[2017] KEHC 2588 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ELECTION PETITION NO. 12 OF 2017

(CONSOLIDATED WITH ELECTION PETITION NO. 10 OF 2017)

IN THE MATTER OF ELECTIONS ACT, 2011

AND

IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTION) PETITION RULES, 2017

AND

IN THE MATTER OF THE ELECTION FOR MEMBER OF NATIONAL ASSEMBLY FOR NYARIBARI CHACHE CONSTITUENCY

BETWEEN

CHRIS MUNGA N. BICHAGE …….…………..……..…..1ST PETITIONER

ZAHEER JHANDA …………………………..………..... 2ND PETITIONER

JAMES F. O KENANI ……………………….............….. 3RD PETITIONER

VERSUS

I.E.B.C ……………………………………………......... 1ST RESPONDENT

JULIUS MEJA OKEYO (RETURNING OFFICER) .…. 2ND RESPONDENT

RICHARD NYAGAKA TONGI ………........................... 3RD RESPONDENT

R U L I N G

1. This ruling is in respect of the application brought by way of Notice of Motion dated 29th September 2017 brought by Chris Munga N. Bichage (hereinafter, the applicant).

2. The orders sought are:

1. Spent.

2. The Honourable Court be pleased to grant an order for scrutiny of all the votes cast to and/or in favour of all the candidates who contested for the Member of the National Assembly, Nyaribari Chache Constituency, during the General Election held on the 8th day of August 2017, pertaining to and concerning the polling stations detailed and/or contained at paragraphs 28, 29 and 32 of the petition.

3. The Honourable Court be pleased to order and/or decree provision of the KIEMS Kits and the attendant data inter-alia showing location of the GPRS locations of EACH/ALL KIEMS Kits, used in the transmission of Electronic Results.

4. The Honourable court be pleased to order and/or decree provision of certified copies of the polling day diaries, used and/or filled up by the relevant presiding officers, pertaining to and/or concerning the polling stations detailed and/or contained at paragraph 28, 29 and 32 of the Petition.

5. Consequent to prayer (2) hereinbefore being granted, the results and/or outcome of the scrutiny, re-count and re-tallying, be pronounced and/or announced prior to (sic) the substantive hearing of the petition and in any event, the results of the said exercise be taken into account by the Honourable election court.

6. The Honourable court be pleased to make further and/or suitable orders, towards the expeditious hearing and disposal of this instant application.

7. Costs of this application do abide the outcome of the Petition.

8. Such further and/or other orders be made as the court may deem fit and expedient.

3. The application is based on the annexed affidavit of the applicant and on grounds:-

a) The 1st Respondent herein convened, held and/or conducted the General Election on the 8th day of August 2017.

b) Besides, the 1st Respondent constituted and/or engaged the 2nd Respondent to help in the management, conduct and/or supervision of the General Election.

c) It was incumbent upon the 1st and 2nd Respondents to ensure that the General Elections were held in accordance to and compliance with the provisions of Articles 81, 86 and 87 of the Constitution, 2010.

d) For clarity, the methods and systems used, applied and/or employed by 1st and 2nd Respondents were obliged to be simple, credible, accurate and verifiable.

e) Nevertheless, the 1st and 2nd Respondents employed, adopted and used a system that was opaque and devoid of transparency.

f) In any event, the accounting system, together with the attendant counting, collation and tallying were wrought and/or fraud with miscalculations, deletion and errors in calculations.

g) On the other hand, there are various and widespread instances of outright manipulations of results and entries on the statutory Forms 35A’s from various polling stations.

h) Besides, there are also widespread and numerous instances, where results entered on Form 35B contradict and/or are at variance with the Statutory Form 35A’s from assorted polling stations.

i) Besides, there is also an instant pertaining to a polling station where the votes cast and counted appear to exceed the registered voters at the polling station.

j) Consequently, the errors of miscalculations, deletion, erasures and outright manipulations of results, denied, deprived and/or decreased the petitioner’s votes, in a number of polling stations.

k) As a result of the errors, arising from and/or attendant to the foregoing, it has become imperative that an independent audit be undertaken in respect of the votes cast on account of scrutiny, recount and re-tallying.

l) In any event, the statutory forms applied by and/or obtained from the 1st and 2nd respondents, are replete with alterations, contradictions and variations. Consequently, same are contradictory and devoid of credibility.

m) Arising from the contradictions, alterations, discrepancies and/or variations, it is apparent that the 1st and 2nd Respondents engaged and/or indulged in subsequent alterations to camouflage and/or conceal the errors.

n) To ascertain the validity, correctness and verifiability of the votes cast, it is necessary that an order for scrutiny, recount and re-tallying be undertaken.

o) The exercise of scrutiny, recount and re-tallying, will enable the Honourable court to ascertain the nature, extent, depth, cause and basis of the variance and discrepancies apparent in the statutory forms.

p) Unless the exercise of scrutiny, recount and re-tallying is ordered and undertaken, the apparent differences, alterations, discrepancies and variance in the statutory forms, may go unabated.

q) Consequently, it is in the interests of justice and fair play that the exercise of scrutiny, recount and re-tallying be undertaken.

r) In any event, the scrutiny sought for herein, will enable the Honourable court to validate and/or otherwise the votes cast and counted in favour of the Member of the National Assembly, Nyaribari Chache Constituency.

s) Neither of the parties in the instant matter will be prejudiced by the order for scrutiny, recount and re-tallying.

t) It is in the interests of justice that the instant application be granted.

u) That this is a fit and proper application to be allowed ex-debito justitiae.

