutiny.

16. On access to information, Article 35 of the Constitutionis clear in its terms:-

“35. (1) Every citizen has the right of access to

(a) information held by the State; and

(b) Information held by another person and required for the exercise or protection of any right or fundamental freedom”.

17. In order to give effect to this constitutional provision, parliament enacted the Access to Information Act, 2016. That Act provides that access to information held by a public or private entity shall be provided expeditiously on request at a reasonable cost. However, there is limitation of this right of access to information as specifically provided for under section 6 of that Act. As regards the present case, section 27 of the IEBC Act, 2011 is instructive as to access information held by the Commission. The section also sets out instances when the requested information may be withheld.

18. In addition to the foregoing, the right to information has been recognized in international instruments to which Kenya is signatory. These include; the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human Rights (The Banjul Charter).In this regard, unless there is good reason, a citizen should not be impeded from accessing information that is in the possession of the state, a state entity or private body.

19. In the case of Nairobi Law Monthly v The Kenya Electricity Generating Company & 2 Others (supra), which was decided before the Access to Information Actwas enacted, Mumbi J held:-

“As indicated above, the absence of legislation setting out theparameters for access to information, we would have to fall back on international standards with regard to the provision of information. Such standards require, among others things,maximum disclosure and limited exceptions, and it would be incumbent on the Respondent to show reasons, based on theharm or public interest considerations, why it should not providesuch information as is requested for by a citizen.

As currently submitted by the 1st interested party and the Amici curiae, the reasons for non disclosure must relate to a legitimate aim; disclosure must be such as would threaten or cause substantial harm to the legitimate aim; and the harm to the legitimate aim must be greater than and override the public interest in disclosure of the information sought. It is recognized that national security, defence, public or individual safety, commercial interests and the integrity of government decision making processes are legitimate aims which may justify non-disclosure of information.”

20. In a decision made after the enactment of the Access to Information Act, Mativo J held in Zebedeo John Opore v Independent Electoral & Boundaries Commission (supra) that:-

“Access to Information Act was enacted to give effect to the constitutional right of access to any information held by the State/Public bodies. A reading of the section cited above shows that the act places the exercise of this right in peremptory terms – the requester “must be given access to the information so long as the request does not fall within the exceptions in Section 6 of the act. It can safely be said that under our law, the disclosure of information is the rule and exemption from disclosure is the exception.

It is also clear from Section 6 of the act, that there are ‘reasonable and justifiable limitations on the right of access to information. The purpose of Section 6 is to protect from disclosure certain information that, if disclosed, could cause material harm to, amongst other things to:- the defence, security and international relations of the Republic; the economic interests and financial welfare of the Republic and commercial activities of public bodies; and the formulation policy and taking of decisions by public bodies in the exercise of powers or performance of duties conferred or imposed by law.”

21. From the foregoing, it is clear that courts lean towards giving effect to the right to access to information rather than stifling the same. The right is to be declined only in circumstances and/or instances the Act has decreed in section 6. Indeed, since the right is in positive terms, once a citizen establishes that he has requested for information from a state entity or private body, the burden shifts to that entity or body to show that the information withheld falls within the exceptions set out in the law. Disclosure is the rule rather than the exception. In my view, the limitation claimed by such entity or body must satisfy the dictates of Article 24 of the Constitution in addition to being reasonable and justifiable.

22. The petitioner’s contention is that they were candidates for the gubernatorial position for Wajir County in the general elections held on 8th August, 2017. That the information in the possession of the 2nd and 3rd respondent is crucial in their enjoyment of the right to access to justice i.e. the prosecution of their petition. The 2nd and 3rd respondent’s answer in the replying affidavit of Patrick Gachohi Gatuma is rather vague. The deponent’s states that the letter relied on by the petitioners was in respect of one Adow Mohamed Abikar and not the petitioners. Indeed, it was submitted that having failed to prove that they had made a request for the information sought, the petitioners are not entitled to the order. The 2nd and 3rd respondents did not seek to plead or bring their objections within the provisions of Section 6 of the Act.

23. It is true that there is no request made specifically by the petitioners for the information. However, this court is alive to the fact that the letter dated 18th August, 2017 relied on by the petitioner was written by the firm of Ms. Nchogu, Omwanza & Nyasimi Advocates who are also the petitioner’s advocates. The said firm was acting for the aforesaid Adow Mohamed Abikar and filed Garissa Election Petition Number 3 of 2017 Adow Mohamed Abikar v IEBC. The said petition as well as the present petition were filed more or less the same day. They were consolidated on the 2nd October, 2017. However, the said Adow Mohamed Abikar has since changed advocates and has applied to withdraw the said petition whereby this court made an order to de-consolidate the two petitions on 16th October, 2017. This is all borne by the record.

