[2022] KEHC 15660 (KLR)

Ayiera v Kimwomi & 3 others (Election Petition E002 of 2022) [2022] KEHC 15660 (KLR) (25 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15660 (KLR)

Republic of Kenya

In the High Court at Nyamira

Election Petition E002 of 2022

K Kimondo, J

November 25, 2022

Between

Dennis Omwenga Ayiera

Petitioner

and

Nyaribo Amos Kimwomi

1st Respondent

James Gesami

2nd Respondent

County Returning Officer, Nyamira

3rd Respondent

IEBC

4th Respondent

Ruling

1. The petitioner has challenged the election of the 1st respondent as the governor for Nyamira County in the poll held on August 9, 2022. Contemporaneously with the petition, he brought a notice of motion praying, in the main, for scrutiny of election materials in “sample polling stations” where the vote was disputed.

2. I will set out the thirteen prayers verbatim-1. This application be certified as urgent and be canvassed and determined before the hearing of the petition;2. All the election materials used in the Nyamira County gubernatorial elections in the following sample polling stations: Nyamonge Primary School 1/2, Nyairang'a Primary School 2/2, Chaina Primary School 1/1, Ikong’e Primary School 1/6, Ikonge Primary School 2/6, Ikonge Primary School 3/6, Ikonge Primary School 4/6, Ikonge Primary School 5/6, Ikonge Primary School 6/6, Riabaruoti Market 1/1, Embaro primary school 1/2 of 2/2, Nyagokiani Primary School 1/2 , Nyagokiani Primary School 2/2, Riamanoti Primary School 1/1, Omonono Primary School 2/2, Nyangena Tea Buying Center 1/1, Nyankono Tea Buying Center 1/1, Nyabisimba DEB Primary School 1/2, Ting'a DOK Primary School 3/3, Motagara DEB Primary School 2/2, Nyasumi DOK Primary School 1/2 , Kerongo DOK Primary School 2/2, Nyankorora DEB Primary School 1/1, Kenyamware DEB Primary School 1/1, Nyabigege DOK Primary School 1/2, Nyankoba polling station 1 and Omokirondo Primary School 1/1 be immediately delivered to the court for their safe custody and conservation;3. The 4th respondent be compelled to supply the court and the petitioner/other parties in the petition, for their scrutiny, the following information in their exclusive possession; which information the 3rd and 4th respondent has refused and/or neglected to avail to the petitioner:

Gubernatorial Result Declaration Formsa.Certified copies of the original forms 37A filled at the polling stations listed in paragraph 2 above;b.Certified copies of the forms 37B with respect to Borabu, North Mugirango, Kitutu Masaba and West Mugirango constituencies;c.Certified Copies of form 37C in respect of Nyamira county; and;d.Certified copies of the original form 37D with respect to Nyamira county.

Member of National Assembly Result Declaration Forms (for comparative analysisa.Certified copies of the original forms 35A filled in at the polling stations set out at para 2 above;b.Certified copies of the original forms 35B with respect to Borabu, North Mugirango, Kitutu Masaba and West Mugirango constituencies.

