[2017] KEHC 76 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

ELECTION PETITION No. 7 OF 2017

AZIZ MOHAMED KARISA.........................................PETITIONER

=VERSUS=

1. INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION (IEBC)...............RESPONDENT

2. NELLY ILONGO THE KILIFI

COUNTY RETURNING OFFICER...............2ND RESPONDENT

3. MWANYANJE GETRUDE MBEYU..............3RD RESPONDENT

RULING

1. There are three Applications coming for consideration in this ruling. Two of the Applications are dated 2/10/2017 and were filed by the petitioner and the 3rd Application was filed by the 4th Respondent also dated 2/10/2017.

The Applications which were all by way of Notion of motion are as outlined below.

2. THE PETITIONER’S 1ST NOTICE OF MOTION DATED 2/10/2017 WHICH STATED AS FOLLOWS;

(i) That this Honourable court do order the 1st Respondent to avail to this court the following materials, items and or information in its custody for purposes of assisting this court in hearing and determination of the application for scrutiny and recount of votes filed herein and or the petition herein.

(ii) The Polling Station Diaries for all Polling Stations in Kilifi County.

(iii) Both the electronic and hard copy of the register of voters as contains the biometric and alpha numerical details of the voters entitled to vote at all the polling stations in Kilifi County.

(iii) The Kenya Integrated Electronic Machine system (KIEMs) used in Kilifi County for purposes of accessing the information stored therein.

(iv) All declaration of results forms 39A, Bs and C used in the declaration of results for the election of the County Women Member of National Assembly in Kilifi County.

(v) This Honourable court do order the Director of Public Prosecution to avail all the witness statements with regard to all cases of accused persons charged with election offences in Kilifi county.

ON THE GROUNDS THAT:-

1. By virtue of Regulation 72 (6) of the Elections (General) Regulations, 2012thePolling Station Diary has the record of the Presiding Officer of the voters who requested to be assisted and the reason for the assistance and when the Polling Station Diary is availed before court they will be able to ascertain how many voters required assistance.

2. According to Regulation 73 (2) of the Elections (General) Regulations, 2012thePolling Station Diary contains the written statement of the Presiding Officer on:-

i. The number of ballot papers issued to Presiding Officers.

ii. The number of ballot papers, other than spoilt ballot papers, issued to voters.

iii. The number of spoilt ballot papers.

iv. The number of ballot papers that remained unused.

Therefore, the Polling Station Diaries are necessary in the verification of the votes cast, thespoilt votes, the rejected votes, the valid votes, any invalid vote cast which include that which is stuffed, or by a voter who votes more than once or by a person who is not a registered voter.

3. As per Regulations 61 (4) (a) of the Elections (General) Regulations, 2012the Returning Officer is obliged to provide each Polling Station with both electronic and hard copy of the Register 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 to the court it will assist the court verify the names and the number of the voters who voted as against the votes cast and contained in declaration of Results Forms 39A as well as the actual ballot papers or votes contained in the ballot boxes for each Polling Station.

4. Further section 44A of the Elections Act, 2011requires the 1st Respondent to put in place a complimentary mechanism for identification of voters and the register mentioned in ground number 3 above suffices for that purpose.

5. Section 44, the Elections Act, 2011establishes an integrated electronic electoral system for purpose of biometric voter registration, electronic voter identification and electronic transmission of results. The system is 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 certainty, the names and number of the voters who voted, the Declaration of Result Forms 39A transmitted from the Polling Stations to the Constituency and County Tallying Centers, the day and time this was made which is important in verification of the actual valid votes cast at every Polling Station.

6. Considering the grounds stated herein above, it is therefore absolutely necessary for the1st Respondent to provide the stated materials and or information for the court to be able to correctly, accurately and effectively carryout a proper scrutiny of votes and recount exercise.

7. The requested materials and or information are themselves key in determining whetherthe election of the 3rd Respondent was conducted by an Independent body, was transparent, administered in an impartial, neutral, efficient, accurate and accountable manner.

