[2017] KEHC 2596 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

ELECTION PETITION NO. 1 OF 2017

IN THE MATTER OF ELECTIONS ACT NO. 24 OF 2011 AND THE ELECTIONS (GENERAL REGULATIONS 2017 AND THE ELECTIONS (PARLIAMENTARY AND COUNT) PETITIONS RULES

AND

IN THE MATTER OF ELECTIONS FOR THE NATIONAL ASSEMBLY ELECTIONS FOR NAKURU TOWN WEST CONSTITUENCY WITHIN NAKURU COUNTY HELD ON THE 8TH AUGUST, 2017

ISOE OCHOKI ANDREW MINGATE …....… PETITIONER/APPLICANT

AND

INDEPENDENT ELECTORAL AND

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

GILBERT SEREM, CONSTITUENCY RETURNING OFFICER, NAKURU

TOWN WEST CONSTITUENCY ………..….…….. 2ND RESPONDENT

ARAMA SAMUEL ……………………….........……3RD RESPONDENT

RULING

The General Elections were held in Kenya on the 8th day of August, 2017. Following those election, the 3rd Respondent SAMUEL ARAMA was declared the winner of the Nakuru Town West Constituency Parliamentary contest having garnered 29,682 out of the total 71,680 votes cast in that election. The 3rd respondent was therefore announced as the validly elected Member of Parliament for Nakuru Town West Constituency.

The petitioner ISOE OCHOKI MINGATE, who was also a candidate in that election garnered 25,071 out of the total number of votes cast and came second in the contest. The petitioner thereafter filed at the High Court in Nakuru this Election Petition No. 1 of 2017 dated 5th September, 2017 in which he has challenged the validity as well as the legality of the said election. In that petition, the petitioner has asked that the court make a declaration that the Parliamentary Election held on 8th August, 2017, was not conducted in accordance with the Constitution and the applicable law, therefore rendering the results as declared invalid, null and void. The petitioner further sought orders that the 3rd respondent was not validly elected as Member of the National Assembly and sought an order directing the IEBC to organize and conduct fresh Parliamentary Elections in Nakuru Town West Constituency.

In this petition the Electoral body being the IEBC is named as the 1st Respondent whilst MR. GILBERT SEREM who was the Returning Officer for Nakuru Town West Constituency is named as the 2nd Respondent.

Subsequent to filing the main petition, the petitioner did also file a Notice of Motion dated 12th September 2017 in which he sought the following orders:

1. The application be heard ex-parte in the first instance and same be certified as urgent.

2. That the honourable court be pleased to grant an order for scrutiny and Re-count of all votes cast to and/or in favour of all candidates who contested for Parliamentary seat, NAKURU TOWN WEST CONTITUENCY during the General Election held on the 8th August, 2017.

3. Immediately upon the filing of the Petition, the 1st and 2nd Respondents do avail all the material including electronic documents, devices and equipment for the Parliamentary Election;

4. A specific order for scrutiny of the rejected and spoilt votes;

5. An order for scrutiny and audit of all the returns of the Parliamentary Election including but not limited to Forms 35A, 35B and the Tally sheet, Form 32A, Ballot Boxes, Seals, all Ballot Books (used and unused)

6. The 1st Respondent to avail the Booklets and also the list of Gazetted Polling Centres.

7. The attached documents to the Supporting Affidavit be deemed as duly filed.

8. An order for scrutiny and audit of the system and technology used by the 1st and 2nd Respondents in the Parliamentary Election including but not limited to the KIEMS Kits, the Server(s), website/portal.

9. A declaration that the non-compliance, irregularities and improprieties in the Parliamentary Election were substantial and significant that they affected the result thereof;

10. Consequent to prayers (2-7) hereinabove being granted, the results for the scrutiny and re-count, be pronounced and/or announced prior to (sic) the substantive hearing of the Petition and in any event, the results of the said exercise be taken into account by the honourable court.

11. That the honourable court be pleased to make further and/or suitable orders, towards the expeditious hearing and disposal of this instant application.

