[2008] KEHC 1889 (KLR)
The court found that, in the interest of truth and justice, it was necessary to establish what happened to ballot boxes No. 43214 and 43415 from polling through to scrutiny, including their contents. The court determined that the application for investigations was justified and not opposed by any party. However, the...
Source-derived case information.
- Citation
- [2008] KEHC 1889 (KLR)
- Parties
- Petitioner: Jayne Njeri Wanjiru Kihara; Respondent: Christopher L. Ajele; Respondent: Electoral Commission of Kenya; Respondent: John Michael Njenga Mututho
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Election Petition 2 of 2008
- Procedural Posture
- Election Petition / Ruling on Interlocutory Application for Investigations During Scrutiny
- Outcome
- Application for investigations granted; scandalous affidavit paragraphs expunged.
- Judges
- FI Koome
- Legal Topics
- Scrutiny of Votes, Investigation of Election Materials, Expungement of Affidavit Paragraphs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jayne Njeri Wanjiru Kihara
Petitioner
Christopher L. Ajele
Respondent
Electoral Commission of Kenya
Respondent
John Michael Njenga Mututho
Respondent
Procedural Posture
Election Petition / Ruling on Interlocutory Application for Investigations During Scrutiny
Legal Issues
- 1 Whether the court should order the C.I.D. to investigate the handling of ballot boxes No. 43214 and 43415 from polling to scrutiny.
- 2 Whether generalized and scandalous allegations in the supporting affidavit should be expunged from the record.
Ratio Decidendi
The court found that, in the interest of truth and justice, it was necessary to establish what happened to ballot boxes No. 43214 and 43415 from polling through to scrutiny, including their contents. The court determined that the application for investigations was justified and not opposed by any party. However, the court also found that paragraphs 7, 11, and 18 of the supporting affidavit contained generalized and scandalous allegations, referring to unnamed persons and implying possible tampering by the petitioner without substantiation. These paragraphs were therefore expunged from the record. The court ordered the C.I.D., through the Provincial Criminal Investigation Office, Nakuru,...
Court Disposition
Application for investigations granted; scandalous affidavit paragraphs expunged.
Orders
- The C.I.D. through the Provincial Criminal Investigation Office, Nakuru, shall carry out comprehensive investigations on ballot boxes No. 43214 and 43415 from polling to scrutiny.
- The report of the investigation shall be filed in court within 60 days from the date of the order.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Election Petition Cause 2 of 2008
JAYNE NJERI WANJIRU KIHARA..............................PETITIONER
AND
CHRISTOPHER L. AJELE
(Returning Officer of Naivasha Constituency)....1ST RESPONDENT
ELECTORAL COMMISSION OF KENYA...............2ND RESPONDENT
JOHN MICHAEL NJENGA MUTUTHO..................3RD RESPONDENT
RULING
On the 10th July 2008 while scrutiny and counting of the votes cast at Naivasha Parliamentary elections was going on, the 3rd respondent filed a notice of motion seeking that the C. I. D. be directed to carry out comprehensive investigations on the storage of ballot box No. 43214 and 43413. On 11th July 2008, this court directed that the scrutiny of all the votes cast be completed and the court will deal with all the issues that required investigations. This matter was revisited again, counsel for the 1st and 2nd respondent had no objection to the orders sought. Mr. Wamasa submitted that as far as the 1st and 2nd respondent are concerned because no order has been made for the destruction of the election materials and they are therefore eager to make the investigations carried out. Mr. Kihara too on behalf of the petitioner does not object to the investigations given that he objects to the averments contained under paragraph 7, 11 and 18 of the supporting affidavit by the 3rd respondent. Those three paragraphs contain generalized allegations that are scandalous and allude that the petitioner who has an interest with the outcome of the petition may have tampered wit the ballot boxes.
Upon listening to all the parties it is generally agreed that in the interest of establishing the truth and justice in this matter what happened to ballot box No. 43214 and 43415 from the time of polling, storage, transportation and upto the time of scrutiny must be established. Also the entire contents of the ballot boxes must be established. This request is adequately supported by the matters stated in the application therefore I agree the allegations contained under paragraph 7, 11 and 18 of the supporting affidavit by the 3rd respondent are merely generalized, they are scandalous and are therefore expunged from the record. The allegations refer to people who are not named. I order that the C.I.D. through the Provincial Criminal Investigation Office, Nakuru do carry out comprehensive investigations on the ballot boxes No. 43214 and 43415 from polling to scrutiny. The report of the investigation be filed in court within 60 days from today. The applicant to serve the P.C.I.O. with this order within 7 days, failure to which any other party shall be at liberty to serve them. This disposes the notice of motion dated 10th July, 2008.
Ruling read and signed on 28th day of July, 2008
M. KOOME
JUDGE