[2017] KEHC 2404 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

ELECTION PETITION NO. 4 OF 2017

IN THE MATTER OF THE ELECTIONS ACT, 2011 AND THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017

AND

IN THE MATTER OF THE SENATE ELECTIONS FOR KIRINYAGA COUNTY

BETWEEN

HON. DICKSON DANIEL KARABA..........................................PETITIONER

VERSUS

HON. KIBIRU CHARLES REUBENSON........................1ST RESPONDENT

SAMUEL SEKI LEPATI...................................................2ND RESPONDENT

INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSION (IEBC).....................................................3RD RESPONDENT

RULING

1. This ruling arises out of an application filed by the Petitioner at the Kerugoya High Court Election Petition 4 of 2017 dated 24th October 2017.

2. The application is made under the provisions of Articles 35 and 81 of the Constitution of Kenya; Section 4 of the Access to Information Act, 2016; Section 82(1) of the Elections Act, 2011; Rules 28 & 29 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 and all other enabling provision of the Law and the applicant seeks the following orders;

i) That the application be heard and determined expeditiously and on priority basis.

ii) That the Honourable Court be pleased to order the 2nd and 3rd respondents to produce certified copies of Forms 38A, 38B and 38C for the Senatorial election in Kirinyaga County.

iii) That the Honourable Court be pleased to order the 2nd and 3rd respondents to produce all Polling Station Diaries used in the Senatorial election in Kirinyaga County.

iv) That the Honourable Court be pleased to order the 2nd and 3rd respondents to produce a certified copy of the list of registered voters for Kirinyaga County who cast their votes in the Senate elections held on 8th August, 2017.

v) That the 3rd Respondent be ordered to deliver to the custody of the Court all the Secure Digital Memory Cards (SD Cards) for each of the KIEMS kit used in the disputed Senate election in Kirinyaga County.

vi) That the Court be pleased to appoint such number of Information Technology (IT) expert as are necessary to conduct the scrutiny exercise.

vii) That parties be at liberty to appoint two (2) agents each who may include an IT expert(s) to assist in the scrutiny exercise.

ix) That the Honourable Court be pleased to order for scrutiny and audit of all the returns of the Senatorial election in Kirinyaga County from all polling stations specifically Forms 38A, 38B, 38C and all polling station diaries.

x) That the costs of this application be in the cause.

3. The application was supported by the Affidavit of the Applicant sworn on 24th October 2017, and the grounds on face of the application are as follows;

a) The Petitioner disputes the credibility, integrity and accuracy of the election date and by extension the entire results of the disputed election.

b) The petition in paragraphs 24-25 identifies anomalies in the tallying of votes in Mwea and Ndia Constituencies in Kirinyaga County and in paragraph 19 he cites the Mwea Constituency Returning Officer as neither being impartial nor transparent in his conduct as a public officer and electoral officer.

c) In light of the above it is crucial that the Petitioner be granted access to the respective electoral forms cited above for purposes of scrutinizing them.

d) Further on the evidence before the Honourable Court there was no electronic transmission of votes in Kirinyaga County.

e) The Petitioner thus contends that the declared results of the Senatorial election of Kirinyaga County was open to manipulation at the Constituency tallying venue and cannot be verified as per Article 86 of the Constitution in the instance of scrutiny of the sought material before this Honourable Court.

f) Thus the production of the above cited forms and access to Secure Memory Cards of the KIEMS kits used in the Kirinyaga County Senate election and their scrutiny will aid the court to investigate the anomalies cited and facilitate an expeditious resolution of this petition.

4. The Applicant's Supporting Affidavit reiterated the grounds and deposed the basis for a recount, access and scrutiny as follows;

a) There are anomalies that occurred due to the actions/omissions of the Mwea Constituency Returning Officer in that electronic transmission was suddenly stopped by the 3rd Respondent around 12:00 a.m on 9th August, 2017.

b) The actions/omissions opened the tallying of results to manipulation at the Constituency tallying venue and as such the orders sought are essential to enable the court investigate the anomalies cited in the petition.

c) The information sought is in the exclusive possession of the 3rd Respondent.

d) That the petition and affidavit sworn on 6th September, 2017 make a case for scrutiny of the electoral forms cited herein and access to the Secure Digital Memory Cards of the KIEMS kits used in the Kirinyaga County election.

e) That he has a Constitutional and statutory right to access to information sought by dint of Article 35 of the Constitution and Section 4 of the Access to Information Act, 2016.

5. In opposing the application, the 1st respondent filed Grounds of opposition dated 25th October 2017 stating that;

a) The application does not meet the test set out in Sections 80 (4)(a) and 82 of the elections Act, 2011 as read with Rules 28 and 29 of the Elections (Parliamentary and County Elections) Petition Rules, 2017.

b) The Petitioner has failed to disclose sufficient reasons in the context of the pleadings and evidence for the order of scrutiny and recount.

c) The Petitioner has not specified the polling stations in respect of which results are disputed or where the validity of the vote is called into question.

d) The application on the face of it discloses a roving and fishing inquiry by the Petitioner.

e) The Petitioner is inviting the court to engage in a gambling exercise that sets the court to rummage through the ballot boxes to see whether any scintilla of evidence of electoral malpractices or irregularity can be found.

