[2018] KEHC 8092 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ELECTION PETITION NO. 5 OF 2017

IN THE MATTER OF THE ELECTION ACT NO. 24 OF 2011 LAWS OF KENYA

AND THE ELECTIONS (GENERAL REGULATIONS, 2012 AND ELECTIONS (PARLIAMENTARY AND COUNTY) PETITIONS RULES, 2017

AND

IN THE MATTER OF PARLIAMENTARY ELECTIONS FOR

SOUTH MUGIRANGO CONSTITUENCY, CONSTITUENCY NO. 262, HELD ON 8TH AUGUST 2017

BETWEEN

HON. DENIS MAGARE MAKORI….……..........1ST PETITIONER

HON. SAMSON BICHANGA …........................... 2ND PETTIONER

AND

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION...........................1ST RESPONDENT

WILSON KIMUTAI KIPCHUMBA …............. 2ND RESPONDENT

SILVANUS OSORO ONYIEGO ….................... 3RD RESPONDENT

JACOB MBICHA MOGERE …........................ 4TH RESPONDENT

JUDGMENT

INTRODUCTION

1. Following the general elections held in Kenya on the 8/8/2017, Silvanus Osoro Onyiego was declared the duly elected member of National Assembly for South Mugirango Constituency. The declaration was made on 10th August, 2017 as shown hereunder:-

No NAME VOTES

a) SILVANUS OSORO ONYIEGO 11,168

b) DENIS MAGARE MAKORI 10,434

c) SAMSON BICHANG'A 7,074

d) VINCENT AMENYA MARUBE 6,458

e) GEDION MOREKA 6,222

f) JOSHUA JOHN ONDORA 3,262

g) JOSEPH MIROBE ONYANGO 2,271

h) LILIAN NYABONYI MOGENDI 1,904

i) JOSEPH OBAGA FAN SAGERO 1,140

j) PHILIP NYANGE MAOBE 508

k) ENOSH OSORO NYAKWEBA 384

l) THOMAS NYABUTO OMWANGE 240

m) KEPHA OCHORA OCHOI 205

TOTAL 51,358

2. Disatisfied with the said outcome, Denis Magare Makori and Samson Bichanga lodged this petition in Court on the 5th day of September, 2017. Both Petitioners were among the candidates who vied for the said elective seat of member of National Assembly for South Mugirango Constituency.

THE PETITION

3. It is the Petitioners' case that they do not accept the counting of the votes cast at the election as correct nor was the tallying of the votes from the polling stations accurate as required by the Constitution and the law.

Grounds of the Petition

4. Six (6) grounds are listed in support of the petition. These are;

(i) Incorrect tallying.

(ii) Announcement of invalid results.

(iii) Making of false entries.

(iv) Bribery.

(v) Failure to seal ballot boxes and

(vi) Violence and intimidation

Affidavit in support of the petition

5. Denis Magare Makori (1st Petitioner) on his own behalf and on authorization by the 2nd Petitioner swore an affidavit in support of the petition on the 4th September, 2017.

6. The 1st Petitioner makes various averments in his affidavit which I reproduce herebelow in summary seriatim.

(i) Inaccurate vote counting and tallying

The 1st Petitioner avers that the 2nd and 3rd Respondents(sic) and/or persons under their authority misconducted themselves in a manner that grossly and materially undermined, contravened or abrogated the mandatory requirements of law by;

(a) Allowing one Jacob Mbicha Mogere, the 4th Respondent and a presiding officer at Makara Primary Polling Station Code 062 to alter votes obtained by each of the candidates. He annexes a copy of a form 35A showing altered figures and another one which is unaltered all from the same station (marked DMM4 and DMM5). A copy of a charge sheet as evidence of arrest and charging of the 4th Respondent is annexed.

(b) The 1st Petitioner further depones that the 1st and 2nd Respondent relied on deliberate mathematical errors on total number of votes cast. A table is provided as follows;

POLLING STATION CODE TOTAL VALID VOTES CAST AS SHOWN IN FORMS 35A THE ACTUAL (ACCURATE) NUMBER OF VALID VOTES CAST THE DIFFERENCE

GESONSO PRIMARY SCHOOL 045262130602802 310 280 30

ENGETI PRIMARY SCHOOL 045262131010301 366 286 80

RIOSANTA PRIMARY SCHOOL 045262130805901 212 204 8

TOTAL

118

A bundle of forms 35A is attached in support (DMM7)

(c) The 1st Petitioner depones that results posted on the IEBC portal showed that he had obtained 10,522 votes while in the form 35B, his tally was 10,434. He exhibits a print out of the portal (DMM9). This difference is not explained.

7. On invalidity of forms 35A, the 1st petitioner avers that form 35A at Manywanda 'B' Primary School Polling Station was not signed by the presiding officer or agents. The same complaint is lodged in respect of Nyabigege DOK Primary School Polling Station. At Nyakorere Primary School Polling Station the votes garnered by candidate Sagero Josephat Obaga is not indicated. The form at Mariwa Polling Station was not signed by the deputy presiding officer and the agents. The Petitioner complains of alterations in the form yet no one countersigned.

At Tabaka DEB. Primary School, the form 35A was not signed by the deputy presiding officer.

At Orwaki DEB Primary School Polling Station, it is alleged that the agents were physically harassed and chased out of the polling station and thus did not confirm the correctness of the result.

8. A list of polling stations whose forms had alterations but were not countersigned is given as hereunder;

Ikoba DEB Primary School 201

Marongo Primary School 501

Nyabitunwa Primary School 901

Kebabe Primary School 401

Nyangweta High School 901

Nyakeyo Primary School 502

Kiagware Primary School 001

Makongeni Primary School 301

A bundle of forms marked “DMM11” is annexed.

9. It is alleged that the above anomalies affect 4,637 votes.

Violence and Intimidation

10. On violence and intimidation the 1st Petitioner depones that his political party being Restore and Build Kenya (R & BK) appointed agents. He attaches appointment letters which are marked “DMM13”. He states that his agent at Nyakorere Primary School Polling Station and Orwaki B Polling Station were physically harassed and kicked out during the counting and tallying.

Failure by presiding officer to seal ballot box

11. It is urged that the ballot box for Bosaga Polling Station was not sealed at the polling centre as required by law. Exhibits “DMM14” and “DMM15” are annexed being photographs and an audio recording to support this claim.

Fraudulent entry of votes obtained

12. The 1st Petitioner depones that his votes were interchanged with those of the 3rd Respondent and uses the table below;

Name of Polling Station Code Votes obtained by Petitioner Votes Declared for Petitioner

GESONSO PRIMARY SCHOOL 45262130602802 81 31

ENGETI PRIMARY SCHOOL 04526213101030 197 117

RIOSANTA PRIMARY SCHOOL 045262130805901 21 01

NYABIKONDO PRIMARY SCHOOL 045262130807701 67 26

ORWAKI 045262130500902 16 6

TOTAL

382 181

DIFFERENCE

199

Other malpractices

13. At paragraph 51 of his affidavit the 1st Petitioner deposes to what he refers to as other malpractices and he attaches a photograph of a ballot box for member of National Assembly from Nyabine Jua Kali Polling Station where the form affixed to the box was one for Member of County Assembly.

THE 1ST, 2ND AND 4TH RESPONDENTS' CASE

14. The 1st, 2nd and 4th Respondents' case is contained in the response to the petition dated 15th September, 2017 and the replying affidavits of Wilson Kimutai Kipchumba (2nd Respondent) and Jacob Mbicha Mogere (4th Respondent).

15. It is the 1st, 2nd and 4th Respondents' case that the election and the declared results of member of parliament, South Mugirango Constituency was conducted in accordance with the Constitution, the IEBC Act, the Elections Act, the regulations thereunder and all other relevant provisions of the law. The election was thus free, fair and transparent.

16. It is their case that any alleged errors, flaws, irregularities and/or non compliance with the law which is denied, was as a result of normal clerical and human error and such errors or breach if any, did not in any way affect the result of the said election.

17. The Respondents aver that the number of votes cast at Gesonso, Engeti and Riosanta Primary Schools Polling Stations reflect the outcome of the result and the will of the people. There are no alterations on the valid votes cast.

18. It is averred that the finality of results as declared in the statutory forms 35A was clearly determined by the Court of Appeal in the case of IEBC vs. Maina Kiai and 5 others.

19. The Respondents aver that mere allegations of non-compliance by the Petitioners does not invalidate the outcome of the election by dint of Section 83 of theElections Act.

It is the responsibility of every agent to be present at the counting and tallying of votes and the absence or otherwise of any agent cannot by itself invalidate the result as is clearly provided under regulation 62(3) of the Elections (General) Regulations 2012. The form at Mariwa Polling Station is defined as accurate, valid and credible the same being in accordance with Regulations 62(3), 79(6) and 97(1) and (2)of the Elections (General) Regulations 2012.