8. According to section 105 of the Elections Act, 2011all Public Officers are duty bound to cooperate with the 1st Respondent and not hinder it from carrying out its functions one of which is the investigation and prosecution of electoral offences by candidates,

9. Political parties or their agents as provided for under section 4 (I) of the Independent Electoral and Boundaries Commission Actand by the DPP availing the said statements he will help in the accountability and verification of the electoral process in Kilifi County.

10. The Application wassupported by the affidavit of AZIZ MOHAMED KARISA the Petitioner herein sworn on 2nd October 2017.

3. THE PETITIONER’S 2ND NOTICE OF MOTION DATED 2/10/2017 WHICH STATED AS FOLLOWS;

(i) That this Honourable Court do order a scrutiny and recount of votes in All Polling Stations in Kilifi County in respect of the election for County Women Member of National Assembly for Kilifi County held on 8th August, 2017.

(ii) This Honorable Court upon granting of prayer 2 above to direct that the scrutiny do include the examination of the following:-

a) The written statements made by the Returning Officers,

b) The examination of the written statements made by the Presiding Officersin the Polling Station Diaries.

c) Both the electronic and hard copy of the Register of voters as contains thebiometric data and alpha numerical details of the voters entitled to vote atthe stated Polling Stations.

d) The Kenya Integrated Electronic Machine System (KIEMS) and theinformation stored by it.

e) The Declaration of Results Forms 39As stored in the ballot boxes of all thenamed Polling Stations.

f) The Declaration of Results Forms 39Bs.

g) The Declaration of Results Forms 39C.

h) The packets of spoilt ballots.

i) The marked copy registers.

j) The packets of Counterfoils of used ballot papers.

k) The packets of counted ballot papers.

l) The packets of rejected ballot papers.

4. This Honourable Court do order costs of this application to be paid by the Respondents.

ON THE GROUNDS THAT:-

1) There were no Declaration of Results Forms 39A in all Polling Stations hence thealleged results in respect of these Polling Stations are either non-existent and or were illegally, wrongly and or fraudulently made after the event and in any of either case, the results are null and void.

2) The Declaration of Results Form 38Bfor Malindi, Kilifi North, Rabat, Kaloleni, Magariniand Kilifi South Constituency,are forgeries and or fake.

3) The effect of grounds 2 hereinabove is as follows:-

i. It is clear there is no single Form 39A that was handed over to the Constituency Returning Officers.

ii. This proves that no Form 39A'S were prepared at the Polling Stations andif they were they were not handed over to the Returning Officers.

iii. The collated results in all the Declaration of Results Forms 39B's in all seven [7] Constituencies in Kilifi County were illegal as were not based on any Declaration of Results Form 39A's.

iv. That being the case, the aggregate results in the Declaration of Results Form 39C which was based on the said Declaration of Results Forms 39B's was also illegal.

v. In effect the entire results for the election of County Women Member of National Assembly for Kilifi County were illegal hence null and void.

4. In addition to the aforesaid, none of the agents of the jubilee agents or candidates inall Polling Stations in Kilifi County were issued with the Declaration of Results Forms 39A's which is a clear indication of manipulation and or interference with the Results in all Polling Stations in Kilifi County.

5. The Electronic evidence if provided to this court will clearly demonstrate that the elections in Kilifi County were shambolic and not conducted in accordance with the Constitution and the law.

5. THE 4TH RESPONDENT’S NOTICE OF MOTION DATED 2/10/2017 WHICH ALSO STATED AS FOLLOWS;

(i) THAT the Petition dated 6th September, 2017 served by M/s Mwaniki Gitahi & Partners Advocates on the 4th Respondent be struck out and expunged from the Record of the Court for having been filed out of time.

(ii) In the alternative, this Honourable Court give directions as to which of the Petitions allegedly filed on 6th September, 2017 should be heard for purposes of challenging the election of the 4ch Respondent.

(iii) Costs of this Application, and of the struck out proceedings, be paid by the Petitioner.

GROUNDS;-

(i) Section 76 of the Election Act expressly and mandatorily limits the time for the Petitioner wishing to challenge an election to file the Petition within twenty eight (28) days and serve within fifteen (15) days.

