[2017] KEHC 3111 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ELECTION PETITION NO.3 OF 2017

IN THE MATTER OF THE ELECTION ACT NO.24 OF 2011 LAWS OF KENYA

AND THE ELECTION (GENERAL) REGULATIONS, 2012 AND ELECTIONS (PARLIAMENTARY AND COUNTY) PETITION RULES 2017

AND

IN THE MATTER OF THE ELECTIONS OF THE GUBERNATORIAL ELECTION FOR KISII COUNTY, COUNTY NO.45 HELD ON 8TH AUGUST, 2017

BETWEEN

JOEL MAKORI ONSANDO KUNGA...............................1ST PETITIONER

FRANCIS MOCHOGE OMAO..........................................2ND PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL AND

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

ROBERT ISAAC SIDNEY NAMULUNGU.....................2ND RESPONDENT

JAMES ELVIS OMARIBA ONGWAE...........................3RD RESPONDENT

JOASH ARTHUR MAANGI GONGERA .......................4TH RESPONDENT

NAFTALI OBWOCHA ORINA........................................5TH RESPONDENT

RULING

1. The applicant/petitioner filed two applications dated 26th September 2017 and 29th September 2017. At the same time the 3rd – 5th respondents filed four applications all dated 27/09/2017. The court directed that all the applications be heard simultaneously.

2. In the application dated 26/09/2017, the petitioner seeks leave to file certificates of digital photographs and adduce more evidence in support of the application.

He also prays that this court do appoint a document examiner to study and inspect, before the commencement of the hearing of the petition, the 3rd respondent’s signatures appearing on two letters appointing NAFTAL OBWOCHA and GEOFFREY MOGIRE as Kisii County Chief Agent for purposes of establishing the authorship, and a report be furnished to this court.

3. The application is premised on grounds that the petitioner inadvertently failed to attach two affidavits in relation to the printouts of the 5th respondent’s (NAFTAL OBWOCHA) facebook posts which are already annexed. He contends that this will not be introducing new grounds of petition but merely adding more information to the existing grounds. He explains that there are two conflicting letters of appointment of the chief agent by the 3rd respondent and the authorship is in issue.

4. The applicant believes that this additional information is necessary to enable the court arrive at a just and expeditious disposal of the petition, and the respondent will not suffer any prejudice, as they would have a corresponding right to respond to the issue.

5. In the supplementary affidavit the 1st petitioner explains that in a race to beat the deadline for filling the petition, he inadvertently left out the information under reference. He also omitted to attach a certificate of verification by BRIAN GICHANA OMWENGA, a computer expert who verified the authenticity of the facebook posts and account.

6. He further explains that the need to verify the signatures on the letters stem from the fact that the 3rd respondent has denied being the author.

7. Mr. Begi submitting on this application argued that Order 12 sub rule 9 of the Elections (Parliamentary and County Elections) Petitions Rules 2017 provide as a matter of course for granting parties leave to file supplementary affidavits and the court can even on its own motion direct so. Counsel explains that the element of such application is that the petitioner’s interest is to bring forth all the evidence required in determining the dispute pending before this court, and there are no cards hidden under the table.

8. It is also submitted that the request to have the document examiner study and examine the questioned signatures and file a report is because the petitioner believes that the documents under reference are forgeries and intended to mislead the court. It is his contention that the prayer is genuinely intended to uphold the dignity of the court and communicates to parties that the court is not a place where parties can just cook up papers and present them.

9. As for the application dated 29/09/2017, the applicant/petitioner has sought orders directing the 1st respondent to produce in court, before the commencement of the hearing of this petition, the original copies of the following statutory forms used to declare and announce the results of elections held in Kisii County on 8th April 2017 namely:-

i) Form 37C

ii) Form 39 C

iii) Form 38 C

iv) Forms 37B, 38B, 39B, 35A and 34B for Bobasi, Kitutu Chache South, Bomachoge Borabu, Bomachoge Chache, Bonchari, Nyaribari Chache, Nyaribari Masaba, South Mugirango and Kitutu Chache North Constituencies

v) Forms 38B

10. The reason for seeking the orders is that some of the attached statutory forms are not clear and it is the 1st respondent who has custody of all the original forms used to declare and announce the results.