20. Failure to countersign form 35A is stated to be an issue governed by common sense and good practice not by the regulations or electoral laws. It is an inadvertent human procedural anomaly which did not invalidate the results declared at Makara Primary School or any other polling station.

21. It is denied that there are any alterations in forms 35A at Orwaki DEB Primary School and Gesonso Primary School. The form 35A at Tabaka DEB is stated to be authenticated in accordance with the law and the regulations by the presiding officer.

22. It is urged that no challenge was mounted against the results declared at the polling stations. Indeed no requests for recount were made pursuant to regulation 80 of the Elections (General) Regulations 2012and therefore the results reflected in forms 35A and 35B are a correct representation of the counting and tallying process and reflect the will of the people.

23. As regards Makara Polling Station, it is stated that, the allegation therein was subject to investigation and the matter was yet to be heard and determined by a Court of competent jurisdiction. It is denied that this allegation affected the election in the whole constituency.

24. On bribery, the Petitioners are put to strict proof.

25. It is denied that there was violence or intimidation. It is stated that the ballot boxes for Bosaga Polling Station were sealed. The boxes in the photograph provided are not serialized and they are indistinguishable for either being the ballot boxes containing ballots for member of the national assembly, the MCA, women representative, the senator or even the governor. There were 2 gazetted polling stations at Bosaga and it is not particularised which station was affected. No certificate is attached as required to satisfy admissibility rules.

26. Responding to the allegations in relation to Makara Polling Station, the 4th Respondent in his affidavit depones that the results he announced at Makara were correct. He annexes form 35A serial No. 1489 showing the announced results.

27. He avers that he announced the results based on the form 35A and sent the same via KIEMS kit as required to the Constituency tallying centre. On going to the tallying centre he realized he had misplaced the form 35A. He asked the returning officer to announce the results as per data sent through the KIEMS kit.

28. He asserts that an alarm was raised that a form had been found on the floor of the tallying centre purportedly signed by himself bearing the results for Makara Polling Station. That form had alterations and a signature. The returning officer ordered investigations into the matter.

29. The 4th Respondent avers that he is not aware how that form surfaced at the tallying centre. He later found the genuine form in his bag while he was being escorted to the police station. He handed over the form to the returning officer. He denied that the form 35A serial number 1480 with alterations emanated from his polling station and he states that he did not sign the said form. He avers that in the fullness of time, he was sure the criminal charges facing him would be thrown out by Court as he committed no offence.

THE 3RD RESPONDENT'S CASE

30. The 3rd Respondent's case is contained in his response to petition dated 15/9/2017 and the replying affidavit he swore on the same day.

31. The gravamen of this response is that the election of 8/8/2017 for member of National Assembly, South Mugirango Constituency was free, fair and credible and an indication of the free will of the electorate and the people of South Mugirango Constituency. All allegations are denied and the Petitioner put to strict proof.

32. It is averred that the difference in the adding up of figures and totals of the votes cast in the polling stations of Gesonso Primary School, Engeti Primary School and Riosanta Primary School is a purely simple mathematical addition clerical error which is not fatal and does not go to the root of this petition in vitiating a free, fair and credible election. The total number of votes in dispute is 118 which cannot alter the overall tallying of votes in this case.

33. It is denied that a total of 4,637 votes were affected by irregularities and the petitioner is put to strict proof.

34. It is the 3rd Respondents' case that the alleged offence facing the 4th Respondent was yet to be determined through a prosecution of evidence and cross-examination.

35. The Court is urged to take judicial notice of the state of the presiding officers who had long hours at the polling stations and exhaustion could have taken a toll on them.

36. The results found in the IEBC portal should be disregarded as the 1st and 2nd Respondent used the results in forms 35A and 35B to declare the results. The mere fact that an agent or a deputy presiding officer had not signed the forms is not fatal.

37. In regard to Manywanda B Polling Station and Nyabigege DOK Primary School Polling Station, the 3rd Respondent avers that the forms 35A from these two polling stations were duly signed by the presiding officers and the agents.

38. In regard to Makara Primary Polling Station, it is the 3rd Respondent's case that the form 35A annexed was alright and he annexes the polling station diary for this station.

39. The Petitioner is put to strict proof in respect of complaints in regard to Nyakorere Polling Station. In regard to Mariwa Primary School Polling Station, it is the 3rd Respondent's case that it is not mandatory, for a deputy presiding officer to sign the form.

40. As regards harassment of agents, it is averred that no evidence is offered in support.

41. Any alleged acts of violence are denied.

42. In regard to Bosaga Polling Station, it is stated that the exhibited boxes have no serial numbers. One cannot tell whether they contained ballots for MCA, Member of National Assembly, Woman representative, Senator or Governor. They do not show which stream of Bosaga Polling Station they related to as there were two(2) gazetted polling stations at Bosaga. The evidence adduced is inadmissible for lack of certificate.

43. It is urged that the 3rd Respondent was validly elected as the member of National Assembly for South Mugirango Constituency in a free and fair election conducted in compliance with the law.

44. A legal point is raised that the petition is incurably defective as the supporting affidavit sworn by the 1st Petitioner does not indicate that the 1st petitioner was duly instructed and authorised to swear the affidavit on behalf of the 2nd Petitioner.

ORAL EVIDENCE

45. At the pre-trial conference directions were taken that witnesses lined up by the parties were to adopt their affidavit evidence filed and be cross-examined on the same.

46. For the Petitioners the affidavit evidence of the Petitioner, Mururi Mogoa, Richard Ochanda Omaera, Tom Nyamwayo Omonyi, Abraham Okari, Benard Gwaro Magangi and Peter Mokua was adopted and relied upon and all these witnesses were cross-examined.

47. For the 1st, 2nd and 4th Respondents, the affidavit evidence of Wilson Kimutai Kipchumba (2nd Respondent) and Jacob Mbicha Mogere (4th Respondent) was adopted and relied upon and the two (2) witnesses were cross-examined on it.

48. For the 3rd Respondent, the affidavit evidence of Justus Obara Nyakweba (DW3) and Silvanus Osoro Onyiego (DW4, 3rd Respondent) was adopted and relied on and both witnesses were cross-examined.

SUBMISSIONS

49. Learned Counsel for the parties have filed written submissions and each got an opportunity to highlight the salient features of their respective cases. I am greatly indebted to Counsel for their industry and very able exposition of the facts and law applicable in this case. I need not reproduce all the submissions here save to add that I have considered each and every aspect of the submissions even on any point that I may not directly refer to in my analysis.

ISSUES FOR DETERMINATION

50. The Petitioners and the 3rd Respondent filed separate issues for determination. There was not much variance in the issues framed. The 1st, 2nd and 4th Respondents agreed with the issues as framed. The Court condensed the issues for determination as follows;

1. Whether the election of member of National Assembly for South Mugirango Constituency was conducted in accordance with and in compliance with the Constitution and the written law (national Legislation).

2. Whether the 1st, 2nd and 4th Respondents non compliance with the Constitution and written law (if at all) affected the validity of the results of the election.

3. Whether the irregularities and improprieties (if at all) affected the validity of the result of the election for Member of National Assembly for South Mugirango Constituency.

4. Whether the 4th Respondent is guilty of an election offence.

5. Whether the 3rd Respondent was validly declared as the winner of the election of Member of National Assembly for South Mugirango Constituency.

6. Who bears the costs of this Petition.

THE LAW AND GENERAL APPLICABLE PRINCIPLES

51. It is appropriate at this stage to set out the general principles of Law applicable in an election petition like the one before Court.

52. Section 83of the Election Act provides;-

“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election. ”

53. The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others [2014] eKLR expounded the parameters upon which an election will be vitiated. The Court stated that;

“[216] It is clear to us that an election should be conducted substantially in accordance with the principles of the Constitution, as set out in Article 81(e). Voting is to be conducted in accordance with the principles set out in Article 86. The Elections Act, and the Regulations thereunder, constitute the substantive and procedural law for the conduct of elections.

[217] If it should be shown that an election was conducted substantially in accordance with the principles of the Constitution and the Election Act, then such election is not to be invalidated only on ground of irregularities.

[218] Where however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated. Otherwise, procedural and administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election....

[219] By way of example, if there would be counting or tallying errors which after scrutiny and recount do not change the result of an election, then a trial Court would not be justified, merely on account of such shortfalls, to nullify such an election. However, a scrutiny and recount that reverses an election result against the candidate who had been declared a winner, would occasion the annulment of an election. Examples of irregularities of a magnitude such as to affect the result of an election, are not however, closed.

[220] Where an election is conducted in such a manner as demonstrably violated the principles of the Constitution and the law, such an election stands to be invalidated.”

54. Suffice it to note that an election is the expression of the sovereign will of the people through the ballot. The Court is enjoined to jealously guard the choice of the people in respect of who is to represent them.

