[2017] KEHC 2506 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ELECTION PETITION NO. 13 OF 2017

ELECTION ACT NO. 24 OF 2011

THE ELECTION (PARLIAMENTARY AND COUNTY ELECTION)

PETITION RULES 2017

BETWEEN

DR. GEORGE MBOGO OCHILO AYAKO …............ PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

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

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

ZAKARIA OKOTH OBADO …........................3RD RESPONDENT

RULING

1. There are 2 sets of application by the petitioner/applicant herein. The first application dated 11th September 2017 prays for the following orders;

a) A conservatory order for the preservation and safe keeping of the election materials by the 1st and 2nd respondents used during the general election held on 8/8/2017 for the Migori County gubernatorial seat.

b) An order compelling the 1st and 2nd Respondent to deliver into custody and safe keeping of the court all the election materials used in the Migori County gubernatorial election on 8/8/2017.

c) An Order compelling the 1st Respondent to give access to and supply to the court and to the petitioner for scrutiny certified photocopies of all the original Forms 37 A, 37 B, 32 A and 32 prepared and obtained from the polling stations by presiding officers and used to generate the final tally of the gubernatorial election for Migori County on 8/8/2017.

d) An order for scrutiny of all votes cast in the 826 polling stations for purposes of establishing the validity or otherwise of the votes cast.

e) An order for recount of votes and examine the talling in the 826 polling stations and any other polling station that may have been used in the gubernatorial electionfor Migori County held on 8/8/2017.

The applicant as expected has asked the court to make further orders as may deem appropriate as well as award him costs.

2. In the 2nd application dated 2/10/2017 the applicant has prayed that;

a) A list of names of agents submitted to Independent Electoral and Boundaries Commission by each candidate for each polling station in the gubernatorial election conducted by the 1st and 2nd Respondents on 8/8/2017 for Migori County be provided.

b) That the court be pleased to change the place of hearing of this petition from Migori County to any other court station outside Migori County for purposes of safety of petitioner and his witnesses.

3. This court decided that both applications be heard simultaneously and a ruling delivered jointly. At the hearing of the same the counsels were allowed to file written submissions and did also submit orally. They all relied on various set of authorities which I have had occasion to peruse. This ruling may not necessarily refer to all of them but that does not demean any of the authorities. I am grateful though for the counsels on record input.

Applicants submissions

4. The applicant relied heavily on his supporting affidavit sworn on 11/9/2017. In the said affidavit he has narrated the several portions of the Constitution and the relevant laws applicable to this application and specifically singled out Articles 38 and 180 of the Constitution, Section 25 and 33 of the Election Act interalia.

According to him he ganned 113,773 votes against the winner, the 3rd respondent who ganned 201,369 votes. Annexture KOI, which is form 37 C attest to this.

5. He has further deponed that his various agents in various polling station were denied copies of Form 37 A's by respective presiding officer contrary to Regulation 79(2A) (C) of the Elections (General) Regulations 2012 and Article 35 of the Constitution and thus he only relied on the notes taken by the said agents. He further went to state that other forms like 32 and 32 A were denied his agents by the 1st and 2nd Respondents. The applicant went ahead to enumerate 12 polling stations that had the same problems.

6. He further stated that the ballot seals at Anindo polling station were broken and new seals affixed by the presiding officers and the said seals were recovered by the members of public. He illustrated various election malpractices committed by Independent Electoral and Boundaries Commission which included locking out his agents from accessing the polling stations, stuffing of ballot papers etc.

7. He equally deponed that at some stations those who voted for gubernatorial candidates exceeded those who voted for parliamentary candidates by 200 votes. In other station there were more people who voted then those registered and he cited a station like Isebania ward in Kuria West Constituency.

7. In the premise he prays that scrutiny of the votes ought to be conducted so as to determine the various anomalies which apparently were in favour of the 3rd respondent.

8. While submitting, the applicant counsel apart from relying on the relevant sections of the law, quoted extensively the authorities of Gatirau Peter Munya Vs Dickson Mwende Kithinji & 2 others, Supreme Court Petition No. 2b/2014 especially on why scrutiny ought to be undertaken.

9. He submitted that scrutiny and recount ought to be conducted as of first instance as this exercise would aid this court in quickly resolving the issues herein. He equally submitted that the court should order productions of electronic voting materials especially the KIEMs Kits and other relevant equipments as they are key to unravelling the malpractices in the entire impugned election.

10. On why he feels this matter ought to be heard elsewhere apart from this court, he argued that his various witnesses had been threatened by the 3rd respondent and going with the history prior to this election, there was every possibility of violence being meted against his witnesses.

