[2023] KEHC 27585 (KLR)

Baloo & 2 others v Returning Officer, Mvita Constituency & 3 others (Election Petition Appeal E002 & E003 of 2023 (Consolidated)) [2023] KEHC 27585 (KLR) (7 August 2023) (Judgment)

Neutral citation: [2023] KEHC 27585 (KLR)

Republic of Kenya

In the High Court at Mombasa

Election Petition Appeal E002 & E003 of 2023 (Consolidated)

F Wangari, J

August 7, 2023

Between

Samir Gulam Abbas Baloo

Appellant

and

Returning Officer, Mvita Constituency

1st Respondent

The Independent Electoral & Boundaries Commission

2nd Respondent

Tobias Otieno Samba

3rd Respondent

As consolidated with

Election Petition Appeal E003 of 2023

Between

The Independent Electoral & Boundaries Commission

1st Appellant

Returning Officer, Mvita Constituency

2nd Appellant

and

Tobias Otieno Samba

1st Respondent

Samir Gulam Abbas Baloo

2nd Respondent

(Being an Appeal from the entire Judgement of the Principal Magistrate Honourable V.O. Adet delivered on 28th February, 2023 in Mombasa Election Petition No. E003 of 2022)

Judgment

1. This is an Appeal against the judgement delivered by Hon. V.O. Adet, Principal Magistrate in Mombasa Election Petition No. E003 of 2022 on 28th February, 2023. The Petitioner (now the 3rd Respondent in the consolidated appeal) being dissatisfied with the election of the 3rd Respondent (now the Appellant in the consolidated appeal) as the Member of County Assembly (MCA) for Tudor Ward, moved the court for nullification of the Appellant’s election vide an election petition filed on 7th September, 2022. The Trial Court upon considering the petition, the evidence tendered, submissions filed and the law allowed the petition in the following terms: -i.A declaration that the illegalities and irregularities exhibited and witnessed in the elections held on 9th August, 202 for the position of Member of County Assembly for Tudor Ward within Mombasa County affected the results and the validity of the said elections;ii.A declaration that the election of the 3rd Respondent herein, SAMIR GULAM ABBAS BALOO was not validly elected as Member of County Assembly for Tudor Ward in Mombasa County and the 2nd Respondent’s declaration of the 3rd Respondent as elected is illegal, null and void and the said declaration be revoked, cancelled and nullified forthwith;iii.An order be issued directing the 1st Respondent to conduct fresh elections for the position of Member of County Assembly, Tudor Ward in Mombasa County in conformity with the Constitution of Kenya, the Elections Act, 2011 and the Regulations thereunder;iv.The Respondents shall bear the cost of the Petition which is hereby capped at Kshs. 500,000/= not subject to any further taxation and shall be dived equally between the 1st and 2nd Respondents on one hand and the 3rd Respondent on the other hand;v.Certificate pursuant to section 86 (1) of the Elections Act do issue to the Hon. Speaker, Mombasa County Assembly.

2. It is the above finding that precipitated the present appeal. Two (2) appeals were filed and considering that the subject matter was the same, the two appeals were consolidated by consent of parties and Election Appeal No. E002 of 2023 was selected as the lead file.

3. The Appellant preferred a total of thirteen (13) grounds impeaching the Trial Court’s judgement and the same are set out in the memorandum of appeal dated 23rd March, 2023. The 1st and 2nd Respondents on their part preferred a total of ten (10) grounds through a memorandum of appeal of even date as that of the Appellant. The Appellant made an interlocutory application for stay of execution of the Trial Court’s judgement pending hearing and determination of the appeal and the orders sought were granted to preserve the substratum of the appeal.

4. Directions were taken that the consolidated appeal be canvassed by way of written submissions and all the parties duly complied with the court’s directions. Parties filed detailed submissions and cited various authorities in support of their rival positions. I am grateful to counsel for their industry in complying with the court’s directions. The submissions filed and the authorities cited are a very important guide in helping the court at arriving at a just determination of the matter one way or the other. I say so because the term “just determination” is relative depending on which side the axe shall fall.

Appellant’s Submissions 5. The Appellant’s submissions are dated 14th July, 2023. The Appellant isolated four (4) issues for determination which are set out hereunder: -a.Whether the Learned Trial Magistrate erred in law by relying on the charges levelled against the Appellant to conclude involvement in electoral malpractices;b.Whether the Learned Trial Magistrate erred in law by holding that there was destruction of electoral materials and smuggling of unauthorized election materials into voting hall and ballot stuffing;c.Whether the Learned Magistrate erred in law in holding that the illegalities and irregularities witnessed in Tudor Ward affected the results and the validity of the said election;d.Whether the Learned Magistrate erred in law in shifting the evidential burden of proof to the Appellants before the initial burden of proof is discharged by the 3rd Respondent

6. On the first issue, the Appellant submitted that he was barred from participating in the petition for failing to submit his response to the petition within the stipulated time. The case of Anuar Loitiptip v Independent Electoral & Boundaries Commission & 2 Others [2019] eKLR was cited in support of the position of fair hearing in our Constitution. Building on this, the Appellant submitted that it was wrong for the Trial Court to rely on the fact that he had been charged in Mombasa Magistrate’s Court Election Offence Case No. E002 of 2022 to conclude that the Appellant had participated or was involved in election malpractices. The case of Owino Paul Ongili Babu v Francis Wambugu Mureithi & 2 Others [2018] eKLR was cited in support of the position that an election court cannot pronounce itself on an issue that was still before the criminal court.

7. On the second issue, the Appellant submitted that the allegation of chaos and violence, voter bribery and ballot stuffing remained mere allegations as no specifics or evidence to substantiate the allegations were set out. According to the Appellant, the scuffles at Tudor Village Hall was as a result of misunderstanding among the agents and the Appellant was not present. There was no evidence showing that the Appellant caused the violence.

8. The case of Raila Amolo Odinga & Another v IEBC & 6 Others [2017] eKLR was cited for the proposition that the standard of proof on allegations of criminal or quasi criminal conduct is proof beyond reasonable doubt. Further, the case of Dickson Mwenda Githinji v Gatirau Peter Munya & 2 Others [2013] eKLR was cited for the proposition that in electoral context, widespread violence can only be taken to mean a systematic, planned or organized infliction of injury, harm, damage or loss on any person because they have voted in a particular way or induce them to vote in a particular way.

9. The Appellant cited the case of Kithinji Kiragu v Martin Nyaga Wambora & 2 Others [2013] eKLR on the issue of bribery and concluded that a court cannot rely on hearsay evidence. In concluding on this issue, the Appellant stated that the Learned Magistrate erred in his finding that the election was marred with violence which resulted to destruction of election materials and ballot stuffing.

10. On the third issue, the Appellant placed reliance on Section 83 of the Elections Act which is to the effect that no election shall be declared void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.