(ii) The 4th Respondent and other candidates in the Kilifi County and Parliamentary Elections ("the successful candidates'') were made aware of a Petition challenging their elections on 7th September, 2017 on the press and immediately requested our office to obtain copies of the Petition from the Court Registry to enable them immediately collect evidence and prepare their defence.

(iii) The successful candidates vide various correspondences requested copies of the Petition and was supplied with the same.

(iv) On 14th September, 2017, the 4th Respondent like other candidates were served by the firm of Mwaniki Gitahi & Partners with a completely different Petition. This 2nd Petition was given the same number and was allegedly filed on the same date as that which was supplied earlier.

(v) The 4th Respondent and other successful candidates enquired from the Deputy Registrar of the Honourable Court about the existence of the two different petitions with the same number and allegedly filed on the same date.

(vi) The Deputy Registrar has tried giving explanation of the existence of the two petitions which explanation is not convincing and points out to improper conduct by court officials.

(vii) During pretrial held on 28th September, 2017, when the issue of existence of two petitions was raised, the Petitioner's counsel admitted but attempted an explanation to the effect that since the 4th Respondent has already filed a Response, there is no prejudice.

(viii) The position taken by the Petitioner and his counsel is one of convenience and does not answer substantively the serious issues raised during the pre-trial conference.

(ix) The 4th Respondent's counsel perused the file as late as 13th September, 2017 but the 2nd Petition was not in the court record and on further enquiry, she was told that the Ist Petition was swapped with the 2nd Petition on 14th September, 2017.

(x) It is therefore in the interests of administration of justice that the 2nd Petition served by the firm of Mwaniki Gitahi & Partners be struck out and the I" Petition annexed in the 4th Respondent's Response to Petition be fixed for hearing.

(xI) WHICH APPLICATION is premised on the above grounds and the annexed supporting affidavit of HON. GETRUDE MWANYANJE MBEYU and on such other or further grounds as may be adduced in the course of the hearing of this Application.

6. THE PETITIONER’S SUBMISSIONS

The Petitioner submitted orally in court as follows:-

(i) That the 1st Application is seeking materials such as polling station diaries to assist the court to make a decision whether the records at the polling station are accurate.

(ii) That the electronic and hard copies of the register of voters contain the biometric and alpha numerical details of the voters entitled to vote at all the polling stations and it will assist to identify the true voters who voted as there are allegations that there are people who voted who are not registered voters.

(iii) The Petitioner submitted that the Kenya Integrated Electronic Machine System (KIEMS) used in Kilifi County will help the petitioner to know how many people voted and whether the results were transmitted.

(iv) The Petitioner also submitted that they are seeking all the declaration of results forms 39As, Bs and Cs used in the declaration of results for the election of County Women Member of National Assembly in Kilifi County. He said these materials will assist the court to verify the issues raised in the petition.

(v) The petitioner submitted that paragraph 16 to 26 of the petition lays the basis for the Application in that there are two incidents that occurred and as a consequence of those incidents, results were not declared. The petitioner is now seeking orders against the DPP to provide all witness statements with regard to all cases of accused persons charged with election offences in Kilifi County.

(vi) The petitioner said they have annexed forms 39 Bs in paragraph 2 to 8 of the supporting Affidavit of the petitioner which were issued to the petitioner. The petitioner submitted that those forms are materially different from the prescribed forms and further that there are legal consequences for not using the prescribed forms.

(vii) The petitioner also annexed charge sheets of the officers who were charged with election offences in para 11 and 12 of the Affidavit of William Kahindi Mganga and they submitted lays a basis for securing the materials.

(viii) In the 2nd Application, the Petitioner is seeking scrutiny and recount of votes in all polling stations in Kilifi County in respect of the election for County Women Member of National Assembly for Kilifi held on 8th August, 2017. The petitioner submitted that the grounds for seeking the scrutiny and recount was that there were no declaration of results forms 39A in all polling stations hence the alleged results were either non-existent and or illegal, wrongly and or fraudulently made after the event and the said results are therefore null and void.