1st and 2nd Respondents submissions

11. The 1st and 2nd Respondents relied on the replying affidavit dated 29/9/2017 as well as the supplementary affidavit dated 16/10/2017 filed by the 2nd respondent. He deponed that the prayer for recount and scrutiny are based on mere allegations and no concrete evidence has been provided.

12. That scrutinising and recounting of votes from all the 826 polling stations amounts to redoing the entire tallying exercise afresh. Recounting also is extremely laborious yet the said irregularities and illegalities are yet to be proven. He submitted that scrutiny is only granted when the facts and evidence is so clear and the margin so low that one can easily conclude that scrutiny could quickly resolve the issues at hand. This however is done only after evidence has been adduced.

13. On the question of availing the election materials the 2nd respondent averred that the same are in their safe custody as required by law and that they could be availed any time they are required. In any case Article 86 of the Constitution and Rule 18(3) of the Elections (Parliamentary & County Election) Petition Rules 2017 requires the said respondent to secure the voting materials for 3 years.

14. He concluded that the general import of the petitioners application is just a fishing expedition so as to gather evidence which otherwise ought to have been in his possession before the filing of the petition. He further stated that the respondent has availed all Forms 37 A, 37 B and 37 C and the polling station diaries which the petitioner demanded.

15. He submitted that some of the request by the applicant including production of biodata of the respondents agents, procurement documents and payments fro accommodation and training of its staff would compromise the integrity of the electoral System and individual persons.

3rd Respondent submissions

16. The 3rd Respondent by his replying affidavit dated 18/10/2017 as well as the written submissions dated the same date has opposed the said application. According to the 3rd respondent the applicant has introduced new issues which are not in the substantive petition .

17. He argued that the applicant has not demonstrated that the election materials now in the custody of the 1st respondent are in any way at risk to warrant the same to be submitted to court for safe custody as he prayed. That the prayer for the submissions of Forms 37A, 37B, 37C has been compromised since the 1st respondent has already filed and served the parties including the applicant.

18. On the question of scrutiny the 3rd respondent first like the 1st and 2nd respondent submitted that the said orders should be issued with special care and consideration. That it is only issued when a party has submitted cogent evidence which in this case the applicant has not. The same goes with recount. According to the 3rd respondent the applicant is simply in a fishing spree and no concrete evidence has been submitted to warrant the 2 orders to be granted at this stage.

19. The respondents generally agreed in their submissions that the proper way is for the trial to begin so as to test the veracity of the evidence to be adduced and thus permit the court to order scrutiny or recount if need be.

20. The 3rd respondent submitted that scrutiny and recount orders cannot be issued simultaneously as they are mutually exclusive and the consequences different.

21. In a nutshell the 3rd respondent prayed that the application be dismissed for being scandalous, frivolous and vexatious.

Analysis and Determination

22. Having perused the entire applications together with the replies and the written submissions as well as hearing all the parties orally it is my considered view that the issues raised by the applicant for determination in the said applications are;-

a) Scrutiny and recount of all votes in the 826 polling stations

b) Access and supply to court and the petition of all voting materials

c) Preservation and safekeeping of all election materials

d) Whether this petition ought to be heard elsewhere apart from Migori.

a) Scrutiny and Recount

23. The applicant submitted extensively on this issue. He argued that there were grave anomalies detected during the voting exercise in various polling stations which affected his votes. He singled out Several polling stations which according to him exhibited election malpractices including staffing of ballot boxes, unprocedural opening of manual registration and his agents being denied access to the talling centres and polling stations. He cited several of his agents who have gone ahead to swear affidavits in support of the petition.

24. In paragraph 38 of his supporting affidavit sworn on 11/9/2017 he has stated as follows;

“That I know of my own knowledge that in the eight Constituencies of Migori County, Independent Electoral and Boundaries Commission Officials denied my agents access to the polling stations, issued two or more ballot papers to persons, staffed ballot papers and stated the returns in favour of the 3rd Respondent contrary to election laws. This necessitates scrutiny of votes, recount, retalling and scrutiny of records and materials used in the elections such a KIEMs Kits to get the true position of votes cast.”

25. From the above averments it appears that the applicants complaint is far and wide. There seemed to have been various anomalies in several polling stations. Should the court at this stage order for scrutiny and recount in all the voting stations as prayed by the applicant? It is accepted across the board and generally relied on by the parties that, the authority of Gatirau Peter Munya Vs Dickson Mwende Kithinji & 2 others, Supreme Court Petition No. 2 b of 2014laid down the basis for scrutiny.

26. The said court gave out the guidelines, thus

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

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

(c) The right to scrutiny and recount does not lie as a matter of course. The party seeking a recount or scrutiny of votes in an election petition is to establish the basis for such a requests to the satisfaction of the trial judge or magistrate. Such a basis may be established by way of pleadings and affidavits, or by way of evidence adduced during the hearing of the petition.