4. The summary of the affidavit evidence in support to the application is that the 1st and 2nd respondents jointly and/or severally perpetrated heinous alterations, manipulation and adjustments whose net effect was to diminish the votes lawfully cast and counted in favour of the applicant while arbitrarily enhancing and/or increasing the votes for the 3rd Respondent at various polling stations.

5. It is averred that the 3rd Respondent was declared the winner of the election despite not receiving the greatest number of valid votes cast. There was irregular and unlawful count of votes cast in favour of the candidates and this denied the applicant votes cast in his favour.

6. It is alleged that the various form 35A’s emanating from the polling stations did not agree with or conform with the results contained in statutory declaration Form 35B. A scheme was adopted whereby the recording of the vote count was altered, manipulated and/or doctored.

7. This led to increase of the 3rd Respondent’s votes to 14,140 which tally includes fictitious and nonexistent votes.

8. The applicant depones that owing to the unlawful and illegal/arbitrary reduction of votes cast and counted in his favour, his vote tally was declared as 10,445 whereas the votes counted and lawfully garnered by him were diminished by more votes.

9. The 2nd Respondent is accused of failing to use Form 35A’s for the designated presiding officers from polling stations in Nyaribari Chache Constituency to generate form 35B and instead completed Form 35B on the basis of self generated, non-existent and otherwise fictitious form 35A’s not supplied by the designated officers.

10. The 2nd Respondent is accused of carrying out substantial alterations on a number of Form 35A’s and thereby obliterating the actual figures and/or vote counts garnered by the various candidates.

11. The 2nd Respondent together with presiding officers accepted and tallied returns from polling stations where the number of votes allegedly cast exceeded the number of registered voters. An example is given of Irondi Primary School Polling Station Code 055.

12. It is asserted that the applicant’s agents were chased away from Keboba tea buying centre and Rikendo Polling Stations and thereby rendering them unable to authenticate the results. I am referred to the affidavits of Peter Misati and Jefferson Mambo Ogero annexed to the Petition.

13. The election is further impugned on ground that the results pertaining to the Member of National Assembly, Nyaribari Chache Constituency were also anchored on unsigned statutory Form 37A’s (sic) from Irondi Primary School Polling Station whose origin or author was unknown and hence the contents thereof were unauthenticated, invalid and void.

14. It is urged that the alterations which have been captured and amplified in the coloured copied Forms 35A’s are so evident and discernable even when running and hence it is the applicant’s case that the court undertakes a scrutiny, recount and re-tallying in the polling stations detailed and enumerated in paragraphs 28, 29 and 32 in the petition where the validity of the votes cast and counted are substantially disputed.

Response by the 2nd and 3rd Petitioners:

15. The application elicited no response or support from the 2nd and 3rd Petitioner. This most probably arising from the fact that they too have filed their own application along the same lines.

Response by the 1st and 2nd Respondents:

16. This response is contained in the replying affidavit sworn by Julius Meja Okeyo on the 11/10/17 and filed in court the same day.

17. It is urged that the Applicant has not established a basis for the grant of the orders sought.

18. All the matters raised by the Petitioner at grounds 28, 29 and 32 of the Petition and the supporting affidavit of the Petitioner have been specifically answered by the 1st and 2nd Respondents in the response to the Petition dated 14th September 2017.

19. It is averred that the 2nd Respondent reviewed all the alleged errors and/or irregularities tabulated at paragraph 28 of the Petition and he made specific responses to the allegations at paragraph 15 of the response to the Petition. The revelations were as follows:

(a) Contrary to the allegation that the number of rejected votes differed in forms 35A and 35B, the number of rejected votes in both forms (35A and 35B) tallied.

(b) Contrary to the contention that the valid votes cast differed in forms 35A and form 35B, total number of votes shown in form 35A tallied with the total number of votes shown in form 35B. In few cases where there were slight differences, the same was attributable to arithmetic errors in form 35A. These errors arose because tallying in form 35A was done physically whereas those in form 35B were automatically done by the computer.

|(c) Contrary to the contention that the total number of votes cast exceeded the number of registered voters, the total number of votes cast did not exceed the total number of registered voters.

(d) Contrary to the contention that votes were altered in favour of the 3rd respondent, no results were altered in favour of any candidate, leave alone the 3rd respondent.

20. It is stated that it is not true as claimed that the number of votes cast at Irondi Primary School polling station exceeded the number of registered voters. The Form 35A shows that the number of votes cast at the station is 411 whereas the total number of registered voters is 513. I am referred to Form 35A appearing at page 118 of the annexture to the deponent’s affidavit in reply to Petition No. 10 of 2017.

21. Further, it is stated that the 2nd Respondent declared results of the Member of National Assembly for Nyaribari Chache Constituency using Forms 35As from 149 polling stations. These forms are annexed at paragraph 32 of the 2nd Respondent’s affidavit in reply to Petition No. 10 of 2017.

22. The results in these forms (35As) tally with the results in Form 35B annexed to paragraph 17 of the Petitioners affidavit in support of the Petition. The 2nd Respondent does not know the basis on which the Petitioner contends that results were generated from non-existent and/or fictitious forms.

23. It is denied that there was any irregularities in the 46 polling stations listed at paragraph 28 of the Petition. It is urged that a verification of the allegations vis-à-vis the information contained in the statutory forms reveals that the Petitioners allegations are false.

24. It is contended that Peter Misati did not swear an affidavit in support of the Petition contrary to the contention by the Petitioner.

Response by the 3rd Respondent:

25. The response by the 3rd Respondent is found in his replying affidavit sworn on the 11th October 2013 and filed in court on the 13th October 2017.