6. The application was also opposed by the 2nd and 3rd Respondents who filed Grounds of Opposition dated 25th October 2017. In addition, Samuel Seki Lepati, the 2nd Respondent, filed a Replying Affidavit sworn on 1st November 2013 on his behalf and on behalf of the 3rd Respondent in which he depones inter alia-

a) That although the 2nd and 3rd Respondents are ready and willing to supply to the court and to the Petitioner such electoral materials, the Petitioner in his request ought to limit that request to the polling stations which he has complained of in the petition and the evidence in support of the petition.

b) That without prejudice to the above assertion that supply of material be limited to the stations complained of, the 2nd and 3rd Respondents shall be ready to avail to the Petitioner in soft copy the said Forms 38A, 38B and 38C on Friday, 3rd November 2017 as shall be directed by the court.

c) That the 2nd and 3rd Respondents shall avail the Polling Station diary by Friday, 3rd November 2017 but the supply of the document be restricted to the pages that are applicable to the Petitioner’s case.

d) That as regard to the Petitioner’s prayer to be supplied with SD Cards he states;

i) Save for 29 polling stations out of the 659 polling stations in the County that partially transmitted Kirinyaga County Senate results electronically, all the results for the Senate were transmitted manually.

ii) The Petitioner has not indicated what information he would be seeking from the rest of the SD Cards other than those of the 29 polling stations.

iii) The SD Card if and when availed should be strictly be kept in the custody of the court and limited access be granted under the court’s supervision since

it contains all information of the entire election per polling station from President down to the member of County assembly.

it contains all the logs into the system.

it is susceptible to interference.

7. Counsels for the Applicant and the 2nd and 3rd Respondents made their oral submission on 1st November 2017. Mr. Mwongela for 2nd and 3rd Respondents was holding brief for Mr. Ongoya for the 1st Respondent.

8. APPLICANT'S SUBMISSIONS

9. Learned counsel, Mr. Kibe Mungai, submitted on behalf of the Applicant. He begun by stating that the replying affidavit confirms that the 3rd respondent is in possession of all documents sought and can produce them except that the 2nd respondent presupposes that the Petitioner needs a few as opposed to all the material sought.

10. It was his submission that if the information sought is available and if it is in possession of Electoral management body then it must be furnished. That was the principle set out by the Hon. Chief Justice Mutunga in the case of Peter Munya –vs- IEBC [2014] eKLR at paragraph 251-252.

11. Mr. Kibe Mungai further submitted that the winning is collective and that when all votes are counted for Senate elections it will confirm that he won. The documents required are;

The Polling Station Diary

All Forms 38A, 38B and 38C for Senatorial Election.

12. They require the Polling Station Diary because that is where information was recorded and there was no electronic transmission for Kerugoya County, Senatorial Elections. He referred to Paragraph 17 of the petitioner’s affidavit where the 2nd and 3rd respondents stopped the electronic transmission of results. Therefore the Presiding Officer had to ensure all information compared in Polling Station Diaries correctly for all polling stations.

13. The learned counsel emphasized that the Petitioner is not stating that there were problems in 10 - 50 polling stations. It is the Petitioners case that was Election carried out well but Forms 38A and 38B were filled badly. After the elections, the will of the people was changed by alteration on Forms 38A and 38B.

14. Mr. Kibe Mungai sought to be supplied with the S/D for all polling stations for Senatorial Elections and the register for Kirinyaga County which captured how many people voted in all the polling stations.

15. He referred to the recent case of Raila Odinga’s case - Presidential Petition No. 1 of 2017where the Supreme Court raised the important question of relevance and to ensure rights of parties that elections were free and fair and that results verifiable in not a few but from all polling stations.

16. He emphasized that according to the Respondent’s replying affidavit, they had no objection in principle that information may be provided.

17. Learned Counsel for the Applicant in closing his submission submitted that the Petitioner wants all information in whichever form whether electronically or hard copy. He urged the court to allow information to be provided since under Article 50 of the Constitution, the right to fair hearing includes right to information and the IEBC can furnish these documents.

1ST, 2ND AND 3RD RESPONDENT'S SUBMISSIONS

18. In opposing the application, Mr. Mwongela, Learned counsel for the 2nd and 3rd Respondents and holding brief for Mr. Ongoya for the 1st Respondent submitted that the Respondents are not opposed to availing information sought. But it should be availed if it is shown that information is relevant.

