[2022] KEHC 3318 (KLR)

Kaniaru v Chepkwony & another; Independent Electroral and Boundaries Commissions (Interested Party) (Civil Appeal E72 of 2022) [2022] KEHC 3318 (KLR) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3318 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E72 of 2022

TM Matheka, J

July 1, 2022

Between

John Kariuki Kaniaru

Appellant

and

Charity Kathambi Chepkwony

1st Respondent

United Democratic Alliance (U.D

2nd Respondent

and

Independent Electroral and Boundaries Commissions

Interested Party

(Appeal from the Judgment of the PPDT in PPDT no 007 of 2022 John Kariuki Kaniaru vs Charity Kathambi Chepkwony & 2 others delivered on 7th May 2022 Jessica M’mbetsa, Samuel M Nderitu & Dr. Adelaide M Mbithi (members))

Judgment

1. John Kariuki Kaniaru, the appellant, and Charity Kathambi Chepkwony the 1st respondent are members of the 2nd respondent United Democratic Alliance, UDA.

2. The 1st respondent is the current Member of Parliament for Njoro Constituency.

3. Both the appellant and the 1st respondent presented themselves for nomination as UDA party candidates for the position of Member of Parliament in the upcoming General Election.

4. The 2nd respondent called for nominations on 14th April 2022 pursuant to the party’s Constitution, and in compliance with the timelines set out by the Interested Party the Independent Electoral and Boundaries Commission (IEBC).

5. The nomination exercise took place on the 14th April 2022 in Njoro Constituency and the 1st respondent was declared the winner.

6. The appellant was dissatisfied with the said outcomes and filed his complaint before the EDRC Nomination Dispute no 155/2022 John Kariuki Kaniaru vs Charity Chepkwony Kathambi and National Election Board before the UDA Electoral Nomination and Dispute Resolution Committee.

7. In its Ruling dated 21st April 2022 the committee set the appellant’s complaint thus;“The applicant avers that the 1st respondent had pinned the posters at the polling center at Ndege, Nesuit and Sururu Primary School which was against the party rules and regulations. He also states that the agents wore badges bearing the portraits of the first respondent. The staffing of polling station came from members of the community that supports the applicant. That in some polling stations especially in Sururu which served as the 1st respondent’s strong-hold, the nomination process was carried out beyond the scheduled time. The applicant also avers that there was massive voters bribery which was carried out inside vehicle registration number KCN 525F. It was alleged that Ezekiel Soi, the presiding officer, is a well-known friend to the 1st respondent and that he was involved in the respondent’s campaign which compromised the process. That the applicant’s agents were denied access to the polling station at Tengecha Primary School which is alleged to have allowed them to carry out multiple voting. The applicant avers that the incident was reported but no action was taken.The respondent’s advocate prayed the committee to declare that the nomination process and the subsequent declaration of the winner did not meet the constitutional threshold and that the nomination should be nullified. The respondent argued that the nomination was free and fair and that they were able to receive 3025 votes compared to the applicant’s 601 votes.…the claims remain to be hearsay and hence inadmissible. The respondent also claimed that they were not in charge of the recruiting and training of the polling officials and reiterated that the nominations were free and fair and the applicant did not challenge the actual results. According to the NEB, the claim remains unsubstantiated.”

8. His prayers before the EDRC were for;i.A declaration that the party nomination process for the position of Member of National Assembly Njoro Constituency did not meet the constitutional threshold as free and fair elections.ii.That the party nomination process for the position of Member of National Assembly Njoro Constituency and subsequent declaration of the 1st Respondent as the party’s candidate for the position of Member of National Assembly Njoro Constituency be nullified.iii.That the committee do order the 2nd respondent to call for a repeat party nomination for the position of member of National Assembly Njoro Constituency within a time its committee deems fit.

9. The EDRC found that the election in Njoro Constituency was free and fair and reflected the will of the people, upheld the same, and the provisional nomination certificate issued to the 1st respondent.

10. The appellant was dissatisfied. He filed a “Petition” in the Political Parties Dispute Tribunal, Dispute No. 700 of 2022 John Kariuki Kaniaru vs Charity Kathambi Chepkwony, United Democratic Party Alliance, UDA National Elections Board, UDA Electoral and Nomination Committee (EDRC) dated 26th April 2022. The basis for that Petition was found on the face of the Petition;“That it is the petitioner/applicant’ case that the said nomination/election failed to observe and apply cardinal constitutional, and statutory values and principles of an electoral process. These include: impartiality/neutrality of the electoral officers, accountable, transparent, free and fair. It is also the petitioner’s case that the said primaries were marred with electoral malpractices which essentially invalidate the results declared by the 3rd respondent.”

11. He proceeded to set out the particulars of the alleged malpractices and irregularities under the following heads;a)Recruitment of the electoral officials and lack of partiality/neutrality.b)Accreditation of agents and denial of opportunity to station agents at various polling stations.c)Tallying at the constituency centre was done in the absence of the petitioner and his agents.d)Form 6A as used in the process is unaccountable document and other malpractices.e)Constitutional and statutory provision (the law) and their infringement.

