[2018] KECA 434 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MAKHANDIA, GATEMBU & M’INOTI, JJ.A)

ELECTION PETITION APPEAL NO. 18 OF 2018 KISUMU

BETWEEN

DR. GEORGE MBOGO OCHILO AYACKO........APPELLANT

AND

INDEPENDENT ELECTORAL &

BOUNDARIESCOMMISSION....................1ST RESPONDENT

CHARLES KIPROTICH MUTAI.................2ND RESPONDENT

RETURNING OFFICER COUNTY OF

MIGORIZAKARIA OKOTHOBADO......3RD RESPONDENT

(Being an appeal from the Judgment and Decree of the

High Court of Kenya at Migori (Chemitei, J)

dated 27th February, 2018

in

Election Petition No. 13 Of 2017)

************************

JUDGMENT OF THE COURT

1. The appellant, George Mbogo Ochilo Ayacko, was an independent candidate, seeking election as governor, Migori County, during the general elections held on 8th August 2017. Four other candidates vied for the same position including the 3rd respondent, Zakaria Okoth Obado. After the elections, the 2nd respondent, the county returning officer, declared results as follows: the 3rd respondent, 201,369 votes; appellant, 113,773 votes; Gibagiri Chrispinus Weiria 3,419 votes; Ogallo Samson Owour, 1,532 votes and Okoth Otieno Jack, 1,234 votes. The 3rd respondent was accordingly declared as the duly elected governor, Migori County.

2. The appellant was aggrieved. He contends that the 3rd respondent was not validly declared as the winner of the election. He petitioned the High Court at Migori to nullify the election. In his petition, he complained that in breach of Articles 81 and 86 of the Constitution, the Elections Act, the Election Offences Act and the regulations, the election was replete with incidences of bribery, treating, violence, forgery, interference, intimidation, irregularities and illegalities relating to counting, tallying, transmission and declaration of results.

3. In particular, he asserted in his petition that in a majority of polling stations, the number of votes cast were falsified and inflated by officers of Independent Electoral & Boundaries Commission “IEBC” in favour of the 3rd respondent; that lower results obtained by the 3rd respondent were swapped with those of the appellant; that manual registers were opened un-procedurally thereby allowing ineligible and unregistered persons to vote for the 3rd respondent; that there was widespread use of unsigned statutory Forms 37A’s and 37B’s paving way for entry of fictitious figures in those forms; that voters were given more than one ballot with the result that there was multiple voting and stuffing of ballot papers into ballot boxes; that the recruitment of election officials was not open and transparent; that polling officials were recruited at the behest and influence of the 3rd respondent; that employees of the 3rd respondent were recruited as presiding and deputy presiding officers of IEBC; that election materials were stored and polling officials accommodated in a hotel owned by the 3rd respondent; that the appellant’s agents were denied the opportunity to discharge their roles by, inter alia, being denied access to polling stations and the opportunity to witness voting or counting or tallying of votes so as not to witness irregularities; that election officials stuffed ballot papers marked in favour of the 3rd respondent for absentee voters; and that ballot boxes were not sealed as required by law. There was non-sealing of ballot boxes as required by law.

4. The appellant averred that the 3rd respondent, either directly or through his agents committed election offences, namely bribery andtreating, violence and incitement, and use of public resources for campaigning. He asserted that the 3rd respondent, directly or indirectly corruptly made promises to reward voters materially or financially should they vote for him; paid money and gave out goods to influence voters; inflicted or threatened to inflict injury, damage, harm or loss on the appellant’s supporters; and interfered with the appellant’s free political canvassing and campaign.

5. In their response, the 1st and 2nd respondents, (we will hereafter refer to them as IEBC) while denying the claims of impropriety made by the appellant in his petition decried lack of particulars in those claims and averred that the election process was conducted in accordance with the Constitution, the relevant statutes and regulations; that throughout the electoral process, IEBC acted in a lawful and transparent manner. It asserted that voters were biometrically identified, issued with stamped ballot papers and cast their votes without hindrance; that each candidate or political party was permitted accredited agents at the polling station to observe the entire process; that the agents were also present during vote counting and witnessed and signed Forms 37A’s and that there were no reports of tampering or interference as claimed by the appellant.

6. IEBC also denied that manual registers were un-procedurally opened stating that none of the KIEMS kits deployed within Migori County failed and the need to resort to manual backup never arose; that polling officials were recruited without influence of any candidate; that all accredited agents were granted access to the polling stations and that the voting process was accurate, accountable and verifiable and the allegations that the number of votes in favour of the 3rd respondent were inflated is baseless. It acknowledged that there was a regrettable transpositional error in Form 37C that did not however affect or invalidate the results as reflected in Forms 37As, 37Bs; that all agents at polling stations, constituency tallying centers and county tallying center were issued with Forms 37As, 37Bs and 37C respectively. It denied that election materials were stored at the 3rd respondent’s hotel as alleged. IEBC maintained that the 3rd respondent was validly elected and declared the governor, Migori County.

7. On his part, the 3rd respondent averred that the election was conducted in accordance with the Constitution, electoral laws and regulations and that he was validly elected as the governor, Migori County. He asserted that if there were incidences of bribery, treating, violence, forgery, interference et al as claimed, then the same was perpetrated by the appellant. He dismissed, as fanciful, claims of falsification and alteration of the number of votes cast in the election. He averred that the discrepancies in Form 37C, relating to only one constituency, Rongo constituency, occurred during the process of transposition, a human error, creating the erroneous impression that the total number of votes cast exceeded the number of registered voters.