Member of County Assembly Result Declaration Forms (for comparative analysis)Certified copies of the original forms 36A filled in at the stations set out at paragraph 2 above; and4. The 4th respondent be compelled to supply the court and the petitioner/other parties, for their scrutiny, the inventory of the gubernatorial result declaration forms (with serialization) as distributed to the presiding officers at the polling stations set out at paragraph 2 above.5. The 4th respondent be compelled to supply the court and the petitioner/other parties, for their scrutiny, the marked copy register (to wit KIEMS logs) as regards the polling stations at paragraph 2 above;6. The 4th respondent be compelled to supply the court and the petitioner/other parties, for their scrutiny, polling day diaries with respect to all the polling stations listed at paragraph 2 above;7. The 4th respondent be compelled to supply the court and the petitioner/other parties, for their scrutiny the inventory of ballot boxes' serial numbers and ballot box seals' serial numbers used in the polling stations listed in paragraph 2 above.8. The 4th respondent be compelled to supply the court and the petitioner/other parties, for their scrutiny, packets of rejected ballot papers and statements made thereto, with regard to the gubernatorial, national assembly and county assembly elections at the stations listed at paragraph 2 above.9. The 4th respondent be compelled to supply the court and the petitioner/other parties, for their scrutiny, packets of spoilt ballot papers with respect to gubernatorial, national assembly and county assembly elections at the stations listed at paragraph 2 above;10. The 4th respondent be compelled to supply the court and the petitioner/other parties, for their scrutiny packets of counterfoils of used ballot papers (or certified copies thereto with respect to gubernatorial, national assembly and county assembly elections at the stations listed at paragraph 2 above;11. The 4th respondent be compelled to grant the court and petitioner/other parties access to the KIEMS devices' results transmission logs (and transmission error logs - if any) with respect to the gubernatorial elections and logs detailing the identification of voters at the polling stations listed at paragraph 2 above;12. The 4th respondent be compelled to supply the court with comprehensive documentation of all the incidences (if any) when as a result of identification failure by the KIEMS gadgets, manual identification had to be done at the polling stations listed at paragraph 2 above;13. This court grants leave to the petitioner and any other party [sic] to file a supplementary affidavit as necessarily arising from the access to the information above. 3. The petitioner relied on skeleton submissions filed on November 11, 2022 together with a list of authorities. In a nutshell, the petitioner contends that scrutiny will assist the election court to probe irregularities or breaches of electoral law. Paraphrased, to assess the integrity of the vote.

4. The motion was fervently opposed by all the respondents. The 1st and 2nd respondents placed reliance on grounds of opposition filed on November 11, 2022. The 3rd and 4th respondents lodged a replying affidavit sworn by Anthony Njoroge Douglas, the County Returning Officer, on October 8, 2022.

5. The pith of the objection is that the application meanders well beyond the boundaries of the amended petition; that the prayers are imprecise; that there exists an order securing the election materials; that certified statutory forms are before the court; and, that the petitioner is on a fishing expedition.

6. On November 11, 2022, I heard further submissions from all the learned counsel for the disputants.

7. Regarding prayer 1, and at the pre-trial conferences held on 11th and October 12, 2022, I directed that the entire motion be adjourned until the close of evidence at the trial. I was well guided by section 82 (1) of the Elections Act (hereafter the Act) which gives the election court the discretion on its own motion or on application by any party to the petition, during the hearing of an election petition, to order for a scrutiny of votes to be carried out in such manner as the election court may determine.

8. My view was equally informed by necessity of tested evidence to justify full scrutiny or partial scrutiny of election materials. See generally Kakuta Hamisi v Peris Tobiko & 2 others, Nairobi High Court election petition 5 of 2013 (ruling No 2) [2013] eKLR.

9. The last of the twenty witnesses in this petition closed his testimony on November 10, 2022. I will thus consider the adjourned motion in light of the submissions, pleadings, evidence and materials produced at the trial. But there is an important caveat because final submissions on the petition have not been taken; and, needless to say, the court is as yet to render its judgment. It follows that the findings in this ruling are made very guardedly.

10. The legal parameters of a motion of this nature are now well settled. Scrutiny of public documents and materials is rooted in article 35 of the Constitution which guarantees the right of access to information. article 159 as read together with rule 4 (1) of the Elections (Parliamentary and County Elections) Petition Rules 2017 (hereafter the rules) call for just, expeditious, proportionate and affordable resolution of election disputes.

11. Section 82 (1) of the Act which I highlighted earlier, donates power and discretion to the court to order for scrutiny of election materials.

12. Rule 28 on the other hand provides that a petitioner may apply for a recount or examination of the tallying “if the only issue for determination in the petition is the count or tallying of votes received by the candidates”.

13. Rule 29 allows an application “for scrutiny of the votes for purposes of establishing the validity of the votes cast”. The exercise under that rule is more elaborate. It extends to the marked register; statements by returning officers and copies of results for each polling station; polling day diaries; packets of counterfoils of used ballots; rejected ballots and so forth.

14. Scrutiny is meant to measure the integrity of the election. Paraphrased, to interrogate further any malfeasances, irregularities and breaches of electoral law including disputed votes or tallies. SeeRaila Odinga & another v IEBC & 2 others, Supreme Court of Kenya, presidential petition 1 of 2017 [2017] eKLR, Kakuta Hamisi v Peris Tobiko & 2 others [supra], William Maina Kamanda v Margaret Wanjiru Kariuki, Nairobi, High Court petition 5 of 2008 [2008] e KLR, Justus Omiti v Walter Enock Nyambati and 2 othersHigh Court, Kisii, petition 1 of 2008 [2010] e KLR.