The results should only be vitiated upon prove of non compliance with the Constitution and the law, or the existence of illegalities, irregularities and malpractices supported by cogent evidence that affect the result of the election. (see Raila Odinga and another vs IEBC & 3 Others [2017] eKLR).

55. The outcome of an election is not to be taken lightly. The Court must strive to uphold the will of the people. In Richard Kalembe Ndile & Another vs Patrick Musimba Mweu & 2 Others [2013] eKLR, the Court observed;

“Under our democratic form of government, an election is the ultimate expression of the people and the electoral system is designed to ascertain the intent of the voters and to give it effect whenever possible.”

56. I cite with approval the decision in Benard Shinalu Masaka vs. Boni Khalwale & 2 Others [2011] eKLR where quoting from the case of John Fitch vs. Tom Stephenson & 3 Others the Court stated;

“The decided cases including those which Lord Denning considered in Morgan vs. Simpson, established that the Courts will strive to perserve an election as being in accordance with the law, even where there have been significant breaches of official duty and election rules, providing the results of the election were unaffected by those breaches. This is because where possible the Court seek to give effect of the will of the electorate.”

57. Alive to the gravity of overturning an election, our very own parliament in its wisdom enacted Section 83 of the Elections Act which provides;

“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”

58. Where, however, there exist cogent evidence that there was non compliance with the Constitution and the law and that there were illegalities and irregularities that affect the results of the election, the Court in the same spirit of upholding the will of the people will have no hesitation in annulling such an election.

THE BURDEN OF PROOF

59. Counsels for the parties have submitted on this area exhaustively and cited relevant law and precedents.

60. It is trite law that whoever alleges must prove. Section 107, 108 and 109of the Evidence Act, (Cap 80 Laws of Kenya) provide;

“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

61. TheSupreme Court in Raila Amolo Odinga vs IEBC and Others [2013] eKLR stated at paragraph 195;

“There is, apparently, a common thread in the foregoing comparative jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause; the legal burden rests on the Petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the Court to determine whether a firm and unanswered case has been made.”

62. Citing the case of Opitz vs. Wrzesnewskyj 2012 SCC 55-2012-10-256(A Canadian decision), the Court held that a Petitioner should be under obligation to discharge the initial burden of proof, before the Respondents are invited to bear the evidential burden. With approval, the Court quoted from the above case thus:

“An applicant who seeks to annul an election bears the legal burden of proof throughout....”

63. It is only when the burden of proof has been discharged by the Petitioner that the burden shifts to the Respondents to disprove the claims made. TheSupreme Court inRaila 2013(supra) had this to say on the shifting of the burden of proof;

“Where a party alleges non-conformity with the electoral law, the Petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the Respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority's departures from the prescriptions of the law.

64. Further a field, the Supreme Court of India in Vashit Narain Sharma vs. Dev Chandra and Others 1954 AIR 513 while emphasizing the grave need for the Petitioner to discharge the burden of proof before an election is upset, held;

“If the Petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the Petitioner seeking to set aside the election... but neither the Tribunal nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the Legislature to consider. The English Act to which we have referred presents no such conundrum and lays down a perfectly sensible criterion upon which the Tribunal can proceed to declare its opinion. It directs the Tribunal not to set aside the election if it is of opinion that the irregularity has not materially affected the result.”

THE STANDARD OF PROOF

65. The standard of proof in an election petition is above the balance of probability though not as high as beyond reasonable doubt. Where the allegations relate to the commission of a criminal offence, the standard of proof is beyond reasonable doubt.

66. The Supreme Court had the occasion to render itself on the above issue in Raila 2013 stating;

“ ….... the threshold of proof should in principle, be above the balance of probability though not as high as beyond reasonable doubt..... where there are criminal charges linked to an election, the party bearing the burden of proof must discharge it beyond reasonable doubt.”

ANALYSIS AND DETERMINATION

67. My duty now is to determine, based on the issues for determination, whether the election of Member of National Assembly for South Mugirango Constituency held on 8/8/2017 was conducted in accordance with the Constitution and the law. I will have to make a finding as to whether any irregularities or improprieties have been shown to exist and whether they affect the result, whether any election offence was committed and ultimately whether the 3rd Respondent was validly elected. I propose to consider each of the grounds as set out in the petition seriatim for clarity and convenience.

INCORRECT TALLYING

68. Under this head the Petitioner's case is that the indication of the total number of valid votes cast in the forms 35A in respect of Gesonso Primary School, Engeti Primary School and Riosanta Primary School Polling Stations are not accurate.

At Gesonso Primary School Polling Station the form 35A shows total valid votes cast at 310, for Engeti Primary School as 366 and for Riosanta Primary School as 212.

An addition of the valid votes cast in the 3 polling station shows a total of 280, 286 and 204 respectively.

69. These errors of addition are readily admitted in so far as the total of total valid votes cast is concerned. The 2nd Respondent's evidence is that these additional or tabulation errors did not affect nor favour any candidate.

70. I have applied my mind to the discrepancy complained of. I have looked at the relevant forms 35A. None of them has any alteration. After adding up the votes assigned to each candidate, I confirm that there is an error in additions.

71. There is no complaint either from the Petitioners or elsewhere over the number of votes assigned to each candidate. Indeed the agent of the 1st Petitioner, one Grace Okondo signed the form 35A in respect of Engeti Primary School Polling Station. Without challenging the actual votes cast for each candidate, the arithmetical additional errors aforesaid cannot suffice to subvert the will of the people.

72. No advantage was gained by any candidate through these errors. It was incumbent upon the Petitioners to show how the errors affected the results.

73. Maraga J(as he then was) in the case of Joho vs. Nyange [2008] 3KLR EP 500 placed such errors in their rightful place in so far as election petitions are concerned. He stated;

“Irregularities which can be attributed to an innocent mistake or an obvious human error cannot constitute a reason for impeaching an election result. This court is mindful of the fact that at the stage where election officials are required to tally the results, some of them would have stayed awake for more than thirty-six (36) hours and therefore simple arithmetic mistakes are bound to happen.”

74. More recently, in the decision in Gatirau Peter Munya vs. Dickson Mwenda Kithinji [2014] eKLR, the Supreme Court of Kenya amplified the position in law by stating at paragraph 218 thereof that;

“[218] Where, however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated. Otherwise, procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election.”

75. There being no challenge to the votes assigned to the candidates, the declared outcome is final as any arithmetic or transpositional errors have not affected the results of the election.

76. The Court of Appeal in IEBC vs. Maina Kiai and 5 Others [2017] eKLR in a decision cited with approval by the Supreme Court in RailaAmolo Odinga and Another vs. IEBC and Others[2017] eKLR emphasized the finality of results recorded at the polling station. It stated;

“It is clear beyond peradventure that the polling station is the true locus for the free exercise of the voters' will. The counting of votes as elaborately set out in the Act and the Regulations, with its open, transparent and participatory character using the ballot as the primary material, means, as it must, that the count there is clothed with a finality not to be exposed to any risk of variation or subversion. It sounds ill that a contrary argument that is so anathema and antithetical to integrity and accuracy should fall from the appellants mouth.”

77. I find and hold that Petitioners have not demonstrated how the arithmetic errors herein affected the results. This ground must fail. The burden of proof is not discharged.

ANNOUNCEMENT OF INVALID RESULTS

78. (i) Manywanda 'B' Primary School Polling Station;

The complaint herein is that the form 35A was not signed by any player including the presiding officers as required by law. This renders the results inauthentic.

On cross-examination and on being referred to page 31 of the response by the 1st, 2nd and 4th Respondent, the 1st Petitioner confirms that the form 35A for Manywanda 'B' Primary School is signed by the presiding officer. I have perused that form and confirm it is duly signed by the presiding officer, the deputy presiding officer and 4 agents.

(ii) Nyabigege DOK Primary School

The complaint here is that the form 35A is not signed by any player including the presiding officers. It does not even bear the stamp of the 1st Respondent. This claim is baffling. The form annexed by the petitioners at page 60 appears signed and stamped only that it is a faint copy of the original. The signing is confirmed by the form at page 32 of the response by the 1st, 2nd and 4th Respondents. Indeed an agent representing RBK Party has signed it.

(iii) Nyakorere Primary School Polling Station

The complaint is that the votes for one candidate namely Sagero Josephat Abaga are not indicated. The form at page 61 of the petition is blank as against the name of candidate Sagero Josephat Abaga Fan. In countering this the 1st, 2nd and 4th Respondents have exhibited the form 35A at page 96 of their response showing that the said Sagero Josephat Abaga Fan had '00' votes. Of note is that the votes garnered by any other candidate are not disputed.

(iv) Mariwa Primary School Polling Station

The complaint is that the form 35A was not signed by the agents and the deputy presiding officer. There is no legal requirement that the said form must be signed by the deputy presiding officer. On signing by agents I will address that issue collectively in regard to the multiple stations hereafter.