8. The 3rd respondent further averred that the claims that manual registers were opened unprocedurally; that there was multiple voting; that there were unidentified persons who were allowed to vote; that there was irregular and biased recruitment of polling officials; that the appellant’s agents were denied participation in their roles are all baseless allegations; and that every candidate was allowed to have an agent present during the entire electoral process. He denied that he, or his agents or representatives were involved in bribery or treating, or that he or his agents or representatives perpetrated violence or incited voters. He further denied having used public resources in his campaigns.

9. After conducting a trial involving 54 witnesses, the election court delivered its impugned judgment on 27th February 2018 dismissing the petition with costs.

10. In his memorandum of appeal, the appellant pleads that the Judge erred in holding: that the irregularities noted in the statutory forms did not affect the validity of the election; that no election offences as would affect the election and the result were committed; and that the elections were conducted substantially in accordance with the Constitution and electoral laws. It is also the appellant’s case that the Judge misapplied the law on burden of proof as set by the Supreme Court in Raila Odinga vs. IEBC & 2 others [2017] eKLR (Raila 2017); that he was not accorded a fair trial in that his pleadings and evidence were struck out, material evidence was disregarded, and he was prevented from scrutinizing and relying upon evidence contained in SD cards (secure digital, memory cards); that the conclusions reached by the Judge are not supported by the evidence; and that the costs awarded to the respondents were manifestly excessive.

11. At the hearing of the appeal, learned counsel Mr. K. N. Nyasimi and Mr. O. Roche appeared for the appellant; Mr. P. O. Ochwa and Ms. E. Kahiti appeared for IEBC while Mr. R. Sagana, Ms. R. Thiongo and Mr. E. Ondieki appeared for the 3rd respondent. Counsel relied on their respective written submissions which they highlighted.

12. Based on the memorandum of appeal, the issues as framed by counsel and the submissions made, we consider that the main questions for consideration in this appeal are:

i. Whether the appeal lies under S. 85A of the Elections Act.

ii. Whether the election was conducted in accordance with the Constitution and election laws.

iii. Whether the appellant’s right to fair trial was violated, and

iv. Whether the costs awarded were excessive.

13. We begin with the question whether the appeal is properly before this Court. Counsel for respondents submitted in unison that the mandate of this Court in an election petition appeal is founded on Section 85A of the Elections Act which limits the jurisdiction of the Court to matters of law; that the Court must accord due deference to the election court’s findings of fact; that to the extent that the appellant’s appeal is founded on factual issues, it should be dismissed. It was pointed out that the memorandum of appeal in general, and ground 6 in particular, is premised on points of facts and not points of law. In support reference was made to the Supreme Court decisions in Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others [2014] eKLR (the Munya Case); Zacharia Okoth Obado vs. Edward Akongo Oyugi & 2 others [2014] eKLR (the Obado Case) and the decision of this Court in Mercy Kirito Mutegi vs. Beatrice Nkatha Nyaga & 2 others [2013] eKLR, among others.

14. For the appellant, it was submitted that he has properly invoked the jurisdiction of the Court under Section 85A of the Elections Act in that the grounds in the memorandum of appeal are matters of law; that matters of law, as pronounced by the Supreme Court in the Munya Case includes “the evidentiary element: involving the evaluation of the conclusions of a trial court on the basis of the evidence on record” and that this appeal falls squarely within that category.

15. It is common ground that under Section 85A of the Elections Act, the jurisdiction of this Court in relation to appeals arising from election petitions is confined to matters of law. The relevant part of that provision stipulates that:

“An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only.”

16. It was held in The Attorney General vs. David Marakau [1960] EA 484 (a holding cited with approval by this Court in Timamy Issa Abdalla vs Swaleh Salim Swaleh Imu & 3 others [2014] eKLR) that a decision is erroneous in law if it is one to which no court could reasonably come to. The Supreme Court pronounced what constitutes matters of law in the Munya Case as follows:

“[81] Now with specific reference to Section 85A of the Elections Act, it emerges that the phrase “matters of law only,” means a question or an issue involving:

a. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor;

b. the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;

c. the conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claims that such conclusions were based on "no evidence", or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were "so perverse", or so illegal, that no reasonable tribunal would arrive at the same; it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.”

17. Expounding further on the matter, this Court stated in the case of John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others [2018] eKLR that “matters of law” mean:

“… the interpretation or construction of the Constitution, statute or regulations made thereunder or their application to the sets of facts established by the trial Court. As far as facts are concerned, our engagement with them is limited to background and context and to satisfy ourselves, when the issue is raised, whether the conclusions of the trial judge are based on the evidence on record or whether they are so perverse that no reasonable tribunal would have arrived at them. We cannot be drawn into considerations of the credibility of witnesses or which witnesses are more believable than others; by law that is the province of the trial court.”[Emphasis]

18. As Lord Denning stated in Bracegirde vs. Oxley (1947) 1All E R 126, cited with approval by this Court in Mercy Kirito Mutegi vs. Beatrice Nkatha Nyaga & 2 others (above)

“The question whether determination by a tribunal is a determination on point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deduced by a process of reasoning from them. The determination of primary facts is always a question of facts. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depends on them. The conclusions from those facts are sometimes conclusions of fact and sometimes of law...The court will only interfere if the conclusions cannot reasonably be drawn from the primary facts...”