12. Costs of this Application be provided for any in any event be borne by the Defendants/Respondents.

13. Such further and/or other orders be made as the court may deem fit and expedient.

The application was supported by the affidavit sworn by the Petitioner on 12th September, 2017. The 1st and 2nd Respondents filed their replying affidavit on 4th October, 2017 while the Replying Affidavit of the 3rd Respondent was sworn on 3rd October, 2017.

The court gave directions that parties do file written submissions in respect of this application and counsel did appear before the court to highlight the same on 24th October, 2017.

The court did ‘suo moto’ direct the 1st Respondent to avail election materials being the Ballot boxes, as well as the original copies of Forms 35A and Form 35B for inspection by all parties. This order was duly complied with and that inspection took place on 13th October, 2017 before Hon. Omido the Deputy Registrar. The report of this exercise was filed in court and forms part of the court record. That exercise to a great extent disposed of prayer (d) of this application.

Prayer (b) of this application is a substantive prayer which orders would in my view have to await the full hearing of the main petition. Prayers (f) and (k) were similarly disposed of by the courts directions made on 10th October, 2017. As such this court is left to deal with prayers (a) (b) (c) (d) and (e) of the motion

DR. MUTAKHA KANGU, MR. GORDON OGOLLA, MR MONGERI and MR. OCHOKI all appeared for the petitioner. In his application the petitioner sought orders for scrutiny and audit of the election materials being the ballot boxes, ballot seals, Forms 35A, 35B and 32A, the tally sheet, the booklets and the list of Gazetted Polling Stations as well as all ballot books whether used or unused. The petitioner also sought orders for scrutiny of the KIEMS system, all the votes cast in the election including the rejected and spoilt votes.

It was submitted for the petitioner that the elections as conducted by the 1st and 2nd respondents on 8th August 2017 were not free or fair but were instead tainted with improper influence, corruption, inefficiency and inaccuracy. It was argued that there were widespread errors, miscalculations, deletions and additions in the statutory forms, which ended up substantially decreasing the petitioner’s votes in several polling stations, thereby unlawfully favouring the 3rd respondent. In the petitioners supporting affidavit dated 12/9/2017 at paragraphs 24 to 50 the petitioner set out the specific polling stations in which the complained anomalies had occurred.

Counsel for the petitioner submitted that since the alterations were mainly done in the Forms 35A and 35B, it would be necessary to scrutinize those forms to determine if they actually support the given results. It was alleged that contrary to the provisions of Regulation 79 of the Elections General Regulations 2012, not all the statutory forms had been signed by the Presiding Officer and the agents of the candidates.

Counsel finally submitted that given the variations and contradictions in the forms as highlighted in the petitioner’s affidavit an order of scrutiny and recount was necessary in order to ascertain the validity, correctness and verifiability of the votes cast. Such an exercise would enable the court to ascertain the nature, cause, extent and basis of the discrepancies in these forms.

MR. LAWRENCE KARANJA counsel for the 1st and 2nd Respondents opposed the application in its entirety and countered that the KIEMS Kits, the servers the website/portal have no relation whatsoever to Parliamentary elections since the KIEMS Kit was applied for voter identification and transmission of results in relation ONLY to the Presidential Elections.

Counsel submitted that a prayer for scrutiny and recount ought not be granted as a matter of course as this would only enable the petitioner to engage in a ‘fishing expedition’. He submitted that a proper basis must be laid by the petitioner before such orders may be granted.

Mr. Karanja set out a distinction between scrutiny and recount of votes. A recount is aimed at determining the number of votes cast in favour of each candidate to examine all the votes cast, to identify ineligible votes and to establish which votes if any were void. A recount is more involved in the arithmetic of the voting process.

The purpose of scrutiny on the other hand is to determine the validity of the votes cast. Counsel cited Rule 29(2) of the 2017 Election Petition Rules which required that a party seeking scrutiny lay sufficient basis for this request and Rule 29(4) which provides that scrutiny will only be confined to the polling stations in which results have been disputed. He submitted that there had been no allegation of irregularities in all 159 Polling Stations.

