[2018] KEMC 40 (KLR)

REPUBLIC OF KENYA

IN THE SENIOR RESIDENT MAGISTRATE’S COURT AT HAMISI

KAKAMEGA ELECTION PETITION NO. 1 OF 2017

BONIFACE SHANGA AMUNYANYI……………..PETITIONER

VERSUS

1. RETURNING OFFICER, HAMISI SUB-COUNTY….1ST RESPONDENT

2. THE I.E.B.C …………..………..……………………….2ND RESPONDENT

3. CALYSTUS AYODI AMUHAYA……..………..……....3RD RESPONDENT

JUDGMENT

INTRODUCTION.

Kenyan people went to the general elections on the 8/8/17 to exercise their democratic rights of voting for their representatives for various positions including Member of the County Assemblies. In Hamisi constituency, the people of Muhudu ward executed such right by electing their member of county assembly amongst the participating candidates who included Boniface Shanga (petitioner), Calystus Ayodi (3rd respondent), Jackton Musoga, Jackson Lung’aho, Maxwel Amusala, Dominic Linyulu and Benedict Musambi.

Upon the declaration of the results by 1st responded, candidates had garnered votes as follows;

Amache Godfrey Imbai 38

Amuhaya Calystus Ayodi 2,149

Amunyanyi Boniface Shanga 2,074

Charlse Maxwell Amusala 475

Inyanje Dominic Linyulu 40

Lung’aho Jackson Musoga 1,356

Benedict Musambi 71

Total valid votes 6,203

Total registered voters 8,114

Total voter turnout 5503

The 3rd responded was thereafter declared the elected Member of County Assembly and it was on the basis of that declaration that this petition was filed at the Kakamega Law courts , thereafter, transferred upon gazzettement of this court by the Hon the Chief justice/president of the Supreme Court of Kenya.

The petition was premised on the following prayers;

a) A declaration that the 3rd respondent was not validly elected

b) A declaration that the election for the member of county assembly for Muhudu ward held on 8/8/17 was void

c) An order for fresh elections with respect to the member of county assembly for Muhudu ward be made

d) In the alternative to C above, an order for scrutiny and recount of votes in all the 16 polling stations in Muhudu ward.

e) Costs of the petition.

PLEADINGS.

The petitioner’s pleadings can be summarized as follows.

a) That the elections were not free and fair since there was cheating in the counting and tallying of votes at Jivuye primary polling station where the petitioner had 20 votes while the 3rd respondent 424 votes, the agent didn’t sign form 36A, and there were threats and intimidation of agents for suspicion of not voting for the 3rd respondent.

b) That at Jamulongoji primary, the tally read the 3rd respondent had 281 and petitioner, 58 on the night before announcement but on announcement, the tally was 281 for the 3rd respondent and 59 for the petitioner, agents were not allowed to witness the presiding officer assisting voters who needed help to vote and hence lack of transparency in the process. There was a boundary created for the agents not to cross and some voters being led on how to mark for the wrong person.

c) That upon the declaration of the results, the 3rd respondent had garnered 2149, 19 votes more than the initial tallied 2132 votes.

d) In the final tally at the sub county (constituency) tallying center at Senende the returning officer awarded Calystus Ayodi Amuhaya 10 more votes increasing the previous tally at Jivuye primary station from 441 to 42.

e) That the 3rd respondent used public officers being the chief and assistant chiefs of Muhudu in his campaigns contrary to section 43 of the Election Act.

f) General manipulation of the overall results to favor 3rd responded and suspicious interactions between petitioner’s campaign manager and IEBC officials.

g) Double voting by the polling clerks, missing/ unclear records

In response to the petition, respondents argued that the elections in Muhudu ward were free, fair and transparent. They generally called for the dismissal of the same.

Preliminary Issues

The petition was filed at the Kakamega Law courts where also, an application for stay of proceedings pending determination of the issue jurisdiction was filed. The High court determined the application.

During the pretrial conference, an application dated 15/9/17 seeking enlargement of time within which to file the 1st and 2nd respondents’ response to the petition was compromised by consent of parties and the response deemed to have been properly on record. The 3rd respondents, response dated 13/9/2017 was also, by consent deemed to be properly filed and served. The consents were adopted as court’s orders.

An application for scrutiny and recount was filed on 25/10/2017 and it proceeded by way of written submissions. There was a further application by the 1st and 2nd respondents disputing service of the petition upon themselves, I allowed the same to be filed and there was one ruling, delivered on the 14/11/17 dismissing the application to struck out the case for want of service and allowing the one for scrutiny and recount for seven polling stations.

There was a further ruling on the 21/11/17, by courts own motion after the court, in looking deeper into the evidence adduced before it, noted discrepancies on the number of valid votes, which was more than the voter turnout. The court therefore, in the spirit of fairness and justice, went ahead to order that the recount covers all the 16 stations involved in order for it to have a clear picture of how many people voted, apart from the evidence adduced in the statutory forms 36A and 36B.

The petition proceeded by way of affidavit evidence with witnesses adopting their affidavits evidence as sworn and later being crossed examined. Although the petitioner had indicated that a total of eleven witnesses would be presented at the hearing, 1st and 2nd respondents giving their number as ten and the third called five, the parties presented five, six and four witnesses respectively. In the pleadings, the court was called upon to make a declaration that the 3rd respondent wasn’t validly elected or in the alternative, an order of scrutiny and recount exercise. It was presumed that the results of the recount or scrutiny would as well give the clear picture of the will of the Muhudu ward voters.

PETITIONERS CASE

PW1 (ERIC ISOLIO)testified that he was a resident of Muhudu, Kaptich ward. His affidavit sworn on 24/8/2017 was adopted in evidence. When cross examined, he stated that he was an observer at Bumbo primary school station where he was at around 6:10 pm but had voted at kaptich polling station.