19. It is clear from those pronouncements that this Court is entitled to consider whether the conclusions reached by the trial judge accord with the evidence. To the extent that the appellant in his grounds of appeal is challenging the conclusion reached by the trial Judge to the effect that the election was conducted in accordance with constitutional principles, we are satisfied that this appeal is properly before us. We therefore reject the contention by the respondents that the appeal is not properly before the Court under Section 85A of the Elections Act.

20. We turn to the question whether the election was conducted in accordance with the Constitution and election laws. Within that issue, there is the question whether the appellant proved alleged electoral irregularities and malpractices and offences to the required standard and whether the learned Judge made conclusions in his judgment that were not supported by evidence.

21. For the appellant, it was submitted that the election was not conducted in accordance with the Constitution and election laws; that the result of an election is not only based on numerical strength but also on the quality of the process; that Section 83 of the Elections Act requires validity of the result to be subjected to both quantitative (relating to figures) and qualitative (relating to integrity of the process) tests; that sufficient evidence was adduced showing that the irregularities, malpractices, non-compliance with statutory requirements and election offences were widespread and systemic thus affecting the process of the election and result in all 826 polling stations. In support, counsel cited the Munya Case; and the decision of this Court in Moses Masika Wetangula vs Musikari Nazi Kombo & 2 others [2014] eKLR and Raila Odinga & 5 Others V IEBC & 3 Others, [2013]eKLR (Raila 2013)

22. It was submitted that the appellant discharged his burden of proof; that he pleaded and also proved the irregularities and malpractices complained of, including, falsification and alteration of votes through Forms 37As and 37Cs; that the votes cast exceeded the number of registered voters; that a mismatch in voter turnout and the votes cast was established through variations on Forms 37As, 37C, 34Bs, 35Bs, 38C and 39C; that there was widespread non-identification of voters through failure to use Form 32As in all 826 polling stations; and that there was non-compliance with statutory requirements by officials of IEBC when completing the statutory forms by failing to sign and stamp the same as well as failure to use polling station diaries in the polling stations. It was submitted that the Judge drew conclusions that were not based on the evidence to downplay the irregularities; that the Judge had no basis for excusing the alleged irregularities as attributable to human error considering that the respondents did not call, as witnesses, the officials of IEBC who completed the statutory forms to explain how the errors occurred.

23. It was submitted that the irregularities and malpractices involved substantially affected the process of the election as well as the result, rendering the same void; that although the Judge acknowledged the irregularities in his judgment, he wrongly concluded that the same did not affect the validity of the election and the result. In counsel’s view, the Judge failed to consider the legal threshold required for elections under Articles 81 and 86 of the Constitution and Section 83 of the Elections Act.

24. Counsel for IEBC, on the other hand, argued that the election was conducted in accordance with the principles laid out in Articles 10, 38, 81 and 86 of the Constitution; that under Section 83 of the Elections Act, it was incumbent upon the appellant to demonstrate that the alleged irregularities occurred and also affected the result. It was urged that the test is a materiality test, namely, whether the alleged irregularities materially and substantially affected the election; that not every non-compliance or breach of election regulation should lead to nullification of an election; that there are no perfect elections and it should be appreciated that administrative errors attributable to human factors are likely to occur in every election. In that regard reference was made to the case of Mercy Kirito Mutegi vs. Beatrice Nkatha Nyaga & 2 others (supra).

25. Relying onRaila 2013, counsel for the respondents, submitted that it was incumbent upon the appellant to ensure that all the facts pleaded were supported by cogent evidence in order to discharge the burden of proof; that the appellant failed to call crucial witnesses in support of his case and did not demonstrate that any irregularities were deliberate or that the same benefited the 3rd respondent over the other candidates.

26. It was submitted that the appellant failed to establish or prove that electoral malpractices actually occurred or that there were irregularities of such magnitude as would have substantially and materially affected the results of the election. It was urged that the primary consideration in election petitions is whether the will of the electorate has been affected by the irregularities. The case of Morgan & Others V Simpson & Anor (1974) 3 ALL ER 722 and the Munya Case were cited.

27. According to IEBC, the appellant sought to challenge the administrative and procedural irregularities which were occasioned by human error and which did not in any way prejudice the final result of the election. It was urged that irregularities on the statutory forms are inconsequential. Reference was made to the case of Nathif Jama Adam V Abdikhaim Osman Mohammed & 3 Others (2014) eKLR as well as the Munya case.

28. For the 3rd respondent, it was submitted that there is a rebuttable presumption that the election was conducted in accordance with the principles set out in the law; that the onus is on the petitioner in an election petition to convince the court with cogent evidence that the poll was tainted with irregularities; and that a court will not interfere with election results unless the required standard of proof is met. The case of Raila (2013)was again cited.

29. Counsel for the 3rd respondent also relied on theObado Case and the Munya Case for the proposition that the burden of proof rests with the appellant to prove that the irregularities complained of affected the election results. It was submitted that although perfection is an aspiration in the conduct of elections, human errors are inevitable and due allowance must be made for the same; that the few errors that might have occurred in this case did not affect the results declared and there was accordingly no basis for nullifying the election. The appellant, according to the 3rd respondent, failed to discharge his burden of proof.

30. We have considered the rival submissions on the issues under consideration. The constitutional standard against which the election is to be judged is set out in Article 81 and 86 of the Constitution as amplified in the Elections Act and the Regulations made thereunder. Article 81 of the Constitution demands, among other things, that for elections to pass the test of being free and fair, they should be conducted by an independent body; must be transparent and administered in an impartial, neutral efficient, accurate and accountable manner.