11. Citing the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, the Appellant submitted that the 3rd Respondent failed to adequately prove beyond reasonable doubt that the irregularities were so dire as to affect the integrity of the electoral process.

12. Further reliance was placed on the decided cases of Julius Makau Malombe v Charity Kaluki Ngilu & 2 Others [2018] eKLR, Kiiza Besigye v Electoral Commission & Yoweri Kaguta Museveni, Presidential Election No. 1/2006 and Mwiru v Nabeta & 2 Others EP No. 3/2011 where it was observed that courts ought to disregard irregularities since no elections can be impeccable and totally free from mistakes. He concluded that the two incidences of scuffle which were quickly resolved did not justify nullification of the elections in other areas which were peaceful.

13. On the fourth issue, the Appellant submitted that it was wrong for the Trial Magistrate to shift the burden of proof to him when the 3rd Respondent had not discharged the initial burden. According to the Appellant, other than the video evidence at Tudor Village Hall, no other evidence was adduced by the 3rd Respondent and his witnesses to prove the allegations in the petition. In totality, the Appellant urged the court to set aside the Trial Court’s judgement and allow the appeal with costs.

1st and 2nd Respondent’s Submissions 14. The 1st and 2nd Respondent isolated seven (7) issues for determination which I have duly considered. On the first issue, the 1st and 2nd Respondent submitted that the main witness on the violence was PW12, Isaac Mambo Mulei. His evidence was impeached for among other reasons that he did not adduce any evidence that he accessed any of the Tudor Hall Polling Stations and thus his testimony that he took the photographs and videos with his phone was doubtful.

15. Placing reliance on Regulations 62 and 63 of the Elections (General) Regulations, 2012, they submitted among others that despite the scuffles, the officials deployed by the 2nd Respondent, IEBC were at all times in control of the voting exercise and election materials, that the afternoon incident happened outside the polling center and that the scuffles did not in any way affect the voting process and the results of the election.

16. Reliance was placed in the Court of Appeal decisions in Owino Paul Ongili Babu and Julius Makau Malombe (supra) for the proposition that there has to be a demonstration that the violence affected not only voting but the final result of the election for instance that the violence disenfranchised some voters or gave an undue advantage to one of the parties. The case of Justus Gesito Mugali M’mbaya v IEBC & 2 Others [2013] eKLR was also cited to reinforce the issue of violence.

17. On the second issue, the 1st and 2nd Respondent submitted that failure of a KIEMS kit is not a deliberate act attributable to the 1st and 2nd Respondent. No witness testified that he or she was turned away on account of KIEMS kit failure and thus it was submitted that the Trial Court fell into grave error in finding that the KIEMS kit failure disenfranchised voters.

18. Recourse was placed in Raila Odinga & 5 Others [2013] eKLR (supra) for the proposition that as with all technologies, electoral technology is rarely perfect and it behoves those employing it to remain open to the coming of new and improved technologies. Further reliance was placed in the Court of Appeal decisions in National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commissions & 2 Others [2017] eKLR and United Democratic Alliance Party v Kenya Human Rights Commission & 12 Others, Civil Application No. E288 of 2022.

19. On the third issue, the 1st and 2nd Respondent submitted that voting was extended beyond 5:00 p.m. to compensate for the time lost during the violence. It was submitted that the finding by the Trial Court that extension of time could have only been proved through production of Polling Day Diaries amounted to shifting the evidential burden of proof to the 1st and 2nd Respondent before the initial burden had been discharged by the 3rd Respondent. It was equally submitted that the 3rd Respondent did seek for an order of scrutiny which would have required the 1st and 2nd Respondent to produce the Polling Day Diaries.

20. On the fourth issue, it was submitted that there was no evidence that proved that incidents that occurred at Tudor Village Hall Polling Stations was intended and indeed caused voter suppression. The case of Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment) was cited in support.

21. The 1st and 2nd Respondent presented a summary of voter turnout in all the polling stations in Mvita Constituency to buttress the position that empirical evidence that the voter turnout in the polling stations were within the general voter turnout pattern for the entire Constituency.

22. On the fifth issue, it was submitted that the issue of destruction of election materials was not backed by any evidence and none was alleged by the 3rd Respondent in his petition. It was contended that no election material that was destroyed during the violence was mentioned. On ballot stuffing, it was submitted that though PW2 stated that together with his friends, they ferried four stuffed ballot boxes to Tudor Village Hall Polling Station, none of the friends testified to that effect. Further, the official of the 1st Respondent who was allegedly handed over the ballot boxes was not named.

23. It was submitted that PW2 did not produce any evidence to prove that he was engaged for the purposes of the alleged assignment. Therefore, it was the 1st and 2nd Respondent’s view that the entire evidence of PW2 was unsubstantiated.

24. On the sixth issue, it was submitted that the Trial Court’s conclusion that preferring charges against the Appellant was prima facie evidence of commission of electoral offence and electoral malpractice was in error. They contended that whereas the Appellant was charged with several electoral offences, the particulars of all the charges preferred against him related to counterfoil of the ballot papers for the position of the Women Representative.

25. None related to the election of the Member of the County Assembly or any position relating to the position of the Member of the County Assembly. It was submitted that preferring charges against a party cannot be in law deemed prima facie evidence of malpractices. The decisions of Raila Odinga and Owino Paul Ongili Babu (supra) were cited for the above proposition.

26. On the sixth issue, it was submitted that no credible evidence was adduced to prove the allegations of illegalities and irregularities witnessed at Tudor Ward which affected the results and the validity of the said election. The 1st and 2nd Respondent contended that it was not enough to find that there was some form of violence in a given polling station and then proceed to nullify the result of the election. There had to be a definitive finding that the violence not only affected the voting but the final result.

27. It was submitted that the Trial Court failed to find that the scuffles witnessed at Tudor Village Hall was an isolated one and was only witnessed in six out of thirty seven polling stations in the ward. It was not widespread, systematic, planned or organized. It was stated that the Trial Court’s finding on this issue was flawed as it adopted a lower threshold on the proof of such allegations.

28. On the seventh issue, it was submitted that the Trial Court erred by shifting the evidential burden of proof to the Appellants before the initial burden of proof was discharged by the 3rd Respondent. Sections 107 and 109 of the Evidence Act were cited for the said proposition.

29. It was further added that in election matters, there is a presumption that the results declared by the electoral body are correct until the contrary is proved (George Mike Wanjohi v Stephen Kariuki & 2 Others [2014] eKLR). It was contended that the Trial Court erred in law in finding that there was ballot stuffing and bribery even though no material evidence was placed before the court for the said conclusion.

30. Lastly, it was submitted that the Trial Court failed to follow and be bound by the doctrine of stare decisis. The Supreme Court decision in Jasbir Singh Rai & 3 Others v Tarlochan Singh & 4 Others [2013] eKLR was cited for the said proposition. The 1st and 2nd Respondent’s view was that the Trial Court failed to follow the jurisprudence set by the Superior Courts regarding the import of violence in an election, failure of technology, voters’ suppression and the burden of proof. In conclusion, the 1st and 2nd Respondent prayed that the appeal be allowed with costs.