12. In its Judgment dated 7th May 2022 the Political Parties’ Dispute Tribunal (PPDT) framed three (3) issues for determination;a)Whether the Nomination exercise for the positions of Member of National Assembly for Njoro Constituency was conducted in substantial compliance with the law.b)What are the appropriate reliefs to grant in the circumstances?c)Who should bear the costs of these proceedings?After a detailed analysis of the evidence, submissions of the law, the PPDT arrived at the conclusion that;“The Tribunal makes a finding that the nominations held on 14th April 2022 for the 2nd Respondent’s Member of National Assembly candidate for Njoro Constituency was done substantially in compliance with the law and the decision of the 4th Respondent is therefore upheld.”

13. It is that determination that provoked this Appeal dated the 26th April 2022.

The Appeal 14. In the Appeal the parties were John Kariuki Kaniaru vs Charity Kathambi Chepkwony & United Democratic Alliance (UDA).

15. The Appellant in his Memorandum of Appeal, listed five grounds particularized as hereunder:i.That the tribunal erred in law and fact by, dismissing the Applicant’s petition on the ground that the Applicant did not prove his case to the required standard while there was overwhelming evidence to the contrary.ii.That the tribunal erred in law and fact by finding that the nomination exercise of Njoro Constituency for the position of Member of National Assembly was done in compliance with the law while also finding that there were glaring breach of law in the nomination exercise carried out on 14th April, 2022. iii.That the tribunal erred in law and fact, by declaring the 1st Respondent as duly nominated Member of Njoro Constituency under the 2nd Respondent while the results therein were unverifiable for lack of the support Form 6A.iv.That the tribunal erred in law and fact by relying on Form 34B which had not been signed by the Aspirant’s Agents which issue was weighty during hearing.v.That the tribunal erred in law and fact by issuing final orders which were inconsistent with the evidence submitted in terms of verifiability of the final results of the nomination conducted on 14th April, 2022 in Njoro Constituency but still went ahead to issue orders that were contrary.

16. The Appellant is seeking the following orders:i.That this Honourable Court be pleased to set aside and/or discharge the orders of the Tribunal in the Judgement delivered on 7th May, 2022. ii.A declaration that the nomination exercise undertaken by the 2nd Respondent in respect of the member of Parliament Njoro Constituency on the 14th of April,2022 is not verifiable, ascertainable and in the circumstance, this Honourable Court do issue order, directing the 2nd respondent to conduct a fresh nomination exercise in compliance with the Law.iii.That the costs of this appeal and those of the tribunal to be borne by the respondents.

17. The Appeal was canvassed via Written Submissions.

The Appellant’s Submissions 18. The appellants Submissions were filed by Mr. Mukira on 14th June 2022. He submitted that the main issue of contestation by the appellant is the unlawful and or illegal manner in which nominations for the Njoro Constituency were carried out on 14th April 2022 by the 2nd respondent. He argued that the appellant had raised very weighty issues before the tribunal, with respect to the whole nomination process. He claimed that there was non-accreditation of agents, denial of his agent’s access to polling stations, continued campaigns by 1st respondent and polling station by placing campaign posters, her agents wearing badges with her portrait, lack of signing of form 34B and 6A by party’s agents and participation of Returning Officers in the 1st respondent’s campaigns.

19. Counsel reminded the court of its duty and that as the1st appeal the court it was bound to re-examine the evidence, the law and draw its own conclusions.

20. On the 1st and 2nd ground the learned Counsel submitted that there was overwhelming evidence to prove the Appellant’s complaint contrary to the finding of the tribunal. He stated that the 2nd Respondent vide a Notice in the newspaper on 5th April, 2022 issued directions on the events to be undertaken and timelines to be observed before the nomination process was carried out and that the said notice which Appellant produced as evidence clearly demonstrated the process and timelines to be followed before the culmination of the nomination process on 14th April, 2022.

21. He argued that the 2nd Respondent had not controverted the Appellant’s complaints regarding the 2nd Respondent’s non-compliance with its nomination process at the Political Parties Dispute Tribunal and the Committee stage. He submitted that the Tribunal had failed to determine the issue and only indicated that that the Appellant had not tendered any evidence in support thereof. It was the Appellant’s further submissions that it was incumbent upon the 2nd Respondent to demonstrate through minutes when such meeting was carried out and who were in attendance but they failed to do so.