15. As a general rule, scrutiny is appropriate where the margin of votes is very narrow. SeeHassan Ali Joho v Hotham Nyange & Anania Mwasambu Mwaboza (rulingNo2), (2008) 3 KLR (EP) 188.

16. The party seeking scrutiny must lay a basis. It is not a matter of right. See Peter Gatirau Munya v Dickson Kithinji & 2 others, Supreme Court of Kenya petition 2B of 2014 [2014] eKLR, Nicholas Salat v IEBC & 7 others, Supreme Court of Kenya petition 23 of 2014 [2014] eKLR.

17. An application for scrutiny should not be a roving expedition in search of new evidence. Peter Gichuki King’ara v IEBC & another, High Court at Nyeri, petition 3 of 2013 [2013] eKLR. It must also be confined to polling stations in which the results are disputed. SeeNathif Jama Adama v Abdikhaim Mohamed & 3 others, Supreme Court petition 13 of 2014 [2014] eKLR.

18. Courts have consistently held that there must be a prayer for scrutiny in the petition. SeeAbdikhaim Osman Mohamed and another v Independent Electoral and Boundaries Commission and others, Garissa, High Court Petition No 2 of 2013 [2013] eKLR. I am satisfied that in the present case that the amended petition contains express prayers for scrutiny.

19. Finally, the parties are bound by their pleadings. So much so that the petitioner should not exploit the application for scrutiny to magnify the boundaries of the amended petition. SeeRaila Odinga & another v IEBC & 2 others, [supra].

20. When I juxtapose those principles against the evidence here, I find further as follows. In view of what I stated at paragraph 7 of this ruling, prayer 13 of the notice of motion is evidently spent and there is no further opportunity for any party to file “a supplementary affidavit”.

21. Prayer 2 seeks that all the election materials be “immediately delivered to the court for their safe custody and conservation”. Prayer 3 (I) on the other hand is to compel the IEBC to produce certified copies of forms 37A, 37B, 37C and 37D. At the pre-trial conferences referred to earlier, I issued the following two orders and directions-(7)That the IEBC shall ensure and maintain all the materials used to conduct the gubernatorial election for Nyamira County and the subject of this petition in safe custody and undertake to present them to the court if need so arises and /or as per any further orders of the court.(8)That the IEBC shall forthwith present to the court election results in forms 37B and 37A as well as the result declaration form 37C and the certificate to the 1st respondent in 37D. For the avoidance of doubt, they shall be certified copies.

22. The certified copies of the forms were lodged in court by the IEBC on November 7, 2022 and used at the trial. In light of the express orders above, prayers 2, 3 (I) and 4 (which had also sought for serialized inventory of the forms) are now superfluous and are disallowed.

23. Prayers 3 (ii) and (iii) sought the results declaration forms for the members of National Assembly in forms 35A and 35B for the four constituencies in Nyamira; and, those of the Members of the County Assembly in form 36A for the impugned polling stations.

24. My answer is that the court is sitting as a gazetted election court for the governor’s election in Nyamira. While it seems attractive to call for comparative data from the other elections, rule 16 (4) provides that only the material relating to a particular petition may be furnished to an election court. It follows as a corollary that prayers 3 (ii) and (iii) are on a legal quicksand and are disallowed.

25. Prayers 5, 11 and 12 seek the marked copy of the register or KIEMS logs, access to the KIEMS devices transmission or error logs on identification of voters or details of failure of such gadgets resulting in manual identification of voters.

26. Rule 17 of theElection (Technology) Regulations 2017 requires the IEBC to retain electronic data in safe custody for three years after the elections. The KIEMS kits were deployed for electronic registration and identification of voters; and, transmission of results. Unlike the presidential election, there is no express requirement to transmit electronically the results of the election of Governors, Senators or County Woman Representative.

27. Fundamentally, there is no precise pleading in the petition or specific evidence by the petitioner or his twelve witnesses disputing the registration or identification of voters, the use of or integrity of the KIEMS kits deployed at the last poll or in the stations cited in the motion.