(ix) The petitioner further submitted that the declaration of results form 38B for Malindi, Kilifi North, Rabai, Kaloleni, Magarini and Kilifi South Constituencies were forgeries and or fake. In effect, the petitioner submitted that the entire results for the election of the County Women Member of National Assembly for Kilifi County were illegal hence null and void as no single forms 39A were handed to the Constituency Returning officer and none were prepared at the polling station and therefore the collated results in all declaration forms 39Bs in the seven constituencies in Kilifi were not based on forms 39As and as a consequence all the 39Cs were illegal. Further that this Application will give the Respondents an opportunity to open the ballot boxes and this is an easy way of ending the dispute before court.

(xi) The petitioner relied on the following authorities;

1. Supreme Court Presidential Petition No. 1 of 2017. Raila Amollo Odinga and Another Versus IEBC and others

2. Gatirau Peter Munya Versus Dickson Mwenda Kithinji & 2 others [2014] ekLR.

3. Nicholas Kiptoo Arap Korir Salat Versus IEBC & 7 others [2015] ekLR.

7. THE 1ST & 3RD RESPONDENT’S SUBMISSIONS

The 1st and 3rd Respondents submitted orally in Court through their Advocate Mrs. Nyange as follows:-

(i) That Section 82 of the Election Act states that where votes are scrutinized, only the following votes shall be struck off:-

(a) The vote of a person whose name was not on the register or list of or who had not been authorized to vote at that station.

(b) People who voted who ought not to have voted.

That the current petition bears no allegations that there are people who voted whose names were not on the register and neither was there an allegation of any voter who was not allowed to vote.

(ii) The 1st and 3rd Respondents also submitted that the prayer of scrutiny and recount cannot be put together and further that scrutiny can only be allowed if it is premised in the main petition.

(iii) The 1st and 3rd Respondent also relied on the case of GATIRAU PETER MUNYA V DICKSON MWENDA KITHINJI & 2 OTHERS [2014] ekLR at paragraph 116, 120 and 121 where the Court said that the petitioner must specify the polling stations where they desire scrutiny and recount.

(iv) The 1st and 3rd Respondents filed an Affidavit by NAOMI WANJA the Presiding officer at Kaloleni social Hall polling station which states that results were announced. Further that all people mentioned have filed Affidavits stating that they complied with the law.

(v) It was further submitted that the petition filed herein is devoid of the results and further that there is no allegation that the results announced were different.

(vi) The 1st and 3rd Respondent urged the court to strike out the Affidavit of William Kahindi on the ground that the said person is not a witness to the petition and his Affidavit is introducing new matters in the Application which are not in the petition.

Further that the said Affidavit has annexed electronic evidence which does not comply with section 107 of the Evidence Act.

(vii) The 1st and 3rd Respondents also submitted that the petitioner is under a duty to discharge the burden of proof which is above the balance of probabilities though not as high as beyond reasonable doubt.

(viii) The 1st and 3rd Respondents also submitted that on the issue of the yellow canter and the charge sheets annexed to the supporting Affidavit, the County Returning officer, Kilifi County NELLY ILONGO filed an Affidavit dated 11/10/2017 stating that the Isuzu canter was appropriately hired by the Respondent for purposes of transportation of the voting materials and it was wrongly intercepted by the electorate.

(ix) The 1st and 3rd Respondents distinguished the authorities relied on by the petitioner on the basis that the main petition contained a prayer for scrutiny while the main petition in this case does not have any prayer relating to scrutiny and recount.

(x) Finally, the 1st and 3rd Respondent submitted that the prayer for scrutiny can be granted at three stages, before the hearing of the petition, during the hearing of the petition and after the hearing.

They urged the court to dismiss the two Applications and if it finds it necessary to order a scrutiny of votes, to do it at the end after hearing the petition.

8. THE 4TH RESPONDENT’S SUBMISSIONS

The 4th Respondent submitted orally in court through their Advocate as follows:-

(i) The 4th Respondent fully associated herself with the submissions of the 1st and 3rd Respondent and also relied on the case of GATIRAU PETER MUNYA V DICKSON MWENDA KITHINJI & 3 OTHERS [2014] ekLR where the court established the principles on scrutiny.

(ii) The 4th Respondent submitted that the scrutiny is not done at County level but at the polling station and the request must be for specific polling stations and sufficient course has to be shown for the scrutiny or recount but not both scrutiny and recount.

