[2017] KEHC 2001 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

ELECTION PETITION NUMBER 4 OF 2017

KALLA JACKSON MUSYOKA..................................PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION (I.E.B.C)........1ST RESPONDENT

KABAKA BONIFACE MUTINDA....................2ND RESPONDENT

RULING OF THE COURT

1. The Petitioner herein has filed a Motion Application dated 3/10/2017 brought pursuant to the Provisions of Rule 4(1), Rule 15(6), Rule 15 (7), Rule 18(1), Rule 18 (2), Rule 18(3), Rule 30, Rule 31 (1), Rule 31(2), Rule 31(3), Rule 31(4), Rule 31(5), and Rule 21(1) of the Elections (Parliamentary and County Elections) Petition Rules 2017, Section 27 of the Independent Electoral and Boundaries Commission Act No. 9 of 2011 (Revised 2016), Access to Information Act No. 31 of 2016 and Articles 35, 38, 156 (5) & (6), 159 (2) (d) of the Constitution of Kenya 2010. It seeks the following prayers namely:-

(1) Spent

(2) That at the hearing of the Petition, this court to take additional evidence in the form of the following documents in support of the Petition:-

(a) The annexed witness affidavit of Evans Wambua Muendo and Phyllis Kasalu Ndava with regard to the conduct of the election.

(b) The annexed copy of the gazette Notice by the Independent Electoral and Boundaries Commission of the final Senatorial results of Machakos County.

(c) The annexed copy of Gazette Notice by the Independent Electoral and Boundaries Commission of the designated presiding officers.

(d) The annexed IEBC code of conduct.

(3) That if the above prayers are granted the said documents be deemed to be part of the Petition.

(4) The 1st Respondent be compelled to give access to and supply to the court and to the Petitioner/Applicant before the hearing of the Petition, the KIEMS kit and KIEMS kit records used to verify registered voters in Machakos County.

(5) The 1st Respondent be compelled to give access to and supply to the Court and to the Petitioner/Applicant certified photocopies of the original forms 38A prepared at and obtained from the polling stations and the presiding officers before the hearing of this Petition.

(6) The 1st Respondent to be compelled to give access to and supply to the court and to the Petitioner/Applicant certified photocopies of the original forms 38B prepared at and obtained from the Constituency Tallying Centres and Returning Officers before the hearing of this Petition.

(7) The 1st Respondent be compelled to give access to and supply to the court and to the Petitioner/Applicant before the hearing of this Petition, a certified copy of the original forms 38C prepared by and obtained from the County Returning officer showing the total number of registered voters in Machakos County the votes cast for each candidate in each polling station; and the number of rejected votes for each Constituency.

(8) The court be pleased to order that all election materials for the election of Member of Parliament (Senate) for Machakos County be brought into its custody before the hearing of this Petition.

(9) The court be pleased to order for scrutiny and recount of the votes as cast in the following polling stations pending the hearing and determination of the Petition:-

- Machakos Town – 42 polling stations

- Kathiani constituency - 6 polling stations

- Mwala constituency – 36 polling stations

- KJM 1 – 31 Polling stations

- KJM 2 - 41 polling stations

- Mavoko – 16 polling stations

(10) The court be pleased to order that additional seals be placed on ballot boxes pending the scrutiny and recount before the hearing of this Petition.

(11) The court be pleased to grant leave to the Petitioner/Applicant and any or all other parties to the Petition to file any further or supplementary affidavit as may be necessary arising from the aforesaid information.

(12) This Application be heard and determined expeditiously and on priority basis but in any event during the pre-trial conference or before the hearing of the substantive petition.

(13) The court be pleased to grant any other reliefs that become just and fit to grant.

(14) The costs for the Application be provided for.

2. The Application is supported by the affidavit of the Petitioner/Applicant and on the following grounds:-

(a) Leave sought to file additional evidence was due to delay in securing witnesses who are now necessary in the adjudication of the issues arising in the Petition and that the new affidavits elaborate the malpractices on the part of the Respondents and therefore the evidence sought to be introduced is credible and will affect the outcome of the Petition.