28. Lastly on that point, under section 60 of the Evidence Act, I am entitled to take judicial notice, as a matter of local notoriety, that the KIEMS kits were used for all the six elections held on August 9, 2022. Rule 16 (4) provides that only the material relating to a particular petition may be furnished to an election court. In the final analysis, prayers 5, 11 and 12 are disallowed.

29. I will now turn to prayer number 7. The petitioner sought an inventory of ballot boxes serial numbers and ballot box seals serial numbers used in the polling stations listed in paragraph 2 of the motion. At the trial, the only evidence on the issue related to two ballot boxes: According to PW11 and PW13, a ballot box for Omonono Polling Station was found at Kebabe Girls, a matter denied by the Constituency Returning Officer for Borabu (DW3). There was also an alleged picture of it but the deponent to the witness affidavit, Yabesh Ntabo, never took to the stand.

30. I should add that at Omonono Primary School 2 of 2, the IEBC conceded at paragraph 76 of the response that a “transpositional error” occurred when transferring data from form 37A into 37C. An erroneous 0 in the column for one candidate, Momanyi George, pushed data to other columns affecting the results of four other candidates.

31. The second incident is pleaded at paragraph 143 of the amended petition. The petitioner deposed that a ballot box for Nyanchoka TBC polling station was found open at the tallying centre without any reasonable explanation by the Presiding Officer. Granted that position, there is no basis to call for an inventory of all the other ballot boxes used in the election. I accordingly order that the IEBC shall only provide an inventory of the ballot boxes used for the governor’s election at Omonono Primary School polling station 2 of 2 and Nyanchoka Tea Buying Centre 1 of 1 including their serial numbers and the seals serial numbers.

32. Additionally, there was a high number of 53 rejected ballots at Nyankoba Polling Station 1 and 34 rejected ballots at Nyabigege DOK Primary School Polling Station 1 of 2. The latter is not among the stations cited in the motion but I will make an order suo motu under section 82 (1) of the Act. For all those reasons, I order a partial scrutiny for those two polling stations but limited completely to a recount of the votes cast at those stations and the respective entries in forms 37A.

33. I will now focus on the other polling stations listed in paragraph 2 of the motion. I have kept in mind that the margin of votes between Osebe Enoch Nyambati (whose interests are being pursued, and disclosed as much, by the petitioner in paragraph 1 of the amended petition) and the 1st respondent was not narrow. The gap was 32,641 votes. I stated earlier that as a general rule, scrutiny is appropriate where the margin of votes is very low.

34. The other important consideration to keep in mind is that the results at the polling station are final. See IEBC v Maina Kiai & 5 others, Court of Appeal, Nairobi, civil appeal 105 of 2017 [2017] eKLR. What that translates to is that the primary and most important declaratory form is 37A: The B and C series of forms are spreadsheets transferring and consolidating the scores in A.

35. Furthermore, an aggrieved candidate or agent has a right to call for a recount at the polling station. Regulation 80 of the Elections (General) Regulations 2012 provides as follows: -“80. (1) A candidate or agent, if present when the counting is completed, may require the presiding officer to have the votes rechecked and recounted or the presiding officer may on his or her own initiative, have the votes recounted: provided that the recount of votes shall not take place more than twice.“(2). No steps shall be taken on the completion of a count or recount of votes until the candidates and agents present at the completion of the counting have been given a reasonable opportunity to exercise the right given by this regulation”.

36. In Henry Tiole Ndiema v IEBC & 2 others, Kitale High Court Election Petition 2 of 2017 [2018] eKLR, I had this to say on the subject-The point to be made is that courts are ill-equipped to carry out an extensive recount for a whole county. It is a laborious and time consuming exercise. The polling stations provide a better forum, soon after close of polls, and in the presence of agents or candidates. In that scenario a fairly smaller number of votes would be recounted.

37. At Nyamonge Primary School 1 of 2, the petitioner and Andrew Nyangau Ombogo (PW6) testified that Osebe had 36 votes as reflected in form 37A but was given 0 in form 37C. The error was freely admitted by IEBC in paragraph 75 of its response explaining it as a “transpositional error”.