26. It is the 3rd Respondent’s case that the applicant cannot on the one hand loathe and election process for being flawed and at the same time demand a recount or tally of the same process with the aim of being declared the winner if either emerges victorious pursuant to Section 80(4)(a) of the Elections Act.

27. It is urged that the alleged polling stations where votes cast in favour of the Petitioner were irregularly and unlawfully counted and/or declared to be cast on behalf of other candidates, particularly the 3rd Respondent herein, where votes were manipulated, altered and/or doctored are also not named. Further, this number of votes cast in favour of the Petitioner herein and manipulated to be those of the 3rd Respondent has not been stated.

28. It is the 3rd Respondent’s case that the outcome of the election cannot be affected by unknown polling stations.

29. The Petitioner is accused of being on a witch hunt mission having fanciful hope to satisfy his illusion that the Petitioner won the elections. This mere wishful thinking should not be entertained by the court.

30. It is denied that there was any irregularities in filing Form 35A’s and consequently the transposition to Form 35B was correct and reflected the sovereign will of the people of Nyaribari Chache Constituency.

31. The 3rd Respondent relies on the table at paragraph 40 (page 19) of his response to the Petition dated 19/9/17 and avers that this Petition is a product of sour grapes in that the Petitioner cannot accept his perpetual and apparent rejection by the people of Nyaribari Chache Constituency where he was number 3 in the elections.

32. His allegation that his votes were reduced by an unknown/unspecified numbers is a barren allegation which the court should treat with the contempt it deserves. The alleged anomalies have adequately been explained and the Petitioner’s testimony cannot be taken as gospel truth till cross-examination.

33. It is urged that the discrepancies cited in paragraphs 28, 29 and 32 of the Petition are non-existent.

34. Page 55 of the Petition, it is stated, clearly shows that the votes cast at Irondi Primary School polling station did not exceed the number of registered voters. The number of registered voters in both Forms 35A and B are 513 and the total valid cast votes were 411.

35. It is added that the Petitioner has attached a legible and genuine Form 35A at page 55 and he claims that the form is not legible at page 161. The strange Form 35A at page 161 of the petition is not dated, nor signed by the presiding officer nor is it dated or signed by any agent. I am urged to note that 2 of the Petitioner’s agents signed the Form 35A at page 55 contrary to claims that the Form 35A at this station was not filled. The petitioner is accused of being a liar whose character should be put to scrutiny since he has produced fake forms before court whose source is unknown whereas he is aware of the existence of genuine forms.

36. It is denied that the Petitioner’s agents were chased away.

At Kebota Tea Buying Centre polling station1, John Momanyi, an agent of the Petitioner was present and signed form 35A (see page 109 of Petition).

At Rikendo Primary School Polling Station 1, Cosmas A. Onkiba an agent of the Petitioner was present and signed Form 35A.

At Rikendo Primary School Polling Station 2, Benard Makori, an agent of the Petitioner was present and signed Form 35A (see pages 194 and 195 of the Petition).

37. The 3rd respondent on advice of counsel avers that the absence of agent or candidate in any polling station cannot be used to invalidate any proceedings in a polling station. Regulations 62(3) and 79(7) of the Election (General) Regulations 2012 are cited. Further, it is stated that sufficient reason need be given to merit an order for a scrutiny or recount of votes and the Petitioner must plead in sufficient detail why he requires the court’s intervention to order scrutiny. The timing of the application is also challenged based on the decision in Rashid H. A Amana –vs- IEBC & 2 Others Malindi Election Petition No. 6 of 2013.

38. It is urged that no sufficient reasons have been demonstrated to cause this court to order for the scrutiny or recount of the votes in Nyaribari Chache Constituency. There would be no reason or legal basis for this court to order scrutiny and or recount of votes herein. No basis is laid down to warrant orders sought.

Submissions:

39. Directions were given that the application be disposed off by way of written submissions.

The applicant’s submissions:

40. The Applicant submits that he has pleaded for an order for scrutiny in the Petition specifically at paragraph 28 of the Petition where several polling stations are listed as having specific anomalies as particularized thereon.

41. Learned counsel summarizes the issues for determination as:

(a) Whether the pleadings by and/or on behalf of the Petitioner/ applicant have sufficiently specified and/or enumerated the designated polling stations?

(b) Whether the Petitioner has supplied sufficient evidence and/or basis to warrant an order for scrutiny.

(c) Whether the Respondents would suffer prejudice.

42. It is submitted that the Petitioner specified the polling stations with issues. Paragraph 28 of the Petition has gone ahead to state reasons and/or basis for seeking scrutiny, sufficient parameters have been laid.

43. Reliance is placed on the decision in Gatirau Munya –vs- Dickson Mwenda Kithinji & 2 Others, Supreme Court Petition No. 2B of 2014 [2014] eKLR at paragraph 159 thereof where the court stated:-

“On the contrary, judicial opinion distinctly favours a view that commends itself to us; that, an application for scrutiny and recount, must be couched in specific terms and clothed with particularity, as to which polling stations within a constituency are to attract such scrutiny. If a party lays a clear basis for scrutiny in each and all the polling stations within a constituency, then the order ought to be granted. Otherwise, a prayer pointing to a constituency, but lacking in specificity is not to be entertained.”

44. It is urged that the applicant has pointed out existence of evident irregularities and apparent alterations of results in favour of 3rd Respondent.

45. The applicant has shown statutory Form 35A’s which are incomplete and in particular do not contain all the requisite statutory information e.g at Irondi Primary School polling centre station 1 where the total number of registered voters is missing.

