[2017] KEHC 2335 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

ELECTION PETITION NO. 10 OF 2017

GILPHINE MOKEITA OMWENGA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

VERSUS

INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION:::::::::::::::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT

ISAAC KIPLAGAT RUTTO::::::::::::::::::::::::::::::::::::::::::::::::::::::::::2ND RESPONDENT

MOSES MALULU INJENDI)::::::::::::::::::::::::::::::::::::::::::::::::::::::::3RD RESPONDENT

( FOR MNA MALAVA CONSTITUENCY).

R U L I N G

1. This Election petition is dated the 7/9/2017 and filed on the same day. The petitioner describes herself as a registered voter in Malava Constituency, Kakamega County who voted in the 8/8/2017 General Elections. She brings the petition in her own right as a registered voter.

2. The 1st Respondent is the Independent Electoral & Boundaries Commission established under Article 88(1) of the constitution of Kenya (COK) and is charged with the conduct and supervision of the Election as prescribed in Article 88(4) COK and other Electoral laws.

3. The 2nd Respondent was the Returning Officer appointed by the 1st Respondent to officiate the conduct of the election in Malava Constituency.

4. The 3rd Respondent was a candidate, with others, for the position of Member of the National Assembly who was declared the winner with majority votes in the said Election on the 10/8/2017. He was sworn in as the duly elected member of the National Assembly for Malava Constituency on the 31/8/2017.

The petition was filed on the 7/9/2017 within the time frame under the COK and the Election Act No 24 of 2011 and the Rules made thereunder.

5. The grounds upon which the petition is brought are stated and include the following :

(i) Lack of transparency, accountability and verifiability in conducting the Member of National Assembly elections in Malava Constituency.

(ii) Failure to secure the election .

(iii) ………

(iv) Undue influence , Bribery and pre- election events.

(v) Verifiability of the Election.

6. In support of the petition , the petitioner filed her supporting affidavit with numerous annextures on the 7/9/2017.

Upon being served, the Respondents filed their respective Responses based on the grounds stated in the petition and the supporting affidavit.

7. On the 28/9/2017 , the petitioner filed a Notice of Motion premised on Rules 29(1) and 36 of the Elections ( parliamentary and county Election ) petition rules 2017 , Section 1A,1B and 3A of the Civil procedure Act and Article 159(2) (d) of the Constitution of Kenya ( COK).

Numerous orders were sought among them;

1. The Honourable Court be pleased to direct the 1st and 2nd Respondents to produce show and furnish to the court and the petitioner ,at the first hearing of this suit , all original Forms 35A’s emanating from stations in Malava Constituency and Original Copy of Form 35B reporting the results of the August 8th 2017 elections of the member of the National Assembly for Malava Constituency.

2. This Honourable Court be pleased to direct the 1st and 2nd Respondents to produce and furnish to the court and the petitioner all scanned copies of forms 35A’s from the gazetted polling stations in Malava constituency send and received on the 1st Respondents computer servers.

3. …..furnish to the petitioner and the court a certified copy of the list of the gazetted polling stations in Malava Constituency.

4. …..a certified copy of the IEBC deployment schedule of all the election officials ( Presiding Officers , Deputy Presiding Officers and all the polling clerks ) deployed in all the polling stations within Malava Constituency .

5. …. Certified copy of all the Agents accredited by IEBC ……to participate in the 8/8/2017 elections for Malava Constituency.

6. …..certified copies of polling station diaries from all the gazetted polling stations in Malava constituency.

7. …..all election materials used in the election of November of the National Assembly for Malava Constituency.

8. This Honourable court be pleased to grant to the petitioner an order to access , scrutiny and audit of all KIEMS Kits used in Malava Constituency.

9. …….. order for Scrutiny and recount of all votes cast for the position of member of the National Assembly for Malava Constituency.

10. Leave to the petitioner to file a further supporting affidavit and include new witness affidavits and annextures to the petition herein.

11. The affidavit evidence and exhibits annexed to the application be admitted into evidence and be deemed to form part of the petition.

12. Costs of the application be in the cause.

8. Numerous grounds , 15 in number are stated on the face of the application , in support of the application ,together with the petitioners very lengthy affidavit, sworn on the 27/9/2017 .

9. The application is vehemently opposed. The 3rd Respondent filed his Replying Affidavit on the 6/10/2017.

The 1st and 2nd Respondents filed their responses on the 6/10/2017. When parties appeared before me on the 11/10/2017, they recorded a consent, and narrowed the issues to three , thus

1. Scrutiny and recount of votes cast

2. Access to information and

3. Leave to file further affidavits out of time.

10. On the issue of scrutiny and recount ( prayer No. 11 ) the parties agreed to suspend the same, and to be revisited after the petitioners evidence – is concluded , and upon basis for the same being laid . The consent order is on record.

11. Mr. Ayieko Advocate for the Applicant/ Petitioner urged the court on the right to Access to information by the petitioner and the court, citing Article 35(1) COK . It was his submission that all the information is in the custody of IBC and that the said information would assist the petitioner actualize her right to prosecute the petition.