38. A similar error is found in Riabaruoti Market 1 of 1, where the 1st respondent garnered 105 votes reflected in form 37A but was added 10 votes in form 37C. This was clear from the evidence of Omariba Joseah Gwaro (PW4) and conceded by the IEBC.At Kerongo DOK Primary School 2 of 2, the 1st respondent obtained 115 votes as per form 37A but which was inflated to 150 votes in form 37C.

39. The IEBC has admitted at paragraphs 70 and 79 of their response of similar errors at Nyasumi DOK Primary School 1 of 1 and Kerongo DOK Primary School 2 of 2 respectively.

40. But in all those cases, the results in the primary form 37A were unaffected. The IEBC conceded at the trial that owing to wrong data entry in form 37C, Mr Osebe Nyambati lost a total of 432 votes while the 1st respondent gained 17 votes.

41. Keeping in mind the gap of 32,641 votes between the two candidates that I stated earlier; the centrality of form 37A; and, the binding precedent in IEBC v Maina Kiai & 5 others, [supra], I am not persuaded to order a full scrutiny of the election materials. I also stated earlier that a candidate or agent was entitled to a re-count at the polling station under Regulation 80 of the Elections (General) Regulations 2012. To be fair to the petitioner, and, in the interests of transparency, I will however order that there be a re-tally of the results in forms 37B and 37C from the original Forms 37A.

42. My finding on that aspect disposes of the prayers for scrutiny at Chaina Primary School 1 of 1, all the six Ikonge Primary School Polling Stations, Riamanoti Primary School 1 of 1, Nyangena TBC 1 of 1, Nyankono TBC 1 of 1, Nyabisimba DEB 1 of 1, Nyangorora DEB Primary School 1 of 1 and Omokirondo Primary School 1 of 1.

43. There is then the allegation that the agents of Mr Nyambati were denied entry into polling stations, harassed or ejected altogether. I will deal with the substance of the matter in the final judgment. But for now, scrutiny has been sought primarily for those reasons at Nyairang’a Primary School 2 of 2, Nyagokiani Primary School Polling stations 1 and 2 and Embaro DOK Primary School Polling Stations 1 and 2.

44. I have closely studied the certified forms 37As. At Nyairang’a Primary School 2 of 2, the form has been signed by 2 agents but it contains a stamped alteration. In Nyagokiani Primary School Polling stations 1 and 2 the forms are signed by 4 and 3 agents respectively while at Embaro DOK Primary School Polling Stations 1 and 2, the same were signed by 3 and 4 agents respectively.

45. Again in all those cases, the results in the primary form 37A were unaffected. I am alive that the true dispute is whether the personal agents of candidate Nyambati were present or signed the forms and whether it affected the result. But I have also noted that some of those agents are from the UDA Party, on whose ticket he was running.

46. Like I stated earlier, this is an interlocutory motion. I will delve deeper into the subject in the final judgment. For now, and for the reasons I have given at paragraphs 33, 34, 35, 40 and 41 of this decision, the sweeping prayers for a full scrutiny including polling day diaries, packets of spoilt or rejected ballots and statements and for counterfoils of ballot papers are unmerited. Prayers 8, 9 and 10 are accordingly disallowed.

47. There are then the stations in which the forms are impugned for alterations, cancellations or overwriting. They include Ting’a DOK Primary School 3 of 3 (whose alteration is stamped), Nyairang’a Primary School 2 of 2 (which I have dealt with in paragraph 44 above) and Motagara DEB Primary School 2 of 2.

48. I have studied Form 37A for Motagara DEB Primary School 2 of 2 very carefully. The petitioner as well as Wesley Kerina (PW9) referred to multiple alterations in the form. Nearly 5 of the alterations are on the votes of candidates. Two are countersigned. I have noted that it also has an IEBC stamp impression with a square border and quite different from the round one in other certified forms. I will deal in the final judgment whether stamping of the forms is necessary. The County Returning Officer (DW1) theorized that the square imprint resulted from “a drying ink pad and use of pressure by the maker”. It may well be so as I have seen a similar impression on the form for Nyangoge Primary School 1 of 3.

49. But I also note that the two agents have provided only one name (Kennedy and Memba) and did not sign or date the form. This again will be revisited in the final judgment. For now, and in the interests of justice, I order a partial scrutiny for Motagara DEB Primary School 2 of 2 but limited completely to a recount of the votes cast and the entries in form 37A.