46. Counsel refers to the challenge of the Petitioner’s forms by the 3rd Respondent who terms them fake and states that this gives rise to a possibility of 2 sets of forms. he gives the example of the Form 35A’s at page 55 and 161 of the Petition in relation to Irondi Primary School polling station.

47. It is the applicant’s submissions that a sufficient basis founded and/or anchored on obvious alterations and manipulation of results and existence of various, albeit contradictory statutory Form 35A’s has arisen and therefore warranting scrutiny to enable the court appreciate the depth, nature, extent and impact of the irregularities.

48. Counsel restates the principles applicable in an application of this nature by quoting from Gatirau Peter Munya –vs- Dickson Kithinji & 2 Others (supra) where the court held:-

(a) The right to scrutiny and re-count of votes in an election petition is anchored in Section 82(1) of the Election Act, 2011 and Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013. Consequently, any party to an Election Petition is entitled to make a request for a re-count and/or scrutiny of votes, at any stage after the filing of the Petition and before the determination of the Petition.

(b) The trial court is vested with discretion under section 82(1) of the Elections Act, 2011 to make an order on its own motion for re-count or scrutiny of votes as it may specify, if it considers that such scrutiny or re-count is necessary to enable it to arrive at a just and fair determination of the Petition. In exercising this discretion, the court is to have sufficient reasons in the context of the pleadings or the evidence or both. It is appropriate that the court should record the reasons for the order for scrutiny or re-count.

(c) The right to scrutiny does not lie as a matter of course. The party seeking a re-count or scrutiny of votes in an election petition is to establish the basis of such a request to the satisfaction of the trial Judge or Magistrate. Such a basis may be established by way of pleadings and affidavits or by way of evidence adduced during the hearing of the petition.

(d) Where party makes a request for scrutiny or re-count of votes, such scrutiny or re-count if granted, is to be conducted in specific polling stations in respect of which the results are disputed or where the validity of the vote is called into question in terms of rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013.

49. Reference is also made to the decision in Raila Odinga & Another –vs- IEBC & 2 Others [2017] eKLR where the court stated:

“Applying the law and the principles relating to scrutiny as well as the law on access to information to the present application there is no doubt that the petitioners have signaled their intention to seek scrutiny and we have in that regard, set out the specific parts of the petition in which the issue of scrutiny has been pleaded as well as the kind of information they intend to access. They have also set out the parameters of the intended scrutiny in the petition.”

50. It is further urged that it is erroneous for the 3rd Respondent to contend that scrutiny can only be undertaken after all evidence has been placed before the court. To the contrary, it is important that scrutiny be carried out and/or commenced before hand, to enable the parties affected by the same to be able to react and/or respond to the illegalities and improprieties arising therefrom.

51. It is submitted that the 1st and 2nd Respondent are enjoined by Article 86 of the constitution of Kenya to ensure that whatever method is used, the system ought to be simple, accurate, verifiable, secure, accountable and transparent.

Submissions by 1st and 2nd Respondents:

52. For the 1st and 2nd Respondents, learned counsel has drawn and filed Omnibus submissions covering the 1st Petitioner’s application dated 29th September 2017 (to which this ruling relates) and 2 other applications which I will deal with in separate rulings.

53. It is submitted that following the consent recorded on 5th October 2017 prayer 2 (partially) and 5 of the application herein have been dispensed with.

54. It is submitted that on prayer 3 only the memory SD cards containing information and/or data relating to the elections for the entire constituency is available for preservation. The same is under the safe custody of the 1st Respondent at its head office in Nairobi. As for the physical gadgets, it is submitted that the same are not available as they have been recalled to Nairobi for configuration in readiness for the repeat presidential elections.

55. It is the 1st and 2nd Respondents’ case that the alleged electoral malpractices and/or irregularities tabulated by the Petitioner at paragraph 28 of the Petition have been sufficiently responded to by the 1st and 2nd Respondents at paragraph 15 of their response to the Petition.

56. Almost all the allegations tabulated by the 1st Petitioner at paragraph 28 are false. A reconciliation of results as contained in Forms 35A and 35B tally. The rejected votes in both Forms 35As and 35Bs tally. The registered voters and votes cast tally. No votes were added to the 3rd Respondent as alleged. No votes were altered in favour of any candidate. Agents signed the forms. The total number of valid votes cast tally in both forms (35As and 35B).

57. The discrepancy of 4 votes at Jogoo Primary School Polling station no. 3 is explained to be out of arithmetic error occasioned by manual tallying of results in Form 35A. The same applies to Jogoo primary School polling station number 5, Bobaracho Primary School and Nyanguru Primary School.

58. It is urged that these are minor mistakes that were corrected by the 2nd Respondent at the constituency in the presence of the candidates, their agents, media and observers. The explanation as to the existence of the arithmetic mistakes cannot be found in the ballot boxes.

59. The minor arithmetic error, it is stated, do not disturb the margin of votes between the 3rd Respondent and the Petitioners. See Harun Lempaka –vs- IEBC Nakuru Election Petition No. 2 of 2013.

60. Am urged to review the responses made by the 1st and 2nd Respondents and I will note that the Petitioners are not after a genuine case. Their Petitions are clutching on straws yet they want to engage the court on a tedious exercise in futility.

61. The grounds in support fail to meet the threshold set out in Section 82 (2) of the Elections Act, Rule 29(4) of the Election Rules and Regulation 77(1) of the General Regulations and the parameters set in Nicholas SalatandHarun Lempaka cases.

62. It is submitted that the 1st Petitioner has prayed to be supplied with certified copies/extracts of the information, and/or data contained in KIEMS Kits BVR machines and electronic gadgets relied upon during the general elections.

