[2017] KEHC 2638 (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. By way of a Notice of Motion dated 29th September 2017, the 1st Petitioner, Chris Manga N. Bichage (Applicant) seeks orders:-

1. Spent

2. Compromised vide a consent recorded on 5th October 2017.

3. In particular, the Honourable Court be pleased to order and/or decree the safe storage and preservation of inter-alia the Ballot Boxes, KIEMS Kits, Electronic Data arising therefrom, original statutory Forms 35A’s and 35B, the polling stations/day diaries, relating to and/or touching on polling stations detailed and enumerated in paragraphs 28, 29 and 32 of the Petition.

4. In the alternative and without prejudice to prayer 2 hereof, the Honourable Court be pleased to decree and/or order the 1st and 2nd Respondents, to avail to and in favour of the Petitioner/Applicant certified copies/extracts of the information and/or data, emanating from and/or relating to the usage of the KIEMS Kits, BVR Machines and the Electronic Gadgets, used and/or relied upon during the Elections of the Member of the National Assembly, Nyaribari Chache Constituency, together with a copy of the printed voter register of voters.

5. Spent

6. Spent

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.

2. The application is based on the 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) Notwithstanding the constitutional and statutory requirements, the 1st and 2nd Respondents abdicated their mandate and thereby indulged in commission of criminal activities.

f) Besides, despite the requirement for accuracy, in the counting, collation, tallying and transmission of results, the 1st and 2nd Respondents engaged in widespread and numerous instances of alterations and manipulation of votes and records.

g) Owing to the evident alterations and manipulations apparent to on the statutory forms, there is a real and imminent danger of interference with the election materials.

h) Besides, the imminent danger, (details in terms of paragraph (g) hereof), may culminate into destruction of the election materials, relative to the subject election.

i) On the other hand, the non-preservation of the election materials will vitiate and/or impugn the just determination of the subject petition.

j) Be that as it may, it is incumbent upon the honourable court to ensure that justice is not done, but seen to have been done.

k) In any event, the preservation of the election materials is in the interests of both parties.

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

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

3. The gist of the supporting affidavit is that owing to massive and widespread irregularities which include alterations, manipulations, and adjustments whose net effect was to diminish the votes lawfully cast for the applicant whilst arbitrary enhancing the votes of the 3rd Respondent, there exists a real danger that the 1st and 2nd Respondents may interfere with the safety and integrity of the election materials under their care/custody.

4. The continued custody of the materials by the 1st and 2nd Respondents is likely to compromise the said material as the 1st and 2nd Respondents are party to this suit.

5. The court as the neutral arbiter ought to take possession/custody of the election materials to abate any manipulation of the materials.

6. The applicant seeks to have extractable data for the KIEMS Kits downloaded, printed and certified so that the same are readily available to the parties.

7. Section 44 and 44A statutorily circumscribes the presentation of election materials.

The Response by the 1st and 2nd Respondents:

8. This is contained in the affidavit of Julius Meja Okeyo sworn on the 11th October 2017 and filed on the same day.

9. Julius deposes that he was the returning officer for Nyaribari Chache Constituency in the General Elections held on 8th August 2017.

10. He avers that the prayer for preservation of election materials was resolved through a consent of the parties recorded on the 5th October 2017. Thus, prayer 2(partially) and prayer 5 of the application have since been dispensed with.

11. He adds that save for the KIEMS Kits which have been recalled to Nairobi for reconfiguration in readiness for the repeat presidential election, all the election materials are safely in the hands of the 1st Respondent and the memory (SD) cards are safe with the 1st Respondent at the head office in Nairobi.

12. On prayer 4, it is averred that no proper basis has been laid to require the information sought being supplied.

13. It is averred that should it become necessary for the data contained in the SD card to be made available to the court and the parties, then the same will be furnished in a manner compatible with the use of KIEMS Kits.

Submissions

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

The Applicant’s submissions:

15. Learned counsel for the applicant summarized the issues for determination as:

a) Whether the 1st and 2nd Respondents are enjoined to supply election materials.

b) Whether the Petitioner/Applicant is entitled to the information and/or material sought.

16. It is submitted that under Article 35 of the Constitution 2010, every citizen has a right to information held by the state, state organ and/or person, provided that, that information is required for the exercise of protection and any right or fundamental freedom by the person seeking the information before hand.

17. The right to information is also provided under section 4 of Access to Information Act, 2016 which replicates the provisions of Article 35 of the Constitution.

18. Section 27 of the Independent Electoral and Boundaries Commission Act, 2011 enjoins the Commission to offer information:

“The Commission shall publish and publicize all important information within its mandate affecting the Nation.”

19. Regulations 15, 16 and 17 of the Elections (Technology) Regulations 2017 relate to and concern the storage and classification of all electronic data and the preservation of the same for 3 years.

20. It is submitted that in view of the above, the 1st and 2nd Respondents are statutorily obliged to supply and avail the requisite election materials to the court and parties herein.

21. Counsel submits that the provision of election materials shall enable the Honourable Court to fully appreciate and/or authenticate the integrity of the election results.