50. Lastly on the forms, at Kenyamware DEB primary School 1 of 1, the certified copy of form 37A displayed by the IEBC at page 159 of the response is too faint and illegible. The copy attached to the petition is equally illegible. I cannot clearly see the candidates’ results or the signatures of the agents or presiding officers. Noting the centrality of form37A in elections and the reasons I gave earlier, I am satisfied that partial scrutiny is necessary for this stream but limited completely to a recount of the votes.

51. For all those reasons, the orders that commend themselves to me to grant are as follows:a.That prayers 1, 2, 3(i), 3(ii), 3(iii), 4, 5, 6, 8, 9, 10, 11, 12 and 13 as framed in the notice of motion are all disallowed.b.That prayer 7 is partly allowed but only to the extent that the 4th respondent (IEBC) shall provide an inventory of the ballot boxes used for the gubernatorial election at Omonono Primary School polling station 2 of 2 and Nyanchoka Tea Buying Centre 1 of 1 including their serial numbers and the seals serial numbers.c.That there shall be a partial scrutiny for Motagara DEB Primary School 2 of 2 but limited completely to a recount of the votes cast in the gubernatorial election and the entries in Form 37A.d.That there shall be a partial scrutiny for Kenyamware DEB primary School 1 of 1 but limited completely to a recount of the votes cast in the gubernatorial election and the entries in form 37A.e.That there shall be a partial scrutiny for Nyankoba Polling Station 1 and Nyabigege DOK Primary School Polling Station 1 of 2 but limited completely to a recount of the votes cast in the gubernatorial election and the entries in Forms 37A.f.That there shall be a re-tally of the results in the final forms 37B for Kitutu Masaba, Borabu, West Mugirango and North Mugirango; and, the final form 37C for Nyamira County from the original forms 37A submitted to the County Returning Officer.g.That the partial scrutiny and re-tally in orders (b) to (f) above shall be undertaken under the direct supervision of the Deputy Registrar of this court. The Deputy Registrar shall be assisted by such number of court assistants as shall be necessary to ensure efficiency and expediency.h.That the scrutiny shall commence on Wednesday, November 30, 2022 at 9. 00 a. m. and proceed on a day to day basis, except the Sabbath or public holidays, until Thursday December 15, 2022. i.That the 4th respondent (IEBC) shall submit the original forms 37A and the ballot boxes for the polling stations specified above; and, the forms 37B and 37C for the election of Governor for Nyamira on or before 9:00 a.m. on Wednesday November 30, 2022. j.That in view of constraints of space at the courthouse; and, the need to secure the materials, the exercise shall be conducted at the premises of the IEBC nearest to Nyamira Town.k.That the Deputy Registrar shall at the end of the exercise make a detailed report of his findings which report shall form part of the proceedings in this petition.l.That the petitioner, the 1st and 2nd respondents and any candidate who stood for Governor shall not be present at the examination centre. Their lawyers shall also not be present at the venue.m.The petitioner and the 1st respondent are entitled to appoint a maximum of three (3) agents each during the entire exercise. However, the Deputy Registrar will be at liberty to limit the number of agents allowed into the examination centre at any given time.n.That the IEBC shall be entitled to have 3 (three) agents at the venue of the partial scrutiny.o.That the Officer Commanding Police Division in the jurisdiction of the venue shall provide adequate security to the Deputy Registrar, Court Assistants, IEBC staff and the agents above-mentioned.p.That the petition shall be mentioned virtually on Monday December 19, 2022 at 11:00 a.m. for further orders and directions.q.That the costs shall be in the petition.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 25TH DAY OF NOVEMBER 2022. KANYI KIMONDOJUDGERuling read virtually on Microsoft Teams in the presence of:Mr. Mokaya holding brief for Mr. Omwanza for the Petitioner instructed by Nchogu Omwanza & Nyasimi Advocates.Messrs Anyoka, Ligunya, Kamwaro & Ms. Maina for the 1st & 2nd respondents instructed by Anyoka & Assocciates Advocates.Messrs Muyundo & Amimo for the 3rd & 4th respondents instructed by D. W. Muyundo & Associates Advocates.Ms. Anita, Ms. Aminah & Mr. Terer, Court Assistants.