11. In arguing this application, Mr. Begi submitted that the application is pegged to provisions of Article 50 of the Constitution of Kenyawhich guarantees the right to fair hearing and demands that parties must know the nature of evidence to be presented against them.

Further that their request to be supplied with the statutory forms is supported by Article 35 of the Constitution of Kenya which provides for right to access information.

12. Mr. Begi explained that the documents are necessary because the country has witnessed the Independent Electoral and Boundaries Commission (IEBC) disowning its own documents in the Supreme Court, and now the Registrar at the Supreme Court is being investigated by the Ethics and Anti Corruption Commission on documents which they gave.

13. Counsel explains that it is necessary that the petitioner and the court get documents owned by the maker, so as to avoid a similar situation like what is currently being alleged happened at the Supreme Court.

14. He also draws to the court’s attention one of the applications filed by the 1st respondent seeking striking out of some paragraphs in the applicant’s supplementary affidavit on basis of illegality, saying it is the 1st respondent who gave out those illegible forms and if they would supply legible ones then there would be no need to strike out any paragraphs.

15. In responding to the applications, Mr. Obondi for the 1st respondent requested the court to allow the 3rd respondent’s counsel to make his submissions first because he had not been served with the application. He however was willing to deal with the application orally as he had just borrowed a copy of the application from the applicant’s counsel for perusal.

16. In responding to the application, MR. WANYAMA on behalf of the 3rd – 5th respondents also argued their applications all dated 27th September 2017. He however indicated that he would abandon two of these applications and proceed with only two.

17. In opposing the applicant’s two applications, MR. WANYAMA argued that the Elections Act limits with strict finality the period within which an election petition can be filed to 28 days – no more no less. He also referred to Article 87 of the Constitution of Kenya which addresses the timely resolution of electoral disputes to 28 days saying, the same is couched in mandatory terms and the court has no jurisdiction to extend the filing of evidence which is supposed to be filed together with the petition within 28 days. Counsel referred to Rule 7of theElection Petition Ruleswhich describes what a petition is and argued that the affidavits by the petitioner constitute part of the petition and the court cannot allow further affidavits to be introduced. It is his contention that the only instance where the court has discretion to enlarge time is with regard to practice directions and orders given by the court, and allowing petition to file further affidavit is not one of them. It was counsel‘s contention that that is the reason why Rule 19 (d) limits the court’s discretion and spells out the extent to which a court in an election petition can extend time.

18. MR. WANYAMA also pointed out that Rule 19 (2) emphasizes the period within which the petition is required to be filed, heard, and determined, and the strict timelines of filing responses kick in. He insists that 28 days allowed for the petition is sufficient time to collect evidence and support their case. Further that in contrast, the respondent has only 7 (seven) days to file a response AFTER service. He argued that this advantage was designed so as to ensure the petitioner exercises due diligence and not later attempt to introduce additional evidence. Further that to do otherwise would affect the expeditious disposal of election petitions and greatly prejudice the respondent.

19. What is the additional evidence? MR. WANYAMA submits that one set of additional evidence is the certificate of digital verification. However there is also the undisclosed evidence which is not specified and is simply referred to as further affidavits. It is contended that whereas the court in certain instances has allowed additional evidence, he points out that in this instance it is not disclosed who will be introducing that evidence, and its nature. This is where the 3rd – 5th respondents are apprehensive that to allow such a blanket application would change the entire character of the petition as it may well amend the petition.

20. As regard the request to appoint a document examiner, before hearing commences it is submitted that such a request should abide hearing of the evidence first because the petitioner must lay a basis for such orders to be made, and in any event it is tantamount to scrutiny of evidential material.

21. While conceding that an election court has certain inquisitorial powers where it wishes to know the nature of the evidence – such power can only be exercised once a basis for doing so is established. He drew the court’s attention to certain features in the two letters appearing at page 23 and 24 of the record and posed the question – what will the document examiner be comparing the two documents to – does the petitioner have the original letter? He also assured this court that 3rd respondent is a witness in this petition and will be able to confirm to the court whether he is the author of the letters.

