[2018] KEHC 117 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

ELECTION PETITION APPEAL NO. 1 OF 2018

BETWEEN

JOHN KENNEDY AGENGO............................APPELLANT/APPLICANT

VERSUS

JULIUS OCHIENG OMORO..........................................1ST RESPONDENT

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION............................2ND RESPONDENT

THE RETURNING OFFICER

NYANDO CONSTITUENCY.......................................... 3RD RESPONDENT

OKKY CAROL KANGALA OMOTO...........................4TH RESPONDENT

JUDGMENT

1. The appeal before me was brought by JOHN KENNEDY AGENGO, whose election was nullified by the Election Court on 26th January 2018.

2. During the trial, the Appellant herein was the 4th Respondent, whilst the Petitioner was JULIUS OCHIENG OMORO.

3. Those two persons were both candidates in the election for the Member of County Assembly of East Kano/Wawidhi Ward.

4. Following the nullification of the results which had been declared by the IEBC,the Election Court directed that fresh elections should be conducted.

5. The Election Court also ordered the Appellant to pay to the 4th Respondent, the costs of the Election Petition.

6. The Appellant felt aggrieved and dissatisfied with the whole judgment and he preferred this appeal at the High Court.

7. In his Memorandum of Appeal he listed seven grounds of appeal, which can be summarized as follows;

1. The petition was incompetent and was thusincapable of being the basis for making a findingin favour of the Petitioner.

2. The trial court lowered both the Standard and theIncidence of Proof which is applicable in ElectionPetitions.

3. The trial court ought to have appreciated that theAppellant was still leading in the total number of votes garnered even after the scrutiny and recount.

Therefore his victory should have been upheld.

4. The trial court erred when it relied on complaintswhich were raised long after the results weredeclared.

5. The trial court failed to take into account the evidence tendered by the Respondents.

6. The evidence adduced by the Petitioner did not discharge the burden of proof.

7. The decision was against the weight of evidence.

8. This Appeal was canvassed together with the appeal which had been lodgedbyTHE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSIONtogether withTHE RETURNING OFFICER, NYANDO CONSTITUENCY.The said Returning Officer isMs OKKY CAROL KANGALA OMOTO, who had been sued both by name and by the office she was holding during the 2017 General Elections.

9. By and large, the second appeal contained grounds of appeal which mirroredthose which were in the first appeal.

10. However,the Appellants in the second appeal further amplified one of thegrounds of appeal, by asserting that the trial court failed to appreciate that when an Election Petition alleged that there had been election offences and/or malpractices, that assertion went beyond mere irregularities.

1. INCOMPETENCE OF THE PETITION

11. Pursuant to Rule 8 of the Elections (Parliamentary andCounty Elections) Petitions Rules, 2017, an election petition

shall state, inter alia;“(c) the results of the election, if any, and howeverdeclared.”

12. In this case, the Appellants stated that the petition did not state theresults of the elections in issue. The said failure to state the results of theelection is said to have rendered the petition incompetent.

13. In support of their position, the Appellants cited the decision of the Courtof Appeal inJOHN MUTUTHO Vs JAYNE KIHARA [2008] 1 KLR, in whichthe petition was struck out because it did not disclose the results.

14. The Respondent’s position was that the election results had been declared.

The said declaration is said to be contained at the introductory part of thepetition, as read together withparagraph 10of the petition.

15. At the introductory part of the petition, the 1st Respondent had named allthe candidates who participated in the elections in issue.

16. And in paragraph 10 of the petition, it was indicated that the;

“……..1st, 2nd and 3rd Respondents declared the 4th Respondenta winner with 2317 against the Petitioner’s 1921 on fake andfraudulent figures.”

17. It is obvious that the petitioner did not give the results for each and everycandidate. He only mentioned the results for the Petitioner and for thecandidate who had been declared the winner.

18. First, when a Petitioner has declared some results in his or her petition,that is distinguishable from a situation in which no results had beendeclared.

19. In the case of HASSAN ALI JOHO & ANOTHER V. SULEIMAN SAIDSHAHBAL & 2 OTHERS [2014] eKLR, the Supreme Court expressed itselfthus;

“Bearing in mind the nature of election petitions, the declaredelection results, enumerated in the Forms provided, arequantitative, and involve a numerical composition. It would besafe to assume, therefore, that where a candidate waschallenging the declared results of an election, a quantitativebreakdown be the key component in the cause. It must also beascertainable who the winner, and the loser in an election are.”