22. The Counsel argued that all this was contrary to the provisions of the 1st Schedule of the Political Parties Act under Section 6 (c) which requires Political Parties to “respect, uphold and defend their respective political party’s candidates, Political Parties duties, rules, Political Party nomination rules and any other Political Party Rules”

23. In further support of the above position, the Appellant’s Counsel relied on the case of Raila Amolo Odinga & Another vs Independent Electoraland Boundaries Commission & 2 Others [2017] eKLR it was submitted that;(226)Here in Kenya, the issue of elections as a process was discussed in the case of Karanja Kabage vs Joseph Kiuna Kariambegu Nganga & 2 Others [108] where the High Court observed that:“an election is an elaborate process that begins with registration of voters, nomination of candidates to the actual electoral offices, voting or counting and tallying of votes and finally declaration of the winner by Gazettement. In determining the question of the validity of the election of a candidate, the court is bound to examine the entire process up to the declaration of results…. The concept of free and fair elections is expressed not only on the voting day but throughout the election process…. Any non-compliance with the law regulating these processes would affect the validity of the election of the Member of Parliament.”

24. It was Counsel’s argument that the above case demonstrates how crucial the nomination process is to an election and hence the need for political parties to comply with the rules and regulations in holding credible nominations. It was his position that the 2nd respondent had failed to adhere by its own rules and regulations. Citing Washington Jakoyo Midiwo vs Independent Electoral Boundaries Commission & 2 others [2018] eKLR which the court quoted with approval the case of Raila Amolo Odinga & Another vs Independent Electoral and Boundaries Commission & 4 Others & Attorney General & Another Petition No. 1 of 2017 where the Supreme Court stated: -“… [133] It follows that once the court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most case the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce factual evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law….”

25. Counsel further argued that that the appellant had established such noncompliance and hence the burden of proof had shifted to the 2nd Respondents to show compliance by tendering evidence in rebuttal as the body charged with carrying out the nomination process but it failed to do so. In particular, that the 2nd respondent had not produced any evidence to show that it had complied with the timelines set in the “Newspaper Notice of 5th April 2022”

26. Counsel submitted that the acts of the 1st respondent of campaigning in the polling stations and also having agents wear badges with the 1st Respondents portraits were grave contraventions of the rules and regulations of nominations, and to the electoral laws. He submitted that the appellant had attached a pictorial evidence both of the campaign posters pinned at Ndege Polling Station and the certificate in compliance with section 106 B (4) of the Evidence Act, which had not been controverted by the Respondents.

27. He submitted further that the Appellant provided cogent evidence in the nature of photographs and nomination anomalies which were confirmed via a statement of one John Mwamba contrary to the tribunal’s findings that the Appellant failed to adduce sufficient evidence.

28. Regarding the 3rd and 4th grounds counsel cited that case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR where the court stated:“Accuracy of the count is fundamental in any election. Voter turnout determines the outcome of any electoral contest. Numbers are therefore not only unimpeachable, but they are everything in an election. The lowest voting unit and the first level of declaration of presidential election results is the polling station. The declaration form containing those results is a primary document and all other forms subsequent to it are only tallies of the original and final results recorded at the polling station.”

29. Relying on this case Counsel submitted that the Appellant demonstrated through Form 34 B the unreliability of the results of the nomination elections by pointing out the disparities in the vote count and the entries made therein, a position, he submitted, was unchallenged by the Respondents. He stated that the tribunal in its judgement at paragraph 49 found this issue as weighty and that Form 34 B had a fundamental flaw but erroneously argued that the same could have been successful if the Appellant had produced the Form 6A’s which show cast votes at the Polling station. He contended that Appellant could not produce the said Form 6A as it is in custody of the 2nd Respondent.

30. He further submitted that the aforesaid results were unreliable as the said form was only signed by the Returning Officer one Ezekiel Soi who was biased as he was well known to be campaigning for the 1st Respondent and no agent of either side had signed the form to confirm the results therein. That the Tribunal misdirected itself in dealing with this as though the appellant was relying on this form to support his arguments yet he was using the form to demonstrate that there were anomalies throughout the process.

31. Counsel also submitted that the participation of election officials and agents is core in every electoral process and cannot be overlooked. For this proposition he relied on Nuh Nassir Abdi vs Ali Wario & 2 others [2013] eKLR.

32. To bolster his assertion that tribunal erred in upholding the nomination of the 1st respondent based on the results contained in form 34 B , the counsel cited the case in Nakuru High Court Appeal No.E 063 Of 2022 Susan Nyambura Njuguna vs John Karanja Gachingiri & Another where the court observed that it was problematic to go by the results in the impugned Form 34B, because it was unsigned by the Returning Officer and its credibility plausibly questioned, that it was similarly problematic to rely on that form because Form 6A’s which provided raw data had not been produced, and that it would be unfair to conclude that the appellant’s case failed merely because the 2nd respondent failed to make the material; available yet the Appellant in court’s view had made a case strong enough to require the 2nd respondent to produce all the Form 6As for scrutiny.

33. The Appellant’s counsel prayed that the orders sought herein be granted.

1st Respondent’s Submissions 34. Mr. Muhochi for the 1st respondent filed submissions on 21st June 2022.

35. He submitted that the 2nd respondent’s party primaries were conducted on 14th April, 2022 in peace and tranquility, where five (5) contestants and over 25,000 voters participated. That the appellant garnered three thousand four hundred and fifty five (3,455) votes emerging second to the 1st Respondent who obtained eighteen thousand, three hundred and forty (18,340) votes and he did not apply for re-tallying or recounting or scrutiny before declaration of the results.

