[2017] KEHC 1744 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

ELECTION PETITION NO. 3 OF 2017

JOHN MUNUVE MATI……………………………………PETITIONER

VERSUS

1. THE RETURNING OFFICER MWINGI

2. INDEPENDENT ELECTORAL & BOUNDARIES

COMMISSION……………………………………2ND RESPONDENT

3. PAUL MUSYIMI NZENGU…….………………3RD RESPONDENT

RULING

1. In the Ruling dated the 9th day of November 2017, I held in abeyance orders regarding Prayer 2 of the application dated 26th September 2017 where the Petitioner/Applicant sought scrutiny and recount of all the ballots cast at the election held on the 8th August 2017 in respect of Member of National Assembly Mwingi North Constituency.

2. In the case of Gideon Mwangangi Wambua & Another -VS- IEBC & 2 others, Mombasa Election Petition NO. 4 of 2013 it was stated that:

“The aim of conducting scrutiny and recount is not to enable the court to unearth new evidence on the basis of which the Petition could be sustained. Its aim is to assist the court to verify the allegations made by the parties to the petition, which allegations themselves must be hinged on pleadings’’.

3. The Petitioner has called evidence of fourteen (14) witnesses in support of his case. As pleaded, it has been established; that Motor–Vehicle Registration Number KCK 585C was intercepted. A ballot box was found in the stated Motor-vehicle and a complaint made at the Kyuso Police Station. There was no authorized person accompanying it at the time. Some form 35As are illegible while others have no signatures of some agents. Evidence was called to explain circumstances that prevailed which resulted into the stated agents not signing the forms. Further, it is admitted that in one of the Polling Stations the Biometric Voter Registration Kit failed to function such that people were called to go and vote again and some seals used on ballot boxes seemed questionable. These are irregularities that call for investigation for purposes of determining if votes cast were valid.

4. In the premises I am satisfied that there is sufficient reason for ordering scrutiny of some of the votes in some polling stations for purposes of establishing the validity of votes cast. In that regard, scrutiny will be done in the following (103) polling stations;

Muringani Nur School Polling station 1 of 1

Ngomeni Primary School Polling station 1 of 1

Kalwari Primary School Polling Station 1 of 1

Nzaini Primary school 1 of 1 Polling Station

Mandogoi Nur Primary School Polling Station 1 of 1

Ngengi Primary School Polling station 1 of 1

Kasarani (Kiseini Primary School) Polling Station

Tii Primary School Polling Station 1 of 1

Malatani Nur School Polling Station 1 of 1

Mbagwani Primary School Polling Station 1 of 1

Kivangwa Primary School 1 of 1 Polling Station

Ilalu Primary School 1 of 1 Polling Station

Gai Primary School Polling Station 1 of 1

Ndunguni Primary school polling station 1 of 1

Kasee Primary School Polling Station

Kasyathyu Primary School Polling Station 1 of 1

Mbarani Primary School Polling Station 1 of 1

Kavindu Primary School Polling Station 1 of 1

Muvinge Primary School Polling Station 1 of 1

Kaliwa Primary School Polling Station 1 of 1

Kwamusila Primary School Polling Station 1 of 1

Kaivira Primary School Polling Station

Kwa Ngondi Nur School Polling Station 1 of 1

Ngungani Nur school Polling Station 2 of 2

Masukanioni Primary School Polling Station 1 of 1

Muthwani Primary School Polling Station 1 of 1

KwaNzula Primary School Polling Station 1 of 1

Kinolu Primary School Polling Station 1 of 1

Kaimea Feeder School Polling Station 1 of 1

Mulangoni Primary School Polling Station 1 of 1

Kaseluni Nursery School Polling Station 1 of 1

Mivukoni Primary School Polling Station 1 of 1

Maseki Primary School Polling station

Kalumu Primary School Polling Station 1 of 1

Kisulani Primary School Polling Station

Tseikuru Primary School Polling Station 1 of 2

Usueni Primary School Polling Station 1 of 1

Miramba Primary School Polling station 1 of 1

Mukuroni Primary School Polling Station 1 of 1

Kathumalani Primary School Polling Station 1 of 1

Twinyua Primary School Polling Station 1 of 1

Kakaimi Primary School Polling Station 1 of 1

Syomasuo Nur School Polling Station 1 of 1

Kaikuli Primary School Polling Station 1 of 1

Musavani Primary School Polling Station 1 of 1

Vuikithuki Nur School Polling Station 1 of 1

Kanyie Primary School Polling Station

Miromba Ikamba Primary School Polling Station

Kalimbe Primary School Polling Station

Kamusiliu Primary School Polling Station1 of 1

Kamavui Primary School Polling Station

Ngaaini Nur Primary School Polling Station

Kaliani Primary School Polling Station 1 of 1

Kwa Katile Primary (Maseki) Polling Station 1 of 1

KwaMutisya Primary School Polling Station 1 of 1

Kaisinga Primary School Polling Station 1 of 1

Tondora Primary School Polling Station 1 of 1

Makumeni Primary School Polling Station

Kathungu Primary School Polling Station 1 of 1

Katumbini Nur School Polling Station

Nzaini Primary school Polling Station

Nzaalani Primary School Polling Station

Ngaaie Primary School Polling Station

Syumbeti Feeder School Polling Station

Muthwani Primary School Polling Station

Kiisi Feeder Polling Station

Kaseluni Nursery School Polling Station

Kakunguu Primary School Polling Station

Kyamalutu Primary School Polling Station

Kanthoroko Feeder School Polling Station

Kanyengya Primary School Polling Station

Tulanduli Primary School Polling Station

Katuka Nur Primary School Polling Station 1 of 1

Mandala Primary School Polling Station 1 of 1

Ngomano Primary School Polling Station 1 of 1

Nkaraku Nur School Polling Station

Mbangwani TRC Polling Station 1 of 1

Kimu Primary School Polling Station 1 of 1

Kalole Primary School Polling Station 1 of 1

Kyuso Primary school Polling Station

Kamusiliu Primary school Polling Station

Ngongani Primary School Polling Station

Kamwengi Primary School Polling Station 1 of 1

Kasioni Primary School Polling Station 1 of 1

Kyanwithya Primary School Polling Station

Kasarani Primary School Polling Station

Mangabo Primary School Polling Station

Katuma Primary School Polling Station

Matooni Primary School Polling Station

Ngaani Nursery School Polling Station

Malatani Nursery School Polling Station 1 of 1

Ndatha Primary School Polling Station

Kisuini Nursery School Polling Station

Makuneni Primary School Polling Station

Kaliani Primary School Polling Station

Mbauni Primary School Polling Station1 of 1

Katse Primary School Polling Station 1 of 1

Kathaalani Primary School Polling Station

Kaikuli Primary School Polling Station

Kaisenga Primary School Polling Station

Kavani Primary School Polling Station

Kinobo Primary School Polling Station

Tyaa Kamuthale Primary School Polling Station

5. The scrutiny shall include examination of :

-Written statements by the Returning Officer.

-Copies of the register of voters used

-Counted ballot papers

-Spoilt Ballot papers

-Rejected Ballot Papers

-The Polling day diary.

6. The Exercise shall be carried out under the Supervision of the Deputy Registrar who shall prepare a report to be filed in court on the 15th day of December, 2017.

Costs shall be in the cause.

Dated, read and delivered this 6th day of December 2017

L. N. MUTENDE

JUDGE