22. It is on these grounds that the court is urged to dismiss the application dated 26/09/2017.

23. As for the application dated 29/09/2017 it is MR. WANYAMA’s submission that the applicant is simply testing the court’s jurisprudence saying the court is being asked to direct IEBC to produce original copies of statutory forms used to declare and announce results of other election positions and the fundamental question is what does form 34B which relates to the presidential election, or form 39 and 38 which relate to other electoral positions have to do with gubernatorial elections. He argues that this court has no jurisdiction to make such orders for production of statutory forms for parties which are not in contest in this court.

24. MR. WANYAMA pointed out that this court is sitting specifically to hear electoral process affecting the position of the Governor of Kisii County, and there are other courts in the country gazetted to hear election disputes for those other five elective positions (which courts) may require the use of those very statutory forms. He submits that such a request is not only against public policy, but will also create judicial conflict with other courts. He concedes that an order may be made for production of the relevant forms relating to the election of governor but this must be exercised only if a need for scrutiny is established. In this regard then, the petitioner must first lay a basis by way of evidence.

25. It is further argued that even if the court were to find that the prayer is proper, then the same is misplaced as the petitioner has not pleaded the need for scrutiny nor does it form one of the prayers. As far as he is concerned, the petitioner is simply shifting goal posts, and expecting the respondent to respond to prayers which are like a moving target.

26. MR. WANYAMA expressed surprise that the petitioner has not requested for form 37A which is the principal document in declaration of results, and instead asks for Forms 37B and C. Counsel argues that Article 50of the Constitution alone is not a justification for production of the forms without laying a basis, and Article 159 (d)of the Constitution does not offer a cure.

27. It was also pointed out that the 3rd respondent has sought striking out of several paragraphs as contained in the application dated 27/09/2017. It is the 3rd – 5th respondent’s contention that the documents appearing in pages 58, 59, 78, 79, 95, 96, 131, 132, 134, 135, 136, 137, 138, 142, 143, 164, 165, 166, 167, 169, 170 and 171 of the petitioner’s bundles are not legible at all and should therefore be struck out. The 3rd and 5th respondents state that they will be greatly prejudiced if the petitioners were to proceed with the documents which they are unable to read.

28. MR. WANYAMA submits that Article 35 is not an automatic cure as the petitioners have not even shown any attempts made at getting the forms from IEBC by way of a written request. He argues that one can only activate Article 35 if a request has been made and the IEBC has refused to avail the forms; citing their own situation where they made a request for the forms from IEBC and these were readily supplied. Counsel maintains that the petitioner is on a fishing expedition and does not know what he wants.

29. MR. OBONDI on behalf of the 1st and 2nd respondents shares similar views with MR. WANYAMA regarding introduction of further affidavits by the petitioner, saying that amounts to allowing amendment of the petition after the 28 days lapse.

30. He also points out at the ambiguity/generality of the prayer seeking to introduce additional affidavits whose contents and makers are not disclosed, saying the respondents have a right to know the case they are answering to, and any further evidence would be prejudicial to them.

31. He argues that the prayer suffers want of certainty, and their right to respond to the request is limited by lack of specificity. MR. OBONDI points out that the least the petitioners could have done was to annexe a further affidavit depicting the evidence intended to be adduced. He wonders what the court will be looking at to determine whether to allow filing of further evidence.

32. MR. OBONDI has also cast aspersions on the impugned documents which are sought to be presented to a document examiner, as the originals have not been shown to court and says due to some altered features on the document at page 23, there is a possibility that the same was electronically generated. It is argued that the whole exercise would be futile, and the request ought to be dismissed.

33. As for the request for the statutory forms MR. OBONDI’s response was that the petitioner failed to request IEBC for the information yet that right has all along been available, so that the petitioner only needs to ask and they will receive.

34. The caveat to this however is that the petitioner seems to want ALLstatutory forms for all the positions contested, and say if the petitioner were to write to IEBC for the statutory forms relating to the gubernatorial position, the same would be supplied in clear copies.