36. He submitted that the decision of the subordinate tribunal is sound and it should be sustained. He then framed issues for determination:i.Whether this court has Jurisdiction to determine the petition.ii.Whether the Subordinate Tribunal misconstrued itself in interpreting the electoral laws with regard to the standard of proof?iii.Whether the judgment of the Subordinate Tribunal fell short of the expectation of the law as regards the contents of a judgment?iv.Whether the Subordinate Tribunal erred in disregarding the evidence and exhibits adduced by the appellant?

37. On the issue of Jurisdiction, counsel cited section 75(4) of the Election Actsubmitting that with respect to the appellant’s appeal this court’s jurisdiction is limited to matters of law only, hence it is precluded from interfering with findings of facts made by a trial court in an election petition.

38. He submitted that the phrase ‘matters of law’ was defined by the Supreme Court of Kenya (SCOK) in the case of Fredrick Otieno Outa vs Jared Okello & Others (2014) eKLR as follows: -“(a)the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor;(b)the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;(c)the conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claims that such conclusions were based on ‘no evidence’, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were ‘so perverse’, or so illegal, that no reasonable tribunal would arrive at the same; it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.”

39. He urged the court to distinguish the matters of law from those of facts as set out in the same case thus:“A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts or when the issue does not call for an examination of the probative value of the evidence presented, to truth or falsehood of facts being admitted.A question of fact exists when the doubt or differences arises as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the credibility of witnesses, the existence or relevancy of specific surrounding circumstances, as well as their relation to each other and to the whole and to the probability of the situation. This court cannot adjudicate which party told the truth ----- by reviewing and revising the evidence adduced at the trial court. Neither verbal sophistry, nor artful misinterpretation of supposed facts which were made by the trial court ----- absent any showing that there are significant issues involving questions of law.”

40. It was his position that this court cannot adjudicate which party told the truth by reviewing and revising the evidence adduced at the trial court unless under exceptional circumstances where the justification and the need is clearly demonstrated.

41. Submitting on the 1st, 2nd and 5th Grounds of Appeal he argued that these are general omnibus grounds which must fail; that Memorandum of Appeal and the Appellant’s Submission did not demonstrate any reason for the court to review the evidence as provided as no legal arguments were advanced to enable the court do this. That nothing was placed before this court to demonstrate the legal shortcomings of the Tribunal’s decision. Further that the appellant has not demonstrated any Consistency or Inconsistency of the Subordinate Tribunal Decision issued on 7th May 2022 to the final orders granted.

42. As regards the 3rd and 4th grounds on verifiability of elections, counsel submitted that firstly this was a new claim which the appellant had not raised subordinate tribunals. He submitted that it was a demonstration of the manner in which the appellant’s claim had mutated from the original claim.

43. That in any event the Verification of votes or results which would include a request for re-tallying, recount or application for scrutiny was an exercise that the Appellant could have initiated during the Party Primary Nomination Exercise on the 14th of April 2022, during dispute hearing at the UDA EDR Committee and during hearing in the Political Parties Dispute Tribunal(PPDT) but he failed to do so, and could not be heard to raise the same now at appeal level.

44. He submitted that the Supreme Court decision in Raila Odinga and others vs Independent and Boundaries Commission and others, Petition Number 5 of 2013 and Raila Amolo Odinga & Another vs Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR had settled the question of nullification of election results on the basis of malpractices and irregularities but that in any event the numbers involved remained insignificant to affect the results.

45. Counsel submitted that the appellant had failed miserably to present any evidence of any electoral offences alleged to have been committed by the 1st respondent. He relied on Moses Masika Wetangula vs Musikari Nazi Kombo 2015 eKLR where the court held that the primary duty of the election Court is to give effect to the will of the electorate; and consequently, the court is to investigate the nature and extent of any election offence alleged in an election petition.

46. He submitted that if indeed there were any electoral offences committed as alleged by the appellant he had the opportunity to report that same to the 170 police officers deployed on the nomination day or the investigative authorities. That failure was an indication that the allegations were unsupported by any evidence. Further that the evidence he produced remained uncorroborated

47. The 1st respondent’s Counsel submitted that the electronic evidence failed to satisfy the provisions of Section 106 B of the Evidence Actas the same was not produced by the maker. He urged the court to deploy the multiple test by considering the evidence of the alleged irregularities and their effect vis a vis the gross transgression on the thousands of voters who voted peacefully on the 14th April 2022.

48. He prayed that the appeal be disallowed with costs to the 1st Respondent.

The 2nd Respondent’s Submissions 49. The 2nd Respondent submitted on two issues; namely;i.Whether the Honourable Tribunal determined the Complaint/petition on merit; andii.Whether it misapprehended any facts or laws that were placed before in reaching its decision.

50. It was the 2nd respondent’s position that what was before the Political Parties Dispute Tribunal was the appellant’s compliant arising from the 2nd Respondent’s Party primaries nominations that were conducted on 14th April, 2022 in Njoro Constituency for the position of Member of National Assembly and was duly treated as such.