(v) Alteration of forms at Nyabigege Polling Station Code 045262130500501

It is urged that the number of valid votes for some candidates were altered with no counter signing on the alteration. This renders the vote invalid. Suffice to note that no challenge is mounted on the votes garnered by any candidate.

The 1st, 2nd and 4th Respondent have produced form 35A for Nyabigege Polling Station 1 of 2 which shows no alteration. Even if alterations were there, what would be the effect in law? I will address that hereinafter.

(vi) Tabaka DEB Primary Schoool Code 045262130500103

The complaint is that the form was not signed by the deputy presiding officer. There is no requirement in law for this.

(vii) Orwaki DEB Primary School Polling Station

The complaint here is that the agents of the 1st Petitioner were chased out of the polling station and thus did not get the benefit of confirming the results. The Petitioners' votes were altered. The relevant evidence on this is contained in the affidavit of Tom Nyamwayo Omonyi who was the agent for RBK party at the polling station as well as from answers given in his cross examination. He states that he was present at the counting of votes. He heard and noted down that the 1st Petitioner had obtained 16 votes.

79. He asked for the form 35A from the presiding officer inorder to verify and sign but the request was declined. When he insisted he was roughed up by agents and supporters of the 3rd Respondent and thrown out of the counting hall.

80. He later learnt from the form 35A that the 1st Petitioner had been assigned 6 votes instead of 16. This alteration, he says on advise of his Counsel, was an election offence.

81. He states that he annexed the form 35A and marked it “TNO1”. A perusal of his affidavit does not show this form.

82. This allegation is denied at paragraph 35 of the replying affidavit of Wilson Kimutai Kipchumba. It is dismissed as a mere allegation not supported by evidence.

83. Having considered this evidence, it is noted that the witness fails to annex the relevant form in his affidavit. Even if this was to be cured by the availability of the form filed by the Petitioners (annexed to the affidavit of 1st Petitioner at page 64 of the petition which actually confirms that the 1st Petitioner was assigned 6 votes), a few issues arise out of his evidence.

84. When questioned by Ms. Morara on his allegation that the 1st Petitioner had 16 votes, the witness is cagey. He states;

“At paragraph 7, I state I noted down the 1st Petitioner's votes were 16. I did not note down. They counted in my presence. I noted down on a piece of paper. I do not have it. I was an agent of (sic) Orwaki 2 on that day. I did not sign the diary at Orwaki Polling Station....”

85. The witness acknowledges that his chasing away (if at all) was an election offence. He says he called a chief called Denis (presumably to report). There is no evidence to corroborate this. No evidence supports his claim that the 1st Petitioner garnered 16 votes. The paper he says he recorded on is not availed in Court.

86. Doubts as to his presence and role at Orwaki Polling Station 2 are further stoked by the absence of his name in the list of agents recorded in the polling station diary at page 204 of the 1st, 2nd and 4th Respondents' response.

87. The witness did answer in cross-examination that he knew the 4th Respondent herein and that he was the presiding officer at Orwaki Primary School. On re-examination he states Alice G. Jefferson was the presiding officer at Orwaki and Elijah Mageso was also a presiding officer.

88. The inconsistency in the evidence of Tom Nyamwayo Omonyi renders his evidence unreliable. He sheds more darkness than light in his attempt to prove that he was an agent at Orwaki Polling Station and that he was chased away.

89. In regard to polling stations with alterations and not countersigned, the Petitioners list the following;

1. Ikoba DEB Primary School.

2. Marongo Primary School.

3. Nyabitunwa Primary School

4. Kebabe Primary School

5. Nyangweta High School

6. Nyakeyo Primary School

7. Kiagware Primary School

8. Makongeni Primary School

90. It is important to highlight the legal requirements relating to the alteration, signing of forms by agents and stamping with the stamp of the IEBC.

91. As regards to alterations, I cite with approval the decision in Paul Gitenyi Mochorwa vs. Timothy Moseti Bosire & 2 Others [2013] eKLR where the Court stated;

“There is no requirement that the entries on form 35 or any other form be without alteration. The constitutional requirement for accuracy in an election system cannot be construed to mean that the statutory forms for the recording of the results of an election must never have errors, corrections or alterations. Accuracy does not mean free from error which has been corrected, an impossibility in all human endevour; accuracy will be served, if there exists a means of verification of the entries to test for their accuracy and it necessarily imports corrections by alterations, whether countersigned or not.”

92. Equally in Wavinya Ndeti vs. IEBC & 4 Others [2013] eKLR, Majanja J, stated;-

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

93. I associate myself wholly with the words of Muriithi J in Paul Gitenyi Mochorwa Case (supra) where quoting from his decision in Engineer Peter Kimori & Another vs. Joel Omagwa Onyancha Kisii Petition No. 7 of 2013 (Ruling of 13th September, 2013) the Learned Judge stated;

“Although there is no legal requirement for the countersigning, DW3 Returning officer confirmed that the presiding officers were trained that they should countersign against every change or alteration that they made. I agree with Kimaru J in William Kabogo Gitau vs. George Thuo & 2 Others Nairobi Election Petition No. 10 of 2008, that common sense approach requires the counter-signing of alterations and cancellations especially in electoral documents in view of the need for verification of the results. The counter-signing works in two ways to assure the reader of the authenticity of the figures in the documents and as confirmation by the author that the changes in the document are intended and his, and not subsequent changes made by other persons after his signature. I do not however agree, in view of human fallibility in the circumstances of elections which do not afford much time for meticulous preparation of numerous documentation, that the statutory forms invariably be required to be written without any alterations. The test, in my view and in keeping with the terms of Section 83 of the Elections Act, must always be the effect of the changes on the results of the candidates and therefore on the outcome of the election.”

94. These 2 decisions are to effect that elections need not be perfect to be valid. Therefore it is not enough to show alterations and inconsistencies but one must also show some culpability and further that the inconsistencies and irregularities affected the election.

95. In Lenno Mwambura Mbaga vs. IEBC & 2 Others [2013] eKLRthe Court stated;

“As irregular as they are, there is no evidence that those alterations were fraudulent or deliberate rather than the result of usual human fallibilities. The mere existence of alterations by itself, if not shown to be deliberate and designed to affect the results will not suffice to impeach results.”

96. Finally on this point, I rely on the case of Dickson Mwenda Kithinji vs. Gatirau Peter Munya & 2 Others [2013] eKLR where the Court observed;

“This court notes that the allegations that the alterations were in bad faith tailored to manipulate the results in favour of the 1st Respondent was not proved to the required standard as no evidence was tendered to that effect before this court. If anything, the alterations were clearly made so that the 2nd Respondent adheres to its Constitutional mandate of collating results accurately as is required under Article 86(c) of the Constitution. In a Nigerian case of Alhaji Waziri Ibrahim vs. Shehu Shagari (1983) All N.L.R. 507 it was held:- “An amended document by itself does not speak of the motive behind the amendment. Without more, an altered or amended document is as genuine as an unamended one. Therefore, the admission of exhibits C to V, the returns from the States form from which exhibits B and B1 were collated without any evidence to add a sting to the innocent amendment appearing on some of them offers no help to the case of the appellant... I find myself therefore unable to accept the submission of the learned counsel for the appellant that because returning officers amended and altered the returns exhibits C to V from 15 States that fact ipso facto means that the returning officers have not complied with Section 65(4), 66, 70 and 119 of the Electoral Act 1982. There must be evidence of indictment or of immoral, unlawful and illegal motive.” ….. It is conceivable that the occasion may genuinely arise when a statement of votes cast may of necessity be altered or amended for instance where a mistake in arithmetic is discovered during the counting of the votes or when a recount is made under Section 68 of the Electoral Act, 1982”. I therefore find that the Petitioner has failed to prove to the required standard the allegations of manipulation of results by altering figures in Form 35 and 36 without countersigning and duplication of results. Whether there were alterations or amendments the petitioner was obligated to call evidence of indictment or of immoral, unlawful and illegal motive and show that the alteration by the respondents did not adhere to their constitutional mandate of collating results accurately as required under Article 86(c) of the Constitution of Kenya. I therefore find and hold that Form 35s were altered or amended for instance where a mistake in arithmetic was disclosed during the filling of the forms and was done in good faith and in accordance with the respondents' Constitutional mandate.”

97. As regards the signing of forms by agents, it is the responsibility of every agent to be present at all stages of the electoral process. Regulation 79(6) & (7)of theElections (General) Regulations 2012provides;

“Regulation 76(6): The refusal or failure of a candidate or an agent to sign a declaration form under this regulation shall not by itself invalidate the results announced under sub-regulation (2) (a)

“Sub-regulation (7): The absence of a candidate or an agent at the signing of a declaration form or the announcement of results under sub-regulation (2) shall not by itself invalidate the results announced.”

