[2017] KEHC 2361 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

ELECTION PETITION NO. 8 OF 2017

IN THE MATTER OF: THE ELECTION ACT, 2011

BETWEEN

ALBEITY HASSAN ABDALLA.............................................PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSION (IEBC) …………....................……….. 1ST RESPONDENT

MOHAMED ADAN ALI………………………...…....…. 2ND RESPONDENT

ANUAR LOTIPTIP…………………………….......….… 3RD RESPONDENT

WIPER DEMOCRATIC MOVEMENT PARTY......…… 4TH RESPONDENT

RULING

1. The following applications have come for consideration in this ruling;

(i) The petitioner’s notice of motion dated 9/10/2017 seeking leave to file additional evidence in support of the petition.

(ii) The petitioner’s notice of motion dated 27/9/2017 seeking for orders that the 1st respondent avails to this court election materials, items and information in it’s custody for purposes of assisting this court to hear and determine the Application for scrutiny and recount of votes filed herein or the petition herein.

(iii) The petitioner’s Notice of motion dated 27/9/2017 seeking an order of scrutiny and recount of votes in all polling stations in Lamu County in respect of the senator of Lamu County held on 8/8/2017.

(iv) The 2nd respondent notice of motion dated 12/10/2017 seeking for orders that the petitioner’s reply to the 1st, 2nd and 3rd Respondent’s responses and five affidavits sworn on 9/10/2017 and filed on even date be struck off and expunged from the record.

(vi) The 3rd respondent’s notice of motion dated 10/10/2017 also seeking for orders that the petitioner’s reply to the 1st, 2nd and 3rd Respondent’s replies to the petition dated 9/10/2017 be struck put.

(v) The 3rd Respondent’s notice of preliminary objection seeking for orders that the petitioner’s notice of motion dated 9/10/2017 be determined in limine and that the said Application is hopelessly misconceived, unsupported, frivolous, totally devoid of merit and mala fides on the grounds that the supporting affidavit to the said application has no reference to any annexturers and that the annextures attached to the said Application are not marked and securely sealed under the seal of the commissioner of oaths.

2. THE PETITIONER’S SUBMISSIONS

The petitioner submitted orally in court as follows;

(i) That the Application dated 9/10/2017 is hinged on Article 159(2)(d) of the constitution of Kenya which underpins the principle that all matters are to be heard and determined on substance including hearing of substantial evidence.

(ii) That Rule 15(1) of the Elections (parliamentary and County Elections) petitioners rule 2017 gives the election Court power and authority to determine and allow additional evidence.

(iii) The additional evidence sought should include forms 38A and the affidavits of witnesses which are annexed on the grounds that the petitioner believes that he worn the elections but the results were illegally tempered with and further that form 38 A’s were not signed and the declared results were erroneous and wrong.

(iv) The petitioner further submitted that the elections were not conducted in accordance with the law and that the further evidence is required. He relied on the grounds on the face of the Application and the supporting Affidavits.

3. On the Application dated 27/9/2017 seeking for orders that the 1st respondent avails to this court election materials, items and information in it’s custody for the purpose of assisting this court in hearing and determining of the Application for scrutiny and recount of votes filed herein and or the petition, the petitioner submitted as follows;

(i) That by virtue of Regulation 72(b) of the Elections(General) Regulations, 2012, the polling station diary has the record of the presiding officer of the voters who requested to be assisted and when the polling station diaries are availed before the court they will be able to ascertain how many voters required assistance.

(ii) That as per Regulation 61(4)(a) of the Elections (General) Regulations, 2012, the returning officer is obliged to provide each polling station with both electronic and hard copy of the Registers of voters or such part thereof as contains the biometric data and alpha numerical details of the voters entitled to vote at the polling station and if the same is availed, it will assist the court verify the voters who voted as against the votes cast and contained in the declaration of results form 37 A as well as the actual ballot papers or votes contained in the ballot boxes for each polling station.