51. With regard to the first issue, the 2nd Respondent’s counsel submitted that the Trial court/Tribunal regarded all the rules and regulations governing the proceedings and it identified the contentious issues that called for its determination of which it went ahead and resolved and came to the right conclusion that the Petition and Notice of Motion based on its findings was for dismissal for failure of the Appellant to prove any of the allegations contained in his Complaint/Petition.

52. Counsel submitted that the Appellant did not adduce any evidence whatsoever to advance his argument that the Constitution had been breached in the nomination of the 1st Respondent which led to the tribunal’s dissatisfaction with his evidence in that his allegations of voter bribery, voting continuing till late in a station where the 1st Respondent was allegedly more popular, being locked out of 31 polling stations and the constituency tallying center were not supported by an evidential proof.

53. Counsel for the 2nd respondent submitted further that the appellant had urged the Tribunal to believe his statements to be true simply because the Respondents had failed to disapprove the same. That the Tribunal took judicial notice of the established principle that a complainant bears both the legal and evidential burden of proving any allegations made and that the evidential burden would only shift where the complainant has established a prima facie case. He submitted that this burden is based on the Latin maxim ‘ei qui affirmat, non ei qui negat, incumbitprobatio’ that is ‘the burden of proof lies upon him who affirms and not upon him who denies.’ The 2nd respondent relied on Washington Jakoyo Midiwo vs Independent Electoral & Boundaries Commission & 2 others (2018) eKLR.

54. To that end that the 2nd Respondent argued that Appellant was expected to first and foremost to establish that the acts or omissions complained of or alleged were indeed committed, and then secondly to prove that these acts or omissions did affect either the outcome and/or validity of the elections, that the Appellant is required to establish these facts and discharge this burden before the 2nd Respondent is called upon to respond. That this is the purport of Section 107 and 108 of the Evidence Act. The 2nd Respondent submitted further that what the appellant had placed before court were generalized allegations. He relied on the case of Wanguhu Ng’ang’a& Another vs George Owiti &Another-EP No. 41 of 1993; Joho v. Nyange where the Judge stated:“...Generalized allegations as the ones made in this petition are therefore not the kind of evidence required to prove election petitions. As I have said, they should be proved by cogent, credible and consistent evidence.”

55. Counsel for the 2nd Respondent argued that it was requisite for the appellant to establish that the alleged irregularities were of such magnitude that they substantially and materially affected the result of the election and relied on Murgor vs Igenya& Another(2008) IKLR (EP) pg. 191. It was submitted no evidence was tendered by the Appellant to show that the results as declared were not the genuine results. It was submitted that no election or nomination can be free from some irregularities but in respect to the matter before the Trial Court and without evidence, the Tribunal was right to make the findings and decide the matter in the manner that it did.

56. Arguing that parties are bound by their pleadings, and relying on Joseph Mbuta Nziu vs Kenya Orient Insurance Company Ltd[2015] eKLR, it was submitted for the 2nd Respondent that the Appellant could not at this stage seek for fresh nominations as it a new prayer that was not sought in the Trial Court/Tribunal. That seeking for this new prayer of fresh Nominations would be contrary to the law. That the request to conduct fresh nominations is an attempt to introduce a new aspect and prayer that was not sought in the original claim and hence cannot be introduced at this level. This has been illustrated in various cases which have remarked that Appeals are not intended to enable a party who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Appellate Court as there would be no end to litigation if such is permitted in this case.

57. As regards costs, the Counsel urged the Court to award the 2nd Respondent costs of the Appeal and the Trial Court/Tribunal and the same to be borne by the Appellant since this Appeal is an utter abuse of the Court process.

58. The Interested Party did not participate in the Appeal.

Issues for Determination 59. From the foregoing the following issues present for determination:a.Whether this Court’s Jurisdiction over this matter is confined to consideration of questions of Law only;b.Whether the Appellant discharged the burden of proof before the Political Parties Disputes Tribunal (PPDT);c.Who should bear the costs of this Appeal?

60. However, there is the preliminary issue about the mutating nature of the appellants claim.

61. It is quite evident from the pleadings as set out in this judgment that it is true that the appellant’s claim appears to have taken a hydra-like form from the time it started. Before the EDRC, he sued only the 1st respondent and the National Elections Board of the UDA Party. At the PPDT he sued the 1st respondent, UDA Party itself, the National Elections Board of the UDA party and the EDRC of the UDA Party, and on appeal it was now between him, the 1st respondent, the UDA Party and the IEBC. As the parties changed, so have the appellant’s claims.

Analysis Issue No.1- Whether this court’s jurisdiction over this matter is confined to consideration of questions of law only 62. This issue was raised by the 1st respondent and it is necessary to get it out of the way in the first instance. The Court of Appeal in the case of Owners of Motor Vessel ‘Lillian S” v. Caltex Oil (Kenya) Limited (1989) KLR 1 described Jurisdiction as everything. Without it, a court should down its tools in respect of the matter before it. This holding was cited and expounded by the Supreme Court in Re Interim Independent Electoral Commission [2011] eKLR. It would be unlawful therefore for the court to assume jurisdiction it does not have.