24. Be that as it may, there is nothing to show that the petitioners advocates intended to use the said letter for the benefit of the Petitioners. Adow Mohamed having had his said petition deconsolidated from this petition, I doubt whether the Petitioners can be said to have requested for any information which they have been denied by the 2nd and 3rd respondent. In any event, the motion does not specifically pray for disclosure of any information.

25. On scrutiny, the Supreme Court of Kenya observed in Nathif Jama Adam v Abdikhaim Osman Mohamed & 3 Others (supra) as follows:-

“It emerges that, the primary considerations in determining whether to grant scrutiny, are where 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.

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 signaled 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 our the terrain of any legitimate electoral contest.”

26. In William Maina Kamanda v Margaret Wanjiru Kariuki & 2 Others (2008) eKLR, the court held:-

“It is now well established that an order of scrutiny can be made at any stage of the hearing before final judgment whether on the court’s own motion or if a basis laid requires so. It can be made if it is prayed in the petition itself – as is the case in this petition – or when there is ground for believing that there were irregularities in the election process or if there was a mistake or mistakes on the part of the Returning Officer or other elections officials.

…………………………………………………………………………

……………………………………………………………………....…

The burden of proof that such irregularities occurred falls squarely on the Petitioner and he must also establish that such irregularities were of such magnitude that they substantially and materially affected the outcome of the electoral process. The Petitioner’s allegations may well turn out to be red herrings but an order of scrutiny would assist the court in its investigation to determine the truth. In doing so, Section 23(d) of the Act empowers the court to decide all matters before it without undue regard to technicalities, so that even if the Petitioner had failed to provide a list of the voters he is objecting to, that would not of itself bar the court from scrutinizing the votes case, whether on its own motion or on application – and I so hold.”

27. The Supreme Court of Kenya finally settled the law on the principles to be applied in scrutiny in election petitions in the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (supra) as follows:-

“From the foregoing, review of the emerging jurisprudence in our courts, on the right to scrutiny and recount of votes in an election petition, we would propose certain guiding principles, as follows:-

a)The right of scrutiny and recount of votes in an election petition is anchored in Section 82(1) of the Elections Act and Rule 33 of the Elections (Parliamentary and County Elections) Petition rules, 2013. Consequently, any party to an election petition is entitled to make a request for a recount and/or scrutiny of votes, at any stage after the filing of petition, and before the determination of the petition.

b) The trial Court is vested with discretion under Section 82(1) of the Elections Act to make an order on its own motion for a recount or scrutiny of votes as it may specify, if it considers that such scrutiny or recount is necessary to enable it to arrive at a just and fair determination of the petition. In exercising this discretion, the Court is to have sufficient reasons in the context of the pleadings or the evidence or both. It is appropriate that he court should record the reasons for the order for scrutiny or recount.

c) The right to scrutiny and recount does not lie as a matter of course. The party seeking a recount or scrutiny of votes in an election petition is to establish the basis for such a request, to the satisfaction of the trial Judge or Magistrate. Such a basis may be established by way of pleadings and affidavits, or by way of evidence adduced during the hearing of the petition.

d) Where a party makes a request for scrutiny or recount of votes, such scrutiny or recount if granted, is to be conducted in specific polling stations in respect of which the results are disputed, or where the validity of the votes is called into question in the terms of Rule 33 (4) of the Election(Parliamentary and County Elections) Petition Rules.”

28. Finally, in Nicholas Kiptoo Arap Korir Salat v Independent Electoral & Boundaries Commission (supra) the Supreme Court buttressed the significance of guarding against turning scrutiny into a fishing expedition as follows:-

“The Supreme Court’s approach to orders of scrutiny in election dispute-resolution, thus, is by no means precipitate; it follows a clear pattern that is rational, familiar, and judicious. Testimony to this effect is found in our earlier decision in the Munya case, in which we cited with approval the decision of Odunga, J in Gideon Mwangangi Wambua & Another Vs IEBC & 2 others(paragraph 26):

The aim of conducting scrutiny and recount is not to enable the court [to] unearth new evidence on the basis of which the petition could be sustained. Its aim is to assist the court to verify the allegations made by the parties to the petition which allegations themselves must be hinged on pleadings. In other words a party should not expect the court to make an order for scrutiny simply because he has sought such an order in the petition. The petitioner ought to set out his case with sufficient clarity and particularity and adduce sufficient evidence in support thereof in order to justify the court to feel that there is a need to verify not only the facts pleaded but the evidence adduced by the petitioner in support of his pleaded facts. Where a party does not sufficiently plead his facts with the necessary particulars but hinges his case merely on the documents filed pursuant to Rule 21 of the Rules, the court would be justified in forming the view that the petitioner is engaging in a fishing expedition or seeking to expand his petition outside the four corners of the petition” [emphasis supplied].