(iii) That section 44 A of the Elections Act, 2011 requires that the 1st Respondent put in place a mechanism for identification of voters and the register of voters suffices for that purpose.

(iv) That section 44 of the election Act also establishes an integrated electronic structural system for purpose of biometric voter registration, electronic voter identification and electronic transmission of results. The system required to be simple, accurate, verifiable, secure, accountable and transparent therefore when the Kenya integrated electronic machine system (KIEMS) is availed in court it will show with certainly the names and number of the voters who voted, the declaration of results forms 37 a transmitted from polling stations total constituency and county tallying centres and day and time this was made which is important in verification of actual valid votes cast at every polling station.

4. On the petitioner’s 3rd Application seeking scrutiny and recount of all votes in all polling stations in Lamu county in respect of election of the senator of Lamu County held on 8/8/2017, the petitioner submitted as follows;

(i) That the 1st and 2nd Respondents violated section 30 of the election Act, 2011 by refusing the petitioner to appoint his own agents and that the 4th Respondent betrayed him in appointing agents that were disloyal to him and that further 50 polling station had no agents.

(ii) As an alternative to prayer 1 of the application, the petitioner submitted that he is seeking for scrutiny, and recount in polling stations referred to in paragraph 27(b) (g) and (1) of the petition.

(iii) The petitioner also submitted that there were polling stations with pre-marked ballot papers and in a polling station, there were no declaration of results forms 38As and many of those available were not signed by the presiding officers.

(iv) The petitioner submitted that the presiding officer from Dide, waride, Daniel Kazungu Karisa was seen filling form 38A at the tallying centre and at Mbwajumwali polling station a clerk was arrested for allowing the people in vote without being verified by the KIEMS Kit which in a grave election offence.

(v) The petitioner relied on Supreme Court presidential Election case no 1 of 2017 and also the case of GATIRAU PETER MUNYA V DICKSON MWENDA KITHINKI and OTHERS (2014) eKLR where the court laid down the principles for scrutiny and recount. He said in this particular case, the basis for scrutiny and recount has been laid in the pleadings and affidavits.

5. The 1st and 2nd Respondents submitted as follows;

(i) That the application dated 9/10/2017 by the petitioner seeking leave be to file additional evidence is misconceived as it has been filed out of time. Section 76 (4) of the Election Act 2011 states that such on application can duly be brought within 28 days.

(ii) The 1st and 2nd Respondents submitted that the Affidavits sought to be filed bring in fresh evidence was not introduced at the time of filing the petition and injustice would be occasioned if the Application is allowed. Further that the provisions of section 76(4) of the Election Act are mandatory.

(iii) On the Application seeking election materials, the 1st and 2nd Respondents submitted that the petitioner is not clear on what he wants and he fishing for evidence.

(iv) The reason advanced for seeking the orders is that there were no agents for the petitioner. Section 40 of the political parties Act gives the political parties dispute Resolution tribunal exclusive jurisdiction to determine a matter between a political party and a member.

(v) The 1st and 2nd Respondent also submitted that it is only an independent candidate who can appoint this own agent and the allegation that the agent nominated by the party was not friendly to the petitioner is not a ground for seeking to bring the dairies to court as lists which have been submitted show that the agents signed the forms.

(vi) On the issue of the KIEMS kit, the 1st and 2nd Respondent submitted that there is no allegation that a voter could not be identified that form 32As is filed and since there is o allegation that any voter had been denied the right to vote there was no need to bring such evidence.

(vi) On the information contained in the SD card, it was submitted that no basis has been laid for production to such evidence. Further that the 1st and 2nd Respondents established that all the agents signed form 38As

(viii) On the final application which seeks scrutiny and recount, the 1st and 2nd Respondent submitted that scrutiny and recount are not given as a gift and that a basis has to be established for the same and no such basis has been laid in the Application.

6. The 3rd Respondent submitted as follows;

(i) On the Notice of preliminary objection filed by the 3rd Respondent, the 3rd Respondent submitted the Application dated 9/10/2017 has made no reference to any annextures and further that the annextures attached to the said Application are not marked or securely sealed under the seal of the commissioner for oaths from page 19 to 71.