63. The Jurisdiction of the High Court to hear appeals generally is derived from the enabling provisions of Article 165 (3) (e) of the Constitution giving it ‘any other jurisdiction, original or appellate, conferred on it by legislation.’

64. The 1st respondent citing section 75(4) of the Elections Actsubmitted that this court lacks jurisdiction to determine this appeal on matters of fact. That this court’s jurisdiction is only confined to hearing matters of law. Section 75(1A) and (4)“75 (1A) A question as to the validity of the election of a member of a county assembly shall be heard and determined by the Resident Magistrate’s Court designated by the Chief Justice. ….75 (4) An appeal under subsection (1A) shall lie to the High Court on matters of law only and shall be—(a)filed within thirty days of the decision of the Magistrate’s Court; and(b)heard and determined within six months from the date of filing of the appeal.”

65. The above section relates to matters of an election of a Member of County Assembly and not a Member of Parliament as is in the case herein. This argument is thus fundamentally flawed. The jurisdiction of this court sitting on appeal in this matter is derived from Section 41 (2) of the Political Parties Act that provides that;

Determination of disputes(1)The Tribunal shall determine any dispute before it expeditiously, but in any case shall determine a dispute within a period of three months from the date the dispute is lodged.(2)An Appeal shall lie from the decision of the Tribunal to the High Court on points of law and facts and on points of law to both the Court of Appeal and the Supreme Court. 66. This court therefore is clothed with the requisite jurisdiction to determine this matter on both points of Law and Facts.

Issue No.2 - Whether the appellant discharged the burden of proof before the political parties disputes tribunal (PPDT) 67. It was the PPDT’s holding that the Appellant’s claims before it were not supported by any evidence and that the evidential burden of proof could only shift to the Respondents upon the Appellant’s establishment of a prima facie case.

68. All the Respondents were in concurrence with this position in this Appeal. They asserted that it was the duty of the Appellant to discharge both the legal burden of proof and evidential burden of proof, that instead the Appellant just brought claims with an expectation that the Respondents would evidentially discount them, a position inimical to provisions of Section 107 & 108 of the Evidence Act.

69. Sections 107, 108 and 109 of the Evidence Act, Cap 80 Laws of Kenya, specify which party to a suit bears the burden of proof. The spirit of these provisions of the law is captured in the case of Isaiah Ondiba Bitange & 3 others vs Institute of Engineers of Kenya another [2017] eKLR, the court stated that:“The starting point is that whoever desires any court to give judgement as to any legal right or liability, dependant on the existence of fact which he asserts, must prove that those facts exist. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

70. Electoral disputes are suis generis. The standard of proof in election matters lies between proof beyond reasonable doubt and prove on a balance of probabilities. This was said in the Supreme Court of Kenya in Raila Odinga & 2 others vs Independent Electoral & Boundaries Commission & 3 others [2013] eKLR“The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt – save that this would not affect the normal standards where criminal charges linked to an election, are in question.”

71. Further Mbowe vs Eliufoo [1976] E.A 240 the court stated the standard of proof to be discharged in an election petition, in these terms –“There has been much argument as to the meaning of the term “prove to the satisfaction of the court. Section 107 of the Evidence Actis clear that the burden of proof must lie on the Petitioner rather than the Respondent because it is he who seeks to have this election declared void.”