He added that members of public were allowed to join the queue after the official voting time and also that the agent didn’t sign the polling station diary. Boniface Shanga, an ODM party candidate didn’t sign on the form 36A.

He however confirmed from records in court, that at Bumbo polling station stream 1, one Brian Savai signed as Petitioner’s agent affirming records. And there were no documented challenges/ incidences He also confirmed that Part 3. 7 of the polling station diary showed that one Billy signed as their agent when the results were being transferred from the Returning Officer. There were no incidences recorded.

He further added that other parties’ agents signed on the results as shown on form 36A which he deemed correct results.

When he was cross examined by the 3rd respondent’s advocate, he responded that he was at the station in his capacity as an observer however the access card wasn’t given to him; he admitted that his affidavit showed that he was a supporter.

He finally said that it was possible for voting to go passed 5:00 pm and also that the Orange Democratic Movement party (ODM) agents were at the station and Billy was that party’s agent.

PW2 (REUBEN OBIERO),from Jamlongoji, Muhudu ward adopted his affidavit sworn on the 24/8/17. The witness stated that the clerks at Jamulongoji polling station were marking for voters instead of the presiding officer, the presiding officer was marking for voters needing assistance in the absence of agents and counting wasn’t done in a transparent manner since the agents were not allowed to stand and witness. He also said that the agents were not issued with the tallying sheets.

During cross examination, he said that he was a United Democratic Party (UDP) agent at Jamlongogi, which had one stream. In form 36A from the said station, the ODM agent who signed was Kevin Malala at the comments Section, the presiding officer recorded that there were no challenges with petitioner’s agent signing to show he was satisfied with the proceedings.

He confirmed his details at the polling station diary with his identity number 1822729 also being recorded. Although he noted that voting proceeded until 9. 00pm and counting 3:00 am, he signed when the polling centre was closed without noting that there was any problem.

He admitted that the petitioner’s agent didn’t record any reservations on forms 36A either and his major complaints at Jamlongoji were that as a voter and UDP agent, votes were not cast according his training.

When crossed examined by the advocate of the 3rd respondent, he denied knowing agent Billy M or other agents. That though he had no problem as UDP party he was forced to sign on form 36A.

PW3 (CHRIS MUSUNGU)from Maganda village swore in his affidavit, that he was a ford Kenya party agent at Bumbo primary school stream 2. He complained voters who had voted remained within 400M from the polling station, agents not issued with tallying sheets. That they were allowed into the polling station only after raising alarm and 3rd responded had planted people all over so as to come as illiterates. He also said that voting went passed 5:00pm with some voters not being identified by the KIEMS and also being allowed to vote without proper identification.

He however admitted during cross examination that one Henry Lihechi was the ODM agent from Bumbo polling station 2 who signed when the station was opened and closed at 11. 00pm. The agent also signed on form 36A and on polling station diary without recording that there were any complaints.

It was his evidence that 36A entries were correct in terms of votes in the respective polling station.

The witness added that closure time for polling stations was at 5. 00pm but such time could be extended if the station was opened late or if there were people on the queue at 5. 00pm. He also admitted to have been trained and that he performed his roles well as an agent.

He finally agreed that other voters were coming with their own assistants and that outside the polling station; there were movements which he couldn’t describe.

PW4 (ZEPHANIA LUVANDA LUGUTSA)from Muyere area swore an affidavit on 16/8/2017 indicating that as the petitioner’s agent, he witnessed the returning officer assisting voters without their involvement, agents were not given copies of forms 36A then the registered number of voters was 298 whereas the cast votes were 308.

During cross examination, he responded that he was at Muyere polling station, stream 1. He said the KIEMS kit had network challenges but the presiding officer allowed some agents and clerks to vote anyway after their details were confirmed at the manual register (manual verification)

He confirmed that the presiding officer recorded that KIEMS stopped working between 11. 30am-1. 00pm further, that polling station diary showed Naman Judith was the ODM agent. He denied knowing Mr. Billy Member.

He also complained that voting commenced without verification of the seals although he signed on the polling station diary before commencement of the voting process. He denied being given form 36A for signing.

PW5 (BONIFACE A. SHANGA),the petitioner testified that on 8/8/2017 he was amongst those contesting for Member of County Assembly position, Muhudu ward, 7 candidates in total were contesting, 3rd Respondent included.

The returning officer declared 3rd respondent as the winner on 9/8/2017, as he came 2nd.

He pointed out Isikhi primary polling station’s form 36A where he said figures were like changed/ manipulated. Total votes cast were 363 votes whereas 367 were valid votes according to the polling diary.

That Bumbo primary polling station stream 2. According to form 36A shows that 449 votes were the valid vote’s casts but in the respective polling diary shows 453 casts. 4 votes are unaccounted for. Same entries are in form 36B.

For Jamlongoji Primary school shows that at 5. 00pm, 329 votes had cast their votes and that there was no voter on the queue but 388 votes was recorded in the diary.

At Muyere polling station, stream 1 shows no rejected votes as per polling station diary. However form 36B and 36A shows that 2 spoilt votes were recorded. In stream 2, form 36A shows 302 valid votes yet form 36B shows 301 valid votes.

Again, that according to form 36B, the total voter turnout was 5503 but the valid votes were 6203. He therefore sought for a declaration that Calystus (3rd respondent) wasn’t duly elected, the election of Member of County Assembly was void and an order for fresh election together with costs of the petition.

He admitted in cross examination that form 36A showed he was awarded 20 votes and 3rd respondent 424 at Muyere polling station. He however said that his agent from the station was not a witness.

Kevin, his agent at Jamlongoji polling station was said to be the only person who could have attested to the fact that clerks were assisting voters to vote, however he was said not to be a witness.