35. In response MR. BEGI submitted that one does not need to make a request in writing before invoking Article 35 of the Constitution. Further that, in any event party agents are not supposed to request for the forms and a supply of those forms will not change the character of the petition. As far as he is concerned, all the forms for the 6 elective positions are relevant in proving the petitioners’ case.

36. The 3rd – 5th respondents’ abandoned the applications which sought that the court enhances the security deposited by petitioner and in the alternative to summon the petitioners to attend court and explain how they intended to meet the costs of defending the petition in the event that the petition is determined against them.

They also abandoned the application which sought for striking out of the petition for want of payment of security as provided under Section 78 (2)of the Elections act. Also abandoned is the application seeking striking out the petition for non compliance with the mandatory requirements of Section 23 (2A)andSection 34 (A)of theAdvocates Act. These are the applications which the 3rd Respondent’s counsel has abandoned as he did not present arguments on them. That is the inference to be reasonably drawn.

37. The main issues for determination are:-

1) Does a petitioner have a right to file supplementary affidavits in support of the petition?

a) Would such introduction of affidavits amount to amending the petition and therefore a violation of the 28 days statutory period which limits the time within which to file a petition?

b) Can a party be given leave to file further affidavits without specific indication of who the maker is intended to be and the nature of evidence intended to be introduced?

2) Are there certain parameters set for the court before orders of submitting a document sought to be relied on by any party to the document examiner can be issued?

3) Is a party in an election petition entitled to request to be supplied with ALLstatutory forms used to contest allthe 6 elective posts in the concluded general elections of 8th August, 2017?

4) Should various paragraphs and documents cited by the 3rd respondent be struck out on grounds that the documents relied on are illegible.

FURTHER AFFIDAVITS

38. The Election Petition and the response to the election petition constitute the main pleadings in election dispute resolution. The purpose of the pleadings is to give the adversary a fair notice of the case being filed against them. This position was stated in the case of BENJAMIN OGUNYO ANDAMA –VS- BENJAMIN ANDOLA ANDAYI and 2 Others (election petition (Kakamega) No.8 of 2013s

WHAT CONSTITUTES AN ELECTION PETITION?

39. Rule 7 of the Elections (Parliamentary and County Elections) Petition Rules 2017, does not define what a petition constitutes. Rule 8 (1) describes the content and form of a constitution to include:-

a) The name and address of the petitioner;

b) The date when the election in dispute was conducted;

c) The results of the election if any and however declared

d) The date of the declaration of the results of the election.

e) The grounds in which the petition is presented.

f) The name and address of the petition, advocate if any.

The petition must also conclude with a statement setting out the particulars of relief sought.

40. In my view this is what defines a petition. However Rule 12 (1) provides that “the petition shall be supported by an affidavit ... sworn personally by the petitioner.”

The petitioner is required to file the petition along with his/her affidavit at the time of filing.

41. The importance of the affidavit is captured under Rule 12 (8) that unless the court grants leave, a witness shall not give evidence if he/she has not sworn and filed an affidavit. And where there is such omission, then the court under Rule 12 (9) may on its own motion or on application by any party to the petition direct a party or witness to file a supplementary affidavit. This leeway is not a preserve limited to the respondent alone – it is for ANYparty.

42. Further, under Rule 15 (1) (h) of the Elections (P and C E) petition Rules 2017, the court may during pre-trial conference give directions on filing and serving further affidavits or giving additionalevidence (emphasis mine).

43. Commenting on the impact of this rule, Majanja J in the case of WAVINYA NDETI –VS- IEBC and 4 others (Machakos) [2013] e KLR opined that the said evidence could be in addition to existing evidence or it could be entirely new evidence. He was of the view that as far as the new evidence assists the court in the just disposal of the matter, it may be allowed. This was further elaborated by OGOLA (J) in ARTHUR KIBIRA APUNGU and ANOTHER –VS- IEBC and 2 OTHERS [2013] e KLR that filing of further affidavits can be allowed as long as they do not raise new issues which depart from the petition, and if the affidavits simply clarify or amplify issues already raised in the petition.