(iii) The 4th Respondent submitted that the Application must fail as it seeks scrutiny and recount of all the polling stations in the County and this amounts to a fishing expedition. An Application of this nature ought to be confined to specific polling stations.

(iv) The 4th Respondent also submitted that a party must lay a basis for scrutiny in specific polling stations and one should not have a blanket prayer for scrutiny.

(v) The 4th Respondent also submitted that the Application for scrutiny cannot be entertained at pre-trial stage as it is based on allegations which have not been subjected to cross-examination of the witnesses who swore the Affidavits.

Rule 12 (13) states that every deponent who swears an Affidavit must be examined in chief and cross-examined.

(vi) The 4th Respondent also submitted that the Application is based on grounds that are not pleaded in the petition. In the Application it is stated that there were no declaration forms while in the petition at paragraph 35 (b), the petitioner stated that “in a significant number of polling stations the votes as captured in forms 39A differ from the results captured in the 2nd Respondent’s from 39B”.

(vii) The 4th Respondent also submitted that the Affidavit of AMINA LAURA MNYAZI in support of the Application for scrutiny on paragraph 11 states that she has sworn the Affidavit in support of the petition and the Application and yet she is not a witness to the petition.

(viii) The 4th Respondent also submitted that the prayer against the DPP is seeking orders against a party who is not before this court.

(ix) On the 4th Respondent’s Application dated 2/10/2017, the 4th Respondent submitted that the petition herein dated 6/09/2017 be struck out and expunged from the record of the court for having been filed out of time.

(x) On the alternative the 4th Respondent is seeking that this court gives directions which of the two petitions No. 7 of 2017 should be heard for the purposes of challenging the election of the 4th Respondent.

(xi) The 4th Respondent relied on the grounds to the Application and the supporting Affidavit of Hon. GETRUDE MWANYANJE MBEYU which has attached the 1st petition number 7 of 2017 which was swapped with the current petition on 14/09/2017.

(xii) The 4th Respondent submitted that the Election Act Section 70 expressly and mandatorily limits the time for the petitioner wishing to challenge an election to file the petition within twenty eight (28) days and serve within fifteen (15) days. She urged the court to strike out the 2nd petition which was filed out of time.

8. THE ISSUES FOR DETERMINATION

The issues this court must determine are as follows:-

i) Whether the petitioner is entitled to an order to secure the election materials in the custody of the 1st Respondent in all the the polling stations in Kilifi County in respect of women member of the National Assembly elections held on 8/8/2017.

ii) Whether the petitioner has established sufficient course to warrant this court to issue orders of scrutiny and recount of all the polling stations in Kilifi County in respect of women member of the National Assembly elections held on 8/8/2017.

iii) Whether the petition herein should be struck out for reasons that it was filed out of time.

iv) Who pays the costs of the Applications?

9. THE COURT’S FINDINGS

The findings of this court 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) On the first Application which is seeking for election materials, items and information in the custody of the 1st Respondent, the 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 second Application seeking for scrutiny and recount, I also find that the 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. I find that the Application which has been made before the trial is premature and this court has to hear the evidence before coming to a conclusion that such a recount and scrutiny would be necessary to enable the court to reach a just and fair determination of the petition. The second Application is also declined on that basis.

(iv) On the 3rd Application by the 4th Respondent seeking to strike out the petition herein on the basis that it was filed out of time, I find that the Application has attached 2 petitions bearing the same date.

(v) I also find that what is deposed in the supporting Affidavit by GETRUDE MWANYANJE MBEYU has not been controverted .The petitioner casually objected to the said Application. There is evidence that the petitioner swapped the second petition with the 1st petition.

(vi) After the petitioner filed the first petition, the same become the property of the court and the only way the petitioner would effect changes would be by way of amendment within the 28 days.

(vii) What the petitioner did when he swapped the 1st petition for the 2nd petition is unacceptable and for that reason, this court strikes out the 2nd petition. The first petition having been removed from the records, this petition must fail and the same is accordingly dismissed with costs to the Respondents.

(viii) The costs are capped at Kshs. 2,000,000.

Orders to issue accordingly.

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

ASENATH ONGERI

JUDGE.