(d) Where a party makes a request for scrutiny or recount of votes, such scrutiny or recount if granted, is to be conducted in specific polling stations in respect ofwhich the results are disputed, or where the validity ofthe vote is called into question in the terms of Rule 33(4) of the Election (Parliamentary and County Election) Petition Rules. “

27. Applying the above laid down guiding principles, has the applicant met the same? Looking at the substantive petition, viz a viz the application it is clear that the prayers are same and similar. However at this interim stage are the facts so clear that this court should order a scrutiny?

28. I have read extensively the applicants affidavits as well as the affidavits of his witnesses in support of the petition. I am however not satisfied that the same merits an order for scrutiny at this juncture. The applicant suggest that literally all the polling stations had problems in the entire Migori County Constituencies.

Were this court to grant the same, it will mean that literally all the 826 polling stations votes shall be scrutinised. This shall run against the above cited “Munya case”where the court preferred specific polling station and not the entire constituency or County as is the desire of the applicant herein.

29. Needless to say all is not lost for the petitioner. As indicated in the “Munya case” there shall be sufficient time during the hearing and or before the determination of the petition for him to make similar application or this court to order scrutiny suo moto.

30. Having stated so, the same fate befalls prayer for recount. The applicant has spelled out several arnomalies in various polling stations which seemed to suggest that there were more people who voted than those registered. This calls for adduction of evidence and I do not think affidavit evidence can suffice at this level.

31. Consequently all the above prayers can be considered once the witnesses take the stand, they be cross examined and the veracity of their evidence tested. For now let the matter rest there. If as suggested by the 3rd respondent, the applicant has introduced new evidence not contained in the petition, this court for now shall not deal with the same and in any case it has not been moved to do so. Nonetheless this court may at an appropriate time call for scrutiny or recount as it may deem necessary.

(b) Access and supply to court and the petition of all voting materials.

32. I find this prayer having been answered comprehensively by the 1st and 2nd respondents who have since filed Forms 37 A, 37 B and 37 C as well as copies of the polling station diaries. I suppose that the applicant has equally been served with the same.

33. There was an argument concerning Form 32, the manual register. The 1st respondent argued that the same was not applied or used contrary to the view held by the applicant. I find that this is an issue of evidence. Let the parties place their witnesses on the dock, and the issue ventilated there. Being the custodian of the same the 1st respondent is expected to produce it if need be.

c) Preservation and safe keeping of all electronic materials.

34. There was, reading the application, general suspicion on the part of the applicant, that the same could be tampered with or destroyed under the custody of the Independent Electoral and Boundaries Commission. I do not think that this is the case. The applicant did not demonstrate to this court that the same could be at risk of being adversely dealt with. The 1st and 2nd respondent have the Constitutional and Statutory duty to preserve the same be it electronic or otherwise.

35. For avoidance of doubt however I think the 1st and 2nd petitioner ought to supply what is referred to S.D. Cards of all polling stations to the court and the parties. The same ought to be supplied as a matter of priority so that the parties be at liberty to utilise them if necessary during trial.

36. Further and in the interest of the court and the litigants the ballot boxes of the 1st respondent ought to be resealed with fresh seals from the applicant and the 3rd respondent. This in my view shall remove any doubt as to their preservation.

37. With limited space and capacity for safe keeping I find that it would be onerous and expensive to have the said voting materials including the ballot boxes to be delivered and kept in the custody of this court. The court may not have adequate personnel space and security to keep them.

d) Whether this matter ought to be heard elsewhere.

38. The fears raised by the applicant appear legitimate. However I did not find any supporting evidence either through an affidavit from his “threatened” agents or himself. For now I find the prayer too general and incapable of being granted. Nonetheless the security of any person including the parties is paramount. Should this court feel that there is any real or imminent threat it shall make appropriate orders whether by any party or not. The applicant is however advised to seek available police redress if need be.

Conclusion

39. Having analysed the above issues I find this petition now ready to go to the full trial. The issues raised by the applicant in my view have been attended to in the interim stage. It is upon him to adduce the evidence to prove the allegation in the petition.

Consequently I shall allow the petition as follows;-

a) The 1st and 2nd respondents do supply to this court and the parties the S.D. Cards for all the 826 polling stations within the next 10 days from the date herein.

b) The applicant and the 3rd respondent do place their respective seals to all the ballot boxes from the 826 polling station within the next 7 days from the date herein under the supervision of the Deputy Registrar of this Court.

c) The costs of this application to await the outcome of the main petition.

Delivered, signed and dated this 9th day of November 2017 at Migori.

_______________

H.K. CHEMITEI

JUDGE

9/11/17

In the presence of;

Odhiambo for the Petitioner

Ondiek & Sagana for 3rd Respondent

Kahiti for 1st & 2nd Respondents.

Ruling read in open court.