At Bumbo polling station streams, none of the agents were witnesses to explain why they didn’t sign on the statutory forms.

He denied knowing Henry Lilegi. He also refuted claims at his paragraph 27 of the petition that there were 15 more votes at the final tallying centre. About the Assistant chief Pius Konzolo Muhundu ferrying voters, he confirmed that the incident was never reported and the person who raised the allegation wasn’t a witness in court. No report was made concerning denial to fill or sign form 36A. There was also no report of any disruptions during the elections.

1ST AND 2ND RESPONDENTS’ CASE.

DW1 (MAUREEN BURAGWA SHUZA)’saffidavit dated 15/9/2017 indicated that she was a tallying clerk based at the customer care desk with roles of receiving materials from presiding officers, listing the order of their arrival and providing the public with general information. She said at her position, she could meet many people and she wasn’t involved in the tallying process.

She confirmed serving her clients without discrimination.

DW2 (MARYAN USAGI)stated in her affidavit that counting of votes at the Bumbo polling station 1 where she was the presiding officer began after the voting. That voters who were at the queue at 5:00pm were allowed to vote and she didn’t witness any incidence of voter ferrying, agents were informed of the seals serial numbers used and all forms signed by agents after the counting process. She concluded that the process was free, fair and transparent.

When cross examined, she admitted that the polling station 120 people were on the queue at 5. 00pm though not all of them voted and this information is not captured in the diary.

She admitted not indicating the time of closure of the polling station on the polling station diary.

Clarifying that the 120 voters were on the queue at 5. 00pm, the witness said that the 335 were those who had voted at 5. 00pm and when added to 120, who were on the queue, total could not be correct because some of the people were for stream 2 and had been directed there accordingly.

DW3 (PHANICE KAREGI .A)equally adopted her affidavit dated 15/9/2017 in evidence in which she stated she was the presiding officer of Jamlongoji polling station. She denied tallying any results, not allowing agents to oversee assisting of voters, ferrying of voters and joining of the queue after 5:00pm. She said that the announced results were accurate, signed by present agents and transmitted as required. In cross examination, she said the information that 59 people were on the queue at 5:00pm was not recorded but the returning officer was informed through text message from her number 0722601569to 0714863993. She admitted that the polling station diary didn’t indicate the number of people who voted though valid votes were indicated as 388 and as at 5. 00pm, 359 had voted.

DW4 (THOMAS ELEGWA .O)’saffidavit was sworn on 15/9/2017 in which he stated that he was the presiding officer at Muyere polling station where he was working with seven other clerks. He denied the allegations that ten clerks voted twice. He further denied allegations that a clerk was suspended. He stressed that obtained results were announced without alterations, forms signed by agents, copies issued to them with no complaints.

He answered in cross examination that form 36A showed the number of rejected votes as 002, valid votes 296 and total ballots issued 298.

DW5 (ERIC MUDENYO),the presiding officer of Bumbo 2 polling station termed allegations that voters who were not on the queue at 5:00pm were allowed to vote as unsubstantiated.

He however said in cross examination that according to polling station diary, 453 were the cast votes whereas according to form 36A, 449 were valid votes cast. There were no rejected votes.

He again said the there were rejected were 3 ballots but it wasn’t indicated on form 36A which was filled before the mistake could be realized.

DW6 (BONIFACE ALUVANCE MBAGA),the presiding officer of primary school polling stated in his affidavit that he did announce the results as obtained without any alterations. The required documents were filled, signed by agents and results transmitted. He added that it was possible for one polling station to have two polling station diaries.

DW7 (THOMAS KIPKEMOI NGETICH) testified in his capacity as an employee of IEBC, the constituency coordinator and returning officer, Hamisi constituency. He explained that there were no reports of violence within muhudu ward, no reports of intimidation or voting malpractices were recorded / received. He further said that the polling station diary is a document generated at the polling station; it is an administrative document to help in management of the process with entries from form 36A being generated from them. Form 36A was the document to be considered in the event of disputes and to him, the same were supplied to the agents.

He denied the possibility of double voting because the KIEMS could not validate the subsequent exercise. He also said that it was not mandatory for agents to sign on the forms 36A but reasons for failure to sign were to be recorded. He attributed to an arithmetic error the figures of 6203 as the total valid votes and total number of total voter turnout 5503 respectively. He affirmed that votes garnered by each candidate were correctly captured in the forms.

When cross examined, he said that number of voter turnout is obtained from the number of the total number according to the KIEMs plus manual means, therefore, 6203 was the number representing people who turned up to vote and further that the total cast votes plus the rejected votes gave the total valid votes.

He also said that the error did not affect the outcome as the numbers were less than 8114 which represented the total number of registered voters.

THIRD RESPONDENT’S CASE

DW8 (PATRICK LUDOBOLO)from Muhudu ward refuted claims that he ever held the title of chief campaign manager of 3rd respondent. He denied knowing any IEBC official and /or responsibility for results delay. When cross examined he confirmed being at Senende tallying centre on 8th and 9thbut couldn’t tell if there was a customer care desk.

DW9 (MUHUSA SOLOMON IGAHA) a casual worker at Kaimosi boys said that on 8/8/2017 he was a Progressive Party of Kenya (PPK) agent at Jivuye primary school polling station.he confirmd to have been trained and he appended his signature together with other ODM agents when the ballot papers were being unsealed and after the tallying process. He denied the allegations that agents were forced to sign.

The witness further said that apart from the incident on the second day when the petitioner’s supporters were already celebrating before the declaration, no violence or adverse reports were made.