3rd Respondent’s Submissions 31. The 3rd Respondent’s submissions are dated 17th July, 2023. It identified four (4) issues for determination which are as follows: -a.Whether the Appellant is legally eligible to file the Appeal herein in view of the fact that he did not participate in the Lower Court proceedings;b.Whether the 3rd Respondent discharged the burden of proof placed on him;c.Whether the election was conducted in accordance with the principles laid down in the Constitution, the Elections Act and the Regulations made thereunder;d.Whether the election was fraught with massive illegalities and irregularities that affected the results of the elections.e.Who bears the costs?

32. On the first issue, it was submitted that if failing to file a response to the election petition before the Trial Court, the Appellant lost his right to challenge the petition and in turn, file the present appeal. It was contended that the court has no discretion to interfere with legal timelines within which responses were to be filed.

33. Reliance was placed on the cases of Ferdinand Ndung’u Waititu v Independent Electoral & Boundaries Commission (IEBC) & 8 Others [2014] eKLR and Peter King’ara v Independent Electoral & Boundaries Commission (IEBC) & 2 Others. It was submitted that Rule 11 (5) of the Election Rules was couched in mandatory terms that a response to a petition shall respond to each claim made in the petition.

34. The decisions in Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR and J.P. Machira t/a Machira & Company Advocates v Wangethi Mwangi & Another [1998] eKLR were cited. Rule 11 (8) of the Election (Parliamentary and County Election) Petition Rules, 2017 was equally cited. To buttress this issue, the case of Christopher Odhiambo Karani v David Ouma Ochieng & 2 Others [2018] eKLR was cited.

35. On the second issue, it was submitted that the Trial Court properly evaluated the evidence on record in finding that the 3rd Respondent had discharged the burden of proof. Reliance was place on sections 107 to 109 of the Evidence Ac and the cases of Emmanuel O. Achayo v ODM & 2 Others [2017] eKLR and Raila Odinga & 5 Others (supra). The 3rd Respondent urged the court to uphold the Trial Court’s ruling on this aspect.

36. On the third issue, 3rd Respondent reproduced the provisions of Articles 81 (e) and 87 (1) of the Constitution on the issue of free and fair elections and the timely determination of the electoral disputes. Similar recourse was sought in Regulations 83, 84, 85 and 86 of the Electoral Regulations. The case of James Omingo Magara v Manson O. Nyamweya & 2 Others [2010] eKLR in which the English case of Morgan v Simpson [1975] IQB 151 was cited with approval was placed reliance on.

37. On the fourth issue, it was submitted that the Trial Court properly interpreted and applied the electoral principles provided for in the Constitution and the electoral laws. The case of Moses Wetangula v Musikari Kombo & 2 Others [2015] eKLR was cited. It was further submitted that the election was marred with violence which led to destruction of voting materials and disrupted the whole voting process. The cases of Owino Paul Ongili Babu and Gatirau Peter Munya (supra) were cited. In conclusion, the 3rd Respondent prayed that the Trial Court’s judgement be upheld and that a By-Election for Tudor Ward be held.

Analysis and Determination 38. I have considered the appeal, the submissions filed, the authorities cited and the relevant law and in my considered view, the following are the issues for determination: -a.Whether the Appellant was eligible to file the appeal considering that he never participated in the Lower Court proceedings;b.Whether the 3rd Respondent discharged the burden of proof placed on himc.Whether the election was conducted in accordance with the principles laid down in the Constitution, the Elections Act and the Regulations made thereunder;d.Whether the election was tainted with massive illegalities and irregularities that affected the results of the election;e.Whether the appeal is merited; andf.Who bears the costs?

39. This court’s jurisdiction is derived from section 75 (4) of the Elections Act which provides as follows; -75 (1)….1A..….2. …..3. …4. An appeal under subsection (1A) shall lie to the High Court on matters of law only…

40. It is therefore settled that an appeal to this court is limited to matters of law only. Therefore, grounds of appeal based on matters of fact would fall outside the ambit of this court. Simply put, this court, in the exercise of its appellate jurisdiction is precluded from interfering with findings of facts made by the Trial Court in an election petition.

41. Having considered the grounds of appeal preferred by both parties, I am satisfied that they all raised matters of law. By matters of law, what does it mean? The Supreme Court of Kenya in Fredrick Outa Otieno v Jared Okello & Others [2014] eKLR defined matters of law as follows: -“It is a question or an issue involving:-(a)The interpretation or construction of a provision of the Constitution, an Act of Parliament, subsidiary legislation or any legal doctrine, in an election petition in the High Court concerning membership of the National assembly, the senate, or the office of County Governor.(b)The application of a provision of the Constitution, an Act of Parliament subsidiary legislation, or any legal doctrine to a set of facts or evidence on record, by the trial judge in an election petition in the high court concerning membership of the National Assembly, the Senate or the Office of the County Governor.(c)The conclusions arrived at by the trial judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor where the appellant claims that such conclusions were based on “no evidence” or that the conclusions were not supported by the established facts, or evidence on record, or that the conclusions were so “perverse” or so illegal, that no reasonable tribunal would arrive at the same. It is not enough for the appellant to contend that the trial judge would probably have arrived at a different conclusion on the basis of the evidence.”

42. In the same case, the court made a distinction between matters of fact and law by stating as follows: -“A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts or when the issue does not call for an examination of the probative value of the evidence presented, to truth or falsehood of facts being admitted. A question of fact exists when the doubt or differences arises as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the credibility of witnesses, the existence or relevancy of specific surrounding circumstances, as well as their relation to each other and to the whole and to the probability of the situation. This court cannot adjudicate which party told the truth ----- by reviewing and revising the evidence adduced at the trial court. Neither verbal sophistry, nor artful misinterpretation of supposed facts which were made by the trial court ----- absent any showing that there are significant issues involving questions of law.”

43. The same court in Gatirau Peter Munya v Dickson Mwenda Kithinji & Others [2014] eKLR, three elements of the phrase “matters of law” were characterized as follows: -(1)The technical element – involving the interpretation of a Constitutional or statutory provision.(2)The practical element – involving the application of the constitution and the law to a set of facts or evidence on record.(3)The evidentiary element – involving the evaluation of the conclusion of a trial court on the basis of the evidence on record.

44. The court having satisfied itself on the competence of the appeals will now turn to consider each of the issues it has framed. In order to answer the first issue, it is imperative to consider the circumstances under which the Appellant was barred from participating in the Trial Court’s proceedings. At the onset, there is no dispute that the Appellant did not participate in the Lower Court proceedings having failed to file his response within time.