29. From the foregoing, it is clear that; an order for scrutiny is in the discretion of the court; that the application for scrutiny can be made at any stage of the trial; that sufficient basis must be established before an order for scrutiny is made; that there must have been specific polling stations where results are disputed and that scrutiny should not be sought to bolster a petition that is hopeless in the first instance. In other words, scrutiny should not be a fishing expedition to help the petitioner prove his case. The primary purpose of scrutiny should be to help the court arrive at a fair, just and expeditious determination of the dispute before it and in unearthing the truth.

30. How then do these principles apply in this petition? The petitioners have sought various election materials for scrutiny in specific polling stations. The polling stations are set out in prayer no. 4(I) (a) of the Motion and the Petition itself. They are 53 in total (hereinafter “the specified polling stations”). Both in the petition and the testimony of witnesses, the petitioners disputed the results declared and made various allegations of irregularities in the impugned polling stations. Some of these allegations are as follows:-

a) that there was irregular, un-procedural and unlawfully assisted voting. That although this is admitted, the requisite statutory forms were not produced by the 3rd respondent;

b) that the 3rd respondent used invalid and unauthenticated results to declare the 1st respondent the winner. The petitioners alleged that some of the Forms 37A’s were neither signed nor stamped;

c) that in some polling stations, the votes cast exceeded the registered voters. The petitioners questioned the authenticity of results in various polling stations which were strikingly similar and they contended that there was padding and manipulation of the results with a predetermined goal.

d) there was also the allegation that some ballot boxes were broken into and the general tampering with electoral material.

31. The response of the 2nd and 3rd respondent is that they have adequately answered these allegations. That the application for scrutiny has been made prematurely and should have awaited the conclusion of the trial. The authority of Justus Gesito Mugali M’Mbaya v IEBC (supra) was relied on this proposition. With respect, from the decision of the Supreme Court in the Gatirau Munya Case above, the application can be made at any stage of the proceedings. All that is required is for the petitioner to establish a sufficient cause.

32. From the affidavits and the testimony on record, the petitioners have shown that in specific polling stations referred to, there were irregularities that may have affected the results of the election. While the veracity of the use of technology in other elections other than the presidential election is to be determined after trial, there is evidence on record to show that technology employed by the 3rd respondent in Wajir County in conducting elections either it did not work or it was wholly disregarded.

33. I have also carefully considered the documents which the 2nd and 3rd respondent produced in answer to the petition. Some of the documents have massive alterations that are not countersigned. Indeed when PW1 was testifying, he pointed out some discrepancies in documents filed with the response to the petition and the same documents contained in the Affidavit of Noor Gedi that was filed subsequent to the response but with leave of court. How else can one vouch for the integrity of the results that are returned vide such documents without scrutinizing the actual trail of paperwork, to wit, polling station diaries, serial numbers of seals issued and used, counterfoils, actual original declaration of results forms among others? After having carefully considered the response of the respondents, this court doubts that there has been an effective answer to these irregularities.

34. To this courts mind, sufficient cause has been shown from both the affidavits on record and the testimonies of the witnesses that there is need to scrutinize the electoral material used by the 2nd and 3rd respondent to declare the results for the gubernatorial position for Wajir County.

35. One issue which was raised by Ms. Okimaru, Learned Counsel for the 2nd and 3rd respondent is the logistics involved in availing the materials for scrutiny. This court is alive to the vastness of Wajir County, that it is situated over 600 kilometres from Nairobi and the balkness of the materials involved. The question that arises is whether that should prejudice a petitioner who has proved that he is entitled to an order of court. I do not think so. Democracy is an expensive affair. Once the law allows a particular process to be undertaken, parliament is presumed to have contemplated all matters pertaining to such a procedure. This court is also alive to the constitutional and statutory requirement that the safety and custody of electoral material is primarily the duty of the 3rd Respondent as held in the case of Cornel Rasanga Amoth vs William Odhiambo (supra).

36. In this regard, the materials will have to be transported to Nairobi to a premises and venue to be identified by the 3rd respondent with the approval of the Deputy Registrar of this Court for purposes of undertaking scrutiny and recount.