98. As regards the stamping of the declaration forms, the legal position is that there is no legal requirement for the stamping of the forms. The Court of appeal in IEBC vs. Stephen Mutinda Mule and 3 Others [2014] eKLR in addressing this issue stated;

“If any such forms (35) were stamped, it is gratuitous and superfluous discretionary or administrative act incapable of creating a statutory obligation, less still the invalidation of the forms 35 that did not contain the stamp.”

99. Looking at the form for Nyakorere produced by the Petitioners and the one produced by IEBC, there is a notable difference with the form by the Petitioners showing that the form was blank at the row for Joseph Abaga Fan Sagero's votes.

100. The Petitioners discharged their legal evidential burden and the burden regarding the contents of the form shifted to the 1st Respondent to prove that the votes were correctly recorded in the form. This is perfectly in line with the Supreme Court decision in Gatirau Peter Munya where it was stated that;

“The evidential burden regarding its (register) contents and the declared results lies on the IEBC save that it is only activated in an election petition when the initial burden has been discharged.”

101. The 1st Respondent has provided a form showing that the said Joseph Obaga Fan garnered “00” votes at the polling station in question.

102. Section86 Subsection (1c) and (2) of the Evidence Act provides;

“S. 86 (1) The Court shall presume the genuineness of every document purporting to be-

1(c) a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

(2) Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”

103. I am satisfied that the 1st Respondent has effectively discharged the burden that shifted to it by providing the form that has not been challenged in terms of source and authenticity and within the meaning of Section 86 of theEvidence Act, I presume its genuineness.

VIOLENCE AND INTIMIDATION

10-4. In regard to violence and intimidation, it is the Petitioners' case that the 3rd Respondent and his agents and/or persons on his behalf used violence and intimidation against the Petitioners' agents and the integrity of the process was undermined thereby affecting the outcome.

105. It is the 1st Petitioner's evidence that his agents at Nyakorere Primary School and Orwaki DEB Primary School Polling Stations were physically harassed and kicked out of the polling stations during counting and tallying. Moruri Mogoa, the chief agent of the 1st Petitioner states he was slapped at the tallying centre by the 2nd Respondent.

106. Benard Gwaro Magangi in his evidence states that he witnessed Moruri Mogoa being slapped by the 2nd respondent. He stated that he saw and heard Moruri Mogoa demanding to see a document but the 2nd Respondent turned violent and slapped him in the face. The 3rd Respondent's supporters joined him in roughing up Moruri Mogoa and descended on him with blows and kicks until when police officers separated them. Moruri Mogoa was thrown out of the tallying centre.

The other incidence of violence is dealt with in the evidence of Tom Nyamwayo Omonyi which I have dealt with above.

107. Having carefully considered the evidence on violence and intimidation, I note that there is no evidence in support of the same at Nyakorere Polling Station as the person allegedly harassed by members of the public and some of the agents at the polling station, one David, was not called as a witness. The excuse that he was not called due to his safety concerns is unfounded and cannot stand. The Witness Protection Act, 2006is now firmly in place with the chief object and purpose of providing special protection to persons in possession of important information and who are facing potential risks of intimidation due to their co-operation with prosecution and other law enforcement agencies.

108. Tom Nyamwayo Omonyi is the agent said to have faced harassment and was chased away from Orwaki Polling Station. As analysed at paragraph 79 of this judgment, the said Tom Nyamwayo was unable to lay any evidence that he was actually an agent and present at Orwaki. He did not sign the polling day diary. He alleges to have made a report of incident to a chief. The said chief is not called as a witness nor is a record of such a report made. The chasing away of an agent from a polling station is an election offence. This Court cannot possibly rely on Tom's word as prove that he was harassed and chased away without corroboration.

109. The evidence on violence meted against Moruri Mogoa at the tallying centre is contradictory. Whereas PW1, the 1st Petitioner states that the said Moruri Mogoa was slapped by the 3rd Respondent, Moruri Mogoa in his affidavit states he was slapped by 2nd Respondent. When cross-examined, he states he was slapped by the 3rd respondent. The said Moruri Mogoa cannot in law amend his affidavit. The evidence of PW6, Benard Gwaro Magangi suffers the same contradiction. Notably, no formal reports of these alleged crimes are made to police.

110. The allegations of violence and intimidation made herein disclose cognizable criminal offences. The standard of proof is beyond reasonable doubt. Secondly, in addition to proving that the offence was committed, the Petitioner is duty bound to connect the offence to the returned candidate or the agents of the returned candidate under his instruction.

111. In the case of Jagdev Smgli vs. Pratap Singh Daulla, (A.I.R. 1965. S. C. 18), the Supreme Court of India faced with similar facts stated;

“It may be remembered that in the trial of an election petition, the burden of proving that the election of a successful candidate is liable to be set aside on the plea that he was responsible directly or through his agents for corrupt practices at the election, lies heavily upon the applicant to establish his case, and unless it is established in both its branches, i.e. the commission of acts which the law regards as corrupt, and the responsibility of the successful-candidate directly or through his agents or with his consent for its practice not by mere preponderance of probability, but by cogent and reliable evidence beyond any reasonable doubt, the petition must fail.”

112. In any event, it has not been shown that the violence and intimidation was so rampant and widespread as to affect the opening of polling stations, voting and counting of the votes. This ground must fail.

MAKING OF FALSE ENTRIES

113. On the making of false entries of votes obtained, the 1st Petitioner avers that his votes were interchanged with those of the 3rd Respondent. He lists the alleged interchanging in the table at page 27 of the petition.

114. Peter Mokua testified that the 1st Petitioner obtained 63 votes at Gesonso Polling Station but was only awarded 31 votes. In his affidavit, Peter states he misplaced his letter of appointment and oath of secrecy.

The 1st Respondent has filed a statutory form 35A showing that the votes garnered by the 1st Petitioner were 31. In the table exhibited at page 27 of the petition, the 1st Petitioner indicates that the actual votes he garnered at Gesonso were 81 but the declared results were 31. This is in direct contradiction to Peter Mokua's (the agent) assertion that the votes actually garnered by the 1st Petitioner were 63. In light of this material contradiction, the allegation herein cannot stand.

In any event, other than Peter's word of mouth there is no corroborative evidence eg a personal record of the result.

115. As regards Riosanta Primary School Polling Station, the witness Abraham Okari states he heard 9 votes announced in favour of the 1st Petitioner. Awarded in form 35A was 1 vote. The 1st Respondent has filed a form 35A showing the 1st Petitioner had 1 vote. There is no corroboration of Abraham's evidence by way of a record kept on that day or otherwise.

116. As regards Orwaki Primary Polling Station, Tom Nyamwayo Omonyi stated he heard and noted down 16 votes in favour of 1st Petitioner. 1st Petitioner was given 6. This note was not produced. A form 35A is exhibited showing the 1st Petitioner had 6 votes.

117. In all the 3 polling stations, the 3 witnesses fail to prove their allegation in light of the clear documents from IEBC.

No evidence at all was availed on the alleged discrepancy at Engeti Primary School and Nyabikondo Primary School.

FAILURE TO SEAL BALLOT BOXES

118. On failure by the presiding officer to seal ballot box, it is the evidence of the 1st Petitioner that the ballot boxes said to be from Bosaga Polling Station were not sealed at the polling centre. The 1st Petitioner and his chief agent Moruri Mogoa found the presiding officer in charge of the polling station sealing some ballot boxes at the tallying centre – Nduru Girls Secondary School. Some photographs and an audio recording evidencing that are relied on.

119. On cross-examination by Mr. Muchemi for the 1st, 2nd and 4th Respondents, the 1st Petitioner acknowledges that at page 169 of the petition is a photo of ballot boxes. Indeed the photographs are of covers of ballot boxes. Same at page 170 of the petition. He states he did not record anywhere the serial numbers of the ballot boxes. He affirms that the said boxes could have come from either polling station Bosaga 1 or Bosaga 2.

Cross examined by Mr. Begi for 3rd Respondent, the 1st Petitioner states that he did not know the votes he garnered at Bosaga Polling Sation. He was able to confirm in Court that he garnered 149 votes while the 3rd Respondent garnered 115 votes.

120. On re-examination he said that the presiding officer who was sealing the ballot boxes at the tallying centre was one Abigael. The presiding officer explained they had been allocated a small vehicle (a probox) and they therefore put the boxes into each other to fit in the probox.

121. On being recalled later, the 1st Petitioner produced an audio clip as evidence of what happened outside the tallying centre where the unsealed ballot boxes were allegedly found.

122. The 1st Petitioner stated that the audio clip contained a conversation between himself, one Gedion Moreka (a candidate for MP), his chief agent Moruri Mogoa, the 2nd Respondent (returning officer) and one Abigael, a presiding officer for one of the Bosaga 1 and 2 stations.

123. The audio clip was played in Court and a conversation involving 7 voices can be heard from the clip. The 1st Petitioner stated that the 1st voice is his, the 2nd voice is the presiding officers, the 3rd voice is for Gedion Moreka, the 4th voice is for the presiding officer, the 5th voice is for the returning officer, the 6th voice is for the presiding officer and the 7th voice is the returning officer's.