22. I am referred to the decision in Raila Odinga & Another –vs- I.E.B.C & Others [2017] eKLR, at paragraph 66 when the court stated:-

“Regarding prayer 3 and 4 of the application, on the technological aspects of the election, noting the limited time that this court has to hear and determine the Petition challenging the President Election and noting the need to ensure that only those orders that are practicable, reasonable and helpful in reaching a just and fair determination of the Petition should be granted, we shall invoke that criteria in addressing the same prayers.”

Submissions by the 1st and 2nd Respondents:

23. It is counsel’s submission that the parties recorded a consent during pre-trail conference held on 5th October 2017 where the 1st Respondent was mandated to preserve election materials.

24. On KIEMS Kits, it is submitted that only memory SD cards containing information and/or data relating to the elections for the entire constituency is available for preservation. The same is under safe custody of the 1st Respondent at Nairobi Head Office. The physical KIEMS Kits are not available as they were recalled for configuration for a Presidential vote.

25. It is submitted that no basis is laid for the request for extractable data. As such prayer 4 of the application should fail.

Submissions by the 3rd Respondent:

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

a) Whether this Honourable court should order for provision of: KIEMS Kits and the attendant data inter-alia certified extract of data records, the printed copy of register of voters; and the extract showing location of the GPRS location of each/All KIEMS Kits, used in transmission of electronic results?

b) Whether this Honourable court should order and/or decree provision of certified copies of the polling station 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?

c) Whether this Honourable court should grant the orders sought?

d) Who should bear the cost of the application?

27. It is submitted that applying the law and the principles relating to scrutiny as well as the law of access to information to the Petitioner’s application, there is no doubt that the Petitioner has signaled his intention to seek scrutiny of the technology used. In this regard, the 3rd Respondent has set out the specific rationales and case law in submissions dated 16th October 2017 (These relate to an application of even date seeking scrutiny and recount).

28. It is submitted that any prayer that would seem to be an expansion of the case for the Petitioner or which would be in effect a fishing exercise to procure fresh evidence not already contained in the Petition must be rejected.

29. It is urged that the Petitioners have not anywhere in their Petition apprehended that the physical Forms 34A and 34B (sic) produced in court may not necessarily contain the results that were electronically transmitted. The orders sought for the scrutiny of the technology gives outside the relevance purview of the Petitioner’s case.

30. Therefore, it is submitted, the request to access the 1st Respondent’s KIEMS system in order to confirm the validity of the information contained therein is a fishing expedition and thus threadbare and baseless.

31. Any order granted must be practical timeous and relevant to the issues in contest.

32. It is urged that sufficient reasons why the order for the production of KIEMS Kit date and GPRS locations should be provided have not been laid by the Petitioner herein.

33. There is no legal basis or reason for this court to grant the orders sought.

34. It is urged that the discrepancies complained of by the Petitioner are not proved and the alleged anomalies cannot be taken as gospel truth until cross-examination is concluded.

35. The polling diaries sought to be provide are availed in Kisii Petition No. 10 of 2017 consolidated with this case and there has been no objection as to their authenticity thus there is no need for granting the order for production of the polling station diaries.

36. It is urged that, it is the duty of the Petitioner to prove their case to the required standard and it is not the duty of the court to help him prove it.

37. It is submitted that the Petitioner should bear the costs of this Petition.

Analysis and determination:

38. I have had occasion to consider the application, the supporting grounds and affidavit. I have had regard to the reply on record and learned submissions by counsel. I have had regard to the Petition and the Responses thereto as a key reference point in the determination of the application before court.

39. The issues for determination are:

1. Whether the 1st and 2nd Respondents are enjoined to supply election materials to the 1st Petitioner.

2. Whether the 1st and 2nd Respondents should avail to the 1st Petitioner the following:

(i) Certified copies/extracts of the information/data related to the usage of KIEMS Kits, BVR machines and electronic gadgets used in the election.

(ii) Copy of the printed register of voters.

40. Learned counsel for the applicant has ably summed up the provisions of the Constitution and the law on the right to and access to information. He cites Article 35 of the Constitution which provides:-

35. Access to information

(1) Every Citizen has a right to access to –

(a) information held by the State; and

(b) Information held by another person and required for the exercise or protection of any right or fundamental freedom

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

(3) The State shall publish and publicise any important information affecting the nation.

41. He further makes reference to Section 4 of the Access to Information Act 2016 which replicates the provisions of Article 35 of the Constitution.

42. Referring to Section 27 of the Independent Electoral and Boundaries Commission Act 2011, he submits that the Commission shall publish and publicize all important information within its mandate affecting the Nation.

43. Regulations 15, 16 and 17 of the Elections (Technology) Regulations 2017 requires the preservation of electronic data for 3 years before disposal.

44. I concur with counsel that the 1st and 2nd Respondents are statutorily obliged to supply information as envisaged under Article 35 of the Constitution and Section 4 of the Access to Information Act, 2011 as well as to safely preserve electronic data for 3 years as per Regulations 15, 16 and 17 of the Elections (Technology) Regulations, 2017.

45. The applicant is entitled to access all or any evidence that would aid his trial and this should include pieces of evidence which may be in the custody or control of another party.