It was his submission that the IEBC failed to furnish the said information, requested by letters, prior to filing of the application. He cited the case of Raila Odinga Vs IEBC (2017) eKLR where the Supreme Court judges reiterated the need to furnish information to a party by any public institution.

12. Mr. Lumumba Advocate also for the petitioner argued on the request for addition of new evidence by filing further affidavits. In the supporting affidavit a list of 35 witness affidavits were annexed. He sought admission of the same stating that they depone to issues and grounds in support of the petition; thus arguing that they will not constitute an Amendment of the petition.

He cited Rule 15 and 19 of the 2017 Election rules, and urged that the court is empowered to consider and allow additional affidavits at the interlocutory stage. That it is upon the court’s discretion whether to allow or not to allow.

13. He submitted that the petitioner encountered logistical challenges in gathering the witnesses to swear their affidavits before filing of the petition and by allowing the prayer, the respondents will have a chance to cross examine the witnesses.

He reiterated that the new evidence will not alter the petition at all, but will support the grounds of the petition.

14. Ms.Wakoli for the 1st and 2nd Respondents opposed the application and referred to the Replying Affidavit sworn by the Returning officer, the 2nd Respondent. It was stated that the information sought by the petitioner was provided y way of annextures in the Replying Affidavit as well as in the Response to the petition. On the list of gazetted polling stations it was urged that that information was in the public domain and the petitioner could easily get it for herself, through the Kenya Gazette for the relevant period.

15. On Forms 35 A’s it was submitted that the duly stamped forms were given to all the accredited agents at the various polling stations, and the election materials, are kept by the IEBC for at least three years after the election and so they are safely kept in heir custody.

Ms. Wakoli in response to provision of list of accredited agents, she stated that each political party keeps its lists, and the petitioner ought to obtain them there from.

She opposed additional affidavits stating that they would introduce new evidence as they do not support the grounds of the petition. She urged the court to deny the petitioner the prayers sought .

16. Mr. Azala Advocate f or the 3rd Respondent urged the court on the request for Scanned copies of Forms 35A’s in all the polling stations at Malava constituency as well as access , scrutiny and audit of KIEMS Kits used in the said constituency . His brief response was that the above only apply to presidential election and supported his submissions by citing Section 39(1) ( c) Election Act No. 24 of 2011.

He faulted the applicant for relying on Supreme Court decisions that are not relevant to Parliamentary elections.

17. Mr. Luseno also for the 3rd Respondenturged the court on prayers 12 & 13 – for leave to file a further Supporting Affidavit by the petitioner, and admission of the witness affidavits ( 35) annexed to the application . He addressed the court on the rights of a voter against the evidence sought to be introduced. It was his submission that the role of a voter was to vote and leave the polling station.

18. It was his submission that the petitioner has to demonstrate that she indeed was a voter in a particular polling station and trying to introduce 35 more affidavits, would mean introducing 35 new petitions by other voters.

Further it was his contention that the application ought to have been filed within 28 days of the results of the election being pronounced , and as leave to file the same was not sought , the court has been urged to strike it out .

19. The courts discretion was invoked to dismiss the application, as the reasons for the delay for not filing within the stipulated time was not explained at all.

The court was asked to distinguish a case where by the applicant and petitioner was a voter as opposed to where an applicant was a candidate.

20. In reply to the respondents submissions, the petitioner, by her advocates, urged that a voter has voting right under Article 38 and 80 Article of the COK.

21. I have carefully considered submissions by counsel as well as the affidavits for and in opposition to the application ,and in particular the two, orders for ,

Access to information and

Leave to file further 35 affidavits

22. On the right to access information. There is no dispute that that is a right to every citizen – Article 35( 1).( COK)

Subsection (3) also states that

“ the state shall publish and publicise any important information affecting the nation”.

Viewed against the petitioners application in respect of an election, the state through the IEBC, a commission established under Article 88(1) COK, did publish in the Kenya Gazette, the official publication of Government information, the information sought was thus published. It is not enough to state, as the applicant did, that she did not see the Kenya Gazette. A party who has sufficient interest in a matter would ordinarily go out of their way to obtain all necessary documents on their own, save those that notwithstanding all efforts , they are not able to access.

23. The petitioner/ Applicant is a voter but subject to proof . Her petition is on behalf of the residents of Malava Constituency. She has not demonstrated what effort or steps she took to obtain the documents she requires an order to access. Indeed, the two 1st and 2nd Respondents in their Replying affidavit annexed the documents she requested for. I did not hear her by her Advocates deny that the said documents were not supplied , abeit late by , way of annextures in the Replying affidavit filed on the 6/10/17.

The court will therefore deem that all the documents have since been supplied, and therefore the prayer overtaken by events.

24. KIEMS Kit is used for voter registration, identification of voters on the polling day and shows the number of voters. Voting is ordinary a manual process, Form 35 A is filled manually with the number of votes cast which is then transmitted physically to the tallying centre where again the information is manually filed into Form 35B. The applicant has not shown the relevance of her application to the KIEMS Kit.