72. According to the Petition, the Appellant claimed that: -i.The 1st respondent was declared a winner despite clear evidence of electoral malpractices which compromised the integrity and the standard of free and fair of the entire electoral process; Other than the claim that there were electoral malpractices the appellant did not avail evidence before the two tribunals to support this position.ii.The 2nd respondent’s primaries were overseen by officials who were not impartial or neutral; I have perused the record and I have not seen any evidence to support this allegation, or any corroboration from other aspirants. The statement of one John Mburu Mwamba Kinyanjui contained a raft of complaints against the UDA Party and its officials, faults against the party. There were allegations of the relationship between the 1st respondent and the returning officer and a presiding officer through marriage and family but those remain just that allegations without proof. If indeed the appellant and his witness had any proof of these relationships, they ought to have file the same.iii.The accreditation process was irregularly done as it was undertaken on the date slated for nomination that is on 14th April 2022; The 2nd respondent and its election board failed and refused to accredit his agents in the said polling stations and therefore voting proceeded without his agents and ultimately the entire process in those stations were opaque, unaccountable, unverifiable and invalid; His agents were denied access during the nomination process in Mauche, all Nessuit and Gwataniro polling stations on flimsy grounds that they did not have prescribed authorization letters; The 1st respondent in Mwigito Primary School polling station had six agents compared to other aspirants who were only allowed one agent; tallying at the constituency Centre was done in his absence and in the absence of his agents.iv.Voting at Tebeswet Primary School in Mauche Ward which was one of the 1st respondent’s stronghold was more than the votes tallied in that the number of people who voted for the 1st respondent were 299 but the total vote tallied was 223; The total votes tallied in Muthaiga and St. Lwanga were left out; the 1st respondent garnered 18,340 votes while the figures as per form 34 B amounted to 17,956 votes and that form 34B from Njoro Constituency was only signed by the returning officer and no other party including his agent signed it as required by the law ;v.During the nomination process in Njoro Nessuit Primary School and Sururu Primary School polling stations, the 1st respondent’s photographs were placed in the polling centers and the 1st respondent’s agents contrary to the law directed voters to vote for the 1st respondent;vi.The 1st respondent’s agents who were all manning all the polling stations wore badges with portraits of the 1st respondent;vii.The staffing of most polling stations within Njoro Constituency came from one community whose very nature and character was evidently in support of the 1st respondent this creating a bias in the nomination;viii.In Nessuit and Sururu polling stations which was the 1st respondent’s stronghold, nomination went beyond 7p.m contrary to election rules;ix.There was massive voter bribery at various polling station carried by the 1st respondent’s agentsx.Form 6A as used in the process was uncountable and unverifiable document since his agents were not allowed to confirm the contents therein;xi.The process leading to the declaration of the 1st respondent as the winner of the disputed exercise infringed his rights under articles 1,2,10,20(1)(3) &(4),38(2)(b) & 81 of the Constitution of Kenya 2010, statutory principles and values of electoral system.

73. Did the Appellant prove the above claims/allegations? I have anxiously perused the entire record of appeal specifically the Appellant’s entire pleadings and submissions both before the tribunal and this court and I have not seen the evidence.The appellant did not lay any evidence to support this position. For instance, with respect to the agents, not a single name of the appellant’s appointed agents was given, not even one of his alleged agents swore an affidavit as evidence that they were indeed appointed and denied access as alleged. Not even was named or swore an affidavit to confirm that they were appointed agents and were denied entry as alleged. The appellant speaks of reasonable suspicion that there was multiple voting but that in itself is not evidence.

74. The appellant in his submissions dated 2nd May 2022 before the tribunal, submitted that the 2nd respondents and its election board are the main actors in the nomination process to wit dealing with all requisite preparations for the nomination process and rules to be observed, setting date for nominations and are custodians of all materials and specifically the results of all polling stations upon conclusion of the nomination process and therefore they bore the burden of producing evidence that they were compliant with the rules and regulations of the process.

75. He averred that the 2nd respondent and its election board failed to produce minutes specifying the date and venue where all activities directed in the Notice of 5th April, 2022 were carried out. That once he questioned the electoral process the burden of proof shifted to the 2nd respondent and its National Election Board to prove that the process which resulted to the nomination of the 1st respondent was conducted in compliance with the set rules and regulations. For this proposition, the appellant placed reliance on the case of Washington Jakoyo Midiwo vs Independent Electoral Boundaries Commission & 2 Others [2018] eKLR.

76. It is noteworthy that this case is not in support of the Appellant’s above contention because the court was clear that the evidentiary burden shifts to the respondent once a petitioner has adduced sufficient evidence to warrant impugning an election.

77. The Appellant placed a lot of capital on the submission that the respondents did not prove him wrong on all the allegations that he made. Clearly the appellant was mistaken. The respondents could only have been called upon to make a response once the appellant had establishment of a prima facie case. In this case there was no such evidence. All the appellant placed before the court were allegations.

78. The Appellant adduced pictorial evidence in an attempt to prove several things: that the 1st respondent pinned her posters at Ndege Primary School polling station during the nomination process. The photos are not clear to begin with. One cannot tell where they are and what identifies that wall as Ndege Primary School. There is a photo of a person seated somewhere wearing a badge. It is not known where this place is or when the photo was taken. There is another photo, group photo of some five persons posing somewhere, one cannot tell when it was taken and where. All copies of the photos bear a date in the top left corner 4/19/2022 4:17pm. How does one relate these to 14th April 2022? The scanned color photos include one more of persons standing outside Njoro Police Station. These people are not known or why they were there.

79. There is a certificate in compliance with section 106 B of the Evidence Actby the maker of the said photographs on record. However, the deponent, Gabriel Ndirangu Gakure states that he was the Chief Agent of the Appellant in the UDA nominations of 14th April 2022. In the certificate he simply speaks about the serviceability of his mobile phone, its imei number and that he took photos of ‘electoral malpractices at Ndege Primary School’. While it is true that a picture can take the place of a thousand words, it cannot be in this case where there is no explanation by the photographer of what he captured. He simply states he took photos of malpractices but does not say what they are. Posters on a wall, a person wearing a badge, a group of people posing for a photo, another standing outside the entrance of a police station, what malpractice is revealed by these photos?

80. It is correct that an aspirant is not allowed to campaign during the election date or at the polling station, no such evidence is on record as against the 1st respondent.