DW10 (CALYSTUS AYODI AMAYA),a resident of Muhudu ward, Hamisi sub county testified that he was one of the contestants for the member of county assembly seat in Muhudu ward and he never witnessed any adverse incidences. He also noted that for Bumbo polling station which his stronghold, there was a variance of 3 votes i.e. as indicated on the polling station dairy, valid votes were 453 whereas the statutory forms showed 449)

He asked court to dismiss the petition as the will of the Muhudu ward people had made him the winner.

SUBMISSIONS.

The petitioner submitted that the 1st and 2nd respondents account of the results was full of inconsistencies that ultimately affected the results of the election an example being that the total number of people at the queue at 5:00pm could not be stated when petitioner said some people were allowed to join the queue after 5:00pm. In quoting the supreme court in the case of Raila Odinga vs IEBC and others(citation not given),the petitioner reiterated that the standard of proof in election petitions was not based on criminal or civil standards i.e., beyond reasonable doubt or balance of probability respectively.

He further relied on the case of Morgan vs. Simpson (1974 3 ALL ER 722) quoting the following paragraph;

‘if the election was so conducted that it was substantially in accordance with the law as to elections, it is not violated by a breach of the rules or a mistake at the polls, provided it did not affect the results of the elections’

That failure by the 1st and 2nd respondents to explain the discrepancies in the results was evidence of lack of transparency, accuracy and accountability in the entire process.

That failure to explain why the number of valid votes was more than the voter turnout showed that the will of muhudu’s people was affected.

In relying on the case of Peter Gichuki King’ara vs IEBC and 2 others (2014) eKLR,the petitioner urged court to find that the irregularities affected the results of the voting. Further, that the errors found at the scrutiny and recount be found to have affected the overall results.

The court was also called upon to consider the judgment in James Omingo Magara vs Manson Onyongo Nyamweya and 2 others(2010) eKLRandWilliam Odhiambo Oduol vs IEBC and 2 others(2013) eKLR.

On behalf of the 1st and 2nd respondents, various provisions of the Constitution formed the basis of the submissions. This included article 1(i) which provides that sovereign power belongs to the people of Kenya and such powers shall be exercised according to the constitution and in sub article 4, the sovereign power shall be exercised at the national and county levels.

Article 38 of the constitution which provides for the right of every person to make political choices and to free, fair and regular elections based on universal suffrage and to vote in any election.

Chapter 7 of the constitution that deals with the general principles for the electoral system which range from the requirement of a free and fair elections at article 81 to the role of parliament to enact legislation on elections at article 82. They further relied on the provisions of the Elections Act No. 24 of 2011, section 83 providing that no election shall be declared void only by reason of non- compliance with any written law relating was conducted in accordance with the principles laid down in the constitution and that the non compliance did not affect the result of the election.

It was further submitted that failure by the petitioner to call witnesses on whose basis the petition was premised was fatal with the few mistakes noted during the process being attributed to human error.

On whether there were irregularities during the elections, they submitted that there were none with the court being called upon to note that the polling station diary is not a statutory document and errors found in it cannot be used to annul an election. That forms 36A and 36B are the legal documents to be considered.

They also said that electoral malpractices were not proved therefore, the 3rd respondent was validly elected.

The court was also called upon to consider the cases ofIsmail Suleiman & 9 others versus The Returning Officer, Isiolo County, IEBC and 4 others. Martha Karua versus Waiguru & 3 others, Kengoja High County Election petition number 2 of 2017 where the court, in striking out the petition, found that the petitioner had failed to meet the requirements of rule 8 of the Elections, Parliamentary and County Election rules)2017.

They alluded to the fact that petitioner departed from his pleadings, resorting to evidence fishing exercise and for that, the court was asked to dismiss the petition. Further, the court was faulted for ordering a recount in all the 16 polling stations instead of sticking to the ruling of 14/11/17 but again, they went ahead to state that the results could not have an impact on the electoral process. The case of Harun Meitamei Lempaka versus Hon Lemanken Aramat & 2 others supported their argument on the issue of scrutiny and recount. The Ugandan case ofBesilge vs Museveni (Election Petition No.1 of 2001) was also relied on. In the case, the Supreme Court of Uganda stated that the expression non -compliance affected the result of the election in a substantial manner as used in section 58 (6) (a), can only mean the votes a candidate obtained would have been different in a substantial manner, if it were non compliance substantially.

The 3rd Respondent also filed submissions detailing why the petition should not be allowed.

I have considered the pleadings, evidence and the submissions together with the cited authorities by counsels herein and I proceed to frame the following issues for determination;

a) Whether the 3rd responded was validly elected as Member of County Assembly representing the people of Muhudu ward.

b) Who bears the Costs of the petition?

DETERMINATION

The Constitution (2010) provides for sovereignty of the people of Kenya as articulated in its Article 1. This sovereignty is anchored by other rights and fundamental freedoms such as the freedom of expression, association and freedom of access to information (Articles 33,36and35) In addition; Article 38 articulates political rights which are given effect through the electoral system set out in Chapter Seven titled, “Representation of the People.” The will of the people is expressed through elections and the courts when faced with election disputes are required to ascertain the intention of the voters and give its effect. The primary consideration in an election contest therefore is whether the will of the electorate has been affected by any irregularities or breaches of laws complained of.

The above mentioned principles of determining election petitions were laid down in the case of MORGAN VERSUS SIMPSONS & ANOTHER 1974 3 ALL E.R 722,728where Lord Denning held that (1)’’if elections were conducted so badly that it was not substantively in accordance with the law as to elections, the election is vitiated, irrespective of whether the result is affected or not… (2)if elections was so conducted that it is 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 result of the election.(3)But even though the elections were conducted substantially in accordance with the laws as to the elections, never the less if there was a breach of the rules or a mistake at the polls and -it did affect the results –then the election is vitiated’’ .