(b) As regards the need for access, the Petitioner believes that the information sought is critical in demonstrating that the election conducted by the 1st Respondent was not free, fair, secure, verifiable, accountable and transparent and therefore an order for access should be granted.

(c) With regard to the scrutiny and recount, the same should be allowed as the same will aid in the verification and recount of votes which will aid the court in the expeditious disposal of the Petition.

(d) No prejudice shall be occasioned to the Respondents if the orders sought are granted.

(e) It is just and fair that the orders sought are granted.

3. The Petitioners’ Application is strenuously opposed by the Respondents. The 1st Respondent raised the following grounds of objection:-

(a) That the Petitioner on the request for scrutiny has sought to rope in all votes cast within Machakos County without confining himself to specific polling stations is alleged to have disputes contrary to Rule 33 (4) of the Elections (Parliament and County) Petition Rules 2017.

(b) That the Petitioner has not specifically pleaded for scrutiny in his Petition and therefore the request for scrutiny and recount is a fishing expedition meant to uncover view or fresh evidence.

4. The 2nd Respondent also opposed the application and raised the following grounds of objections:-

(a) That the request by the Petitioner for access to records held by the 1st Respondent is an attempt to expand the scope of the Petition in a manner offensive to Article 87 (2) of the Constitution regarding timelines for filing and hearing of Petitions as it seeks to introduce new matters that were not specifically pleaded in the petition.

(b) That the Petitioner is out on a fishing expedition to discover and obtain new and fresh evidence in order to validate his petition and which should not be entertained by this Honourable court.

(c) The request for scrutiny and recount has not been properly laid by the Petitioner at this stage of the Proceedings.

(d) The introduction of witness affidavits of Evans Wambua Muendo and Phyllis Kasalu Nduva is not opposed by the 2nd Respondent save only that the averments in the affidavits of the two witnesses are full of falsehoods in that there is no evidence of agents being barred from entering the polling stations as alleged and further there is no evidence that the witnesses were indeed the Petitioner’s authorized agents.

5. Learned counsels for the parties filed written submissions. It was submitted for the Petitioner that the court has discretion to admit new evidence as sought by the Petitioner. It was further submitted that the 1st Respondent is under a duty to allow the Petitioner to access all the relevant election materials such as Forms 38A, 38B, 38C as well as the KIEMs Kits used in the election before the hearing of the Petition. The Counsel for the Petitioner relied on the Supreme Court Petition Number 1 of 2017 RAILA AMOLLO ODINGA & ANOTHER –VS= I.E.B.C. AND 2 OTHERS [2017] EKLR and also the case for GATIRAU PETER MUNYA =VS= DISCKSON MWENDA KITHINJI. It was finally submitted that this court should allow the request for scrutiny as same will go a long way in ensuring that the court has a clear picture of the manner the election was conducted and whether the results as declared is a fair representation of the people’s will.

6. It was submitted for the 1st Respondent that the Petitioner’s request for additional evidence will disadvantage the 1st Respondent as the request amounts to amending the Petition and which has the effect of unfairly disadvantaging the Respondent and other parties to the Petition. The case of Raila Odinga =Vs= IEBC & 3 others – Supreme Court Petition Number 5 of 2013was relied upon. On the issue of scrutiny and recount it was submitted for the 1st Respondent that the Petitioner has not laid a basis and has merely sought for scrutiny of all polling stations within Machakos County without pointing out the specific polling stations where votes are disputed. Reliance was placed in the case of Phillip Osore =VS- Michael Aringo & 2 others – Busia High Court Election Petition No. 1 of 2013.