63. It is reiterated that only the memory/SD cards are available containing information and/or data relating to the elections for the entire constituency. It is submitted that the 1st Petitioner has not laid a basis for the supply of the extractable data. Prayer 4 must fail.

64. On KIEMS Kits, and the production and scrutiny of data thereon, it is submitted that the principles applicable in scrutiny of votes applies as provided for under Section 82(2) of the Elections Act and Regulation 29 of the Election Rulesand decided cases apply. The focus of the Petition is manual transmission of the results.

Submissions by the 3rd respondent:

65. Learned counsel for the 3rd Respondent summarizes the issues for determination as follows:-

a) When can an order for scrutiny and/or recount be issued and by extrapolation;

i) Whether the Petitioner herein has pleaded material facts and full particulars stating the irregularities warranting the scrutiny and/or counting of votes.

ii) Whether the Petitioner has satisfied the court that a prima facie case for scrutiny has been established.

iii) Whether the Petitioner’s application is a roving and fishing inquiry.

b) Whether this court should grant the orders sought.

c) Who should bear the cost of this application?

66. It is submitted that the alleged polling stations where purportedly votes cast in favour of the Petitioner were irregularly and unlawfully counted and/or declared to be cast on behalf of other candidates particularly the 3rd Respondent herein, and where the votes were altered, manipulated and/or doctored are not named.

67. It is urged that the number of votes cast in favour of the Petitioner and manipulated to be those of the 3rd Respondent has not been stated.

68. It is the 3rd Respondent’s position that the outcome of the election cannot be affected by unknown number of votes in unknown polling stations.

69. It is submitted that the alleged anomalies have all adequately been responded to and the Petitioner’s testimony cannot be taken as gospel truth till cross-examination is concluded.

70. The allegation that the votes cast at Irondi Primary School polling station exceeded the number of registered voters is said to be false and vexatious since as can be discerned at page 55 of the Petition, no such discrepancy exists. 2 of the Petitioners agents signed the form at page 55 and this proves the Petitioner a pathological liar.

71. It is urged that the Petitioner should be probed for producing fake forms before this court whose source is unknown whereas he is totally aware of the existence of genuine forms.

72. Counsel further states that the forms at Rikendo and Keboba were signed by the Petitioner’s agents.

73. It is submitted that Rule 29(2) of the Elections (Parliamentary and County Elections) Petition Rules 2017 states as follows:-

29(2) On application under sub rule (1) an election court may, if it is satisfied that there is sufficient reason, order for scrutiny or recount of votes.”

74. Further, Rule 29(4) of the Elections (Parliamentary and County Elections) Petition Rules 2017 states:-

29(4) The scrutiny or recount of votes in accordance with sub rule (2) shall be confined to the polling stations in which the results are disputed and may include examination….”

75. It is urged that the Petitioner has to satisfy the court that there is a prima facie case warranting the granting of orders for scrutiny and/or recount.

76. Additionally, the votes garnered by each candidate have to be disputed by the Petitioner which votes have not been disputed at all.

77. Reliance is placed on Gatirau Munya –vs- Dickson Mwenda & 2 Others(supra) where it was held:-

“What the cases establish is that although scrutiny is within the court’s discretion, the applicant must establish sufficient basis for the court to order scrutiny. Further, the petitioner must not be permitted to launch a fishing expedition under the guise of an application for scrutiny in order to discover new evidence upon which to foist his or her case to invalidate an election.”

78. In the same case at page 69 it was held:-

“This appears to be true intention in the introduction of Rule 33(4). The limiting of scrutiny to polling stations enables the election court to focus on the determination of the contested facts, and not to be turned into a large scale tallying centre. It is well known that scrutiny is often an arduous and laborious process.”

[171] A further reason for limiting scrutiny to only those polling stations where the results are disputed, as opposed to an entire constituency, is based upon the principle that the process of scrutiny should not be abused. This can happen when it is turned into a fishing expedition, where a petitioner comes without a basis for challenging an election, but instead elects to seek scrutiny as a device to generate election-dispute material.

79. Counsel submits on the meaning of a prima facie case as stated in Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others [2003] eKLR where the court defined a prima facie case to be:-

“……a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

80. I am referred to a passage from the decision in Rashid H. A Amana –vs- IEBC & 2 Others Malindi Election Petition No. 6 of 2013where Kimaru J. stated as follows:-

“…the recent trend is that scrutiny can only be ordered where a Petitioner lays sufficient basis. Such basis can only be laid after the petitioner has adduced evidence during the actual hearing of the petition. The petitioner cannot therefore demand that there be scrutiny and recount of the votes before the commencement of the trial. The petitioner may do so after his or her witnesses have testified. The ideal situation, however, is that such an application for scrutiny should be considered by the court after all the witnesses of the petitioner and the respondents have testified. At that state of the proceedings, the court will be in a position to properly assess the veracity of the allegations made by the petitioner that there is need for scrutiny.”

81. It is submitted that the 3rd Respondent won by a widespread margin of 3,695 votes which does not warrant scrutiny of votes.

82. It is urged that the Petitioner has not pleaded material facts and full particulars stating the irregularities in the specific polling stations. Where this has been pleaded, same have been answered in the response showing none existed.

