[2022] KEHC 14156 (KLR)

Bunyasi v County Returning Officer Busia County, Lazarus Chebii & 3 others (Election Petition E002 of 2022) [2022] KEHC 14156 (KLR) (25 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14156 (KLR)

Republic of Kenya

In the High Court at Busia

Election Petition E002 of 2022

DK Kemei, J

October 25, 2022

Between

Sakwa John Bunyasi

Petitioner

and

County Returning Officer Busia County, Lazarus Chebii

1st Respondent

Independent Electoral and Boundaries Commission

2nd Respondent

Otuoma Paul Nyongesa

3rd Respondent

Arthur Odera Papa

4th Respondent

Ruling

(Pre-Trial Conference (Pursuant to the Elections Act and rules 4, 5, 15, 17, 36 of the Election Petition Rules, 2017) 1. When the parties appeared before me on the October 21, 2022, they entered into a consentinter alia: that the petitioners application for scrutiny and recount dated October 5, 2022 be stood over generally: that the 1st and 2nd respondents application dated October 7, 2022 be allowed: that the 3rd respondent’s application dated October 7, 2022 be allowed: that the 4th respondent’s application dated October 7, 2022 be allowed with leave to the 4th respondent to file and serve a response to the petition on or before the October 24, 2022; that the 1st and 2nd respondents affidavits already filed but not captured in the application be deemed as duly filed and served. Thereafter, Mr Katwa learned counsel for the petitioner sought for orders for the safe keeping of the election materials as well as an order that the parties be allowed to affix additional seals on the ballot boxes as well as putting additional padlocks on the doors to the warehouse where the election materials are being kept.

2. Mr Owuor, learned counsel for the 1st and 2nd respondents submitted that the IEBC is empowered to keep safe custody of all materials and that the court is at liberty to issue orders to be complied with by the 1st and 2nd respondents in accordance with rule 16 of the Elections (Parliamentary and County) Petition Rules. Learned counsel further submitted that the 1st and 2nd respondents do no oppose if new seals and padlocks are to be placed on the ballot boxes and doors respectively.

3. Mr Miller Bwire, learned counsel for the 4th respondents submitted that the 1st and 2nd respondents are the custodians of the statutory documents and ought to be allowed to keep them and present to court and parties whenever the documents are required.

4. Learned counsel for the 3rd respondent did not make any submissions regarding the issue of security of election materials in the possession of the 1st and 2nd respondent.

5. I have given due considerations to the issue at hand. It is not in dispute that the 2nd respondent is the custodian of an election materials and that the said materials are required to be supplied to the election court before the hearing commences. It is also not in dispute that the petitioner herein has a great interest in the inspection of the election material for purposes of ascertaining the verifiability of the election result. It is instructive that the petitioner in his petition has sought for orders of scrutiny and recount and did file an interlocutory application dated October 5, 2022 which has since been stood over generally. Hence, there is evidence of interest by the petitioner in the inspection of the election materials. The preservation of those materials is therefore in the interest of all the parties and the election court. Under regulation 93 of the Elections (General) Regulations 2012 relating to retention and inspection of documents, it is provided as follows: -93(1)All documents relating to an election shall be retained in safe custody by the returning officer for a period of three years after the results of the elections have declared and shall then, unless the Commission or the court otherwise directs, be disposed of in accordance with procedures prescribed by the commission subject to the Public Archives and Documentation Service Act (cap 19).(2)Any person may apply to the High Court with notice to all candidates in the election concerned for authority to inspect documents retained under these Regulations, other than ballot papers and their counter-foils.”(3)For the purposes of an inspection under sub-regulation (2), the returning officer shall unseal the documents in the presence of the candidates or agents and the returning officer and candidates or their agents shall keep the documents under their scrutiny until they are resealed by the returning officer after the inspection is completed.(4)The provisions of this regulation shall not apply to documents that concern pending election petition unless there is a court order granting such authority.(5)The above regulation 93 is also reflected in rule 17 of the Elections (Technology) Regulations 2017 as regards data retention and archive as follows: -“All electronic data relating to an election shall be retained in safe custody by the commission for a period of three years after the result of the elections have been declared, and shall, unless the commission or the court otherwise the commission or the court otherwise directs, be archived in accordance with procedures prescribed by the commission subject to Public Archive and Documentation Act (cap 19) and the Kenya Information and Communication Act 1998 (No.2 of 1998).”