124. Further cross-examined, the 1st Petitioner on being shown the form 35A at page 28 of the response by 1st, 2nd and 4th Respondent confirms that an agent of R & BK party, one James Obara signed the form. He confirms that in his petition he states that the ballot boxes were opened at the tallying centre so as to stuff ballot papers.

125. Cross examined by Ms Morara for the 3rd Respondent, the 1st Petitioner confirms he had an agent at Bosaga 2 but he didnt know why he did not sign the form 35A. He acknowledges that he did not take a video picture which could have enabled the matching of voices to individuals since it was at night.

126. The 2nd Respondent (DW2) testified on cross-examination by Mr. Omwanza that he was aware of ballot papers delivered unsealed to the tallying centre. He denied participating in the conversation recorded in the audio clip. He did not recognise the voices.

127. Having carefully analysed the evidence regarding the unsealed ballot boxes, the burden of proof lay on the Petitioners to show that there were unsealed ballot boxes delivered to the polling station, they related to the election for Member of National Assembly For South Mugirango Constituency and were for a specific polling station(s). The Petitioners had to prove that the voices in the audio clip belonged to the alleged persons.

128. There is admission by the 2nd Respondent that there were some ballot papers(sic) delivered to the tallying centre unsealed. However, the Petitioners have not established by way of evidence to which polling station the ballot boxes belonged and that they related to the impugned election herein.

129. The audio clip produced is of little or no evidential value. The same is denied by the 2nd Respondent. To discharge the burden of proof the Petitioners needed to call in expert evidence to place faces to the voices. The Court cannot possibly rely on the mere word from 1st Petitioner or worse still hazard guesses as to which voice belonged to who.

130. The propriety and admissibility of the photographs and audio clip relied on in evidence has been raised. I cite with approval the decision in Millitonic Mwendwa Kimanzi Kitute vs. IEBC and 2 Others [2017] eKLR where the Court held that photographic evidence is electronic evidence. The Court stated;

“The process of producing an image on paper in the form of a photograph requires the same to be printed by a printer using a computer, and therefore a photograph falls within the definition of an electronic record, and the provisions of Section 106B of the Evidence Act accordingly apply to its admissibility.”

131. In our instant suit, the 1st Petitioner stated that he took the photographs of the ballot boxes and also recorded a conversation relating to the incident. He attaches a certificate of digital photo (which I note is in the form of an affidavit). Notably the details of the computer that produced the photographs and the audio CD are not given, neither is it stated that the same was used in the ordinary cause of business, by whom and whether it was in good order.

132. Under Section 106Aof the Evidence Act, the contents of electronic record may be proved in accordance with the provisions of Section 106B of theEvidence Act.

133. Section 106B of the Evidence Act sets out the conditions to be met for such evidence to be admissible. The conditions include;

“1. At the time of creation of electronic record, the computer output containing information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer.

2. During the said period, information of the kind contained in electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities.

3. Throughout the material part of the said period the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; and

4. The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

134. Section 106B (4) of the Evidence Act requires the production of a certificate of authenticity of electronic evidence which is to be signed by a responsible person who was responsible for the computer on which the electronic evidence was created or stored. Such certificate must identify the original electronic record, describe the manner of its creation, describe the particulars of the device that created it and certify compliance with Section 106 B (2)of theEvidence Act.

135. I agree with Counsel for the 1st, 2nd and 4th Respondent that the electronic evidence produced by the petitioners fails the legal test in that;

(a) No particulars were furnished on the working condition of the Petitioner's mobile phone that allegedly took the photograph and audio recording.

(b) No evidence was adduced that the said mobile phone iphone serial No. DNPRFPWLGRY 9 was at the time of recording owned, operated and managed by the Petitioner.

(c) No evidence has been adduced regarding the particulars of the computer used, its make, condition or reliability at the time of production of the Photograph and CD.

(d) No evidence has been adduced on who owned, operated and managed the computer that allegedly converted the mobile audio to an audio CD and then processed the mobile photograph to a print photograph.

(e) No particulars of the person who did the actual production of the audio CD and the print out of the photograph is given.

(f) Further no particulars have been given of all the devices that were used to convert the mobile audio and photograph to a computer generated audio CD and photograph print out respectively.

(g) No certificate of electronic evidence has been adduced to court by the owner of the computer and maker of the CD produced in Court to verify the authenticity or otherwise of the audio CD.

136. In making that finding, I place heavy reliance on the case of William Odhiambo Oduol vs. IEBC & 2 Others, Election Petition No. 2 of 2012 (Kisumu).

137. Even if one was to assume that true, some ballot boxes were delivered unsealed to the tallying centre, a nexus has to be drawn between the failure to seal the ballot boxes after counting and declaration of results and the effect of that on the results or loss of votes by a candidate.

138. The invalidation of the people's will cannot be predicated on mere misdemeanours of IEBC officials where the infractions do not have a bearing on the declared results.

139. If the omission affected the preparation of evidence that is another matter all together. In that case, the Petitioner would have to, in the first place, dispute the results and rely on the unreliability of the contents of the unsealed box to show that it is not possible to determine the actual results now that the possibility of tampering is real.

140. Neither is evidence adduced to show what actually transpired at the polling station.

A look at the electoral history of voting, counting and declaration of results in previous years in the former regime of applicable law is apt.

141. Hitherto, voting would happen at the polling station, the ballot boxes would be sealed and transported to a central tallying centre where counting and declaration would be done. In those circumstances, the incidence of an unsealed ballot box would be of utmost concern given that the danger of possible ballot stuffing was real.

142. Commenting on the general elections held in 1997, the Institute for Education and Democracy (IED), Catholic Justice and Peace Commission and the National Council of Churches in Kenya in a joint report recommended:

“.....It is vital to have a speedy counting exercise, with results verified by all parties and announced immediately after count is completed. This is the only way in which public confidence in the result can be ensured. Unfortunately, this was not the case in 1997. ..”

143. When juxtaposed with the current law regime, the danger of ballot stuffing is snuffed out by the fact that the count and declaration takes place immediately after close of voting, in the presence of agents and/or candidates and the results declared thereon are final.

144. The Court of Appeal in IEBC vs. Maina Kiai and 5 Others [2017] eKLR emphasized this when it stated;

“It is clear beyond peradventure that the polling station is the true locus for the free exercise of the voters' will. The counting of votes as elaborately set out in the Act and the Regulations, with its open, transparent and participatory character using the ballot as the primary material, means, as it must, that the count there is clothed with a finality not to be exposed to any risk of variation or subversion. It sounds ill that a contrary argument that is so anathema and antithetical to integrity and accuracy should fall from the appellant's mouth.”

The results at the polling station are final.

145. From the foregoing, even assuming that the Petitioners had proved that the ballot boxes from Bosaga Polling Station(s) were found unsealed at the tallying centre, they would have failed the test of what effect that had on the declared results, recorded in form 35A which is properly filled, stamped and signed by agents including an agent for the 1st Petitioner.

146. If the act was proved, then that would in my view give rise to a criminal charge against the involved officer under Section 13 of the Election Offences Act. Any Act or omission post declaration of results cannot in my view be allowed to vitiate the peoples' choice at the ballot unless it can be shown that such an act affected the results. Such act or omission would bring into focus the integrity of the results only where such result is disputed.

147. Where a party disputes the results and presents credible evidence challenging such results, the interference with the election material after the declaration of results becomes a relevant and key factor in determining the dispute for the simple reason that the electoral body would not be in a position to present credible election material that would enable the Court to determine the will of the electorate and such interference would affect the outcome of the petition.

148. The decision in Maina Kiai (Supra) insulates the results from later deliberate or accidental omissions of IEBC or its officials between the polling station and the tallying centre. The votes recorded in form 35A tally with what is recorded in form 35B and I see no adverse effect of the act complained of on the results as declared. The will of the people at Bosaga Primary School Polling Station is determinable without a doubt.

149. The alleged post election irregularities or non-compliance with the law did not affect the elections. I cite with approval the decision in Joho vs. Nyange [2008] 3KLR 500 where the Court stated;

“It is not every non-compliance or every act of omission in breach of the elections regulations or procedure that invalidates an election for being non-compliant with the law.”

150. Notably, the election results declared at the polling station are not disputed – at least no evidence was laid disputing the results as declared. And finally, Section 83of the Elections Actprovides that:

“No election shall be declared void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”

151. Thus, the alleged incident in regard to Bosaga Polling Station (even assuming it was proved), did not affect the results (seeMbowe vs. Eliufoo 1967 EA 240). Thus the election results cannot be nullified on the basis of non-compliance (if at all).