20. The Petitioner in this case had given the particulars of the votes declaredfor the winner and the results declared for the Petitioner.

21. Therefore, the results which he cited in the petition were not inclusive ofthe results of all the candidates.

22. The said results cannot therefore be described as being quantitative.

23. In the light of that omission, the Appellants have submitted that thelearned trial magistrate ought to have struck out the petition, for beingincompetent.

24. First, the question that arises is in regard to whether or not the courtshould move suo moto, or if the court has to be moved.

25. In my considered view, in situations such as this, when one party suggeststhat the petition was incompetent, for failure to comply with Rules, thecourt should be very reluctant to take any drastic action suo moto. Justicedemands that the parties be accorded a hearing by the court before thecourt can determine whether or not to strike out an election petition ongrounds of non-compliance with Election Rules.

26. As Kimondo J. held in WILLIAM KINYANYI ONYANGO Vs INDEPENDENTELECTORAL & BOUNDARIES COMMISSION & 2 OTHERS [2013] eKLR

ELECTION PETITION NO. 2 OF 2013;

“In my considered opinion, the Petition Rules 2013 weremeant to be handmaidens not mistresses of justice.Fundamentally, they remain subservient to the ElectionsAct and the Constitution. Section 80(1) (d) of the ElectionsAct 2011 enjoins the Court to determine all matters withoutundue regard to technicalities.Rules 4 and 5 of the Petition Rules 2013 have in turnimported the philosophy of the Overriding Objective of theCourt, to do substantive justice.”

27. If the Court had struck out the petition suo moto, that could haveconstituted an unreasonable step of monumental ramifications, that wereunredeemable. If the Respondents wanted to persuade the trial court tostrike out the petition, they should have moved the court, and the courtshould then have given a hearing to the parties.

28. It would also have been expected that whichever Respondent wished tohave the petition struck off, on the grounds of incompetence, should havemoved the court at the earliest opportunity. If a petition was incompetentor not, the court ought to make a determination on that issue at the verybeginning. There would be no need for the court to receive evidence andsubmissions on a petition which was incompetent.

29. A perusal of the record of proceedings in this case reveals that none of theRespondents to the petition had moved the court, with a view to havingthe petition struck out summarily.

30. I find no fault on the part of the learned trial court, for having not struckout the petition suo moto.

31. I also note that the 1st and 2nd Respondents Response to the Petitionincorporated the details of the results declared in respect of all thecandidates.

32. Therefore, any gap which the Petitioner had left, when he provided theresults for only two candidates, was filled up by the Respondents, veryearly in the proceedings.

33. In construing the application of Rule 8 (1)(c)and (d), the Court of Appealhad the following to say inMARTHA WANGARI KARUA Vs IEBC & 3OTHERS [2018] eKLR;

“……… For our part, the plain and ordinary construction ofthe rule, in view of the fact that all the materials requiredunder that rule were before it, the plain ordinaryconstruction of the rule ought to have been in favour ofsustaining the petition and determining it on merit, unlessthe petition was irredeemably defective, which we think is indoubt when Parliament imposes a strict provision upon thecourts, it would not have given the discretion to weigh thescales of justice.”

34. The Court emphasized the importance of giving due consideration to thereasonableness and implication of sustaining a petition, against anabrupt termination of the same.

35. The learned Judges of Appeal went on to specifically state as follows:

“It should be noted that the failure to comply with theprovisions of Rule 8(1) per se does not mean that the petitionis invalid. The remedies provided by the Constitution and theStatute; the words under Article 159(2) are unambiguous andmean that, unless the results of the election and the date of thedeclaration cannot be ascertained or determined from thematerials filed by the parties, the condition is satisfied.”

36. Therefore as the Respondents to the petition had provided the results forall the candidates, it follows that the condition stipulated inRule 8(1)had been satisfied.

37. Once the required information was made available to the court, it wouldbe taken into account by the said court when making its determination.

38. Even when it is the Respondent who provided information which thePetitioner should have furnished, the Respondent cannot turn around andask the court to ignore the information simply because the informationhad not been provided by the Petitioner.