45. Despite making an application to have its response be filed out of time, the court dismissed the application and thus the petition proceeded without the Appellant’s participation. The 3rd Respondent submitted substantively on this issue. According to the 3rd Respondent, having not filed his response in terms of Rule 11 of the Elections Petitions Rules, the Appellant lost his right to challenge the petition and in turn file the present appeal.

46. Further reliance was placed on the provisions of Rule 11 (8) of the Elections Petitions Rules which provide thus; “A Respondent who has not filed a response to a petition as required under this rule shall not be allowed to appear or act as a party in the proceedings of the petition.” The case of Christopher Odhiambo Karan v David Ouma Ochieng’ & 2 Others [2018] eKLR was cited.

47. In the Trial Court’s judgement at paragraph 7 (page 714 of Volume 2 of the Record of Appeal), the court stated that the Appellant’s application for review of the orders issued on 13th October, 2022 was dismissed on 23rd November, 2022. In the proceedings of 15th November, 2022, the Trial Court had indicated that it was going to deliver a ruling on 23rd November, 2022. However, having gone through the Record of Appeal, I note that the ruling of 23rd November, 2022 does not form part of the record.

48. However, upon perusal of the Trial Court’s file, I note that there is a ruling delivered on 23rd November, 2022. The Trial Court citing several authorities among them Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR was satisfied that the Appellant had not given sufficient reasons to persuade the court to review its orders of 13th October, 2022.

49. The Trial Court in refusing the Appellant’s application was exercising its discretion as conferred by Rule 19 of the Election (Parliamentary and County) Petition Rules, 2017 and as decreed in several decisions of this court, Court of Appeal and the Supreme Court, general principles on when an appellate court may interfere with a discretionary power of a trial are now well settled.

50. In the case of Mbogo & Another vs Shah [1968] EA, it was held as follows: -“…An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been injustice…”

51. Therefore, before this court ventures to upset the Trial Court’s exercise of its discretion or otherwise, it must consider the manner in which the same was exercised and see whether the parameters set in Mbogo & Another v Shah (supra) had been met. Rule 19 of the Election (Parliamentary & County) Petitions Rules, 2017 provides as follows: -“19. (1) Where any act or omission is to be done within such time as may be prescribed in these Rules or ordered by an elections court, the election court may, for the purposes of ensuring that injustice is not done to any party, extend or limit the time within which the act or omission shall be done with such conditions as may be necessary even where the period prescribed or ordered by the court may have expired.”

52. This Rule has to be read together with Rule 5 which requires that the ‘effect of any failure to comply with these Rules shall be determined at the Court’s discretion in accordance with the provisions of Article 159(2)(d) of the Constitution.’ Rule 4 of the 2017 Election Petition Rules is also a relevant guiding consideration as it obligates the election court to give effect to the objective of the 2017 Petition Rules which is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions.

53. What was the effect of the order barring the Appellant from participating in the Trial Court’s proceedings? It meant that he was denied the opportunity to participate in the very proceedings where his election was being challenged. It is not in dispute that a party served with an election petition is required to lodge his response and affidavits in support within seven (7) days of service. That is what Rule 11 of the Election (Parliamentary and County) Petitions Rules commands.

54. However, unlike time to lodge an election petition which is set by the Constitution and the Elections Act, the Trial Court reserved its discretion to extend time within which a response could be filed. In Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others [2014] eKLR, the Supreme Court while considering an application to file an appeal out of time noted as follows: -“…At this juncture it is important to differentiate a timeline that is spelt out within the Constitution and one that is based on statutory fiat as elaborately argued by senior Counsel Paul Muite. An interpretation of Statute, unlike that of the Constitution, calls for an assessment of the intention of Parliament when making a particular law or regulation. In the instant matter, it is incomprehensible to me that Parliament could have intended to lock out a litigant from the right to appeal, merely on the basis of inability to file an appeal on time due to the late receipt of vital court documents, such as proceedings, from a third party. Indeed, the provision in the Elections Act, 2011 signifies the intention of Parliament to facilitate the right of appeal, which right had not been provided for in the Constitution. The construction and meaning of that intention of the Legislature must therefore be read into the words of the relevant law…Section 85A of the Elections Act, 2011 is a statutory provision unlike Articles 25, 50 and 87(2) of the Constitution…This interpretation allows every party an opportunity to present their case (to be heard) and therefore guided by the Constitution under Articles 19 and 20…”

55. Though the above decision concerned extension of time to file an appeal, the principles set out applies to the present case as it addresses the issue of extension of time. The Court of Appeal in John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR while considering a similar matter of extension of time held as follows: -“…There is no dispute that the appellant did not file and serve the notice of appeal within the period prescribed by the 2017 rules. Decisions of this Court abound where it has been held that the prescribed timelines as regards electoral dispute resolution must be strictly adhered to…We agree with those decisions particularly given the constitutional and statutory demand for timely resolution of disputes. Nevertheless, the 2017 rules themselves now expressly confer on us discretion to determine the effect of any failure to comply with the rules, taking into account the fact that justice must be administered without undue regard to procedural technicalities, balanced against the need to observe prescribed timeliness…In this case there is clear non-compliance with the rules, but we have before us the record of appeal and we perceive it is possible to determine the appeal without any further infraction on the set timelines. We have considered the effect of the appellant’s failure to file the notice of appeal within 7 days and to serve the same within the prescribed period. No evidence has been adduced that any party has been prejudiced by non-compliance with the 2017 rules, which we have noted. The three objects of the 2017 rules, namely just, impartial, and expeditious determination of appeals, which we agree must be given equal consideration, do not stand to be compromised if we hear the appeal on merits…”

56. I note that in his application dated 27th October, 2022, the Appellant had annexed his response to the petition and the Trial Court ought to have considered whether despite the infractions, justice could be served if the application is allowed. Similarly, the court ought to have considered whether any party stood to suffer any prejudice if the application was allowed. I note that as at the time the Trial Court set a date to rule on the application dated 27th October, 2022, the matter had not yet been fixed for hearing. Despite my view above, in disallowing the application, the Trial Court was exercising discretion.