Section 83 of the Elections Act (2011) was enacted in the spirit of the said principles and it provides that, ‘…no election shall be void by reason of non - compliance with any written law relating to that election if it appears that the election was held in accordance with the principles laid down in the constitution and that written law and that non compliance did not affect the result of the election…’’

As correctly submitted by the 1st and 2nd respondents’, standard of proof inelections petitions in Kenya is not on a balance of probability or beyond any reasonable doubt but it is above the balance of probability and below that of reasonable doubt as was held by Supreme court of Kenya in the petition No. 5 of 2013 Raila Odinga (supra) . The position was also restated by Hon. Majanja –J in Election petition No. 1 & 7 of 2013 (consolidated) case of Kalembe Ndile & another versus Patrick Musimba -& 2 others Majanja -J

Just to emphasize, where a petition is alleging irregularities or non compliance with the law, the petitioner must not only prove the irregularity or non -compliance but must also prove the same affected the result. The requirement on the burden and standard of proof underlies the fact that election petitions are not ordinary suits. In Joho v Nyange & Another (2008) 3 KLR (EP) 500, 507 Maraga J, held that, “Election petitions are no ordinary suits. Though they are disputes in rem fought between certain parties, election petitions are nonetheless disputes of great public importance.Majanja J added in Kalembe Ndile & another versus Patrick Musimba -& 2 others (supra)that ‘…It is for these reasons that I concur with the election court’s decision on Wanguhu Ng’anga & Another v George Owiti & Another, Election Petition No.41 of 1993 that election petitions should not be taken lightly.”

In the case of John Fitch v Tom Stephenson and 3 others, (2008)EWHC 501 (OB), it was held that the courts will strive to preserve an election as being in accordance with the law even where there have been an election as being in accordance with the law, even as where there have been significant breaches of the official duties and election rules providing the results of the election was unaffected by those breaches , this is because where possible, the courts seek to give effect to the will of the electorate.

Various allegations were raised by the petitioner in support of the prayers sought, for example, petitioner alleged that his agents were intimidated at some polling stations however no such agent was called to verify this claims at the hearing of the petition to give a description of how the intimidation was, from who and against who. There was no evidence of a report made to the police, the presiding officer or the returning officer with respect to the same, this allegation is therefore dismissed.

On the allegations that an area chief acted as an agent for a certain candidate and even ferried voters, this was not proved. This allegation was very serious as they were against the public servants ethics therefore requiring concrete evidence to support them. Two limbs were to be proved; firstly that the officer involved was a public official and secondly that he/she engaged in political activities. No such evidence was adduced and proved before the court and further no such report seemed to have been to the police for investigations to be carried out. The allegations remained unconfirmed and unproved therefore, they fail too.

On allegations of general irregularities and breaches of the law surrounding voting process, especially that members of public were allowed to join the queue after the official voting hours and agents not allowed to oversee how the presiding officers assisting needy voters, Pw1 and Pw2 confirmed that the petitioner’s agents signed the statutory forms 36A without any reservations. I also had the opportunity to peruse the forms 36As together with the various polling station diaries (PSDs) and found the following at specific polling stations;

At Jivuye polling station, the presiding officer indicated on form 36A that the exercise was ‘concluded well’. This was construed to mean the voting exercise didn’t face any challenges. In the PSD, the petitioner’s party agent, one Boniface Lumbete signed to confirm his presence at the time of closure of the polling station and during the forwarding of results to the constituency returning officer; however, there was no representative from the ODM party during the signing of form 36A but other agents signed on it.

In Muyere stream 1, apart from the challenges involved with the KIEMs starting to work well at 6. 44am, no further issues were raised and the ODM agent, one Mr. Zephania Luvutse witnessed as the polling station closed amongst other agents. He also signed on the PSD without any reservations, and form 36A too. The allegation that the number of registered voters was less than the valid votes was found to be untrue since a scrutiny of form 36a showed that the registered voters were 378 and the voter turnout stood at 296.

In Isikhi polling station, form 36As comment section read ‘the polling went on well’. Equally ODM and other parties agents signed on it and on the PSD as the final results were being forwarded to the constituency returning officer. There were no reservations recorded in the PSD.

In Jamulongoji, form 36A bore comments ‘it was ok’ with ODM’s agent, together Mr.Edward Shikali signing on behalf of FK party (which is presumed to mean Ford Kenya). There were such signatures on the PSD with reservations that there were misunderstandings among voters and agents but they were cooled down with the voting being allowed to proceed. The comments didn’t capture the fact that there was any intimidation or illegal voter assistance.

At Bumbo streams 1 and 2 the PSDs and forms 36A didn’t show any incidences as mentioned by petitioner apart from a clerk who never turned up being replaced and voters from other polling stations being assisted in stream 2. The forms 36A from the two stations were duly signed with remarks ‘well organized election’ appearing on bumbo 2 station’s form.

In evidence before this court Pw3 said that though there were movements outside the polling station, he couldn’t describe them. He added said that some of the voters came with their own assistants therefore the results in form 36A showed the true picture of the voting. This makes the allegation that members of public were allowed around the voting station within 400M radius to be unsubstantiated. The petitioner’s witness also confirmed that it was possible for voting to go on after 5. 00pm if they were on the queue at that time and also that manual identification was possible. Therefore, if any of that happened, and with no report or complaint, irregularity recorded, cannot be said to have been proved. Allegation such as the one made by the petitioners involving irregular assisting of voters was not proved as none of such voter(s) and/or the agents who witnessed the fact in any of the affected polling stations was called as a witness.

Generally, the evidence before me shows that the various PSDs and forms 36As that were later collated resulting to form 36B exhibited the will of the people as confirmed by the various agents who without any reservations.

The provisions of regulation79 of the General Regulations, with respect to the above discussion provides:-

“(1) The presiding officer, the candidates or agents shall sign the declaration in respect of the elections.