Counsel for the 1st and 2nd Respondents also argued that the court must consider the margin of votes between the winner of the election and the petitioner. The aim of scrutiny is to enable the court reach a just determination of the petition. Counsel submitted that all the issues raised by the petitioner in this application have been properly and adequately responded to by the 2nd respondent’s replying affidavit. In any event it is not every malpractice that merits a recount or scrutiny. The petitioner must show that the malpractices complained of were so widespread and so prevalent that they affected the results of the election. He relied on the petitioner’s own admission that he had toured the various polling stations and was fairly satisfied with the voting process.

DR. NYAUNDI and MR. NYAGAKA represent the 3rd respondent in this petition. Counsel submitted that the only issues for determination in this application are the prayers for scrutiny and recount. Counsel reiterated the submissions made by Mr. Karanja regarding the distinction between scrutiny and recount. It was submitted that the petitioner had not laid down sufficient grounds to warrant the grant of the orders being sought. The petitioner cannot make a blanket request for recount and scrutiny – they must specify in which particular polling stations results are being disputed. Finally counsel for the 3rd respondent submitted that the petitioner has failed to establish a ‘prima facie’ case for grant of the orders being sought.

ANALYSIS AND DETERMINATION

The applicants herein have sought for a total of 13 prayers in the Notice of motion dated 12th September, 2013. As has been indicated earlier the majority of the prayers dealing with the production of the electoral materials; their storage and sealing have already been dispensed with by the orders of this court made on 10th October, 2017.

Section 82(i) of the Elections Act provides

“An election court may, on its own motion or on application by any party to the petition during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election court may determine”.

Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules 2013 provides as follows

1. The parties to the proceedings may, at any stage, apply for scrutiny of votes for purposes of establishing the validity of the votes cast;

2. Upon an application under sub-rule (1), the court may, if it is satisfied that there is sufficient reason, order for a scrutiny or recount of votes;

3. The scrutiny or recount of ballots shall be carried out under the direct supervision of the Registrar and shall be subject to the directions as the court may give;

4. Scrutiny shall be confined to the polling stations in which the results are disputed and shall be limited to the examination of

(a) The written statements made by the presiding officer under the provisions of the Act;

(b) The copy of the register used during the elections;

(c) The copies of the results of each polling station in which the results of the election are in dispute;

(d) The written complaints of the candidates and their representatives

(e) The pacts of spoilt papers;

(f) The marked copy of register;

(g) The packets of counterfoil of used ballot papers;

(h) The packets of counted ballot papers;

(i) The packets of rejected ballot papers; and

(j) The statements showing the number of rejected ballot papers

In PHILIP MUKWE WASIKE Vs JAMES LUSWETI MUKWE & 2 OTHERS [2013] eKLR the court held that the purpose of scrutiny is

(i) To assist the court investigate if the allegations of irregularities and breaches of the law complained of are valid;

(ii) To assist the court in determining the valid votes cast in favour of each candidate and

(iii) To assist the court to better understand the vital details of the electoral process and gain impressions on the integrity of the electoral process.

The principles on which the order of scrutiny and recount will be granted were summarized by the Supreme Court in GATIRAU PETER MUNYA Vs DICKSON MWENDA KITHINJI [2014] eKLR as follows:-

a) The right to scrutiny and recount of votes in an election petition is anchored in Section 82(i) of the Elections Act and Rule 33 of the Elections (Parliamentary and County Elections) Petitions 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 is to establish the basis for such a request, 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 of which the results are disputed, or where the validity of the vote is called into question in the terms of Rule 33(4) of the Election (Parliamentary and County Elections) Petitions Rules.

Therefore an application for scrutiny or recount of votes may be made at any stage of the proceedings so long as the court is satisfied that the party so applying had adduced sufficient evidence to support that application. An order for scrutiny will not be granted as a matter of course as the court must guard against any abuse of court process. Rule 33(2) is clear that proper basis must be made before such orders are granted. Orders for scrutiny or recount cannot and will not be granted merely to enable a party go on a ‘fishing expedition’ in an attempt to discover new or fresh evidence.