7. It was submitted for the 2nd Respondent that the request for scrutiny and recount cannot issue at pre-trial stage when parties have not had the opportunity to canvass the issues raised in the Petition. Further it was submitted that the Petitioner has not laid a concrete basis for scrutiny and recount. As regards the Petitioner’s prayer for supply and access to the KIEMs Kits the 2nd Respondent submitted that the application seeks to expand or alter the substance of the Petition by introducing a new prayer not initially pleaded in the petition. Hence the prayer for access and supply for KIEMs Kits and KIEMs documents at this point amounts to an irregular amendment of the petition which is contrary to the provisions of Article 87 (2) of the Constitution and Section 76(1) of the Elections Act which give a clear timeline within which a Petition ought to be filed and or an amendment brought. Any amendment ought to have been made within the window period of 28 days after the declaration of the results. It was finally submitted that the Petitioner has not pleaded allegations of irregularities or breaches of law in respect of the KIEMs Kits and KIEMs records and therefore the application dated 3/10/2017 should be dismissed with costs.

8. Prior to the hearing of this application the parties on the 13/10/2017 entered into a consent whereby prayers number 5, 6, 7 and 10 were allowed as they were not contested save that photocopies of forms 38A, 38B and 38C were to be supplied by the 1st Respondent. Further prayer Number 8 was abandoned after the parties agreed to reseal the ballot boxes at the warehouse and in possession of the 1st Respondent. Hence prayers Numbers 2, 3, 4, 9 and 11 were contested and therefore to be determined herein. I need to add here that upon the parties agreeing to place extra seals for the ballot boxes, I find prayer number 10 has been catered for thereby leaving out prayers numbers 2, 3, 4, 9 and 11 to be determined.

Determination:

I have considered the Application and the submissions of the learned counsels for the parties. The issues for determination are as follows:-

(1) Whether the Petitioner’s request to file additional affidavits of two witnesses as well as two Gazette Notices and a code of conduct for IEBC is merited.

(2) Whether the Petitioners request for access and supply to the KIEMs Kits and records is merited.

(3) Whether the Application for scrutiny and recount is sustainable at this stage of the proceedings.

9. As regards the first issue, it is noted that the Petitioner has requested to be permitted to file additional affidavits of his agents namely Evans Wambua Muendo and Phylis Kasalu Nduva. The Petitioner has explained that there was delay in getting the witnesses to explain about the issue of agents being locked out by the 1st Respondent’s officials. The 2nd Respondent in his replying affidavit is not opposed to the introduction of the two affidavits as they do not introduce anything new. Since the 2nd Respondent is the one whose election is being challenged and who is not opposed to the said affidavit, I do not see how the 1st Respondent would stand prejudiced if the two affidavits are admitted. Moreover both the 1st and 2nd Respondent have comprehensively responded to the Petitioners allegations about his agents not having signed declaration forms and being denied access to the polling stations. These issues have been captured in the response to Petition by the Respondents. Consequently, I find there is no prejudice to be suffered by the Respondents if the two additional affidavits are allowed.

As regards the Gazette Notices of the 1st Respondent’s final Senatorial results and Designated presiding officers as well as the copy of I.E.B.C. code of conduct, I find the said three documents are in the public domain and therefore there is no prejudice to the Respondents if the same are introduced.

10. As regards the second issue, it is noted that the Petitioner seeks to access KIEMs KITS and to thereafter seek to file further supplementary affidavits depending on what he will have established from the said access. A perusal of the Petition reveals that no such prayer was sought by the Petitioner. Hence it would appear that the Petitioner intends to expand the horizon and alter the Petition by seeking to introduce a new prayer not initially pleaded. If the same is allowed at this juncture then the same amounts to an amendment of the Petition which is inconsistent with the provisions of Article 87 (2) of the Constitution and Section 76(1) of the Elections Act No. 24 of 2011 which give a clear timelines of 28 days within which a petition ought to be filed or an amendment presented. As the Petitioner intends to obtain information and thereafter file supplementary affidavits in support of the Petition. I find the same would amount to amending the Petition outside the stipulated period and which would definitely disadvantage the Respondents. The Petitioner was under obligation to amend the petition within 28 days as stipulated by the Elections Act. It is clear therefore that the Petitioner is engaging in a fishing expedition since the issues had not been brought to the fore in the petition. In the case of KAKUTA HAMISI =VS= PERIS TOBIKO AND 2 OTHERS [2013] eKLR Petition No. 5 of 2013 the court held as follows:-

“A petition is a pleading. There are elementary rules of pleadings, for example a party cannot expand the boundaries of pleadings to seek additional reliefs not prayed for. A party shall not lead evidence inconsistent with the pleading and a court shall not grant a relief not prayed for. A party shall not lead evidence inconsistent with the pleading and a court shall not grant a relief not prayed for.”