31. Under Article 86 of the Constitution, IEBC is enjoined to ensure, among other things, that at every election, the electoral system is simple, accurate, verifiable, secure, accountable and transparent; that the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station; and that the results from the polling station are openly and accurately collated and promptly announced by the returning officer.

32. The Supreme Court summed up those principles at paragraph 200 of its judgment in Raila 2017as follows:

“The principles cutting across all these Articles include integrity; transparency; accuracy; accountability; impartiality; simplicity; verifiability; security; and efficiency as well as those of a free and fair election which are by secret ballot, free from violence, intimidation, improper influence or corruption, and the conduct of an election by an independent body in transparent, impartial, neutral, efficient, accurate and accountable manner.”

33. The question that arises, therefore, is whether the election of governor of Migori County met those constitutional standards and whether the declaration of results by the county returning officer was valid. As already noted the specific complaints on the basis of which the appellant petitioned the election court to nullify the election were that there was falsification and alteration of the number of votes cast; that there was multiple voting and stuffing of ballot papers into ballot boxes; that there was irregular or un-procedural opening and use of manual registers in the election; that there was no voter identification resulting in unregistered persons voting; that there was biased recruitment of poll officials; that the appellant’s agents were denied opportunity to play their roles; that in one polling station, election materials were not sealed in the ballot boxes as required; that election offences in the form of bribery and treating, violence and incitement, and use of public resources were perpetrated by the 3rd respondent.

34. It was incumbent upon the appellant to prove those claims to the required standard. As the Supreme Court stated in Raila 2013 at paragraph 196:

“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.”

35. In the same case, the Supreme Court stated at paragraph 203 that:

“…a petitioner should be under obligation to discharge the initial burden of proof before the respondents are invited to bear the evidential burden. The threshold of proof should in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt-save that this would not affect the normal standards where criminal charges linked to an election, are in question.”

36. In Raila 2017 the Supreme Court expounded further on the burden of proof at paragraph 131 as follows:

“Thus, a petitioner who seeks the nullification of an election on account of non- conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds-to the satisfaction of the court. That is fixed at the onset of the trial and unless circumstances change, it remains unchanged.”

37. And at paragraph 132 the Supreme Court went on to say:

“Though the legal and evidential burden of establishing the facts and contentions which will support a party‘s case is static and-remains constant throughout a trial with the plaintiff, however, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and-its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.”

38. Further explanation was offered by this Court recently in Owino Paul Ongili Babu vs Francis Wambugu Mureithi and 2 others, EPA No. 18 of 2018, Nairobi in these words:

“It is trite law that for an election to be invalidated for reason of non-compliance with provisions of the Constitution, the Elections Act and or any other electoral law, a party must demonstrate that the election was not conducted in accordance with the constitutional principles and the relevant electoral law, or that the non-compliance affected the result of the election. It means the court should not chart an easy course of nullifying an election or invalidating it under the slightest pretext. There must be sufficient reasons supported by evidence.”

39. In dismissing the appellant’s petition, the election court was not satisfied that the appellant had discharged his burden of proof. Did the election Court err in reaching that conclusion and what was the evidence presented by the appellant in support of its claims? With regard to the claim of falsification and alteration of the number of votes cast in favour of the appellant, it was pleaded that in the majority of polling stations, the number of votes cast were falsified and inflated by officers of IEBC in the records of results in favour of the 3rd respondent; that lower results obtained by the 3rd respondent were swapped with those of the appellant and other candidates; that in Nyamuga Primary Polling room 2 and Nyaoke Primary Polling room 1 in Rongo Sub County and at Koderobara Primary Polling room 2 manual registers were opened unprocedurally and votes declared as cast on Form 37C with respect to those polling stations reflected an unrealistic voter turnout of over 99%; that there were cases of willful recording and submission of wrongful and doctored results by IEBC officials to enhance the numbers for the 3rd respondent; and that there was widespread use, acceptance and submission of Forms 37As and 37Bs that were not signed by agents. In effect, the case pleaded by the appellant under that head was one of conspiracy between IEBC and the 3rd respondent to steal the appellant’s victory.

40. Although the appellant called 27 witnesses, the main witness who testified on those complaints was PW22. The other witnesses who touched on the matter were PW 18, PW21, PW26 and the appellant, who was PW27. PW22 was Samuel Ochieng Nyandiga, the appellant’s chief agent in Rongo Sub County during the elections. He was tasked by the appellant to ensure that all agents reported to their respective polling stations. The agents at the polling stations were supposed to report to him and give him the results. He stated that at six polling stations that he named, he found people voting without being identified by KIEMS kit; that Forms 32As were supposed to be filled in that event, but that never happened; that in 12 polling stations that he named, the votes cast as captured in Form 37C exceeded the number of registered voters in those stations; that in some stations, results were varied in favour of the 3rd respondent and that what was declared at the polling station was different from what was reflected at the tallying centre; that voter turnout was abnormal or unrealistically high in many polling stations.