19. Mr. Mwongela, submitted that the Petitioner is on record stating that he seeks the information to address the Petition and the application for scrutiny set for hearing on Monday 6th November 2017. That the application for scrutiny is supported by Affidavit sworn by Petitioner which sets out in details the electoral Polling Stations complained of.

20. An objection was raised by Mr. Kibe Mungai on the basis that the application being heard is for information and documents and the respondents should not refer to an application which is pending for hearing on 6th November 2017. The Court in its ruling sustained the objection stating that the Counsel for the Respondents should limit his submissions to providing information.

21. Mr. Mwongela, submitted and confirmed that they are ready to provide Forms 38A, 38B and 38C by close of business on Friday 3rd November 2017.

22. Mr. Mwongela further submitted that in regard to voter register and diary, they are ready to supply but they should be secured either in court premises or IEBC premises. That they can be accessed where they are, at the IEBC premises since they are attached to all other elective seats in Kirinyaga County.

23. That the diary is a bulky document. A single polling station has 24 pages therefore for all 659 polling stations in the County, the copies will be 63,000 pages. He therefore proposed that the diary can be secured at IEBC for perusal by parties and the Court. That there are particular pages which relate to agents signatures and Presiding Officer and pages in respect to which polling station. Furthermore, it is an administrative document which is still being used to date sand relates to staff payments and relates to all the seats in the County.

24. Counsel also submitted that the SD card relates to every polling station, that is 659 polling stations, but only 29 polling stations were transmitted partially electronically and thereafter manually. They Respondents were willing to avail the SD card to Court within 7 days on condition that it is kept by the court and the Petitioner is restricted to access until he has made a basis for scrutiny.

25. In closing, the counsel submitted that they were not opposing to the application to avail materials documents but subject to limitations.

APPLICANT'S REJOINDER

26. Mr. Kibe Mungai stated that all Forms 38A, 38 B and 38 C should be availed, together with certified copy of Voters Register. In regard to the diary, the Petitioner was willing to accept certified copy of the relevant pages relating to Senatorial Seat.

27. He further submitted that since Respondents are not opposing the SD cards, the same to be availed to court with details of secure storage of the same.

ANALYSIS AND DETERMINATION

28. The Constitution 2010 at Article 35 guarantees every citizen the right to access information held by the State where that information is required for the exercise or protection of any right or fundamental freedom; and in this instance the Petitioners right to fair hearing includes his right to information;

29. Section 2 of the Access to Information Act, 2016 defines information to include all records held by a public entity or a private body and Section 4 of the Act reiterates Article 35 of the Constitution 2010; the subsection 3 of Section 4 requires that the information that is required that it must be provided expeditiously and at a reasonable cost.

30. It is not in dispute that the 3rd Respondent is the electoral management body and it is also not in dispute that it is in possession of all the election material used in the conduct of the Kirinyaga County Senatorial election carried out on the 8/8/2017; being the body in possession of the election material it is enjoined to put in place mechanisms to ensure data availability and it was Counsel for the petitioners prayer that the election material as set out in the prayers sought in the application be availed by the 3rd respondent;

31. Although the 2nd and 3rd Respondents opposed the application they intimated to court that they were ready and willing to supply to the court and to the Petitioner such electoral materials but with certain limitations;

32. The aforementioned legal provisions of the law and the 2nd and 3rd respondents demonstration of their willingness to avail the election material within certain pararmeters are sufficient reasons for this court to grant some of the orders sought by the applicant; in allowing the application this court is also guided by the principle set out by the Hon. Chief Justice Mutunga in the case of Peter Munya –vs- IEBC [2014] eKLR at paragraph 251-252. Where it was held that if the information sought is available and if it is in possession of the Electoral management body then it must be furnished.

33. For the forgoing reasons this court makes the following determinations;

(i) The 2nd and 3rd respondents do produce and avail to the petitioner all certified copies of Forms 38A, 38B and 38C for the Senatorial election in Kirinyaga County.

(ii) The 2nd and 3rd respondents do produce and avail to the petitioner the pages of all Polling Station Diaries but limited to the pages relating to the Senatorial election in Kirinyaga County;

(iii) The voters register for Kirinyaga County shall be secured at the offices of the 3rd respondents and it shall be accessed by the petitioner for inspection only at the 3rd respondents office;

(iv) The 3rd Respondent to secure and keep in safe custody all the 29 Secure Digital Memory Cards (SD Cards) for each of the KIEMS kit that transmitted results in the disputed Senate election in Kirinyaga County; access thereto shall be limited and also dependant on a basis being made;

(v) The prayers for the appointment of Information Technology (IT) experts and agents and the prayer for auditing is found to be related to scrutiny and was withdrawn “By Consent” of all the parties;

(vi) The costs of the petitioner’s application shall abide the outcome of the Petition.

Orders accordingly.

Dated, Signed and Delivered at Kerugoya this 6th day of November, 2017.

HON. A. MSHILA

JUDGE