44. From the foregoing it is apparent that filing a further/supplementary affidavit by itself is not synonymous with amending a petition BUTa party must not be allowed to introduce evidence by means of affidavits which materially change the contents of the petition. Indeed in Raila and 2 others Vs Independent Boundaries and Electoral Commission and 3 Others the issue of additional evidence was examined-the emphasis being on whether such addition would change the nature and character of the petition

45. In the present case the petitioner seeks to introduce what he terms as limited additional material which counsel submits will not require much time to respond to, and is in no way new evidence – but simply two certificates authenticating electronic evidence (i.e. the digital photographs).

46. This is in reference to computer printout of Face-book posts by the 5th respondent. The petitioner has alluded to the 5th respondent’s conduct or lack thereof in paragraphs 72 to 95, and my understanding is that the facebook posts alluded to are intended to support the information contained in the aforementioned paragraphs which were already annexed and also formed part of the record

47. I acknowledge and agree that a petitioner in an election petition is restricted to prove only those complaints he/she has pleaded in the petition. This is why in the case of BENJAMIN OGUNYO ANDAMA –VS- BENJAMIN ANDOLA ANDAYI & 2 OTHERS(infra) the court struck out further affidavits filed by the petitioner as they sought to materially change the position of the petition – they raised disputes and complaints not contained in the petition.

48. Does the introduction of the supplementary affidavit by the computer expert change the character of the petition and effectively amend the petition or does it only look to provide an elucidation on issues already raised in the petition?

49. To my mind, in view of the contents of the paragraphs I have referred to, I am inclined to take the latter view. I do not think the application with regard to the certificates referred to is intended to regularize or salvage an incompetent election petition in terms of the mandatory informational requirements that has already been set out.

50. However the non-descript general further affidavit alluded to reeks of mischief as the request does not give sufficient information on the nature of the further general affidavit contents, who the makers will be or why they were not filed earlier. I need not delve further into this. My finding is that the applicant/petitioner shall be allowed to file and serve the further affidavit annexed to the application in relation to the digital certificates and orders are limited only to that extent.

DOCUMENTS TO THE DOCUMENTS EXAMINER

51. There are two letters appearing at page 23 and 24 of the record which are attributed to the authorship of the 3rd respondent. The petitioner claims they are forgeries and that the respondent has denied anything to do with these letters? Should the court then direct that the document examiner studies, examines and analyse the two letters and present a report to this court before the hearing commences?

52. The 3rd respondent’s counsel has argued that this is a motion which ought to await adducing of evidence by the parties and the 3rd respondent and cross examination thereto before making such orders.

53. A document examiner is an expert witness whose evidence may be required to corroborate or rebut the authenticity of a document’s contents as contemplated by Section 49of the Evidence Act.

54. In the case of PATRICK ASIRA –VS- REPUBLIC [1986] e KLR CA Criminal appeal , the court stated:-

“In cases where there is a problem about the writing, it is the duty of the court to satisfy itself after examination whether the expert’s opinion can be accepted.”

55. I think the petitioner is placing the cart before the horse – he must set out evidence which ought to be tested by way of cross examination regarding the documents he impugned, and this is critical in light of the anomalies already pointed out in one of the letters.

56. The court must also hear the petitioner who would confirm whether he signed the letters, and if there is contestation, then, and only then would the court direct that a document examiner ought to be engaged to assist in verifying the position. More on whether the court is bound to automatically accept a document examiner’s/expert’s opinion will be addressed later at an opportune time. Suffice it to say that this prayer is premature and is disallowed.

STRIKING OUT PARAGRAPHS/REQUESTED DOCUMENTS

57. The respondents have requested that certain pages and documents be struck out for being illegible. As though in response to this request the petitioner filed an application seeking that the 1st respondent be ordered to produce originals of statutory forms used in declaring results in all the six elective positions in Kisii County.

58. The respondents opposed this wide request on grounds that the court has no jurisdiction to order production of forms 39C, 38C, 38B, 39B and 34B, which were used for other elective positions. It is pointed out that the dispute line relates to the election of the Governor of Kisii County and the Petitioners are entitled to access the original forms 37B once they establish the basis because this is to a prayer for scrutiny yet there is no prayer for scrutiny.