57. The Trial Court made an observation that the Appellant was not honest on the issue of service of the petition upon him since the contents of affidavit of service of one Gordon Odhiambo were neither challenged nor an application for his cross examination made. In Christopher Odhiambo Karani (supra), the Court of Appeal (Okwengu, J.A) while addressing a similar issue held thus: -“…The finding made by the election court that the appellant had demonstrated lack of candor in seeking to provide an explanation for his delay, was a finding of fact based on the court’s assessment of the appellant’s credibility. As an appellate court, this Court is obliged to defer to the trial court’s finding in that regard. The election court was unimpressed by the appellant’s explanation, which it found untruthful. Therefore, the appellant failed to lay a proper basis for the exercise of the court’s discretion in his favour. Besides, by his untruthfulness, the appellant proved unworthy of the equitable remedy of extension of time. In the circumstances I cannot fault the election court for refusing to exercise its discretion in the appellant’s favour…”

58. Based on the above binding decision, this court is inclined to defer to the Trial Court’s exercise of discretion.

59. On the other related aspect, was the Trial Court correct in its application of Rule 11 (8) of the Elections Rules? Though the Appellant did not make a specific prayer for his participation, considering the public interest involved, the Trial Court ought to have given a holistic view of the application and not just the narrow application of Rule 11 (8) of the Election Rules. In Christopher Odhiambo Karani (supra), it was held as follows: -“…By holding that Rule 11(8) is mandatory, the election court failed to exercise any discretion concerning participation by the appellant, nor did the court take into account the circumstances and the need to have a holistic view of the dispute. In addition, the election court ought to have taken into account that justice in election petitions goes beyond the interest of the parties before it. There is also the public interest element in the interests of the voters in the constituency whose rights it is the duty of the court to protect by properly dealing with election petitions before it…” (Emphasis Added)

60. The election petition against the Appellant transcended the personal interests of the parties as it related to the will of Tudor Ward voters in electing a person of their choice to represent them in the next five (5) years. To this end, I am satisfied that the Trial Court ought to have at least allowed the Appellant to participate in the proceedings despite the provisions of Rule 11 (8) of the Elections Rules.

61. To conclude on the first issue, though the 3rd Respondent submitted that the Appellant having been locked out from the proceedings did not have any locus to lodge the present appeal, I hold a contrary view. The ruling which locked out the Appellant from participation emanated from an interlocutory application. Considering the strict timelines set by the Constitution, the Election Act and the Rules thereunder, any appeal on an interlocutory order or ruling is deferred until a final judgement on the petition is rendered.

62. I find succor in the Court of Appeal decision in Christopher Odhiambo Karani (supra) where the court (Okwengu, J.A) observed as follows: -“…The Elections Act and the 2017 Petitions Rules compels a party who wishes to appeal against interlocutory decisions to await the final judgment of the election court. Thus, the jurisdiction of the court on interlocutory matters arising during the petition proceedings is deferred and only crystallizes once a final judgment is made concluding the petition…”

63. With the above, I have no hesitation in finding that the Appellant was properly entitled to lodge the present appeal as one of the grounds in the Appellant’s memorandum of appeal dated 23rd March, 2023 was that the Learned Trial Magistrate erred in law by failing to allow the Appellant to participate in the hearing of the petition. It thus confirms that the Appellant’s standing before this court.

64. On the second issue, as a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. It is settled that the burden of proof rested squarely on the 3rd Respondent. The provisions of Section 107, 108 and 109 of the Evidence Act are instructive. The provisions are as follows: -107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

65. In Raila Odinga & 5 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR (hereinafter referred to as Raila 1), the Supreme Court held as follows: -“…There is a common thread in comparative jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause; the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the court to determine whether a firm and unanswered case has been made… where a party alleges non-conformity with the electoral law, the Petitioner must not only prove that there has been non-compliance, but that such failure of compliance did affect the validity of the elections.... Omnia praesumuntur rite etsolemniteresseacta; all acts are presumed to have been done rightly and regularly. So, the Petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law… but at the same time, a Petitioner should be under obligation to discharge the initial burden of proof before the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable doubt save that this would not affect the normal standards where criminal charges linked to an election, are in question.”

66. Earlier in John Kiarie v Beth Wambui Mugo & 2 Others [2008] eKLR, it had been held thus: - “…The burden of establishing all these allegations regarding the conduct of the said election and the results announced thereafter is on the Petitioner.”

67. Having settled on the position of the law on burden of proof, the specific allegations by the 3rd Respondent in his petition were voter bribery, influence and inducement and ballot stuffing. On the first limb of voter bribery, influence and inducement, the Trial Court at paragraph 78 of its judgement noted that during the campaign period, it was alleged that the Appellant conducted his campaign using items marked Bamburi Cement (but from the affidavits on record, it is indicated to be Mombasa Cement).

68. On the election date, masks containing symbols written Mombasa Cement (sic Bamburi Cement) were supplied to voters entering the polling station just close to Tudor Village Hall Polling Station. This was to sway voters to vote for the Appellant thus amounting to an act of bribery according to the 3rd Respondent. It had equally been alleged that the Appellant was an employee of Mombasa Cement.

69. The evidence in support of this ground was led by the 3rd Respondent who testified as PW1 and further evidence was given by PW12. As stated elsewhere in this judgement, this court is precluded from considering issues of fact and I shall show deference to the Trial Court’s findings of fact. Section 9 of the Election Offences Act makes it an offence to bribe in a bid to influence a voter. Section 10 of the Act on undue influence makes it an offence to threaten or use any force, violence or damage including compelling a voter not to vote for a candidate or party or even inducing another to vote commits an offence.

70. The threshold of evidence required here is beyond balance of probability but below reasonable doubt. (See Simon Nyaundi Ogari & Another v Hon. Joel Omagwa Onyancha & 2 Others [2008] eKLR). In Presidential Election No. 1 of 2001, Rtd. Col Dr Kizza Besigye v Y. K. Museveni and Electoral Commission, the Supreme Court of Uganda held as follows: -“…It is therefore not enough for a Petitioner or any person to merely allege that agents gave money to voters; a high degree of specificity is required: (1) The agent must be named, (2) the receiver of the money must be named and (3) he/she must be a voter. (4) The purpose of the money must be to influence this voter…”

71. The element of voter bribery, influence and inducement was distribution of masks branded Mombasa Cement. To fit the requirements set in Kizza Besigye (supra), the 3rd Respondent and his witnesses were required to show the relationship between the Appellant and Mombasa Cement, the person or people who were distributing the masks, the names of the recipients, credible evidence that whoever received was a voter and the purpose of what was received.

72. On cross examination of the two witnesses, it was a confirmation that there was nothing produced to show that the Appellant was an employee of Mombasa Cement. No witness testified to the effect that as result of receiving the mask, he voted for the Appellant instead of any other candidate. It is thus my finding that the allegation of bribery, inducement and influence was not proved. Indeed, the Trial Court appears not to have made a definitive finding on this issue.

73. Despite quoting the applicable authorities on this aspect, the applicability of the said authorities to the facts of the case before the Trial Court was never considered. The fact that the Appellant did not participate in the proceedings was not of itself an admission of the subject allegations. It was the 3rd Respondent’s duty to tender cogent and credible evidence in support of the allegations. I am afraid that this was never done and I proceed to hold that the allegations of bribery, influence and inducement was not proved.

74. On ballot stuffing, the key witness was PW2, Omar Salim Shee. On cross examination, he mentioned four (4) names of people he allegedly worked with to accomplish the “assignment.” This witness, though he mentioned the names of the people he was allegedly working with, the 3rd Respondent ought to have made steps to have the said individuals swear affidavits to corroborate the allegations.