In the case of PHILIP OSORE OGUTU Vs MICHAEL ARINGO & 2 OTHERS [2013] eKLR it was held that

“It is expected that a party filing an election petition is, from the outset, seized of the grounds, facts and evidence for questioning the validity of an election, and where the evidence is unclear then the party can, on application to court, seek and obtain better particulars of that evidence from its adversary. But it would be an abuse of process to allow a party to use scrutiny for purposes of chancing new evidence. Scrutiny should not be looked upon as a lottery”.

As per rule 33(4) the party seeking scrutiny must specify the polling stations in which results are disputed and the order of scrutiny will be limited to those particular polling stations only

From the material presented before this court in support of the application it is evident that the prayers being sought are anchored on the perceived irregularities error and anomalies in the Forms 35A. Counsel for the petitioner had argued that these statutory forms were altered in a manner to favour the 3rd respondent. Therefore it is clear that at this juncture what is being sought is a scrutiny of the Forms 35A and 35B in the particular polling stations cited.

The applicant case is that it is necessary to have a scrutiny of these statutory forms to determine whether they support the final results as announced. In the event that the court is unable to determine the results of the election by way of these statutory forms then a recount of votes should be ordered.

The 1st and 2nd respondents have disputed the averments of the petitioner that the statutory forms contain irregularities. However the 2nd respondent through paragraph 16 and 23 of his replying affidavit was not opposed to a scrutiny of the forms and in fact averred that such a scrutiny would reveal that the results were valid, correct and verifiable. The 2nd Respondent in his Replying Affidavit dated 3rd October, 2017 at paragraph 22(t) conceded that the original Form 35A for Kibowen Komen Primary School stream 002 was unavailable as it had inadvertently been placed into the Ballot box by the returning officer after which said Ballot box was sealed.

For the above reasons I am persuaded that there exists sufficient justification to order scrutiny of the Forms 35A and 35B but only in relation to the polling stations complained of in paragraphs 24-50 of the Petitioner’s affidavit in support dated 12/9/2017.

However I am not persuaded that sufficient basis has been laid to warrant the grant of the prayers for scrutiny and recount of all the votes including the spoilt votes. These prayers will have to await the outcome of the scrutiny of the stated Forms 35A & 35B. The petitioner remains at liberty to re-apply for scrutiny and/or recount at any stage of the proceedings should they feel that adequate evidence has become available. (see JOSEPH TIAMPATI OLE MUSUNI & 2 OTHERS Vs SAMUEL KUNTAI TUNAI & 10 OTHERS NAKURU PETITION No. 3 OF 2013 U/R.

Similarly I find that no sufficient basis had been laid to support the prayer for scrutiny and audit of the KIEMS Kit, the servers and portal/website, which prayers I hereby decline to grant.

Based therefore on the foregoing this court makes the following orders;

1. The Deputy Registrar of this court shall on Friday, 10th November, 2017 carry out a scrutiny of the Forms 35A and 35B of the Parliamentary election for Nakuru Town West Constituency.

2. The above scrutiny shall be limited only to the statutory forms in relation to the polling stations where the results have been disputed specifically the polling stations listed at paragraph 24-50 of the applicant’s affidavit sworn on 12th September, 2017.

3. The Ballot Box for Kibowen Komen Polling station 002 shall be availed in court by the 1st Respondent. The said Ballot Box shall be opened in the presence of the Deputy Registrar and the Form 35A said to have inadvertently sealed therein shall be extracted. The Ballot Box will then be re-sealed in the presence of all parties. This form shall also be scrutinized together with those in (2) above

4. During the scrutiny exercise each party is at liberty to have a maximum of two (2) agents present. NO supporters or members of public will be admitted. Counsel for the parties may also witness the scrutiny.

5. In order to facilitate this scrutiny the Deputy Registrar is at liberty to nominated Executive officers, court clerks or researchers to assist in the exercise as he may deem necessary.

6. Adequate security is to be arranged for the exercise.

7. A report of the scrutiny exercise shall be filed and served by Wednesday 15th November, 2017. This report will form part of the court record and parties will be at liberty to submit on the same at the end of the hearing.

8. Costs for this application will be in the cause.

Dated and signed this 7th day of November, 2017.

Maureen A. Odero

Judge