…

(3) Where any candidate or agent refuses or otherwise fails to sign the declaration form, the candidate or agents shall be required to record the reasons for the refusal or failure to sign.

(4) Where a candidate or agent refuses or fails to record the reasons for refusal or failure to sign the declaration form, the presiding officer shall record the fact of their refusal or failure to sign the declaration form.

…..

(6) The refusal or failure of a candidate or an agent to sign a declaration form under sub regulation (4) or to record the reasons for their refusal to sign as required under this regulation shall not by itself invalidate the results announced under sub regulation (2) (a).

…”.

While failure by agents or candidates to sign Form 36A does not invalidate the results, the fact of such failure must clearly be noted or recorded in the form by the Presiding Officer in terms of Regulation 79 (4) of the Regulations like in the case of Jivuye polling station where the presiding officer clearly captured the fact that there was no ODM agent present to sign on the form. Where such forms are not signed by agents and the presiding officers fail to note or record that fact, a question of credibility of the results therein arises. Such a question cannot therefore arise in this case as the officer executed his work as required by law.

The statutory form which the presiding officer is required to fill, sign and date under Regulation 79 aforesaid for the election of member of county assembly is Form 36A. Non-signing of the statutory form by a candidate or his agent is excused under Regulation 79 (6), which also answers the question raised that agent(s) didn’t sign some of the forms 36As.

I have also looked at the specific details of petitioner’s complains regarding the polling station diaries and the forms 36A and 36B, whose contents he termed different in terms of number entries. In Bumbo stream 1, it was stated that there were no reported incidence apart from Bumbo 2 where a challenge was dealing with voters but this was not a complaint from any particular agent, it was a general challenge faced by the two polling stations.

The 1st and 2nd respondents’ witness also clarified that though some people were on the queue at 5:00pm not all of them voted, with the presiding officers, Jamlongoji confirming that the number 59, representing voters on the queue at 5. 00pm and for Bumbos’ 120 people was not captured in the polling station diaries however, its worthy noting that in all the polling station complained of, the petitioner party’s agent signed on the diaries without reservations as indicated earlier in this judgement.

What then is the importance of a polling station diary?

A PSD is a standard document issued by the Commission (IEBC) to presiding officers, for purposes of recording all the activities at the polling station, on the polling day. In essence it gives a synopsis of the activities on the polling day, right from the point of receiving election materials through the close of the polling station. Regulation 2 of the Elections (General) Regulation, 2012, as revised in 2017, construes PSD to mean all activities at a polling station on the polling day. In addition, a polling day has been interpreted to mean the election date as stipulated in the Constitution or such other date set for an election by the Commission.

Some of the contents to be inserted in PSD are provided for in Regulation 73(2) of the Elections (General) Regulations as follows:

Immediately after the close of the polling at his or her polling station, the presiding officer shall make in the polling station diary a written statement of;

a)the number of ballot papers issued to him or her under Regulation 61;

b)the number of ballot papers, other than spoilt ballot papers, issued to voters;

c)the number of spoilt ballot papers; and

d)the number of ballot papers remaining unused.

Regulation 75(6) further provides that:

At the end of voting and before counting of the ballots and in the presence of candidates and agents, the presiding officer shall enter in the polling station diary the number of persons identified during polling using the printed register of voters.

Regulation 26 (2)(c) the Elections (Technology) Regulation, 2017,provides that:

Before suspending or terminating the use of election technology the presiding officer at the polling shall document the incident on an incident report in the polling station diary which shall be signed by all the agents.

The PSD therefore gives crucial information such as; the opening and closing time of the polling station, the voter turnout at different times, the number of ballot boxes issued, the number of spoilt papers, the ballot boxes papers remaining used, number of agents at the at the opening time, as well as incidents that point to malpractices of criminal nature occurring. The PSD would aid a court identify any irregularities that might have been alleged to occur, which information would assist a court in reaching a favorable determination of either, annulling or upholding an election. This was the position in the Supreme Court in Raila Amolo Odinga & Another v IEBC & 2 Others, Presidential Election Petition No. 1 of 2017 [2017]eKLRwhen expounding on the meaning and application of Section 83 of the Elections Act, the Court noted;

“Guided by these principles, and given the use of the word ‘or’ in Section 83 of the Elections Act as well as some of our previous decisions, we cannot see how we can conjunctively apply the two limbs of that section and demand that to succeed, a petitioner must not only prove that the conduct of the election violated the principles in our Constitution as well as other written law on elections but that he must also prove that the irregularities or illegalities complained of affected the result of the election as counsel for the respondents assert. In our view, such an approach would be tantamount to a misreading of the provision.”

What the Supreme Court recognized is that an election is a process where mistakes will be made and malpractices may occur but in order to succeed in annulling the elections, the petitioner must establish either that there was non-compliance with the Constitution and the law governing election or that election malpractices and irregularities that took place were of such magnitude that they substantially and materially affected the results of the election.

I should therefore consider if the mistakes in the PSD were of such a magnitude that if left out, would not be retrieved anywhere else, including through the process of recount and scrutiny which was allowed as applied for in the alternative prayer by petitioner and hence substantially and materially affecting the results of the election. It Noteworthy, that information and specifically on the time a polling station is opened and closed could be retrieved from the KIEMS kit, as well as the total number of votes at a very stage of the voting as practically noted from the various diaries availed in court.