37. In the end the motion succeeds. I order the 2nd and 3rd respondent to supply and deliver for inspection and scrutiny, for and in respect of the gubernatorial election for Wajir County the following:-

a) i) Form 37As filled at the Polling Stations enumerated in prayer 4(I) (a) of the Motion.

ii) Form 37Bs with respect to Wajir West, Wajir East, Wajir North, Eldas and Tarbaj Constituencies.

iii) Form 37Cs with respect to Wajir County;

b) Inventory of the gubernatorial result declaration forms (with serialization) as distributed to the presiding officers at the polling stations set out in prayer 4(I) (a) of the Motion;

c) Printed copy of the register of voters used during the elections as regards the polling stations set out in prayer 4(I) (a) of the Motion;

d) Marked copy of the register as regards polling stations set out in prayer 4(I) (a) of the Motion together with the KIEMS Kit logs in and logs out showing the number of voters who used the thumbprint. In the alternative to the KIEMS, the SD Cards for the KIEMS used in the specified polling stations with complete details of the logs in and logs out detailing the identification of voters at the specified polling stations;

e) Original polling station diaries for all the polling stations specified;

f) Inventory of ballot boxes’ serial numbers and ballot box seals’ numbers used at the specified polling stations;

g) Packets of rejected ballot papers and spoilt ballot papers and statements made thereto for the specified polling stations;

h) Counterfoils of used ballot papers for the specified polling stations;

i) Comprehensive documentation of all the incidences (if any) when, as a result of identification failure by KIEMS gadgets, manual identification had to be resulted to at the specified polling stations;

j) Original Form 32’s that were filled at the specified polling stations.

38. In both the petition, the affidavits and testimonies of witnesses, there were allegations that in 51 specified polling stations, there was striking coincidences and incredibly similar figures for the results of candidates in all the elections. It was contended that the said results was but pure manipulation that was intended to achieve predetermined results. That it was scientifically and mathematically impossible to have such similarity in such a large number of polling stations where all the candidates receive the same number of votes. That the said manipulation affected a total of 13632 votes. These have been detailed in paragraph 82 of the petition.

39. Due to the alleged similarity and the inadequate response by the 2nd and 3rd respondents, it is imperative that there not only be scrutiny on the declaration Forms 37A’s and other statutory Forms from those polling stations but there also be a recount of votes. Accordingly, in exercise of the discretion conferred under section 82 of the Elections Act,I direct in respect of the following polling stations:-

WARDPOLLING STATION

a) Wagberi Ward Wagberi Primary School-01 and Elmi Primary School

b) Wajir Sec School Wajir Sec. School-02

c) Barwago Makarol Primary School

d) Kholof/Harar Johar East, Dashega East, Kajaja One East, Kajaja Two East and Kotulo East

e) Elben Ward Diga Diga Dam, Ogarale Pry. School, Durwey Dam and Singo Well

f) Tarbaj Ward Dunto Pry. School-01, Gunana Pry. School-02, Katote Pry. School, Harakoba Dam

g) Wargadud Ward El-Kutulo Centre and Wargadud Pry. School

h) Gurar Ward Garikilo Pry, Garsee Sare Village and Qarsa Abulla

i) Bute Ward Ogorji Pry, Ogorjilibo Centre and Jartey Centre

j) Korondile Ward Nyata Borehole, Rabsu centre, Tuluroba Centre and Bitorebay Water point.

k) Eldas Ward Masalale Pry, Eldas Pry, Malkagufu South and Barguque Dam

l) Della Ward Abdiwako Pry-01 Haragal Dam and Majabow Centre

m) Lakoley South Ward Baji Dam and Tito Centre

n) Elnur/Tula Tula El – Nur Pry and Dodha Village

o) Arbajahan Ward Arbajahan Pry-01, Adan Awale Pry, Garsekhoftu Pry-01, Kubey, Surur, Kurman Centre and Mathow Pry.

p) Hadado/Athiboh Athibohole Pry, Jira Dam, Lolkuta North Pry and Fatuma Nur Pry.

All the above hereinafter referred to as “the affected polling stations”.

40. I order and direct that in respect of the affected polling stations:-

a) the 2nd and 3rd respondent do supply original Forms 37A’s and polling station diaries for scrutiny;

b) the 2nd and 3rd respondent do supply the marked copy of the register together with the KIEMS Kit logs in and log outs showing the number of voters who used the thumbprint. In the alternative to the KIEMS, the SD Cards for the KIEMS used with complete details of the logs in and logs out detailing the identification of voters;

c) the delivery of all the ballot boxes for the gubernatorial election in the affected polling stations and there be a recount of votes thereon.

d) packets of rejected ballot papers and spoilt ballot papers and statements made thereto;

e) counterfoils of used ballot papers.

41. The costs of the application will abide the outcome of the Petition.

DATED and DELIVERED at Nairobi this 10th day of November, 2017.

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A. MABEYA

JUDGE