83. Counsel quotes from the Indian Supreme Court decision in the case of Arikala Narasa Reddy –vs- Venkata Ram Reddy Reddygari & Another (Civil Appeal Nos 5710-5711 of 2012) where the Supreme Court held as follows:

“It is settled legal proposition that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such dispute. All the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process and courts have a duty to enforce the same with all rigours and not to minimize their operation…a right to be elected is neither a fundamental right nor a common law right, though it may be very fundamental to a democratic set-up of governance. Therefore, answer to every question raised in election dispute is to be solved within four corners of the statute. The result announced by the returning officer leads to formation of a government which requires the stability and continuity as an essential feature in election process and therefore, the counting of ballots is not to be interfered with frequently. More so, secrecy of ballot which is sacrosanct gets exposed if recounting of votes is made easy. The court has to be more careful when the margin between the contesting candidates is very narrow.

Looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots must be avoided, as it may tend to a dangerous disorientation which invades the democratic order by providing scope for reopening of declared results.”

84. Counsel submits on the conditions that must be satisfied before the court permits recounting and quotes from the case of Arikala Narasa Reddy above as follows:-

“Before the court permits the recounting, the following conditions must be satisfied (i) the court must be satisfied that a prima facie is established; (ii) The material facts and full particulars have been pleaded stating the irregularities in counting votes; (iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes; (iv) An opportunity should be given to file objection; and (v) Secrecy of the ballot should be guarded. [Para 8] [308]-E-G]”

85. It is submitted for the 3rd Respondent that orders of preservation and storage of electoral materials were granted through a consent of the parties and that copies of polling station diaries have been provided in Kisii Election Petition No. 10 of 2017 which is consolidated with this case. Consequently, prayers 2 (partially) and 4 have been dispensed with.

86. On costs, it is urged that the Petitioner should be condemned to meet the costs of this application and counsel quotes from a passage in Judicial Hints on Civil Procedure by Justice Kuloba at page 94 where it is stated:-

“The object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case ….Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”

Analysis and determination:

87. I have painstakingly considered the application, the supporting affidavit and grounds, the Reponses by the Respondents and learned counsel’s submissions. I have had due regard to the Petition filed and the responses as a key reference point in assisting in the resolution of the application herein.

88. The issues for determination crystallize into the following:-

1. Whether sufficient reasons for an order for scrutiny of all votes cast in the polling stations detailed in paragraph 28, 29 and 32 of the Petition have been established.

2. Whether the Petitioner should be provided with the KIEMS Kits and attendant data, the printed register of voters and extract showing location of GPRS locations of all KIEMS Kits used in the transmission of results.

3. Whether certified copies of polling diaries in respect of polling stations contained in paragraphs 28, 29 and 32 of the Petition should be provided to the Petitioner.

4. Whether the results or outcome of the scrutiny/recount should be pronounced before the substantive hearing of the petition and whether in any event the court should take into account such results.

5. Who should bear the costs of this application?

89. On the issue of scrutiny/recount, it is opportune at this juncture to explore what the law is in regard to this prayer.

90. Section 82 of the Elections Act, 2011 provides:

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.

91. Rule 28 of the Elections (Parliamentary and County Elections) Petition Rules 2017 provides:-

28. A petitioner may apply to an elections court for an order to-

(a) Recount the votes; or

(b) Examine the tallying, if the only issue for determination in the petition is the count or tallying of votes received by the candidates.

92. Rule 29 of the said Rules provides:-

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.

93. Also relevant in my view are Regulations 76 through to 83 of the Elections (General) Regulations 2012 which provide an elaborate mechanism for the counting and tallying of votes including who should be present, the mode of counting and tallying, raising of disputes or objections, requests to a presiding officer for a recount etc.

94. The granting of an order for scrutiny is not a matter of course. Rule 29(2) clearly stipulates that sufficient reason has to be shown to the satisfaction of the court for an order to issue.

95. Under Rule 28(b) a Petitioner may apply for recount of the votes and examination of tallying if the only issue for determination in the Petition is the count or tallying of votes received by the candidates.

96. The Petitioner has pleaded scrutiny and recount in the Petition. Indeed, he has specified the particular polling stations targeted and which are found in paragraphs 28, 29 and 32 of the Petition.

97. The question that readily follows is whether sufficient reason has been given for this request.

98. The law on the parameters to be achieved for an order of recount and/or scrutiny to issue is now well settled.

99. In the Supreme Court decision in Gatirau Peter Munya –vs- Dickson Mwenda Kithinji & 2 Others, (Supreme Petition No. 2B of 2014, [2014] eKLR the court held:-

a) The right to scrutiny and re-count of votes in an election petition is anchored in Section 82(1) of the Election Act, 2011 and Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013. Consequently, any party to an Election Petition is entitled to make a request for a re-count and/or scrutiny of votes, at any stage after the filing of the Petition and before the determination of the Petition.

b) The trial court is vested with discretion under section 82(1) of the Elections Act, 2011 to make an order on its own motion for re-count or scrutiny of votes as it may specify, if it considers that such scrutiny or re-count is necessary to enable it to arrive at a just and fair determination of the Petition. In exercising this discretion, the court is to have sufficient reasons in the context of the pleadings or the evidence or both. It is appropriate that the court should record the reasons for the order for scrutiny or re-count.

c) The right to scrutiny does not lie as a matter of course. The party seeking a re-count or scrutiny, of votes in an election petition is to establish the basis of such a request, to the satisfaction of the trial Judge or Magistrate. Such a basis may be established by way of pleadings and affidavits or by way of evidence adduced during the hearing of the petition.

d) Where a party makes a request for scrutiny or re-count of votes, such scrutiny or re-count if granted, is to be conducted in specific polling stations in respect of which the results are disputed or where the validity of the vote is called into question in terms of rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013.