41. Under cross examination, PW22 stated that when he voted, he did not experience any difficulty and voting proceeded quickly; he did not experience any violence; that there were about 97 polling stations under him out of which he visited between 20-30 by the time polling closed; that in 6 polling stations manual registers were opened procedurally; he did not raise any objections to the contents of Forms 37A; that although there were people who had died around some polling stations, the recorded turnout suggested that they had voted; that there were irregularities in 10 polling stations; and that he also saw manual register being opened un-procedurally. When shown Forms 37As with respect to the 12 polling stations in which he had claimed that the number of votes cast exceeded the registered voters, he agreed that based on the data captured in those forms and in Forms 37B, the votes cast did not in fact exceed the registered voters; that the Forms 37As were signed by the agents without reservation; that he had no problems with Forms 37As and 37B; and that there were transposition errors in Form 37C that “may be intentional” as well as results erroneously posted with respect to a number of polling stations.

42. PW 18, Andrew Mwera was the appellant’s deputy chief agent in charge of Kuria East Sub County. He relied on his affidavit and stated that his role during the election was to observe, on behalf of the appellant, how the election process was going; that he would do so by calling agents from the wards; that he received information from one Evans Chacha Marwa that counting was not proper at Mahararagwe polling station and that by the time he got to the station, the ballot boxes had already been sealed.

43. PW21 was Cleophas Matiko Kibwabwa. He was the appellant’s agent at Nyankore polling station on election day. He stated that he voted at that station at 6. 30 am; that the BVR machine was not working well; that it could recognize some voters while it would not recognize others; that on enquiring why people were being allowed to vote, he was removed from the voting room at around 10. 00 am for reasons he did not know. On cross- examination, he stated that he reported the matter to the appellant but did not report to IEBC; that he did not sign the Form 37A. Asked about his own voting experience, he stated that he did “not experience any problems”when voting.

44. Angira Awaka, PW26, was the appellant’s chief agent for Suna West. He was overseeing and supervising the elections on behalf of the appellant. He stated that he received information from agents that; at one polling station, an agent of the 3rd respondent wanted to mark ballot papers for voters; that in 3 polling stations the appellant’s agents were not given Form 37A; that in one polling station, a lady was giving extra voting papers to specific people and although he lodged a complaint with the presiding officer, the later denied that that was happening; that IEBC officials stationed at Mlimani polling station were hosted the previous evening by the 3rd respondent’s campaigners; that the presiding officer at one polling station was openly campaigning for the 3rd respondent at that polling station; that at another polling station, the presiding officer was purposely spoiling the appellant’s votes when assisting illiterate voters; that although he did not witness the incidents, he believed the information he received from the agents.

45. On his part, the appellant who stated that he was looking at the entire scope of the election in panoramic view maintained that based on the information he received from his agents, there was non- identification of voters and irregular use of manual register as well as biased recruitment of IEBC officials; that there were erroneous postings in Form 37C; that results in Form 37C were inflated in certain areas and suppressed in others and the final declaration is invalid; that his agents were denied access to polling stations and were not allowed to witness sealing and re-sealing of ballot boxes and that there was wanton stuffing of ballots in favour of the 3rd respondent; that the primary information captured in SD cards containing data on registered voters and voter turnout would demonstrate that there was falsification and alteration of the number of votes cast.

46. IEBC called 9 witnesses including numerous presiding officers (DW 1-8) who denied the appellant’s claims. They denied that more than one ballot paper was issued to voters or that there was ballot stuffing. The 2nd respondent, the county returning officer, testified as DW9 and stated that he did not receive any complaints of stuffing of ballot boxes; that votes were counted at the polling stations before being delivered to the tallying centre; that there were transpositional errors in Form 37C for some polling stations but “the totals does not change;” and that the voter turnout did not exceed the registered voters. The claims were also denied by the 3rd respondent and his witnesses.

47. After considering the evidence, the learned Judge found that there was insufficient evidence to support the claims that there was falsification and alteration of the number of votes cast or that there was multiple voting and stuffing of ballot papers into ballot boxes or that there was non-identification of voters and that on the one occasion that Form 32A was used during the identification of voters was when the details of the voter were not readily available in the KIEMS kit when the voter placed their thumbprint.

48. We can only interfere with the Judge’s findings if the same were arrived at without evidence. As Justice Kurian of the Supreme Court of India stated in Damodar Lal vs. Sohan Devi and others, Civil Appeal No. 231 of 2015,

“30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.”[Emphasis].

49. In our view, the conclusions reached by the Judge are based on his appraisal of the evidence presented before the election Court. The appellant did not discharge his burden of proof to demonstrate that there was falsification and alteration of the number of votes cast or that there was multiple voting and stuffing of ballot papers into ballot boxes or that there was non-identification of voters. We accordingly decline the invitation to interfere with the decision of the election court on that basis.

50. With regard to election offences, it was submitted for the appellant that bribery, treating, violence, incitement, and use and misuse of public resources to campaign by the 3rd respondent was established. According to the appellant, those offences were proved to the required standard and the Judge should have, on that basis alone, nullified the election. In support counsel cited the case of Moses Masika Wetang‘ula v Musikari Nazi Kombo & 2 others (supra). It was urged that a single incident of commission of an election offence is sufficient to vitiate an election. Reference was made to M’nkiria Petkay Shen Miriti vs. Ragwa Samuel Mbae & 2 Others (2014) eKLR.

51. For the respondents, it was submitted that there was no proof of any election offences and the allegations remained unsubstantiated; that the requisite elements of the alleged offences were not established and that at the very least, one would have expected reports to have been made to the police if the claims were at all founded and that there was no evidence of that having been done.

