[2017] KEHC 1707 (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 NORTH

CONSTITUENCY..........................................1ST RESPONDENT

2. INDEPENDENT ELECTORAL & BOUNDARIES

COMMISSION.............................................2ND RESPONDENT

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

R U L I N G

Introduction

1. The Applicant (Petitioner) who was a Candidate in the Mwingi North Constituency Parliamentary Election held on the 8th day of August 2017 where the 3rd Respondent was declared the winner filed the instant Election Petition seeking inter alia a declaration that the 3rd Respondent was not validly elected. On the 20th day of September 2017, he filed a Notice of Motion seeking orders that:

(i) All election materials including but not limited to, all written statements by the Returning Officer, Register of Voters, Form 35As and 35B, Case Ballot/Votes, Spoilt Ballot, rejected ballot papers, polling diary, counterfoils of all used ballot papers, counted ballot papers be furnished to and stored in the court with additional seals being placed therein.

(ii) A recount, scrutiny and audit of all the ballot papers and or votes be undertaken.

The Basis of the Application

2. The Application is based on grounds that; the Applicant’s agents did not participate in counting and tallying of votes because they were not allowed at some of the Polling Stations; Presiding Officers did not allow the Petitioner’s agents to confirm ballots counted in favour of the 3rd Respondents in some polling Stations; Form 35As annexed to the Response by the 1st and 2nd Respondents have many irregularities; the 1st Respondent admitted that there was a mix up of the materials delivered at one polling station; and in the Petition and supporting affidavit, the Applicant has demonstrated the following irregularities relating to election materials, counting and tallying of votes;- fraudulent Form 35As were seen with the Deputy Returning Officer, a relative of the 3rd Respondent’s Campaign Manager; Pre-marked ballot papers were present; some Form 35As were altered; names in the ballot papers were not announced during the counting exercise. There were inconsistencies between results in forms 35A and 35B. Ballot boxes were not sealed and failure to preserve election materials in the manner provided for in law also supported by the affidavit sworn in support of the Petition.

1st and 2nd Respondents’ Response.

3. In response, the 1st and 2nd Respondents filed a replying affidavit deponed by Maureen Kerebi Oyaro, the 1st Respondent, who deposed that none of the agents were locked out of the Polling Stations as long as they had badges of Oath of Secrecy and letters of appointments from the party or Independent Candidate. That agents who declined to sign Form 35B had specific instructions from the Applicant; there were no pre-marked ballot papers; Receipt of the two (2) similar ballot papers by the Presiding Officer was by mistake and the one not needed was returned, an incident that was diarized and agents informed. Ballot boxes were sealed; counting of ballots was done transparently; voters were identified by use of KIEMS Kit biometrically and alphanumerically before voting; Election materials are secure; and the applicant is on a fishing expedition as he has not laid down any basis for prayers sought.

3rd Respondent’s Response

4. In an affidavit sworn by the 3rd Respondent he deponed that the orders sought could only be granted after the Petitioner lays basis by calling evidence considering the huge margin of votes between them. That the Petitioner should disclose the particular stations whose votes are sought to be scrutinized, documents to be scrutinized and reasons for the scrutiny.

Submissions

5. It was submitted by counsel for the Applicant that the prayers for 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 in the Petition demonstrated the need to have the orders sought granted. That the Affidavit sworn in support of the Petition raises issues with counting and tallying of the votes and the authenticity of Forms 35A that were used to announce the results. He listed forms not signed by the Applicant’s agents, the Deputy Presiding Officer, those that were illegible and general irregularities. Those, it is argued, were a basis upon which the court could order a scrutiny of votes.

6. The 1st and 2nd Respondents submitted that the preservation of the election materials was done in accordance with the law; the alleged failure to sign Forms 35As by agents was not raised in pleadings; no reasons were given why the agents did not sign the forms. Allegations that forms were not signed by the Deputy Presiding officer, that they were illegible and other alleged irregularities were not pleaded for consideration. They concluded by arguing that considering the margin of votes cast between the returned candidate and the Petitioner which were over Eight thousand in number there was no justification for grant of orders sought.

7. The 3rd Respondent submitted that orders for recount and scrutiny sought should not be granted before the Petitioner lays a basis by calling evidence. Issues raised as a basis of scrutiny can be canvassed during the hearing of the main petition. As provided by the Election Petition (Parliamentary and County Elections) Rules 2017; prayers for scrutiny and recount cannot be made on the same application. He concluded by asking the court to hold prayer 2 of the Application in abeyance to afford the Petitioner a chance to elect either a recount process or the process of scrutiny of votes.

8. Issues for determination;

(i) Whether Election materials should be preserved by way of storage in court with additional seals being added.

(ii) Whether scrutiny and recount should be ordered.

(iii) Whether the Application for scrutiny of votes is premature.

9. Having carefully considered submissions by all parties, it is apparent that none of them raised major concerns regarding security of storage of election materials. This calls upon this court to give directions as envisaged in law.