75. He equally stated that he delivered the stuffed ballot boxes to an individual who was putting on a reflector tagged IEBC. Surely, the said individual ought to have been identified. I equally note that no application for scrutiny or recount was made. This would have settled all the doubts in respect of the alleged external materials that had been allegedly stuffed to the ballot boxes.

76. In Robinson Simiyu Mwanga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR, the court delved in detail on the purpose of scrutiny. It held as follows: -“… ‘scrutiny’ is a more detailed exercise where votes and the other election materials are carefully and thoroughly observed and examined with a view to ascertain if such votes are valid in the first instance and the process, to an extent, was flawless. Scrutiny is therefore an intensive exercise which gives room for examination of inter alia electoral irregularities, malpractices, misconduct and even a re-examination of the tally. The rationale behind scrutiny is two-fold: that it is only the valid votes that confer an electoral advantage to a candidate in an election hence the need to establish the validity and the number of the valid votes a candidate garnered (the quantitative aspect) and that an election can be impugned based on electoral irregularities, malpractices, misconduct and non-compliance with the law (the qualitative aspect)…”

77. The legal basis for scrutiny is Section 82 of the Elections Act and Rule 29 of the Election (Parliamentary and County) Petitions Rules, 2017. Section 82 provides as follows: -82(1) An election court may, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election court may determine.(2)Where the votes at the trial of an election petition 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 voters assigned to the polling station at which the vote was recorded or who had not been authorized to vote at that station;(b)the vote of a person whose vote was procured by bribery, treating or undue influence;(c)the vote of a person who committed or procured the commission of personation at the election;(d)the vote of a person proved to have voted in more than one constituency;(e)the vote of a person, who by reason of conviction for an election offence or by reason of the report of the election court, was disqualified from voting at the election; or(f)the vote cast for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification or when the facts causing it wee notorious.(3)The vote of a voter shall not, except in the case specified in subsection (1) (e), be struck off under subsection (1) by reason only of the voter not having been or not being qualified to have the voter's name entered on the register of voters. (Emphasis added)

78. Rule 29 on the other hand provides as follows: -29(1) The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.(2)On an application under sub-rule (1), an election court may, if it is satisfied that there is sufficient reason, order for scrutiny or recount of the votes.(3)The scrutiny or recount of votes ordered under sub-rule (2) shall be carried out under the direct supervision of the Registrar or magistrate and shall be subject to the directions the election court gives.(4)………

79. As detailed in the above provisions, the Trial Court could have ordered scrutiny particularly for the results of Tudor Village Hall Polling Stations since the 3rd Respondent had not made any application. In his submissions before the Trial Court, the 3rd Respondent made a sweeping statement thus: - “…It is important to point out that not even a scrutiny of votes could reveal ballot stuffing. We say so because the ballot boxes and papers which were sneaked into the polling station contained genuine voting materials from IEBC which had been obtained previously and that is why the pellets were not opened in public because that voting materials had already been interfered with…” (See page 472, paragraph 41 of Volume 2 of the Record of Appeal).

80. Respectfully, this was a misapprehension which was not proved to the required standards in matters election petitions. At paragraph 75 of the Trial Court’s judgement, this is what the court stated on the issue: - “…In respect to ballot stuffing, in as much as the 1st and 2nd Respondents are dismissing the allegations, the narration by PW2 shows an orchestrated move, well planned and choreographed move and conspiracy that cannot just be wished away, of course where there is smoke definitely there would be fire…”

81. The Trial Court ought to have given its reasons that convinced it to hold that the allegation of ballot stuffing was “an orchestrated move, well planned and choreographed move and conspiracy...” The perpetrators of this plan ought to have been identified. As held elsewhere in this judgement, this court’s jurisdiction is limited to matters of law only. As was held by the Court of Appeal in John Munuve Mati (supra), this court cannot be drawn into considerations of the credibility of witnesses or which witnesses are more believable than others; by law that is the province of the trial court.

82. Having said as above, this court’s engagement as far as facts are concerned is limited to context and to satisfy itself, when the issue is raised, whether the conclusions of the trial judge are based on the evidence on record or whether they are so perverse that no reasonable tribunal would have arrived at them. Based on the foregoing, the Trial Court’s conclusion of an orchestrated move, well planned and choreographed move and conspiracy ought to be contextualized.

83. For the Trial Court to conclude as such, what was the basis? Having gone through the Trial Court’s judgement, I find no reason for such holding and I return a finding that the allegation of ballot stuffing was not proved to the required standard.

84. On the third issue, the Trial Court concluded that the two instances of violence and KIEMS kit failure which occurred at Tudor Village Hall Polling Stations led to loss of several voting hours and that several voters were locked out from voting. Article 81 of the Constitution is explicit on what a free and fair elections envisages. Article 81 (e) provides as follows: -e)Free and fair elections, which are—(i)by secret ballot; (ii) free from violence, intimidation, improper influence or corruption; (iii) conducted by an independent body; (iv) transparent; and (v) administered in an impartial, neutral, efficient, accurate and accountable manner.

85. On the other hand, Article 86 provides as follows: -“At every election, the Independent Electoral and Boundaries Commission shall ensure that—(a)whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;(b)the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;(c)the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and(d)appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials”

86. These two Articles establish the constitutional threshold against which the conduct of elections is to be measured, to determine whether it meets established standards of a democratic franchise. Article 88 (5) of the Constitution, on the other hand, provides that the Independent and Electoral Boundaries Commission, as the agency charged with the mandate of managing the conduct of elections, is to: “exercise its powers and perform its functions in accordance with this Constitution and national legislation.”

87. In John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR, the Supreme Court while dealing with article 81 of the Constitution had the following to say: -“…The terms of Article 81(e) (ii) of the Constitution, read in proper context, must be understood to mean that no person, candidate, political party, party agent or supporter, or State agency is to resort to acts of violence, intimidation, improper influence or corruption, to defeat the will of the people exercising their democratic rights to vote. The said provision cannot be read as sanctioning or lending legitimacy to acts of violence and intimidation, to achieve the invalidation of an election. If we were to hold otherwise, the authority of the Constitution would be surrendered to cynical acts of violence: all that one would need to do, is to instigate violence in any corner of the Republic during a Presidential election, and thereafter petition this Court to nullify the election. Those who intentionally instigate and perpetrate violence must not plead the same violence as a ground for nullifying an election…”

88. The Trial Court’s judgement blamed the 1st and 2nd Respondents for failing to secure the polling station. The court held that the 1st and 2nd Respondents failed by allowing people to disrupt the elections, destroy election materials and smuggling unauthorized election materials into the voting hall. To this court, there is a factual finding that indeed there were two incidences of voter disruption due to violence.