52. Many of the appellant’s witnesses testified on the alleged election offences. Sample the following: PW 1, a boda boda operator stated that he, was amongst other boda boda operators who received “chai” of Kshs. 1,000. 00 ‘that was left behind’ after a governor’s meetings on two different occasions; that the “chai” was to induce him to vote for the 3rd respondent; PW2, an employee of Sony Sugar Company stated that in mid-March 2017, he alongside his co-workers including PW3 received Kshs. 300. 00 from a Tyrus Omondi; PW 4, a boda boda businessman stated that he was part of a group that visited the governor’s residence in June 2017 at which the governor addressed the meeting and gave out Kshs. 200,000. 00 from which he received Kshs. 2,000. 00. PW5, also a boda boda operator stated that he used to support the appellant but defected to the 3rd respondent’s camp on receiving Kshs. 8,000. 00 bribe; PW6, a farmer stated that he was part of a group of about 100 people who were hosted at the 3rd respondent residence where each one of them received Kshs. 5,000. 00 from the governor’s workers. PW7 stated that he attended the governor’s rally in March 2017 where he received Kshs. 500. 00 that he promptly gave to 3 of his six wives. PW8, a member of a taxi group in Migori, stated that in June 2017 he, alongside members of his group, received Kshs. 1,000. 00 each as inducement to vote for the 3rd respondent. PW9 a teacher, stated that he was part of a group of about 600 teachers who attended a meeting called by the 3rd respondent at which they received Kshs. 1,000. 00 each to aid in campaigning for him; PW10, a peasant farmer and a former councillor, stated that in March 2017 he was part of a group of about 100 former councillors hosted by the 3rd respondent at hisresidence where he was given Kshs. 5,000. 00 as inducement. Other witnesses who narrated similar incidents were PW11, PW14, PW17, and PW19. PW 23, a teacher, stated that the 3rd respondent attended a meeting for teachers in Mombasa where money was given out and that he received Kshs. 5,000. 00. On cross-examination, the witnesses stated that the bribes were given out by the 3rd respondent’s agents.

53. PW 12, PW 13, PW 15, PW16, PW17, PW 18, PW 20, 21-27 testified on alleged ejectment of the appellant’s agents from polling stations; malfunction of BVR and voting by unidentified persons, violence and campaigns at polling stations. PW12 also testified on an attack that allegedly took place at a hotel, Benchmark Hotel on 7th August 2017; PW13, PW15, PW18, and PW21 testified that the appellant’s agents were denied access to polling stations and denied the opportunity to discharge their roles. PW 16 testified that there was campaigning for the 3rd respondent on polling day at Siruti polling station and agents prevented from placing seals on ballot boxes. PW 17 and PW20 testified on incidents of violence allegedly perpetrated at the behest of the 3rd respondent. PW 21, PW 22 and PW 26 testified on alleged vote tampering, voting by unregistered persons and ballot stuffing. On his part, the appellant testified on what, as already stated, he referred to as the panoramic view of the entire electoral process based on information received from his agents.

54. In his evidence, the 3rd respondent denied that he bribed or treated voters; he stated that his campaigns were peaceful and devoid of violence though he was aware of a violent incident at Migori Posta but he was not involved in it; he denied using public resources to campaign; he admitted having met teachers, former councillors, transport association member and sought their prayers and advocated his policies but denied that he induced them in any way; he also acknowledged having hosted delegations at his residence; he denied that he influenced IEBC in hiring its staff for the election some of whom, coincidentally, were teachers like him.

55. After analysing the evidence, the trial Judge concluded that there was no credible evidence to support the claims that the 3rd respondent bribed or treated voters; that there was no evidence that the appellant’s agents were hindered or denied an opportunity to play their role in the election or turned away without any sufficient reason; and that there was no evidence that the ballot boxes were not sealed.

56. The appellant was required to prove those claims beyond reasonable doubt. In the case of Moses Masika Wetang‘ula v Musikari Nazi Kombo & 2 others (above) the Court stated that:

“If there are allegations of commission of election offences in an election, the law requires that those allegations be proved beyond reasonable doubt. In other words, the standard of proof required in allegations of commission of election offences made in election petitions is beyond reasonable doubt.”

57. In Phillip Kyalo Kituti Kaloki vs IEBC and 2 others, Nairobi Election Petition Appeal No. 25 of 2018, this Court cautioned that:

“A finding that there has occurred a malpractice of a criminal nature that may have been committed has serious consequences, and cannot be made without adequate evidence; in an election petition, the parties are not defending themselves against a criminal charge related to an electoral offence, instead they are more concerned with the process of the conduct of the election. Should the evidence be clear, then the court is empowered under section 87 to make the appropriate recommendation to the Director of Public Prosecution and the party that would be adversely affected would have adequate notice to defend themselves against the charge. But should the court make a determination under section 87 without adequate evidence, then it would only serve to embarrass the party concerned and the court itself.”

58. In our view, the learned Judge was entitled, based on the material before him, to make the conclusions that he did. The evidence tendered on alleged bribery, treating, violence and incitement and use of public recourses by the 3rd appellant was weak circumstantial evidence that did not meet the required standard, beyond a reasonable doubt, to sustain the claims that election offences were committed. The testimonies of the many witnesses who testified on alleged offences was sufficient to raise suspicion. But, as Tuiyott, J noted in Henry Okello Nadimo vs. IEBC & 2 others [2013] eKLR, “suspicion alone is not good enough” and neither is “the confession of the person alleged to have been bribed…conclusive evidence that it happened”. The evidence on alleged election offences fell short of proof, to the required standard, of “focused and clear-cut” evidence that the alleged bribery or treating was by or with the knowledge and consent or approval of the 3rd respondent. In the words of the Supreme Court in Moses Masika Wetang‘ula v Musikari Nazi Kombo & 2 others (above), the evidence was not “cogent, reliable, precise and unequivocal.” As already stated, we can only interfere with the decision of the election court if the same is perverse, that is, if the decision was arrived at on the basis of no evidence or on the basis of evidence that cannot be relied upon. This ground of appeal therefore fails.