100. In the recent decision in Raila Amolo Odinga & Another –vs- IEBC & 2 Others (Presidential Petition No. 1 of 2017) the court buttressed the need for establishment of a sufficient reason for an order of scrutiny to issue. The court stated:-

“Having addressed our minds to the above issues, it is our view that first, we note that as correctly argued by counsel for the 3rd Respondent, a party must be bound by its pleadings and secondly, any scrutiny of either forms or the technology must be made for a sufficient reason. Any prayer that would seem to be an expansion of the case for the Petitioners or which would in effect be a fishing exercise to procure fresh evidence not already contained in the Petition would and must be rejected.”

101. So what obtains in our instant suit? A litany of alleged irregularities, illegalities, miscalculations, deletions, errors in calculations, variance between form 35A’s and 35B, manipulation of results and entries in Form 35A’s and an allegation of a polling station where the votes cast and counted exceed the registered voters and chasing away of agents are listed as the reasons why a recount and/or scrutiny of votes is necessary.

102. It is urged that these incidences led to the diminishing of the Petitioner’s votes and increasing of the 3rd Respondent’s. The 3rd Respondent was declared winner not withstanding that he did not receive the greatest number of valid votes cast.

103. These alleged malpractices are summarized in paragraphs 28, 29 and 32 of the Petition.

104. Suffice it to note at this juncture that the 1st, 2nd and 3rd Respondents have made specific responses to the allegations in the Petition including a response to paragraphs 28, 29 and 32.

105. Again the 1st, 2nd and 3rd Respondents have also opposed the application along the lines, summarized earlier in this ruling.

106. Before court at this juncture is the affidavit evidence on the part of the Petitioner explaining the state of affairs at the relevant polling stations juxtaposed with the evidence of the 1st, 2nd and 3rd Respondents as to the state of affairs at the relevant polling stations. As I will endeavour to show shortly, in a few examples, one cannot possibly determine which allegations or evidence is true or not (thus giving a basis for a scrutiny or recount) until when the evidence before court is laid to the test of its veracity through cross-examination at a hearing.

107. In the response to the application by the 1st and 2nd Respondents, and which response is anchored on the main response to the Petition, it is denied on oath that the number of rejected votes in Forms 35As and 35B differed. It is stated that in both they tally.

108. Other tallying in Forms 35A and 35B tally save, it is stated, where there were slight differences arising from arithmetic errors in Form 35A. This is explained in that the tallying in Form 35A is done manually.

109. It is denied that any votes cast exceeded registered number of voters and it is the 1st and 2nd Respondents case that no votes were altered in favour of any candidate.

110. The votes cast at Irondi Primary School polling station are said to be 411 and registered voters were 513 therefore the votes cast did not exceed the registered voters.

111. Other examples of the rejoinders can be seen in my earlier summary of the 1st and 2nd Respondents response and in their response to the Petition.

112. Similarly for the 3rd Respondent, there is denial of the allegations by the Petitioner. The issue of agents being chased from Keboba Tea buying centre polling station I and Rikendo Primary School polling station 1 and 2 is countered by availed evidence (of course untested for now) to the effect that agents John Momanyi, Cosmas A. Onkiba and Benard Makori respectively were present and signed Form 35A and the evidence is said to be in the Petition itself at page 194 and 195. Indeed, a perusal of the Petition gives credence to that allegation.

113. In my considered view, there must be a test of the evidence relied on before the court can take a position either way on whether the irregularities/malpractices did indeed happen, and if they did, whether they form a basis for a scrutiny and recount.

114. This brings to the fore the timing of the current application. True, a party has the liberty to apply for scrutiny and recount at any stage of the proceedings for the purposes of establishing the validity of votes cast.

115. When the application is made before the trial starts, the available evidence is the affidavit evidence on record. This evidence will have to be weighed against the affidavit evidence on record from the Respondents. The burden remains on the part of the applicant to demonstrate a sufficient reason for scrutiny and/or recount.

116. I quote with approval Tuiyot, J. in the case of Philip Osore Ogutu –vs- Michael Aringo & 2 Others, Busia High Court Petition No. 1 of 2013where he observed:-

“…it all depends, I think, on the ability of the applicant to marshal sufficient evidence to persuade the court that scrutiny is deserved. And there is no reason why this cannot be made prior to the hearing given that the Election Petition Rules require that the substance of the evidence to be relied on by the parties be set out in the affidavits accompanying the petition or the responses.”

117. The need to test the evidence alluded to above was addressed by Lesiit, J. in Jacob Mwirigi Muthuri –vs- John Mbaabu Muriithi & 2 Others [2013] eKLR where at para 28 and 29 she stated:-

“[28] …Unless an order for scrutiny and recount is the only prayer sought in the Petition, it cannot be ordered at the pre-trial stage. This is because the prayer should not be granted on the basis of untested evidence, which would be the case if the prayer is simply granted at the pre-trial stage on the basis of the allegations in the Petition and the witness affidavits of the Petitioner.

[29] It is clear from the foregoing that where an application for scrutiny is made, the court must be satisfied that an order for scrutiny and recount has been justified by the party applying and secondly, that the order is necessary for the just resolution of the election petition. Scrutiny is one of the tools that the court uses to investigate whether an election was conducted in accordance with constitutional principles and to establish that indeed the result as declared was a reflection of the will of the electorate that took part in that election. The only way the court can test whether an order for scrutiny and recount is deserved and justified is first by considering the Petition and the affidavit in support of find out whether they disclose the Petitioner’s cause of action and whether they contain concise statements of the material facts relied upon in support of the allegations of impropriety or illegality and secondly by calling of evidence and testing of that evidence through cross examination and re-examination process to test the veracity of the same. There can be no need to call evidence for examination through the trial process if none has been advanced in the petition and the petitioner’s pleadings and in particular the affidavits of potential witnesses.”