11. The Petitioner has not pleaded in the Petition or this application by way of affidavit that there were serious irregularities as relates to the KIEMs Kits and records so as to warrant him to have a peek at them with a view to fortifying his Petition. As noted in the Supreme Court Petition Number 7 of 2013 Raila Odinga =VS= IEBC and 3 others introduction of new evidence should not unfairly disadvantage the other parties to the election petition. Again in the case of Raila Odinga & Another =VS= IEBC & 2others Supreme Court Petition 1 of 2017 [2017] it was held follows:

“A Petitioner must not be on an evidence fishing expedition and must not expand the scope of his pleadings and a party is bound by its pleadings and must indicate what kind of information they seek to obtain from the production.”

I am guided by the above Court decisions and find that the Petitioner is out to expand the horizon and thereby amend the Petition to the disadvantage of the Respondents. I am therefore inclined to decline the request.

12. As regards the third issue on scrutiny and recount, the law thereon is set out in Section 80(4) (a) and 82 of the Elections Act. No. 24 of 2011 as well as Rules 28 and 29 of the Elections Parliamentary and County Elections) Petitions Rules 2017. The Petitioner has pleaded as a main prayer for scrutiny and recount of the votes cast in the Senatorial Elections in Machakos County. Indeed scrutiny not only deals with the issue of numbers of votes garnered by the candidates but also on the validity of such votes. A recount on the other hand deals with the number of votes garnered by the candidates and the tallying of such votes. In order to justify an order for scrutiny and recount, the Petitioners must generally lay a basis. Generally an order in that regard ensues upon receipt of the evidence from the parties. A request for scrutiny and recount is circumscribed by a rider that the same should not be intended to unearth new evidence or un-pleaded matters in the petition. Hence if it is intended to tackle any malpractice or irregularity then the same must be pleaded in the petition so that the Respondents are not ambushed and eventually disadvantaged. It would be appropriate to await the reception of evidence before an order for scrutiny and recount is made. Suffice to add that already an order for resealing ballot materials has been made pending the hearing of Petition and which is deemed to assuage the fears and concerns of the parties as regards the safety and integrity of the materials pending the hearing of the Petition.

13. Going by the Provisions of Section 82 of the Elections Act and Rule 28 and 29 of the Election Petition Rules aforesaid, an order for scrutiny cannot issue at pre-trial stage when parties have not had the opportunity to canvass the allegations contained in the Petition and for the court to receive the requisite evidence. It is quite proper and appropriate to order for scrutiny after the court has started hearing the evidence of the parties since by that time the evidence tendered by the parties will have been tested through cross - examination and re-examination. In the premises I am reluctant to grant the prayer for scrutiny as sought by the Petitioner at this stage of the proceedings.

14. In the result and save for the prayers allowed by consent of the parties namely 5, 6, 7, 8 ad 10 and those granted by this court being 2 and 3, the rest of the prayers in the Petitioners Application dated 3/10/2017 are ordered dismissed with costs to the Respondents.

It is so ordered.

Dated, signed and delivered at Machakos this 14thday of November, 2017.

D. K. KEMEI

JUDGE

In the presence of:

Musyimi for Wetaba for Petitioner

Mulondu for 1st Respondent

Adunga for Ligunya for 2nd Respondent

Kala Jackson Musyoka – Petitioner

Kabaka Boniface Mutinda – 2nd Respondent

Kituva – Court Clerk