59. I think it is not contested that some of the documents annexed by the petitioner are not legible. But where did the petitioner get the documents from? What is the nature of these documents? A perusal of the annextures is an arduous task in attempting to determine their content. MR. BEGI for the petitioner says they were supplied by the 1st respondent and the ill pointed out by the 3rd – 5th respondents will be easily cured once the 1st respondent avails a clearer copy. The 1st respondent’s counsel seems to immediately recognise these illegible documents and simply says the petitioner has never made a request for fairer copies. However the court is urged to limit the request to what is in issue here – the forms relating to election of governor.

60. It is really difficult to tell whether the illegible documents are the same statutory ones referred to in the petitioners’ application dated 29th September 2017. I think to be fair to the petitioners, I must take cognisance of the fact that the IEBC is the body which has custody of all the original documents used in the declaration of election results. It therefore only makes sense that for the illegible documents the 1st respondent do avail the original documents appearing at pages 58, 59, 78,79,95,131,132,134,135,136,137,138,142,143,164, 166,167,170 and 171 for the petitioners’ perusal and verification thereafter supply them with/ or allow them to make fairer them to make copies of the same.

61. Should the petitioner be supplied with all the statutory forms used in the declaration of results for all the 6 elective posts?

What is on trial before this court is the process used in arriving at the declaration that the 3rd respondent was validly elected as governor of Kisii County. The forms 34 mentioned in this application relate to 34A (Presidential Election Results at polling stations), 34B (collation of Presidential Election results at the Constituency Tallying Centre, 34C (declaration of results for election of President of the Republic of Kenya at the National Tallying Centre).

62. Form 34D is the certificate issued to the President Elect.

63. Form 35B relates to declaration of Member of National assembly election results at the Constituency Tallying centre, Form 37B relates to collation of County Governor Election results at the Constituency Tallying Centre.

64. Form 38B relates to collation of Senate election results at the Constituency Tallying centre., Form 38C – relates to declaration of Senate Elect Results at the County Tallying centre.

65. Form 39C relates to declaration of County Women Representative to the National Assembly Election Results at the County Tallying Centre.

66. Why would these forms be supplied on their original form to the petitioner before commencement of the petition? As far as I can decipher the dispute relates to the election of Governor and the relevant form is the 37 series, so the relevant request made here is for 37B. The evidentiary rule on relevance applies in any court proceedings. The other forms referred to in my mind require their relevance to be established by way of evidence before they can be presented to court for scrutiny. In any event, I am aware that there are other election petitions within the courts in Kisii touching on the other mentioned elective positions and really is this court being asked to confirm and fault the contents in these documents which form part of other EDR processes within Kisii County? I think not. I hold and find that this limb of the application is misplaced.

67. Of course there is the issue as to whether the petition ever made a request formally to be supplied with copies of the illegible documents and met a brick wall. Whatever the case, the prayer here now translates to a formal request but it is double edged as it does not categorically state that the sought after ALL statutory forms are the exact same illegible ones. Due to this ambiguity then I limit my directions the 1st respondent to supply the petitioner with copies of statutory forms relating to the gubernatorial position contested in Kisii County.

68. The petitioner is at liberty to review his application for the other forms relating to the 5 elective positions once evidence has been presented at the hearing to demonstrate their relevance.

For clarity the orders are:-

(1) The applicant/petitioner be and is allowed to file and serve further affidavit introducing the certificates in relation to the digital documents referred to.

(2) It is premature to order for the letters referred to at Pg 23 and 24 to be submitted to the document examiner without first adducing evidence to lay a basis.

(3) The 1st Respondent do avail original documents appearing at page 58, 59, 78, 79, 95, 131, 132, 134, 135, 136, 137, 138, 142, 143, 164, 167, 170 and 171 for petitioner to peruse and verify.

Thereafter they must either allow the applicants to make copies of the same or supply the petitioner with certified copies of the originals. I.E.B.C keeps the originals.

(4) The 1st Petitioner to supply the Petition with copies of statutory forms relating to the Gubernatorial elections for Kisii County .

Delivered and dated this 10th day of October 2017 at Kisii.

H.A. OMONDI

JUDGE