118. This position is extrapolated by the dictum of Kimaru, J. in Rishad H. A. Amana –vs- IEBC & 2 Others [2013] eKLR where he stated:-

“…..the recent trend is that scrutiny can only be ordered where a Petitioner lays sufficient basis. Such basis can only be laid after the Petitioner has adduced evidence during the actual hearing of the petition. The Petitioner cannot therefore demand that there be scrutiny and recount of the votes before the commencement of the trial. The Petitioner may do so after his or her witnesses have testified. The ideal situation, however, is that such an application for scrutiny should be considered by the court after all the witnesses of the petitioner and the Respondents have testified. At that stage of the proceedings, the court will be in a position to properly assess the veracity of the allegations made by the Petitioner that there is need for scrutiny.”

119. At this stage one can rightly pose the question whether it is possible to conclude that an agent or agents were chased from a polling station and hence there is need to do a scrutiny and a recount to establish the results of the election at such a polling station. The ready answer would be that those facts would need testing through cross-examination and re-examination.

120. It must be borne in mind that scrutiny and/or recount is not to provide evidence. It is to confirm specific allegations.

121. In our instant suit, the Petitioner states that votes were altered and added to the 3rd Respondent. That the 3rd Respondent was declared winner without garnering the highest votes. No evidence of figures added or the highest votes obtained is given. There is a danger that acceding to the prayers herein may open the doors to a “roving and fishing inquiry” (see Arikala Narasa Reddy –vs- Kenkata RAM Reddygari & Another (Civil Appeal Nos. 5710-5711 of 2012 Indian Supreme Court).

122. The decision in Philip Osore Ogutu –vs- Michael Aringo (supra) is spot on. The learned Judge (Tuiyot, J.) observed at para 20:-

“There would be several reasons why scrutiny should not be ordered as a usual course. First, there is a need to guard against an abuse of the process. I would agree with Mr. K’opot that a party must not be allowed to use scrutiny as a fishing expedition to discover new or fresh evidence. It would be expected that a party filing an Election Petition is, from the outset, seized of the grounds, facts and evidence for questioning the validity of an election. And where the evidence is unclear then a party can, on application to court, seek and obtain better particulars of that evidence from its adversary. But it would be an abuse of process to allow a party to use scrutiny for purposes of chancing on new evidence. Scrutiny should not be looked upon as a lottery.”

123. I now revert to my earlier mention of Regulations 76 to 83 of the Elections (General) Regulations 2012.

124. I hold the view taken by Emukule J. in Harun Lempaka –vs- Lemanken Aramat [2013] eKLR that the right to a recount is not automatic at the pre-trial stage. There is need to factor in the provision of Regulation 80 (1) which provides:-

80(1) A candidate or agent present when the counting is completed may require the presiding officer to have the votes rechecked and recounted or the presiding officer may on his or her own initiative have the votes recounted;

Provided that the recount of votes shall not take place more than twice

(2) No steps shall be taken on the completion of a count or recount of votes until the candidates and agents present at the completion of the counting have been given a reasonable opportunity to exercise the right given by this regulation.

125. A party who offers no evidence of a request for a recount under Regulation 80, in my view, diminishes the chances of success of his application for a recount. As stated by Emukule, J. in the Harun Lempakacase above:

“An applicant for a recount of votes at the pretrial stage must inter alia show he or his agents were denied the right to recount under Regulation 80 of the Election (General) Regulations, 2012. ”

In our instant case, there is no such averment in the petitioner’s affidavit.

126. Most importantly, and given the strict timelines set in law for the hearing and disposal of election petitions, an election court does not have the luxury of time. Scrutiny and recount by its very nature is a laborious and time consuming exercise. It must only be allowed where a solid basis and sufficient reasons are given.

127. Turning to issue no. 2 on whether the petitioner should be provided with KIEMS Kit and attendant data, the printed register of voters and extract showing location of GPRS location of all the KIEMS Kits used in the transmission of results, it appears like this prayer was abandoned. There is no basis laid in support of the prayer in the affidavit in support of the application and the submissions are completely mum on this.

128. I think, this is largely explained by the consent recorded by the parties on 5th October 2017 relating to preservation of the election materials.

129. On the issue No. 3, the same position obtains as in issue no. 2 above.

130. On issue no. 4, whether the results or outcome of the scrutiny/recount should be pronounced before the substantive hearing of the petition and whether the court should take into account such results, it is obvious that this issue will abide the outcome of issue no. 1 above and based on the outcome, certainly the law is clear on what should follow.

131. From the above analysis, I reach the unhesitating conclusion that on the material before me, sufficient reasons have not been given to warrant the issuance of an order for scrutiny and/or recount of the votes cast in the respective polling stations mentioned.

132. In the premises, I find the application dated 29th September 2017 without merit and save for the prayers agreed on by a consent of the parties dated 5th October 2017, I dismiss the said application. Costs to abide the outcome of the Petition.

Ruling dated, signedand deliveredat Kisii this 6th day ofNovember, 2017.

A. K NDUNGU

JUDGE

In the presence of:

Mr. Ochwangi for the 1st Petitioner

Ms. Makobu for the 2nd and 3rd Petitioners

Mr. Omwega for the 1st and 2nd Respondents

Mr. Gesicho holding brief for Mr. Omogeni for the 3rd Respondent

Mr. Limo court assistant

A. K. NDUNGU

JUDGE