59. We turn now to the appellant’s complaint that he was not accorded a fair hearing. It is the appellant’s case that the election court denied him a fair hearing in that his pleadings and evidence was struck out after the conclusion of the trial with the result that material evidence was disregarded; and that he was denied the opportunity to scrutinize and rely upon material evidence contained in SD cards relating to the election; and that the information contained in the SD cards would have demonstrated widespread malpractices and massive variations in voter turnout and vote count.

60. For the IEBC, it was submitted that the orders of the election court excluding the material the appellant complains of, were made in exercise of discretion with which this Court should not interfere unless demonstrated that the Judge misdirected himself. IEBC stated that the appellant made three applications before the election court. The first application sought an order for scrutiny and recount of votes in all 826 polling stations. The second application sought an order to file a supplementary affidavit to file a report of SD Cards and on sealing of ballot boxes. The third application sought an order for partial scrutiny of the SD Cards. All three applications were rejected by the court. It was submitted that the appellant was clearly on a fishing expedition and there is therefore no basis for this Court to interfere with the decisions of the election court.

61. For the 3rd respondent, it was submitted that the decisions of the election court on the three applications are well founded as the appellant was in effect seeking to introduce new matters and to expand the scope of the petition beyond what was pleaded; and that the appellant did not establish a basis on which an order for scrutiny could be made. In that regard, reference was made to the Supreme Court decision in the Munya Case to the effect that the right to scrutiny does not lie as a matter of course and that an applicant must establish the basis for the same.

62. The context in which the appellant’s complain is made, as we understand it, is this: By an application dated 11th September 2017 the appellant sought an order for scrutiny and recount of all votes cast in all 826 polling stations in Migori County. That application was declined by the court in a ruling given on 9th November 2017. Meanwhile, on 4th October 2017, the appellant was granted leave by the election court to file an affidavit in reply to responses by the respondents. Pursuant to that leave, the appellant filed an affidavit sworn on 10th October 2017 in which he introduced material relating to “variances” in election results in Migori County relating to the six different positions that were contested during the 8th August 2017 elections. The 3rd respondent made an application dated 20th November 2017 seeking an order to expunge certain paragraphs of that affidavit to the extent that new matters were being introduced. The ruling in respect of the 3rd respondent’s application dated 20th November 2017, with which the appellant is aggrieved, is contained in the final judgment of the election court the subject of this appeal.

63. By an application dated 29th November 2017, the appellant sought leave of the election court to file, by way of supplementary affidavits, the report of SD cards and on sealing of ballot boxes. That application was declined in a ruling given on 12th January 2018. On 1st February 2018, the appellant filed yet another application seeking partial and limited scrutiny of the SD Cards which was dismissed.

64. It is on the basis of the rulings given by the election court on 9th November 2017; 12th January 2018 and the ruling contained in the final judgment, that the appellant complains that his right to fair trial was denied. In effect, although the appellant couched his grievance in terms of his right to fair trial being breached, he is, all intents and purposes, challenging the three rulings made by the election court to which we have made reference.

65. In its ruling given on 9th November 2017 the court declined the appellant’s application for an order for scrutiny and recount of all votes cast in the 826 polling stations on grounds that it could not do so at an interim stage and that to grant orders for scrutiny of “entire Migori County Constituencies” would ran against the Supreme Court decision in the Munya Case. The Judge stated further that there would “be sufficient time during the hearing and or before the determination of the petition” for the appellant to make a similar application or for the court to order scrutiny or recount suo moto. In the same ruling, the court ordered IEBC to supply “what is referred to S. D. Cards of all polling stations to the court and the parties.”

66. Subsequently, and basing its application on the ruling of 9th November 2017 the appellant sought leave to file reports on the SD Cards and sealing of ballot boxes. In rejecting that application in its ruling of 12th January 2018, the court took the view that the integrity of the 8 volumes of the report the appellant sought to introduce could not be vouched for having been undertaken unilaterally; that the same would change the character of the petition and the other parties would be required to file witness statements and seek opportunity to also analyse the SD Cards and there would be prejudice to the other parties. Furthermore, the Judge stated, the matter was way past the requirements of Rule 15(1)(h) of the Elections (Parliamentary and County Election) Petition Rules, 2017.

67. The third ruling that is the subject of attack, is the ruling within the judgment relating to the 3rd respondent’s application dated 20th November 2017 to strike out the appellant’s affidavit sworn on 10th October 2017 or alternatively portions of it and for expunging annexures and evidence annexed to it. That affidavit, which was a response to the respondents’ answer to the petition, was filed with leave of the court granted on 4th October 2017. The Judge was however of the view that that affidavit went beyond responding to the issues raised by the respondents in their replies to the petition. In his words, the Judge stated that the affidavit the appellant should have filed.

“… it should simply response(sic)to the issues raised by the respondents in the reply to the petition. It should not and cannot be an avenue to reintroduce fresh issues to the petition otherwise the petitioner should seek leave to amend his petition. This is necessary because, the respondents would not have another chance to respond to the responses by the petitioner to their response. Pleadings must close.”