89. Similarly, there were two instances where the KIEMS kits failed. However, these incidences affected six (6) out of thirty seven (37) polling stations in Tudor Ward. The 3rd Respondent did not raise issues relating to the remaining thirty one (31) polling stations. There was no dispute that in both incidences of violence, they were contained and voting proceeded. What the Trial Court ought to have satisfied itself was whether the violence was spread across the entire ward or not.

90. Section 83 of the Elections Act is instructive on this aspect. It provides as follows: -“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”

91. In Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the Supreme Court of Kenya cited the English decision of Morgan v Simpson (1975) 1 Q.B 151 where Lord Denning made the following three propositions: -a.If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not.b.If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by breach of the rules or a mistake at the polls-provided that it did not affect the results of the election.c.But even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls- and it did affect the result- then the election is vitiated.

92. In Opitz C v. Wrzesnewskyj (2012) 3 S.C.R 76, the court observed that the practical realities of election administration are such that imperfections in the electoral process are inevitable; and on this account, elections should not be lightly overturned, especially where neither a candidate nor the voters have engaged in any wrongdoing. The Supreme Court of Kenya in Gatirau Peter Munya (supra), went ahead to hold thus: -“…It is clear to us that an election should be conducted substantially in accordance with the principles of the Constitution, as set out in Article 81 (e). Voting is to be conducted in accordance with the principles set out in Article 86. The Elections Act, and the Regulations thereunder, constitute the substantive and procedural law for the conduct of elections. If it should be shown that an election was conducted substantially in accordance with the principles of the Constitution and the Election Act, then such election is not to be invalidated only on ground of irregularities. Where, however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated. Otherwise, procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election. In this regard, we stand on the same plane as the learned Judges in Morgan, Opitz and Nana…”

93. Putting the above pronouncements into the perspective of this appeal, irregularities witnessed at Tudor Village Hall Polling Stations should not have been a basis to nullify the election for the entire ward. The 1st and 2nd Respondent in their submissions endeavored to provide a summary of the voter turnout in all the polling stations and the average voter turnout percentage was 42. 48%. Among the six polling stations of Tudor Village Hall, the lowest percentage was Tudor Village Hall Polling Station 6 of 6 at 32. 37%.

94. However, I take note of the percentages in the following polling stations; Sparki Primary School 1 of 2 and 2 of 2, Burhaniya Primary School 1 of 3 and 3 of 3, Tudor Day Secondary School 1 of 2 and Khamisi Secondary School 1 of 4, 2 of 4 and 4 of 4. All the above mentioned polling stations had a voter turnout ranging between 34% to 38%. These were within the range of Tudor Village Hall Polling Stations 1 of 6 to 5 of 6. In any event, even if violence affected voting, it affected all the candidates and not only the 3rd Respondent. The Appellant was equally affected. To justify that he was greatly affected by the violence, the 3rd Respondent relying on the 2017 election results postulated that Tudor Village Hall Polling Stations were his strongholds.

95. This might be the case but it is a fact that elections in Kenya are quite dynamic. I am alive to the fact that a period of five (5) years in politics is quite a long period of time and things might have changed between 2017 and 2022. Using Bungoma County as an example, in 2017, President William Ruto’s candidate (then President Uhuru Kenyatta) had garnered 126,475 valid votes cast while Raila Odinga had 284,786 of the valid votes cast. This translated to 30. 2% and 68. 3% of the total valid votes cast.

96. In 2022, President Ruto garnered 255,755 votes representing 62. 13% of the total valid votes cast while Raila Odinga had 145,106 votes representing 35. 35% of the valid votes cast. This is just an illustration of how fortunes changes in politics within a period of five (5) years. I am thus least persuaded that violence that erupted at Tudor Village Hall Polling Stations affected the 3rd Respondent’s votes.

97. In Owino Paul Ongili Babu v Francis Wambugu Mureithi & 2 Others (supra), the Court of Appeal while addressing the issue of violence had the following to say: -“…As we have said before, it is not enough to find that there was some form of violence in a given station and then proceed to nullify the result of an election. There has to be a demonstration that the violence affected not only the voting but the final result of the election; for example, that the violence disfranchised some voters and/or gave an undue advantage to one of the parties…”

98. The situation obtaining in the present case is slightly different to the Court of Appeal’s decision in Owino Paul Ongili Babu (supra) since in that case, the Appellant was exonerated from the violence that occurred at Soweto Social Hall Polling Station. However, in the present case, the Appellant was implicated in the violence that ensued at Tudor Village Hall Polling Stations. He is in fact facing several counts of offences under the Election Offences Act, No. 37 of 2016 in Mombasa MCEO No. E002 of 2022.

99. Count II is founded under Section 11 of the Election Offences Act which prohibits use of force or violence during the election period. The Trial Court at paragraph 79 of the judgement noted as follows: - “…The fact that he was arrested and charged by the police is prima facie evidence that he was involved in the violence that rocked Tudor Village Hall Polling Station…” The charges facing the Appellant are criminal in nature and it is only upon prove beyond reasonable doubt that the Appellant would be deemed to have committed the alleged offences.

100. I hold the view that the Trial Court erred in principle when it held that the fact that the Appellant had been arrested and charged by the police is a prima facie evidence that he was involved in the violence that rocked Tudor Village Hall Polling Stations. This goes contrary to the right to be presumed innocent until proven guilty. In any event, the materials said to have been recovered from the Appellant had nothing to do with the elections of Member of County Assembly. No judgement has been rendered in Mombasa MCEO No. E002 of 2022 to warrant the Trial Court’s sentiments.

101. Closely related to the above is the issue of voter suppression, disenfranchisement and KIEMS kit failure. On voter suppression and disenfranchisement, PW3, PW4, PW5, PW8, PW10 and PW11 testified to this effect. The Supreme Court in Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)) [2022] KESC 54 (KLR) (Election Petitions) (5 September 2022) (Judgment) while addressing voter suppression held as follows: -“…Concerning the allegation of voter suppression, we note that voter suppression is generally recognized as a political strategy which takes many forms but whose practical effect is ultimately to reduce voting by deliberately discouraging or preventing targeted groups of people from exercising their right to vote and thereby influence the outcome of an election. It therefore goes against the letter and spirit of article 38 which guarantees every citizen the right to make political choices based on universal suffrage… At any rate, the nature of the ballot being an individual decision and secret, there may be other variables to which the turnout in the named units can be attributed…”

102. Although the witnesses named above testified that they were prevented from voting, some of the reasons advanced were that the KIEMS kits failed to identify them and the violence that occurred. There is no empirical evidence that the voters who did not vote were going to vote for the 3rd Respondent. The Appellant might as well lost votes due to the above impediments. As held by the Supreme Court above, voting being in secret and an individual decision, one cannot authoritatively state that the voters who did not vote were going to vote for the 3rd Respondent.