46. I must be quick however, to contextualize the request herein noting that the request is made within a subsisting litigation being the Election Petition herein where the pleadings and affidavits are on record and responses and replying affidavits are on record.

47. It is noteworthy that an Election Petition is a special litigation governed by specific provisions of the Constitution, the Elections Act and the rules and regulations made thereunder.

48. In my view a blanket application of the provisions of the right to access to information would not only be erroneous but likely to result in a miscarriage of justice.

49. The scope of inquiry that this court is to delve into is already set. Anything that would amount to expansion of that scope beyond the pleadings would be an unwelcome baggage that would only burden the parties and the court in vain. The court will not allow a party to construct its case as it progresses.

50. When, however, a fact is pleaded and the necessary evidence is in the custody or control of another party, the court must come to the aid of the applicant to ensure access.

51. In allowing such access, my considered view is that enforcement of the right is not designed to allow undue advantage to a party in proceedings neither is it a licence for a party to steal a march on the adversaries in a trial.

52. So, is the applicant entitled to certified copies/extracts of the information or data emanating from the usage of KIEMS Kits, BVR machines and electronic gadgets used in the election?

53. I will first focus on what the custodian of this information (1st and 2nd Respondents) have to say on this.

54. In the answer to this request the 1st and 2nd Respondents indicate that the KIEMS Kits were recalled for configuration in preparation for the repeat presidential vote.

55. The information/data contained in the KIEMS Kits is contained in a memory (SD) card which is in the safe custody of the 1st Respondent at its headquarters in Nairobi. The applicant has not, however, laid a basis for the information contained therein to be supplied.

56. It is added that should it become necessary that the data contained in the SD card be made available to court, the same will be furnished in a manner compatible with the use of the KIEMS Kits.

57. To that extent therefore, it is clear in my view that it is for the applicant to lay the basis for such production. In that regard, I need to revisit the pleading in the Petition and the affidavit evidence offered.

58. At page 10 of the Petition at paragraph 34 and 35, the Petitioner raises a complaint over violation of Elections (Technology) Regulations 2017. I reproduce the paragraphs here:

34. Pursuant to and under the provisions of Section 44 and 44A of the Election Act, 2011 (as amended) and read together with the provisions of Elections (Technology) Regulations, 2017, the election results in respect of inter-alia Member of the National Assembly Election, Nyaribari Chache Constituency, was statutorily required to be electronically transmitted to the Constituency Tallying Centre, for purposes of collation, verification and tallying.

35. However, despite the statutory provisions of Sections 44 and 44A of the Election Act, 2011, the 1st and 2nd Respondents herein blatantly, ignored and/or disregarded the statutory responsibility and thereby provided a fertile ground for manipulation/alterations of the results. Consequently, the officers of the 1st and 2nd Respondents herein, engaged and/or indulged in commission of electoral offence(s).

59. In the response filed by the 1st and 2nd Respondents it is stated in paragraph 22:

“In response to paragraph 34 and 35 of the Petition, the Respondents state that they complied with the law relating to electronic identification and transmission of results and therefore put the petitioner to strict proof of contentions to the contrary.”

This is a generalized response with no particulars given.

60. The necessary evidence in this respect would be the data from the KIEMS Kits stored in the (SD) card.

61. Am persuaded that it is in the interests of justice that the said data be made available to the Petitioner for use in evidence.

62. As held in the case of Washington Jakoyo Midiwo –vs- I.E.B.C and 2 Others High Court Siaya Petition No. 2 of 2017;

“…The guiding principle and consideration in this application ought to be the overriding objective of the election petition rules which is to facilitate the just expeditious proportionate and affordable resolution of election petitions under the Constitution and the Elections Act. Mr. Sale, learned counsel for the Petitioner has simplified it all by stating that all they require is the information contained in the KIEMS Kits used in this election. This, as I have found, is information which the Petitioner would ordinarily be entitled to.”

63. Granted, a party filing an election petition is expected to be in possession of the evidence in support of the Petition. But as held in Philip Osore Ogutu –vs- Michael Aringo and 2 Others Busia High Court Petition No. 1 of 2013;

“…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….”.

64. As regards the availing of a copy of the printed register of voters, I am of the view that the same is central to these proceedings and is in the sole custody of the 1st and 2nd Respondents. Its production would be necessary as the Petitioner has pleaded anomalies related to it.

65. In any event, there is assurance from the 1st and 2nd Respondents that the memory (SD) card is safe in the hands of the 1st Respondent at its headquarters and if need be can be produced in a manner compatible with the use of KIEMS Kits. Am persuaded that the Petitioner should be availed the evidence in the custody of the 1st and 2nd Respondents in answer to paragraph 34 and 35 of the Petition.

66. With the result that the application dated 29th September 2017 is allowed in terms that;

1. Certified copies of data relating to the transmission of results in the election for Member of the National Assembly, Nyaribari Chache Constituency be supplied to the 1st Petitioner within 3 days hereof.

2. The said copies be supplied to the court within 3 days hereof.

3. A copy of the printed register be availed to the Petitioner within 3 days hereof.

4. Costs of the application 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