2. STANDARD AND INCIDENCE OF PROOF

39. It was common ground that electoral disputes are matters of great publicimportance and the public interest in their resolution cannot be over-emphasized.

40. Although Election Disputes are of a civil, (as opposed to criminal) nature,the standard of proof is higher than the balance of probabilities, but islower than beyond reasonable doubt.

41. The onus or proof vests in the Petitioner to prove the allegations madeout in the petition.

42. However, it is also further settled that the Election Court should not annulan election if the irregularities or the breaches which have been pleadedand proved, are not shown to have had an effect on the results of theelection.

43. Of particular significance in that respect is Section 83of the ElectionsAct, which provides as follows:

“No election shall be declared to be void by reason ofnon-compliance with any written law relating to thatelection if it appears that the election was conductedin accordance with the principles laid down in theConstitution and in that written law or that the non-compliance did not affect the result of the election.”

44. In this case, the election court was alive to the standard of proof, as thesame were set out on pages 11and 12 of the Judgment.

45. The trial court also reiterated that;

“It is trite law that whoever alleges must prove.It then means that in a petition like this, the burdenis on the Petitioner to prove. It is therefore the dutyof the Petitioner to prove that there was non-compliance with the Constitution and the Electoral Lawand that it affected the outcome of the election.”

46. Clearly therefore, the learned trial magistrate cannot be faulted on hisappreciation of the standard of proof applicable in election petitions.

47. What the Appellants were complaining about is that the trial court failedto give effect to its said appreciation of the law.

48. The Appellants reasoned that if the trial court had remained faithful tothe law, it would have found that the alleged irregularities did not affectthe outcome of the elections.

49. The said failure by the trial court is believed to have happened when thecourt did not take into account the fact that even after the recount andscrutiny were conducted, the results were still consistent with the resultswhich had been declared.

50. In the Judgment, the learned trial magistrate noted that in most instancesthe results of the scrutiny and recount had yielded results that werelargely consistent with the results which had been declared.

51. Nonetheless, he came to the conclusion that;

“……… the above irregularities involving wrongfulentry of votes and allocation during counting andtallying definitely affect the result.”

52. In arriving at that conclusion the trial court took into account the fact thatscrutiny had shown a difference of over 60 votes. In the circumstances,considering that the difference in the results between the Petitioner andthe 4thRespondent was about 395 votes, the trial court concluded that thethe difference definitely affected the results.

53. In my considered opinion, the learned trial magistrate erred when heconcluded that the exercise of recount and scrutiny was nothing morethan one of sampling. I understand the trial court to be saying that theresults of the scrutiny and recount ought to be enlarged, with a view togiving a picture of what impact would emerge if a more completerecount and scrutiny were to have been conducted.

54. In my considered opinion the process of scrutiny and recount ought notto be taken as constituting a sampling process, which can thereafter bereplicated to the whole electoral area which is the subject matter of theelection petition.

55. Scrutiny or recount can only be undertaken in the specific areas which thethe Petitioner had lodged specified complaints, and in respect to whichthe Petitioner convinced the trial court that there was need for scrutinyor recount.

56. Where a Petitioner complains about the entire election process, andpersuades the court that scrutiny or recount was necessary for the wholeelectoral area, the court would order for scrutiny or recount for the saidwhole electoral area.

57. The reason for that is simple; it is highly improbable that what happenedin one polling station would be replicated in all the other polling stations.

58. Even in this case, there are instances where the trial court found, andrightly so, that there were no discrepancies between the declared resultsand the results of the scrutiny or the recount. Therefore, if nodiscrepancies were found in such areas as;

a) Apondo 1; and

b) Apondo 2,

there would be no justifiable reason for holding that the anomaly inresults that was detected at Nyakongo should be replicated at Apondo.

59. For the record, the Petitioner’s results at Nyakongo were reduced by 59votes.

60. Nothing of the kind was found at Apondo, Olasi, Waradho and KuthWendo.

61. Another example is at Luora 2, where the Petitioner’s votes were added tothose ofOCHELE MOSES J. ODHIAMBO. According to the trial court, theimpact of that anomaly was to reduce the Petitioner’s overall tally by 2votes.