6. This court is required to give direction at pre-trial conference for storage and production in court of the election materials. This is provided for under rule 16 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 as follows:16 (1)On conclusion of the pre-trial inference under rule 15, the election court may give directions on: -a.The storage of the election materials including ballot boxes and documents relating to the petition.b.The handling and safety of the election materials; orc.The time for furnishing the election materials to the election court.(2)In giving directions under subrule (1), the election court shall –(a)Consider the prudent, efficient and economic use of storage and transport facilities:(b)Consider the maintenance of the integrity of the election materials; and(c)ensure that the election materials are not interfered with.(3)An election court may direct that the commission maintains the custody of all election materials in relation to a petition.(4)Only material relating to a particular petition may be furnished to an election court.(5)The election court may order that additional seals be placed on the ballot boxes related to the election for which a petition has been lodged.”

7. The petitioner herein had earlier filed an application dated October 5, 2022 seeking orders for scrutiny and recount but which has since been stood over generally. The petitioner vide his petition has sought for similar reliefs. This therefore implies that the security and storage of the documents and election materials in the custody of the 1st and 2nd respondents is a matter of great concern to the parties and the court. The 1st and 2nd respondents have maintained that they are the ones statutorily mandated to take custody of the said materials and that they are amenable to any orders issued by this court. It is noted that the 1st and 2nd respondents have supplied to court and the rest of the parties’ forms 37 A and 37C as well as the SD cards. The petitioner has further sought from the 1st and 2nd respondents to be supplied with the requisite forms 32 relating to assisted voters who were not recognized by the Kiems kits. The 1st and 2nd respondents during the pretrial conference on October 21, 2022 did not respond to this request. Indeed, as the custodian of the election materials the 1st and 2nd respondents are under obligation to supply the said documents to the petitioner and the court before the hearing commences. On the petitioners request for additional seals on the ballot boxes as well as extra padlocks on the doors to the warehouse, the 1st and 2nd respondents appear not to have any objection thereto. I find that the supply of the election materials to the parties and the court as well as the need for additional seals and padlocks goes to support the need for transparency and integrity in the manner in which the election materials are handled and secured before the hearing of the petition commences. In this regard, I direct that the ballot boxes and other election materials continue to be retained in the safe custody by the 1st and 2nd respondents for the period provided by law in the commission’s storage warehouse. I further order that the parties herein be at liberty to place addition seals and/or security to the said ballot boxes under the direction/supervision of the Deputy Registrar of this court. The parties are expected to comply with these directions so that the hearing of the petition can begin in earnest.

8. Accordingly, the following orders are made in line with the pre-trial directions:(1)The custody of all the electoral materials in respect of the Gubernatorial election for Busia County conducted on the August 9, 2022 shall remain with the 1st and 2nd respondents and to be stored in accordance with rule 16 (3) of the Elections (Parliamentary and County Elections) Petition Rules 2017. (2)Pursuant to rule 16 (5) of the Election (Parliamentary and County) Election Rules 2017, the Deputy Registrar of this court shall in the presence of the parties, their counsels, agents or suitable representatives, place additional seals to the ballot boxes as well as extra padlocks on the doors to the warehouse and to keep custody of the keys, on a date to be agreed between the parties herein within seven (7) days from the date hereof.(3)The 1st and 2nd respondents to ensure that all the relevant statuting forms namely form 37A, 37C and 32 are supplied to the parties and the court and further granted leave to file and serve affidavit regarding the issue of assisted voters in terms of forms 32 within three (3) days and that the petitioner, 3rd and 4th respondents be at liberty to file affidavits in response, if need be, within three (3) days upon service.(4)Mention on November 4, 2022 at Busia High Court (physically) to confirm compliance and for final pre-trial directions as well as confirmation of hearing dates for the petition.(5)Costs in the cause.

DATED, SIGNED AND DELIVERED AT 25TH THIS OCTOBER, 2022D. KEMEIJUDGEIn the presence ofKatwa Kigen for PetitionerNo appearance for Owuor for 1st and 2nd RespondentsGichaba for 3rd RespondentMakokha for 4th Respondent