A PSD is undoubtedly one of the crucial documents to be filled by a presiding officer during the polling day and failure by the presiding officer to complete the forms can only invalidate the elections if there is proof that it was a deliberate act meant to subvert the democratic will of the people. This position was championed in the Court of Appeal in Mercy Kirito Mutegi v Beatrice Nkatha Nyaga& 2othersCivil Appeal No. 48 of 2013 [2013] eKLR.The court said that,

‘It was contended that failure by the Presiding Officers to complete Forms 33, a candidate tally sheet, rendered the elections invalid. We have gone over the evidence by the appellant’s witnesses, although the trial Judge applied the test of“prove beyond reasonable doubt”to arrive at the conclusion that the appellant failed to show that failure to complete Forms 33 was not a deliberate act meant to subvert the democratic will of the voters, we have looked at the same allegation; while applying the normal test in civil matters of‘balance of probabilities’. Our conclusion remains the same as that of the trial Judge. That is Form 33 was a candidate’s individual tally sheet, there was no evidence to show the information contained in the Forms 35 was doctored, plucked from the air or did not represent the conclusions of the votes collated and tallied.

As stated earlier in this judgment, not every non-compliance or every act of omission or breach of the elections regulations or procedure can render an election invalid. See the case ofKhatib Abdalla Mwashetani V Gideon MwangangiI Wambua & 3 Others, [2014] e KLRThe errors that were cited in the petition regarding failure to complete Forms 33, and the issue of who was to complete Forms 35 between the Returning Officer and the Presiding Officer to us, were minor infractions that did not affect the overall results...’

In determining the effect of noncompliance, I will consider the evidence in the circumstances of this case and determine the effect of any irregularities. In the above case, the court agreed with the finding of the election court, with the exception that the court should have applied the standard of balance of probabilities in finding that the non-compliance did not render the results null. It also found that the isolated incidences of noncompliance did not affect the results, stating as follows:

‘ Regarding the allegations that Forms 33 were not filed, we can do no better than reproduce what the trial Judge stated in her judgment which in our view is a correct interpretation of the law and analysis of the evidence that was before court:

“The pertinent question is whether failure to fill Forms 33 renders the elections invalid. Form 33 is a candidate tally sheet. It is filled during tallying. .. In order to have a nullification of the elections based on failure to fill Statutory Forms, the Petitioner needed to prove beyond any reasonable doubt that the said failure was a deliberate act intended to subvert the democratic right of voters to choose a candidate of their choice, and that it affected the integrity and validity of the elections as to invalidate them. I have thoroughly considered the Petitioner’s evidence. I realized that no attempt was made to adduce any such evidence. It is not sufficient to show that certain Forms were not completed as required; their negative effect to the credibility of the elections must be demonstrated to the required standard. This was not done. Nothing, therefore, turns on this point…’

While being conscious that the tool in reference is an administrative one, am left to decide whether the omissions seen while filling same substantially and materially affected the results. With guidance of the evidence, the irregularity ought to be weighed against the constitutional standard (Article 81among others) as expounded in the statutes and regulations governing elections.

The alleged irregularities must also be weighed against the results of the scrutiny and recount since this was the process conducted by court and from its results, the process and true picture of the numbers garnered by each candidate was shown. It is important that those results be discussed.

Results of scrutiny and recount.

The following table shows results for each candidate after scrutiny and recount, in the first seven polling stations as allowed in the application whose ruling was delivered on the 14/11/17.

Bumbo 1 Bumbo 2 Isihi primary Jamulogoji

Primary Muyere 1 Muyere 2 Jivuye primary

Calystus Ayodi 364 386 17 279 13 5 423

Maxwel Amusala 11 10 43 9 40 24 15

Benedict Musambi 4 3 7 1 5 1 2

Dominic Linyulu - 2 4 1 - 1 1

Boniface Shanga 42 35 161 60 66 95 21

Jackson Musoga 17 13 132 35 128 172 5

Godfrey Imbai 1 - - 3 - 1 2

Rejected 5 0 5 0 0 4 0

Generally, the results after the recount had variations which didn’t favor any candidate in particular with petitioner gaining a total of five votes, 3rd respondent losing eight, Maxwell Amusala gaining one, Benedict, Godfrey and Dominic retaining and Jackson losing more votes. In all this, the 3rd responded remained on the lead.

During hearing also, there was a question on how the voter turnout was less than the number of valid votes as indicated on form 36B. The 1st respondent explained that it was an arithmetic error which could be rectified by tallying the totals on forms 36A. He also noted that the 6203 being the valid votes or the 5503 representing the voter turnout didn’t exceed the number of registered voters. He added that the error did not affect the overall results. This court did proceed on its own motion to deliver a further ruling, on the 21/11/17 for a recount in the remaining nine polling stations. The reasoning behind the ruling for recount was it was important for actual numbers involved in the voting exercise to be known for a just and fair determination.

Having pleaded for scrutiny and recount of all the 16 polling stations by the petitioner, the court was also within its mandate to make such orders. The second exercise was limited to ascertaining the numbers through recounting the votes and scrutinizing the counterfoils to establish the total number of ballots used and thereafter comparing with the number of votes obtained by each candidate.

The following equation was adopted in arriving at the number of voter turnout;

Voter turnout=Valid Votes+ Rejected votes (+ stray votes if established).