152. I conclude by quoting from Morgan vs. Simpson [1974] 3All ERwhere the Court stated;

“...We are dealing here with a challenge based on administrative errors. There is no allegation of any fraud corruption or illegal practices. Nor is there any suggestion of wrongdoing by any candidate or political party. Given the complexity of administering a federal election, the tens of thousands of election workers involved, many of whom have no on-the job experience, and the short time frame for hiring and training them, it is inevitable that administrative mistakes will be made. If elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded. Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election.”

Even if the anomaly was satisfactorily proved, in my considered view, the facts reveal an administrative mistake and not a deliberate manipulation of the election as can reasonably lead to a conclusion that a free and fair election was not achieved.

BRIBERY

153. As regards allegations of bribery, this complaint is predicated on the evidence of Richard Ochada Omaera as seen in his affidavit sworn on 4th day of September, 2017.

154. He asserts that one Johnson Morara Oketch conscripted him into a plan to bribe the 2nd Respondent with Kshs. 200,000 to influence the outcome of the election in favour of the 3rd Respondent. Initially, the said Johnson sent him Kshs. 2,000 via Mpesa for transport.

155. He recorded his conversation with Johnson. The audio clip was however not available. On 9/8/2017, he accompanied the said Johnson to the tallying centre to hand over the money to the 2nd Respondent. They parted at the door and he (Richard) went to call the police. He reported matter to the County Commissioner, Nyamarambe Sub-County and the officer promised he would take action. On 10/8/2017, Johnson called him and told him that he had delivered the money and finished the business.

156. This allegation was denied.

157. The standard of proof applicable in so far as the commission of an illegality of a criminal nature in the electoral process is concerned, is beyond reasonable doubt.

158. The evidence before me, is to say, the least, of the weakest nature and the seriousness of the witness or even the Petitioners in raising this complaint based on this evidence is questionable.

159. I cite with approval the decision of this Court(Mutuku J) in Mohamed Ali Mursal vs. Saadia Mohammed and Others, Garissa EP No. 1 of 2013, where the Judge stated;

“Bribery is an electoral offence. It is also a criminal offence in ordinary life. Being such, proof of the same must be by credible evidence and in my view, nothing short of proving this offence beyond reasonable doubt will suffice. There is no distinction as far as I am concerned, and rightly so, between bribery in a criminal case and one in an election petition. Bribery involves offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of the person receiving. Under the Act, bribery is an election offence under Section 64 and both the giver and the taker of a bribe in order to influence voting are guilty of this offence upon proof. The penalty found under Part VIII – General Provisions of the Act, specifically Section 106(1) of the Act is a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.”

160. Bribery is a criminal offence. The Petitioners bear the burden of proof beyond reasonable doubt. The evidence before me is mere conjecture. The witness never saw money change hands. His alleged report to authority is comical if not unbelievable. This allegation falls flat on the face.

MAKING OF FALSE ENTRIES

161. The allegation at Makara Polling Station is that there were 3 different forms 35A. These are annexed and marked “DMM10”. It is urged that it is not possible to tell how the voters exercised their choice.

162. In rejoinder, the 1st, 2nd and 4th Respondent have denied this allegation and put the Petitioners to strict proof. It is urged that the Petitioners have not discharged their burden of proof to the standard required.

163. The 4th Respondent explains in his replying affidavit that he realised that the form 35A which he had used to declare results at Makara Polling Station was missing upon arrival at the tallying centre. That form was serial number 1489.

164. It is while there that a candidate's agent raised an alarm that there was another form 35A seen on the floor of the tallying centre purportedly signed by the 4th Respondent. The said form had alterations. The signature was purportedly similar to the 4th Respondent's. The returning officer ordered investigation. The 4th Respondent denies that the later form emanated from his polling station and he asserts that he did not sign the same.

165. The IEBC is the custodian of the statutory forms and must account for the contents therein. The initial burden, however, is on the Petitioners to show that the extra forms other than the one acknowledged by the IEBC exist and with contradictory contents. The source must be shown to link the forms to the IEBC.

166. As held in Gatirau Peter Munya vs. Dickson Mwenda Kithinji [2014] eKLR that burden must be discharged before the Respondents bear the evidential burden. The Court stated;

“The IEBC is the custodian of the voter's register and its production will be a matter of course upon an application by a party who wishes to rely on its contents. The evidential burden regarding its contents and the declared results lies on the IEBC, save that is only activated, in an election petition, when the initial burden has been discharged.”

167. The decision by the High Court and affirmed by the Court of Appeal in IEBC vs. Maina Kiai and 5 Others [2017] eKLR is in my view a dependable breakthrough and guide in resolving a dispute like the one relating to the forms herein.

168. I will again for emphasis cite the relevant passage for its full meaning and effect;

“It is clear beyond peradventure that the polling station is the true locus for the free exercise of the voters' will. The counting of votes as elaborately set out in the Act and the Regulations, with its open, transparent and participatory character using the ballot as the primary material, means, as it must, that the count there is clothed with a finality not to be exposed to any risk of variation or subversion. It sounds ill that a contrary argument that is so anathema and antithetical to integrity and accuracy should fall from the appellants mouth.”

169. The essence of this passage is that the current fight must be taken to the right arena, the polling station. It is there that the truth of what transpired can be unearthed.

170. Strangely, there is no iota of evidence to indicate that the vote at the polling station was disputed by the Petitioners. It is totally unhelpful on the part of a party in a petition to mount a challenge on the declaration form presented at the tallying centre without giving an indication of what the result ought to have been at the polling station which results as per the Maina Kiai decision were final save where they would be vitiated by evidence of say, violence, bribery, fraud etc.

171. On cross-examination, the 1st Petitioner states that he had an agent at Makara Polling Station. He acknowledges that the form presented by IEBC, is signed by 4 agents. Which better witness than the said agent could the Petitioners have called in support of their case? Wouldn't that witness have discharged their burden of proof by showing what were the genuine results and thus put the IEBC on the spot?

172. A candidate must take responsibility of his interests at a poll. That duty cannot possibly be left to Court. The Court has neither the capacity nor the necessary presence to address concerns happening at a polling station in the absence of credible evidence from an agent present and witnessing the goings on at a polling station, a facility clearly granted by law to every candidate/political party.

173. The extra forms 35A are said to have been signed by the 4th Respondent. The 4th Respondent denies this. No evidence is adduced to prove that the signatures appended thereon were the 4th Respondent's. It was the duty of the Petitioners to seek expert forensic examination of the documents. They did not do so.

174. As held in Jeremiah Nyangwara Matoke vs. Alfah Miruka Ondieki & 2 Others, Petition No. 1 of 2017 the issue of parallel forms like in our instant case is not a light matter and must be treated with a lot of caution. In this case the Court held;

“... this case presents a scenario in which there are two sets of forms in respect of the same election, one set being the forms in the Applicant's possession and the other set in the custody of the 1st Respondent. The legal position however is that the 1st Respondent is the maker and the custodian of all the election materials used in any election and therefore it would be a misdirection for anyone purporting to have forms that are not authenticated as having been issued to him by the 1st Respondent to claim that such forms should be taken into account in determining a sensitive case such as an election petition. I further note that the applicant did not, upon observing that the forms in his possession lacked certain specifications or differed from the forms filed in court by the Respondents, as he alleged take the initiative to exercise his right to access information by requesting the 1st Respondent to supply him with the certified copies of the forms that were in its custody. One can therefore safely say that the forms in the possession are not the official form 35A from IEBC, but forms whose exact source is unknown and I therefore find that it is not open for the Applicant to secure forms from unofficial sources only to turn up in court to ask the court to order for scrutiny to enable him confirm if the forms in his possession are the same as the ones held by the 1st Respondent in the ballot boxes. I find that, under the above circumstances, allowing scrutiny on the basis that forms held by the 1st Respondent can set a dangerous precedent in which parties will take the liberty to obtain forms from all manner of sources only to turn up in court and seek scrutiny to enable them confirm if the forms from their unofficial sources matched the forms in the 1st Respondent's custody.”

175. The source of the extra forms alleged is not ascertained, the signature alleged to be the 4th Respondent's is not confirmed by evidence, there is no evidence of what the actual result at the polling station was so as to compare with other forms exhibited yet the 1st Petitioner had an agent at the polling station and the 4th Respondent has given a reasonable explanation and presented a form which is actually signed by 4 agents casting serious doubts on the allegations by the Petitioners.

176. The allegations against the 4th Respondent were investigated and he was charged in The Chief Magistrate's Court E. O. Case Number 2 of 2017 with making a false entry in a record contrary to Section 6(a) of the Election Offences Act.

177. Most importantly, after review of his case by the Director of Public Prosecutions (DPP), as at the time of hearing, the DPP had already concluded that the case could not succeed. At page 5 of the proceedings in the criminal case, the DPP addresses the Court as follows;

“We have reviewed the evidence in the matter and it has no chances of success. I wish to withdraw the matter under Section 87(a) Criminal Procedure Code.”