62. If one were to seek to replicate the results of either scrutiny or recountfrom one polling station to other polling stations, the question would behow to determine the particular results which should be so replicated.

63. I find no legal basis for choosing to replicate the results at Nyakongo,(where the Petitioner’s votes were reduced by 59), or Luora (where thereduction was of 2 votes), or of the other polling stations where therewere no discrepancies.

64. Where the gap between the winner and the Petitioner was 395 votes, asfound by the trial court, it cannot be said that the said results would besignificantly impacted if 60 votes were deducted from the winner andwere added to the Petitioner.

65. On the question of bribery, the Petitioner led evidence, and named someof the supporters of the 4thRespondent, who had allegedly bribed voters.

66. As the trial court observed, those named by the Petitioner’s witnesses,denied the allegations.

67. In the circumstances, the trial court observed that the allegations ofbribery touch on criminal liability, and that therefore they must beproved beyond any reasonable doubt. The court went on to concludethus;

“This burden can only be discharged vide CriminalProceedings pursuant to the Elections Act. If indeedthis were proved, it would definitely have affected theoutcome of the result as it would be a way ofinfluencing the will of the voters.”

68. I find that the trial court’s said conclusion was accurate.

69. However, it cannot be ignored that in the petition, there was no expressassertion of bribery.

70. Similarly, there were no assertions in the petition about;

i. Failure to sign Forms 36A by Agents, or the failureby Presiding Officers to indicate reasons for lack ofAgents signatures; or

ii. That there were illiterate voters who were assisted, and that therefore there should have been Forms 32 produced by the Presiding Officers.

71. The Respondents to the petition were only expected to respond to theissues raised in the petition.

72. The petition constitutes the Petitioner’s case, whilst the Affidavits swornby the witnesses constitute evidence which is intended to prove the caseput forward.

73. If the Petitioner does not set out in the petition any particular assertion,he cannot expect the Respondents to respond to such non-pleadedmatters.

74. When a Petitioner leads evidence which tends to show something whichwas not embodied in the petition, it would be wrong to fault theRespondents for not making available evidence to controvert suchevidence.

75. It must be borne in mind that in Election Petitions evidence is tenderedthrough Affidavits which are filed along with either the petition or theResponses to the said petition.

76. In the circumstances, the Respondents to the petition could not have beenrequired or expected to bring witnesses to respond to issues which werenot arising from the petition.

77. The failure to bring witnesses to controvert evidence which did notadvance any particular assertions made in the petition cannot beconstrued to amount to proof by the Petitioner.

78. The trial court held that the failure to sign crucial documents, without anyreason being assigned for such failure constituted a violation of thePrinciples of the Constitution and Electoral Laws.

79. First, it must be emphasized that pursuant to Regulation 79(6)of theElections (General) Regulations 2012;

“The refusal or failure by a candidate or an agent tosign a declaration form under sub-regulation (4) or torecord the reasons for their refusal to sign as requiredunder this regulation shall not by itself invalidatethe results announced under sub-regulation (2)(a).”

80. Had the trial court taken into account that regulation, it wouldprobably have come to a different conclusion.

81. The trial court also held that the issue of secrecy of the vote was also anissue in the petition, and that because the 1st, 2ndand 3rdRespondentshad failed to act on the complaints raised by the Petitioner, theshortcomings affected the outcome of the elections substantially andmaterially.

82. First, I failed to trace any issue of secrecy being raised in the petition.Secondly, I find myself unable to appreciate how the failure by the 1st,2ndand 3rdRespondents, to act on the complaints of the Petitionerconstituted secrecy of the vote.

83. Thirdly, I am unable to understand how the alleged secrecy affected theoutcome substantially, materially or at all.

84. In the final result I find merit in the appeal. I set aside the findings of thelearned trial magistrate and substitute the same with a finding that thepetition be dismissed.

85. The Petitioner will pay to the Respondents the costs of the Appealtogether with the costs of the petition.

86. The costs shall be taxed but will not exceed Kshs.400,000/= for theAppellant; and Kshs.200,000/= in respect to the 1st, 2ndand 3rd Respondents.

DATED, SIGNED and DELIVERED at KISUMU this 27th day of June 2018

FRED A. OCHIENG

JUDGE