81. The Appellant also challenged the 2nd respondent nomination process conducted by its National Election Board which lead to the declaration of the 1st respondent as the winner of the disputed exercise on the grounds that it infringed articles 1,2,10,209(1) (3) &(4),38(2)(b) & 81 provisions of the Constitution of Kenya 2010, statutory principles and values of electoral system. Other than writing down this contention the appellant did not adduce evidence as is required to explain how his rights were specifically violated. The Appellant also failed to show the manner of violation of the said constitutional or fundamental rights in accordance to the holding in Anarita Karimi Njeru vs Attorney General [2013] eKLR.

82. It is not in dispute that form 34 B was only signed by the Returning Officer one Ezekiel K. Soi. The Appellant’s submitted that his agents were denied access to polling stations and they did not sign the requisite form 34 B and as such the nomination results were unverifiable. The Appellant failed to disclose the names of these agents and adduce evidence that he had appointed them to act in such capacity during the nomination exercise. Hence there is no evidence that he had these agents. The appellant’s Chief agent Gabriel Ndirangu Gakure did was absolutely silent with respect to any of these allegations. He was the Chief Agent. He was present and surely if it is true that any of the allegations about agents, denial of access and other alleged irregularities were true, he would have sworn an affidavit to that effect as the Chief Agent. However, the fact that his evidence was limited to the photographs is a clear indication that nothing untoward to the extent alleged by the appellant could have happened. It is not surprising therefor that these alleged agents did not swear any affidavit in support or file the appellant’s statements to corroborate this position. A perusal of the Form 34 B shows that neither the Appellant’s nor the 1st respondent’s agents appended their signature on the aforesaid form. The Supreme Court in Nathif Jama Adam vs Abdikhaim Osman Mohamed & 3 others (2014) eKLR had this to say about those circumstances.: -“(91)In this regard, petitioners did not lead any evidence that the lack of signatures or stamp of the presiding officers in forms 35A for the above mentioned polling stations affected the outcome of the election. Further, the petitioners did not challenge the results that were tallied and declared at those polling stations. It is not enough for the petitioners to merely allege and indicate a failure on the part of the 1st and 2nd respondents, but it was also essential for them to demonstrate that such failure affected the result of the election.” (Emphasis added)

83. Applying the principles in the above case, it is evident that the Appellant did not lead any evidence to demonstrate that the lack of signatures of his agents and those of the 1st respondent on form 34B affected the outcome of the election.

84. The appellant claimed that the other aspirants never got to meet and know the other presiding officers and that it was only the 1st respondent who met them. He claimed that he had to apply his own personal efforts to know who these officers were. Again this remains an allegation which he did not produce any evidence to support. He alleges that his protests led to his arrest by the DCI Njoro. However, this is again not supported by any evidence.

85. The Appellant contends that Form 34B could not prove that the nomination were verifiable and ascertainable. According to him the results therein contain disparities in the votes count and the entries made therein, and that this issue has not been controverted by the Respondents.

86. The Appellant avers that he could not produce form 6As which show cast votes at the polling station to establish his assertion as the said document is in possession of the 2nd Respondent and he was not allowed to take photos of the same.

87. He faulted the tribunal for finding that the results in Form 34 B were verifiable yet it questioned the credibility of the said form by stating that the only plausible support for such results is Form 6As.

88. The tribunal at paragraphs 48 & 49 of its judgment stated as follows:“The complainant also avers that it is alleged that the respondent garnered 18,340 votes while the current figures as per the form 34B and the votes therein amounts to 17956 votes, which to him is a clear indication that the votes cast and tallying was inconsistent. It is true that the 1st respondent at paragraph 7 of her replying affidavit says she got 18,340 votes which is also the figure that appear on Form 34B produced by the complainant as annexture JKK2. The complainant claims that the correct tally going by the attached form 34B should be 17,956 and he concludes that this was proof of the allegation that the votes cast and tallying was inconsistent. While the complainant’s allegation may hold some weight, it has a fundamental flaw in that the only way such an argument may carry the day is if the complainant would have availed Form 6 As which show votes cast and each polling station for comparison with the figures reported at the Form 34B the complainant has attached. Further if we were to go by the calculations made by the complainant above in disputing the Form 34 B tally, the figure he is said to have gotten in the form 34B still pales in comparison with the 17,956 votes he attributed to the 1st Respondent...”

89. I find no fault with the factual finding of the Tribunal.

90. In its totality I find that the appeal is without merit.

Issue No.3 Who should bear the costs of this appeal**__ 91. In the case of Jasbir Singh Rai & 3 others vs Tarlochan Singh Rai & 4 others Petition No. 4 of 2012; [2014] eKLR the court stated:“(18)It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice.”

92. The appeal lacks merit and is dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED AT NAKURU VIRTUALLY THIS 1ST JULY, 2022. MUMBUA T MATHEKAJUDGECA EdnaTusiime for 2nd respondentMr. Mukira for appellant N/AMr. Muhochi for 1st respondent N/A