10. In determining whether or not to grant the prayer sought it is important to consider the relevant legislation regarding the orders sought.

Section 82 (1) of the Election Act, 2011 provides thus;

“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”.

This provision of the law gives the court the discretion to make an order for scrutiny of votes.

Rule 28 of the Elections (Parliamentary and County) Petition Rules, 2017 (Rules) Provides that:

“A petitioner may apply to an elections court for an order to-

(a) recount the votes: or

(b) examine the tallying, if the only issue for determination in the petition is the count or tallying of votes received by the candidates” .

Rule 29 of the Rules provides thus:

“ (1) The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.

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

(1) The scrutiny or recount of votes ordered under sub-rule (2) shall be carried out under the direct supervision of the Registrar and shall be subject to the directions the election court gives.

(2) The scrutiny or recount of votes in accordance with sub-rule(2) shall be confined to the polling stations in which the results are disputed and may include the examination of-

(a) the written statements made by the returning officers under the Act;

(b) the printed copy of the Register of voters used during the elections sealed in a tamper proof envelope;

(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 packets of spoilt ballots;

(f) the marked copy register;

(g) the packets of counterfoils of used ballot papers;

(h) the packets of counted ballot papers;

(i) the packets of rejected ballot papers;

(j) the poling day diary; and

(k) the statements showing the number of rejected ballot papers.

5. For purposes of sub-rule (4) (b), every returning officer shall upon declaration of the results, seal the printed copy of the Register of Voters used at that election in a tamper proof envelop and such envelop shall be stored by the Commission subject to the elections court direction under rule 16”.

10. A reading of the provisions of the law clearly show that the court has a wide discretion in making the order for scrutiny or recount. However, the court must determine if there is sufficient reason to grant the order sought.

11. Principles that should guide the court in reaching such a conclusion were stated in the case of Gatirau Peter Munya –VS. Dickson Mwenda Kithinji & 2 others, (2014)Eklr, the Supreme Court of Kenya stated thus:

“. 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.

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.

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 petition 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.

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) Petition Rules, 2013 (now Rule 29 (4) of the Elections (Parliamentary and County Elections) Petition Rules, 2017).

12. In the case of H.A Amana –vs. IEBC & 2 others Malindi EP NO. 6/2013 Kimaru J stated that:

“the recent trend is that scrutiny can only be ordered where a Petitioner lays sufficient basis. Such basis can only be laid after the Petitioner has adduced evidence during the actual hearing of the petition. The Petitioner cannot therefore demand that there be scrutiny and recount of the votes before the commencement of the trial. The Petitioner may do so after his or witnesses have testified.

The ideal situation, however, is that such an application for scrutiny should be considered by the Court after all the witnesses of the Petitioner and the Respondents have testified. At that stage of the proceedings, the Court will be in a position to properly assess the veracity of the allegations made by the Petitioner that there is need for scrutiny”.

13. A Perusal of pleadings shows that the Applicant/Petitioner has sought a remedy of both scrutiny and recount of ballot papers amongst other prayers. These two (2) remedies are different. It would require a party to be sure of whether he/she wishes to establish the number of votes cast perse or if the validity of the votes cast inclusive is in question. Looking at the conclusion of the Applicant’s submissions, the argument is that it has been demonstrated that an order for scrutiny can be granted. This would mean that the scrutiny to be carried out would include a recount hence the need for specificity.

14. To grant an order of scrutiny, the court must be satisfied that it is warranted. Material facts have been pleaded stating that there were irregularities. The respondents on their part have denied the allegations. What is on record are mere averments without proof. There would be need of presentation of sufficient evidence to support the averments prior to establishment of a primafacie case requiring critical observation and detailed inspection of the ballot papers.

15. The Rule regarding making an application for an order of scrutiny or recount is clear, it can be at any stage of proceedings. (see Rule 29 (1) of the Rules, Nicholas Kiptoo Arap Salat –Vs. Independent Electoral and Boundaries Commission & 7 others, Supreme Court Petition NO. 23 of 2014).

However, considering that this was a case where there was a wide margin of victory, a basis must be laid first.

16. I have been asked by the 1st and 2nd Respondents to dismiss the application. Dismissal of the application is unwarranted, considering that the law allows the applicant to make the application at any stage, which could be before, or in the course of the hearing before determination of the Petition.

17. In the premises I order as follows;

(i) The 2nd Respondent shall maintain the custody of the Election Materials. Additional seals may be placed on the ballot boxes by the Petitioner and 3rd Respondents in the presence of the Deputy Registrar pending further directions by the court.

(ii) Prayer 2 of the application be and is hereby held in abeyance until the Applicant/Petitioner presents his case. In event that a primafacie case is established, I will deliver the Ruling and give directions on how the exercise shall be carried out.

(iii) Costs of the Application shall be in the cause.

(iv) It is so ordered.

Dated and signed at Kitui this 9th day of November 2017.

L.N. MUTENDE

JUDGE