The following results were obtained after the exercise;

Name of candidates Total valid votes per candidate in all the 16 polling stations

Calystus Ayodi 2141

Maxwel Amusala 486

Benedict Musambi 71

Dominic Linyulu 40

Boniface Shanga 2079

Jackson Musoga 1175

Godfrey Imbai 38

Rejected Votes 33

TOTAL VALID + REJECTED VOTES= 6063

The following table shows the number of ballots used /unused in each of the 16 polling stations

Used ballots Unused ballots

Bumbo primary stream 1 445 155

Bumbo primary, stream 2 453 147

Jamulongoji primary 388 112

Ivumbu primary 212 88

Muhudu primary, stream 1 413 137

Muhudu primary, stream 2 418 132

Kaptech primary, stream 1 450 200

Kaptech primary, stream 2 440 210

Isikhi primary 372 128

Muyere primary, stream 1 308 92

Muyere primary, stream 2 304 96

Siekuti primary, stream 1 519 181

Siekuti primary, stream 2 510 190

Kaimosi special, stream 1 298 152

Kaimosi special, stream 2 284 166

Jivuye primary 472 128

TOTAL USED BALLOTS= 6286, UNUSED =2314

The above results show that 6063(representing the valid and rejected votes) was more than the number of valid votes (6030). This explains the 1st respondent attribution of the conflicting figures to arithmetic error and I so hold. It is also notable that the number of ballot papers issued or used could not be a reflection of the total voter turnout because of the possibility of spoilt and stray ballots which could not be found in the member of county assembly ballot boxes, however, that put into consideration and in comparison with the total valid votes, the outcome still remains that the voter turnout was more than the number of valid votes which clears the fact that there was a procedural or legal mistake or irregularity involved to favor or work against any party in the 8th August general elections.

About figures captured on the polling station diaries with what was recorded in the statutory forms 36A and 36B, I find such as human errors not necessarily meant to interfere with the voting process. Even with any variation in numbers that may have been captured in the PSDs, the results of the recount showed that none of the parties was disadvantaged or favored to vitiate the election process as a whole.

Even the various party agents, in confirming that the final forms (36As) were bearing accurate results, proceeded to append their signatures without reservations. Whatever was put in the statutory forms are therefore considered accurate and a reflection of the people of Muhudu ward. The petitioner’s agents, who were given the opportunity to sign on the forms but failed didn’t make the process a nullity, in fact, no agents or candidate signature was compulsory to an extend that its absence would negate the voting process

a)Whether the 3rd responded was validly elected as Member of County Assembly representing the people of Muhudu ward.

Just to repeat, the petitioner sought a declaration that the 3rd respondent was not validly elected or in the alternative, scrutiny and recount be done. This court has considered the evidence and also looked at the results of the scrutiny, and concluded that although there were some irregularities associated with human error, that didn’t go to the root of the elections to make this court nullify the election.

In the case of Ahmed Abdullahi Mohamad and Ahmed Muhumud Abdi versus HON. Mohamed Abdi Mohamed, Gichohi Gatuma Patrick and IEBC (Nairobi Election Petition NO. 14 OF 2017in which Justice Mabeya stated that,

‘The principles set out in Articles 81 and 86 of the Constitution are to the effect that; the electoral process must be accurately and competently conducted; the election should have a proper and verifiable record made on prescribed forms and executed by the relevant authorized election officials; an accountable election whose record is capable of being audited. That the sanctity of secrecy of ballot should be jealously upheld in order to maintain the free will of the people when exercising their sovereign will of choosing those they wish to surrender their power to rule over them. An election must reflect the people’s free will through credibility, verifiability, efficiency and accuracy.

An Election Court should always strive to secure and retain the will of the people. Mere irregularities in the conduct of an election that do not affect the results cannot by themselves invalidate an election. Same with procedural and administrative irregularities and other errors occasioned by human imperfection. See Evans OdhiamboKidero& 4 Others v. Ferdinand NdunguWaititu& 4 Others [2014] eKLR and Mercy Kirito Mutegi v.BeariceNkathaNyaga& 2 Others [2013] eKLR. No election can be perfect without any errors. Elections are not perfect and not all malpractices will lead to nullification of the result. Section 83 of the Elections Act is apt about that. See also Harun MeitameiLempaka v.LemankeAramat& 2 Others [2013] eKLR and Steven Kariuki v. George Mike Wanjohi& 2 Others [2013] eKLR.

Having put into consideration the pronouncements from the superior courts, my finding is that the petitioner has not satisfied this court through the oral and documentary evidence presented that the elections were carried out in a manner that offended the law for the same to be nullified. There lacks further evidence that the irregularities complained of, which many have not been proved actually went to the root of the elections in affecting the overall results. In the alternative, the results of the scrutiny and recount exercise in which, I had the opportunity to peruse all the PSDs and forms 36A from the affected seven polling stations, the outcome didn’t cast any doubt as to the process especially in the carrying out of the administrative role of filling PSDs and that any irregularities or errors noted were widely associated to human error. More so, there were no major variations to the outcome of the results that affected the election process.

I hereby conclude that the election of Member of County Assembly as conducted by the 1st and 2nd respondent’s agents, which led to the 3rd respondent’s declaration as the duly elected Member of County Assembly to represent the people of Muhudu ward as procedural and according to the relevant laws, rules and regulations.

The petition is therefore dismissed with costs to the respondents.

b)Who bears the Costs of the petition?

On the issue of costs, it is trite law that costs follow event. I find no offence or irregularity committed by the 3rd respondent which affected the result. I order that the petitioner pays costs to respondents not exceeding a total of Ksh. 500,000/= which shall be assessed at later stage. The security deposited by the petitioner shall be refunded to him upon expiry of the Appeal days.

I wish to appreciate counsels in this case for conducting themselves with the decorum expected of advocates and taking their time to do detailed research which assisted this court in deciding this petition. I also wish to thank the court assistant Kiplagat and the Executive officer Mark Savalla and the Hamisi court family for tirelessly giving me support I needed to ensure that the proceedings run smoothly. I cannot forget to thank Faith, the legal researcher who dedicated her time to assist me with research in this case.

30 days Right of Appeal.

M L Nabibya

Senior Resident Magistrate

31/1/2018

DELIVERED AND SIGNED IN OPEN COURT AT HAMISI ON THIS 31ST DAY OF JANUARY 2018 IN THE PRESENCE OF THE FOLLOWING:

1).

2)

3)

M L Nabibya

Senior Resident Magistrate

31/1/2018