(ii) The 4th Respondent also submitted that the petition herein was filed on 6/9/2017 and the petitioner is seeking at this stage to introduce new evidence which amounts to amending the petition.

(iii) The 3rd Respondent also submitted that Rule 8 (4)(b) of the Election (Parliamentary and County Elections) petitions Rule 2017 provides that every petition shall be supported by an affidavit sworn by the petitioner containing the particulars set out under Rule 12 and such affidavits are filed together with the petition and not at later stage.

(iv) The 3rd Respondent submitted that the votes have not been disputed by the petitioner and further that the absenting of an agent cannot nullify an election.

(v) The 3rd Respondent also submitted that the Replying affidavit of the 3rd Respondent has attached all the 38A in all the polling stations mentioned in paragraph 27 (g) of the petition and again the vote has not been questioned in those polling stations and therefore the petitioner has not laid a basis for recounting or scrutiny of the votes.

(vi) The 3rd Respondent also submitted that pleadings in this petition have been closed and the petitioner has no right to file any response and Rule 19 of the Election (Parliamentary and County Elections) petitions Rules 2017 provides that the election court has no jurisdiction to extend the period within which an election petition is required to be filed, heard or determined.

7. I have carefully considered the submissions by all the parties. The issues for determination are as follows.

(i) Whether the petitioner is entitled to leave to file additional evidence.

(ii) Whether the petitioner is entitled to orders to avail election materials, items and information held by the 1st respondent.

(iii) Whether the petitioner is entitled to orders for scrutiny and recount of all polling stations in Lamu County respect of Senator of Lamu County held on 8/8/2017.

(iv) Whether the petitioner’s Application dated 9/10/2017 should be struck off and the five affidavits filed by the petitioner expunged from the record.

8. My findings are as follows:-

(i) The guiding principles on the right to scrutiny and recount were laid down in the case of GATIRAU PETER MUNYA V DICKSON MWENDA KITHINJI & 2 OTHERS [2014]e KLR at page 35 paragraph 153 as follows;

a. The right to 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 the 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 vote is called into question in the terms of Rule 33(4) of the Election (Parliamentary and County Elections) Petition Rules.

(ii) I will start my findings with the 2nd Application by the petitioner which is seeking for election materials, items and information in the custody of the 1st Respondent. I find that the said Application has not specified specific polling stations in respect of which results are disputed or where the validity of the vote is called into question in terms of Rule 33(4) of the election (Parliamentary and County Elections) petition rules and that Application is declined on that basis.

(iii) On the 3rd Application by the petitioner seeking for scrutiny and recount, I also find that the said Application has not established a basis for the request. The court has to have sufficient reasons in the context of the pleadings or the evidence or both for making such an order and the said reasons should be recorded.

(iv) I find that the said Application which has been made before the trial is premature and this court has to hear the evidence before coming to a conclusion whether or not such a recount and scrutiny would be necessary to enable the court to reach a just and fair determination of the petition. The said Application is also declined on that basis. If the court finds the recount necessary, the same can be ordered at any stage of the hearing. The petitioner is at liberty to renew the said Application at a later stage.

(v) I also find that the petitioner is not entitled to leave to file further evidence. This would amount to amending the petition after the close of pleadings.

(vi) This court accordingly dismisses the 3 Applications by the petitioner stated above and also strikes out and Expunges the five affidavits from the record.

(vii) The 2nd respondent’s notice of motion of motion dated 12/10/2017 and the 3rd respondent’s notice of motion dated 10/10/2017 together with the 3rd Respondent’s Notice of preliminary objection dated 9/10/2017 are all allowed. The costs of the Respondent’s Applications and the Notice of preliminary objection to abide the cause.

(viii) This court orders that hearing of the petition proceeds as scheduled.

Dated, Delivered and Signed at Malindi this 3rd day of November, 2017 in the presence of the parties.

ASENATH ONGERI

JUDGE.