103. On KIEMS kit failure, the 1st and 2nd Respondents conceded that indeed there were two instances when the KIEMS kits failed but they were replaced and voting continued. As indicated elsewhere in this judgement, KIEMS kit failure did not only affect the 3rd Respondent. It was cross-cutting and it would be onerous to impute ill – motive on the part 1st and 2nd Respondents or the Appellant. The 3rd Respondent confirmed that he was unable to vote at the first instance but later at 1 p.m., he was able to vote.

104. In Raila Odinga 1, the Supreme Court of Kenya noted as follows: -“…We take judicial notice that, as with all technologies, so it is with electoral technology: it is rarely perfect, and those employing it must remain open to the coming of new and improved technologies. Analogy may be drawn with the traditional refereeing methods in football which, as their defects became apparent, were not altogether abandoned, but were complemented with television-monitoring, which enabled watchers to detect errors in the pitch which had occurred too fast for the referees and linesmen and lineswomen to notice.”

105. The Court of Appeal addressing the issue of KIEMS kit failure in Nixon Ngikor Nicholas v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR had the following to say: -“…we consider what the law on the KIEMS kit is. It was not disputed that KIEMS kits for some polling stations failed for a period of about 30 minutes at certain polling stations. What ought to have happened at that stage? First, the appellant submits that in 2017, the election was to include, primarily, electronic identification of voters through the KIEMS kits. We agree. Section 44(1) of the Elections Act provides that:“Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.”

106. In John Munuve Mati (supra), the Court of Appeal noted as follows: -“Section 44 of the Elections Act establishes an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results. This is what is referred to as the Kenya Integrated Election Management System (KIEMS). On the other hand section 44A requires the IEBC to establish a complementary mechanism for identification of voters and transmission of election results as a fall back in the event of failure of the electronic system.41. The KIEMS kit is a gadget that is used to biometrically identify persons for purposes of registration as voters, voting during the elections, and transmission of the election results. For purposes of voting, the kit is in the form of a laptop tablet with a fingerprint reader, which biometrically identifies the voter to confirm that he is in the register and to avoid impersonation.”

107. In the course of the election, should the KIEMS kit fail to work as envisaged, then the 1st respondent would follow the provisions of Section 44A of the Elections Act which provide for a complementary mechanism This section provides that: -“44A. Complementary mechanism for identification of voters -Notwithstanding the provisions of section 44, the Commission shall put in place a complementary mechanism for identification of voters that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the Commission complies with the provisions of Article 38 of the Constitution.”

108. In conclusion to this issue, I find no fault on the part of the 1st and 2nd Respondent on how it employed the KIEMS kits.

109. On the fourth issue, the illegalities and infractions complained of were in the nature of violence and ballot stuffing. I have found that the violence complained of affected only six (6) polling stations situated in one place which looked at holistically simply meant it was only in one place. Though attributable to the Appellant, the violence was not widespread but an isolated incident and the security agencies quickly intervened and restored normalcy. (See the Court of Appeal decision in Julius Makau Malombe v Charity Kaluki Ngilu & 2 Others [2018] eKLR).

110. The second incident happened outside the polling station. In Julius Makau Malombe (supra), the Court concluded that the incidents cannot be the basis of invalidating an election for the reasons that some of them may warrant different remedies. The Court of Appeal further held that to vitiate the results, the violence must inter alia be widespread. In English dictionary, widespread means extending over a wide area, to a large extent or to a great extent. The court cited the High Court decision in Dickson Mwenda Kithinji v Gatirau Peter Munya & 2 Others [2013] eKLR where it was stated that in electoral context, widespread violence can only be taken to mean a systematic, planned or organized infliction of injury, harm, damage or loss on any person because they have voted in a particular way or to induce them to vote in a particular way. There must be evidence to prove the widespread violence.

111. Did the infractions complained of affect the results? In Owino Paul Ongili Babu (supra), the Court of Appeal cited Odek J.A in his book “Election Technology Law and the Concept of: Did the Irregularity Affect the Result”. The Learned Judge argued as follows: -“For an election irregularity to vitiate the result, the result must be affected. Which result must be affected? There is only one result that must be affected - the result that “A” is the winner of the election. “Result” means the success of one candidate over another and not merely an alteration in the number of votes given to each candidate. For an election petition to succeed, evidence must be led to prove that the result and conclusion that “A” is the winner of the election is affected by the irregularities or non-compliance with the constitutional principles and electoral law. The evidence led must demonstrate that the irregularities or non-compliance raise doubt as to whether “A” is the winner and better still that the irregularities or non-compliance prove that “A” is not the winner.”

112. Looking at the results declared for the position of Member of County Assembly for Tudor Ward, out of the total number of valid votes cast which stood at 9,738, the Appellant emerged the winner having garnered 4,587 votes which translated to 47% of the total valid votes while the 3rd Respondent got 3,642 translating to 37% of the total valid votes. The difference between the two candidates was 945 votes which when expressed in percentage wise, is 10%. Considering that the voter turnout was an average of about 42%, a difference of 10% is a significant difference.

113. Taking out the isolated violence and the minor election infractions alluded to, it would be an arduous task for the 3rd Respondent to catch up with the Appellant. In the circumstances and on authorities of this court and the other superior courts, I am satisfied that illegalities and irregularities were not of a large magnitude to affect the results for the election of Member of County Assembly for Tudor Ward held on 9th August, 2022.

114. The final issue that the court must address itself to is on the costs awarded both in the Trial Court and those to be awarded in this appeal. The Trial Court awarded costs of the Petition to the 3rd Respondent capped at Kshs. 500,000/= and directed that the amount was not to be subjected to further taxation. The same was to be shared equally between the 1st and 2nd Respondent on the one hand and the 3rd Respondent on the other hand. It has been said time and again that costs are meant to compensate a successful litigant for his labour.

115. In Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others [2018] eKLR, the Court of Appeal while addressing the issue of costs stated thus: -“…It is up to the election court to determine whether a party would be awarded costs or not and in doing so the court must be guided by the principles of fairness, justice and access to justice. It is meant to compensate a successful litigant. It is not a punishment or a deterrent measure to scare away litigants from the doors of justice…”

116. Having found merit in the appeals preferred, the only order lending itself on costs both at the Chief Magistrates’ Court and this court is that each party shall bear their own costs.

Dispositiona.The Judgement of the Chief Magistrates Court sitting at Mombasa dated 28th February, 2023 annulling the election of Samir Gulam Abbas Baloo as Member of County Assembly for Tudor Ward is hereby quashed;b.The Memoranda of Appeal both dated 23rd March, 2023 are allowed;c.For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the seat of Member of County Assembly for Tudor Ward is hereby restored.d.Each party to bear its own costs both before the Chief Magistrates’ Court and this court.It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 7TH DAY OF AUGUST, 2023………………………..F. WANGARIJUDGEIn the presence of: -N/A for the AppellantMr. Mohamud for the 1st & 2nd RespondentsMs. Wambani h/b for Mr. Obonyo for the 3rd RespondentCourt Assistant - Abdullahi