25. An application for adduction of new and additional evidence must be made within 28 days of the declaration of results of the election- Section 76 (4) of the Election Act,2011. That is if the new evidence will have the effect of amending the election petition. In this application the applicant has submitted that the intended evidence will not pre judice the introduce new evidence , but will be in support of the grounds of the petition as stated.

It is not an automatic right or a matter of cause. The court has discretion whether or not to admit it. The further affidavits must not introduce massive evidence, which would change the nature of the petition or affect the respondents ability to respond to the said evidence.

26. I have perused the 35 affidavits sought to be introduced. No satisfactory reasons were given as to why they could not have been filed together with the petition. All the deponents depone that they are residents of Kakamega County and registered voters in stations they have named.

The court cannot understand how a petitioner , challenging an election , on grounds as stated in this petition , could file only one affidavit in support of the petition , being a voter , and allege irregularities in all the polling stations in a whole constituency for that the 3rd respondent alluded to a faceless petitioner in the name of the petitioner . I agree that introduction of 35 new affidavits will bring in massive evidence that may introduce new evidence capable of changing the nature of the petition.

27. In Gatirau Peter Munya Vs Dickson Mwenda Kitainji & 2 others ( 2014) eKLR the Supreme Court rendered that issues in a petition of Scrutiny and recount ought to be restricted to particular polling stations in which the results are disputed . The applicants application is so generalized that it is impossible to know whether any results were disputed in any centre/ station it lacks specificity. A blanket application cannot be allowed. It would amount to fishing of new evidence. In the Ledama ole Kina Vs Samuel Kuritai Tunai & Company Other (2013) eKLR,the court held that in an application for scrutiny and recount , the applicant must specify the polling stations and centres where the results are in dispute.

28. It is evident in the application before me lacks specificity . It is not possible to have all the results disputed in all the stations and centres.

This is a blanket prayer . The court will not allow such as being opaque and may introduce new and massive evidence to the prejudice of the respondents.

See also Gatirais Peter Munya (2014) supra .

A basis for the order must be laid . See also Election Petition No. 5 of 2017 Kakamega , Evans Nabwera Tarachi Vs IEBC & 2 others where I rendered myself on more of less similar issues in my ruling delivered on the 2/11/2017.

29. The application hereof was filed out of time. See section 76(4) of the Election Act 2011 , and Rule 15(i)(h) of the rules. Surprisingly, the applicant has not attempted to give reasons for the delay or satisfactory reasons why the application was not filed within 28 days as provided under the rules. An election petition is one of public interest , but rules and regulations ought to be adheared to.

Clear and unambiguous statutory requirements will not be cured by invoking Article 159(2) (d) of the COK and sections 1A,1B and 3A of the Civil Procedure Act. The proposed additional affidavits that I have seen will not introduce new evidence , but will support the grounds stated in the petition . I am persuaded that they will not amend the nature of the petition . I have with a lot of restraint refrained from striking out the application, so as to create a fair playing ground to the parties, and an opportunity to each to ventilate their respective cases. Article 38, 48 and 50 of the COK.( See also Kakuta Hamisi Vs Peris Tobiko & 2 others)

30. Upon exercise of my discretion, I shall allow filing of the new affidavits sought by the applicant , starting with her further affidavit in support .

There is no doubt that the proposed 35 affidavits will burden the respondents and may create mini petitions within this main petition. The upshot is that I shall partially allow the application but upon the following terms :-

(1).That the petitioner shall proceed to file and serve her further/supporting affidavit in support of her petition within 5 days of this ruling. The further affidavit shall not more additional than 8 (eight) pages long , font 13 , spacing 1. 5.

(2).The petitioner is further granted leave to file and serve witness affidavits with annextures as stated in prayer No. 13 of the application . However the additional affidavits shall be limited to not more than 8 (eight) out of the 35 sought to be introduced .

(3).For avoidance of doubt, the affidavits referred to above in (1) and (2) above shall be filed and served within 5(five) days of this ruling. The Respondents shall have 3 days to file their responses if any, with corresponding leave to the petitioner to reply within 3(three) days of such service, excluding weekends.

(4. ). In the matter of scrutiny and recount of votes, consent was recorded by parties on the 11/10/2017. It will be revisited at the close of the petitioners case and evidence.

(5).All other prayers sought by the petitioner / Applicant in the application dated 27/9/2017 are disallowed.

(6).The petitioner shall pay costs to each of the Respondents, assessed at shs.10,000/= each. The said costs shall be paid on or before the 20th day of November,2017.

(7).Pre trial directions shall be taken on the 1st day of December, 2017.

It is so ordered.

Delivered, Dated and signed at Kakamega this 10th day of November2017

J.MULWA

JUDGE

In the presence of

Ayieko & Ms. Ashioya ……….Petitioner/Applicant

Ms. Wakoli………..…...……….for 1st & 2nd Respondents

Mr. Anzala…..……….…..…….for 3rd Respondent

Susan …………………….….…….Court Assistance