178. In view of the foregoing, the allegation at hand is unsustainable and must fail.

RESULTS ON THE IEBC PORTAL

179. The Petitioners have raised an issue with an apparent discrepancy between the results displayed at the IEBC portal and those reflected in form 35B. The 1st Petitioner states that as per the portal he garnered 10,522 votes while the form 35B showed he had 10,434 votes. This issue was not specifically pleaded but was raised in the supporting affidavit.

180. I will nevertheless address it as the answer to it is anchored in law. A reading of Section 39(1c) of theElections Actshows that electronic transmission and publication of election results in a public portal is only a statutory requirement for the presidential election.

181. The authenticity of the data said to be from the IEBC portal has not been established. However, even assuming that there was the difference of votes in the portal and in form 35B, unless the forms 35A are disputed and successfully challenged, any errors in transmission of results or publication in the public portal cannot invalidate form 35A. The results in form 35A are final. (see Maina Kiai case Supra).

182. I agree with sentiments of Justice Majanja in Jackton Nyanungo Ranguma vs. IEBC and 2 Others [2017] eKLR where he stated;

“A reading of Section 39(1C) of the Act shows that electronic transmission and publication of polling result in a public portal is only a statutory requirement for the Presidential election. Further, except for voter registration and voter identification; voting, counting, tallying and transmission of results for the election of the other elective posts including that of the Governor are mainly manual. In all other cases, including the County Governor election, the transmission of results contemplated by Section 39(1A) and (1B) of the Act is that the votes at the polling station are counted and recorded in form 37A. Each form 37A is forwarded to the Constituency Tallying Centre. The Constituency Returning Officer tallies all the results from all the polling stations and records them in form 37B. Forms 37B from all the Constituency Tallying Centres are forwarded to the County Tallying Centre where the County Returning Officer tallies all the results from the forms 37B and announces the election results based on form 37C.”

183. That is the correct reading of the law save to add that in our specific case the applicable form is form 35A and 35B. The Judge went on to state;

“Even accepting the errors, omissions and inconsistencies highlighted by PW4 and the other witnesses, the legal position remains that the votes as recorded in form 37A are final. Unless forms 37A are disputed, any errors in electronic transmission of results or publication in IEBC public portal cannot, of themselves and without more, invalidate Forms 37A. Where the results are electronically transmitted from the polling station to any other portal as the IEBC may direct, such results can only be termed as provisional thus underlining the primacy and finality of Form 37A.”

OTHER MALPRACTICES

184. At the tail end of the supporting affidavit is introduced a further ground (not pleaded) titled, other malpractices. It is alleged that at Nyabine Jua Kali Tea Buying Centre, the form which was stuck on ballot box for Member of National Assembly was that for the election of Member of County Assembly. A photograph is attached.

185. This is a post voting and counting event whose effect on the results has not been explained at all.

OTHER ISSUES ARISING FROM SUBMISSIONS

186. Defective affidavits

The 3rd Respondent raised this issue in submissions. It is urged that all the affidavits filed in support of the petition do not indicate who the maker and drawer was. They are thus incompetent and they leave the petition bare without support. This is against the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya.

187. The record confirms the omission. I however would look at this omission as one of form and which does not go into the root of substance. I am reluctant to punish the Petitioners for the mistake of Counsel.

In doing so I am guided by the decision of Lt. Colonel Igweta vs. Mukira M'Etheare & AG Nairobi Court of Appeal MCA – 270 of 2001 where the Court held that, a Court should endeavour not to shut out an applicant for a fault not of his own. The decision in Francis Origo vs. Jacob Munyala, Nairobi Civil Application No. 292 of 2004 buttresses the point that a party should not be shut out from his matter being heard and determined on its merits because of mistake of counsel.

188. Collusion

It is submitted for the Petitioners that “both the 1st and 3rd Respondents were, during the elections and after lodging the petition working as a team.” It is urged that they have filed uniform responses. It is stated that form 35A for Makara Primary School was given to the 3rd Respondent yet the agent for the 1st Petitioner was denied the same.

189. This issue is not pleaded in the petition (notably collusion during the elections). The petition is anchored on 6 grounds clearly spelt out in the petition. Parties are bound by their pleadings.

I cite the decision of the Court of Appeal in IEBC & Another vs. Stephen Mutinda Mule & 3 Others [2014] eKLRwhere the Court quoting from an article by Sir Jack Jacob entitled “The present importance of pleadings” stated;

“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings.... for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moroever, in such an instance the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice....”

190. No sufficient evidence has been adduced to prove collusion during and after the election. The issue ought to have been pleaded and proved.

3RD RESPONDENT'S ACCESS TO ELECTION MATERIAL CONTRARY TO LAW

191. This issue arose in cross-examination. The Petitioner's grouse is that the 3rd Respondent accessed polling station diaries and statutory forms after the election without the authority of the Court. As per regulation 86(2)of theElection (General) Regulations 2012, the diaries are supposed to be put in a separate ballot box, sealed and labelled. The same should then be kept in safe custody for a period of 3 years as per Regulation 93.

192. UnderRegulation 93(2), a party can apply to the High Court with notice to all candidates in the election concerned for authority to inspect the documents.

193. Regulation 93(4) provides that the provisions of the regulation shall not apply to documents that concern a pending election unless there is a court order granting such authority.

194. Counsel for the 3rd Respondent appears to interpret Regulation 93 (4)as an exception to the provisions of Regulation 93 to mean that the election material that concern a pending petition can be accessed liberally by the parties.

195. That in my view is not a correct interpretation of the law. Regulation 93 (4) is clear that a court order granting authority is necessary.

196. As stated earlier in this ruling, administrative lapses of the electoral body post the voting, counting and declaration of results cannot be elevated to such highs as to culminate in negating the will of the people expressed at the ballot.

197. There is no evidence of how the obtained evidence has impacted negatively on the Petitioners' case or given the 3rd Respondent undue advantage.

198. As stated earlier,Section 83of the Election Actprovides;

“No election shall be declared void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”

As held in Francis Mwangangi Kilonzo vs IEBC and 2 Others [2017] eKLR;

“The provision recognizes the sanctity of the right of the people to choose their political leaders. It forbids the court from trivializing that right by nullifying an election merely because errors and irregularities have been shown to have been committed, or that a provision of the law relating to elections has not been complied with. The errors and irregularities, or the non-compliance with election law, must be of such gravity that the integrity of the election is materially compromised.”

199. I am fortified in this finding by the passage in Morgan vs Simpson [1974] 3ALL ERthus;

“if elections can be easily annulled on the basis of administrative errors, public confidence in the finality and legitimacy of election results will be eroded. Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election.”

(See also IEBC vs Maina Kiai).

COSTS

200. Section 84 of the Elections Act provides that;

“An election Court shall award costs of and incidental to a petition and such costs shall follow the cause.”

Rule 30(1) of the Election Petition Rules provides as follows;

“30(1) The Court shall at the conclusion of an election petition, make an order specifying-

(a) The total amount of costs payable.

(b) The person by and to whom the costs shall be paid.”

201. Placing reliance on the case of Kalembe Ndile and Another vs Patrick Musimba and Others[2013] eKLRwhere the Court stated;

“Costs awarded should be fairly adequate to compensate for work done but at the same time should not be exorbitant as to unjustly enrich the parties or cause unwarranted dent on the public purse or injure the body politic by undermining the principle of access to justice enshrined in Article 48 of the Constitution.”

and noting that the petition was not complex and the issues were generally straight forward, I make a finding to cap the instruction fee at Kshs. 2. 5 million.

202. With the result that based on the pleadings and evidence on record and learned submissions by Counsel, I come to the unhesitating conclusion that the Petitioners have failed to prove any of the grounds upon which the petition was predicated. The Petition is dismissed.

ORDERS

203. The final orders of Court are as follows;

(a) The petition herein is hereby dismissed.

(b) The 3rd Respondent was validly elected as the Member of National Assembly for South Mugirango Constituency.

(c) The Respondents are awarded costs as follows;

(i) Instruction fees at Kshs. 2. 5 million for the 3rd Respondent.

(ii) A global sum of Kshs. 2. 5 million in instruction fees for the 1st, 2nd and 4th Respondents whose defence was mounted jointly.

(iii) The costs shall be taxed and total costs certified by the Deputy Registrar of this Court.

(d) A certificate of this determination in accordance with Section 86(1)of the Elections Act 2011, shall issue to the Independent Electoral and Boundaries Commission and the Speaker of the National Assembly.

JUDGMENT SIGNED, DATEDANDDELIVEREDATKISIITHIS2NDDAY OFMARCH, 2018.

A. K. NDUNG'U

JUDGE

In the presence of:

Omwanza with Odero & Oduorfor Petitioner

Mokua and Ms Morara for 3rd Respondent

Muchemifor 1st, 2nd and 4th Respondents

N. LimoCourt Assistant

A. K. NDUNG'U

JUDGE