68. The Judge went ahead to strike out paragraphs 4, 5, 6, 7, 14 and 15 under which the appellant had sought to introduce “issues relating to the use of Kiems Kit, and by extension SD Cards;” analysis relating to “variations” between the different elections held on the election day; and material on alleged use of secret password that allegedly translated to “over 90,000 unverified voters.”

69. Whereas appeals from interlocutory orders are not permissible in matters of this nature, it is not clear why the appellant did not lodge notices of appeal with respect to the first two of rulings under attack. Nevertheless, the election court was in all three rulings exercising judicial discretion. In the Munya Case, the Supreme Court was clear that when considering whether to grant or refuse an application for scrutiny and recount under Section 82 of the Elections Act, the court has unfettered discretion and that the right to scrutiny and recount does not lie as a matter of right and a party seeking it must establish a basis for the request to the satisfaction of the court. The two subsequent applications on the basis of which the Judge rendered the impugned ruling given on 12th January 2018 and the ruling within the impugned judgment also involved exercise of discretion.

70. As an appellate court, we cannot interfere with the exercise of discretion by the election court unless it is demonstrated, and we are satisfied, that the judge misdirected himself in law or that he misapprehended the facts or that he took into account extraneous considerations or that he failed to take into account relevant considerations or that his decision is plainly wrong. In Mbogo & Another vs. Shah [1968] E.A. 93at page 96, Sir Charles Newbold P. stated:

“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice…’

71. In refusing to allow scrutiny and recount in all polling stations in Migori County; in refusing to admit volumes of unilateral analysis reports on the SD Cards and sealing of ballot boxes; and in striking out material relating to KIEMS kit and SD Cards, the Judge took into account the scope of the dispute as defined and delimited by the appellant in his petition and the impact the decisions would have on the conduct of the trial from the perspective of fairness to all the parties. In that regard the Judge stated that had the appellant “sought an amendment to the petition earlier on and within the time required” the same would have been considered. The approach taken by the Judge is consistent with the holding by the Supreme Court in Raila 2017 that “in the absence of pleadings, evidence if any, produced by the parties, cannot be considered” and that“it is also a settled legal proposition that no party should be permitted to travel beyond its pleadings.” The appellant has not demonstrated how the said decisions manifest a wrong exercise of discretion by the election court or that the decisions are clearly wrong. There is therefore no merit in this ground.

72. Lastly there is the question whether the costs awarded were excessive. For the appellant, it was submitted that the costs awarded by the learned Judge were not in compliance with the Advocates’ Remuneration Order and go against the purpose of Article 48 of the Constitution as they are excessive and bar a petitioner’s access to justice.

73. For the respondents it was submitted that the costs awarded are justifiable under Section 84 of the Elections Act; that the trial involved many witnesses and costs in the form of facilitation, transport and accommodation expenses for the witnesses and for counsel; that the matter was complex and the trial took a long duration.

74. The power to impose costs as held by this Court in Mercy Kirito Mutegi v Beatrice Nkatha Nyaga & 2 others, (above) is discretionary and the circumstance in which we can interfere are, as already stated, limited. Exercising his power under Section 84 of the Election Act, the learned Judge capped the instruction fee for the 1st and 2nd respondents at Kshs. 3,000,000. 00 and at the same amount for the 3rd respondent and directed that the total costs be taxed and certified by the Deputy Registrar of the Court. In total therefore the instruction fee payable by the appellant was capped at Kshs. 6,000,000. 00.

75. Whereas we are in agreement with Judge that the total costs incurred before the election court should be taxed and certified by the Deputy Registrar of that Court, the award of Kshs. 6,000,000. 00 on instruction fees is manifestly high so as to reflect an erroneous exercise of discretion. We think, we should, in the circumstances lower the ceiling on the instruction fees. The 1st and 2nd respondents’ instruction fee in the High Court shall not exceed Kshs. 1,500,000. 00 as against the appellant. The 3rd respondent’s instruction fee in the High Court shall not exceed Kshs. 1,500,000. 00 as against the appellant.

76. In conclusion therefore, save for the reduction in the instruction fees aforesaid, the appellant’ appeal fails and is hereby dismissed with costs to the respondents. The costs of the appeal shall be taxed and certified by the Registrar of this Court. The 1st and 2nd respondents’ costs of the appeal shall not exceed and are capped at Kshs. 1,000,000. 00 as against appellant. The 3rd respondents’ costs of the appeal shall not exceed and are capped at Kshs. 1,000,000. 00 as against appellant.

Final orders:

1. The appellant’s appeal fails and is hereby dismissed with costs to the respondents.

2. The 1st and 2nd respondents’ instruction feein the High Court shall not exceed Kshs. 1,500,000. 00 as against the appellant.

3. The 3rd respondent’sinstruction feein the High Court shall not exceed Kshs. 1,500,000. 00 as against the appellant.

4. The 1st and 2nd respondents’ instruction feeof the appeal shall not exceed and are capped at Kshs. 1,000,000. 00 as against appellant.

5. The 3rdrespondents’ instruction feeof the appeal shall not exceed and are capped at Kshs. 1,000,000. 00 as against appellant.

Orders accordingly.

Dated and delivered at Kisumu this 27th day of July, 2018.

ASIKE-MAKHANDIA

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JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

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JUDGE OF APPEAL

K. M’INOTI

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JUDGE OF APPEAL

I certify that this is a truecopy of the original.

DEPUTY REGISTRAR