[2022] KEHC 13833 (KLR)

Kenta & another v Independent Electoral And Boundaries Commissions (I.E.B.C.) & 3 others (Election Petition E001 of 2022) [2022] KEHC 13833 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13833 (KLR)

Republic of Kenya

In the High Court at Narok

Election Petition E001 of 2022

TM Matheka, J

October 18, 2022

IN THE MATTER OF THE CHALLENGE OF THE VALIDITY OF THE NAROK COUNTY GOVERNOR ELECTION, 2022 ANDIN THE MATTER ARTICLE 1(1); 2(2); 3(1); 4(2); 10; 21(1) 22(1); 23, 38(3); 46(2); 48; 81(a); & 82(2) (b); 84; 86; 87(2) & (3); 88(5); 165(3) (a) AND (e) & 180(1) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTION 75, 76, 80 AND 82 OF THE ELECTIONS ACT NO. 24 OF 2011 AND IN THE MATTER OF THE POLITICAL PARTIES ACT NO. 11 OF 2021 AND IN THE MATTER OF LEGAL NOTICE NO. 128 OF 2012, ELECTIONS (GENERAL REGULATIONS (2012) AS AMENDED AND IN THE MATTER OF LEGAL NOTICE NO. 72 OF 2017, THE ELECTIONS (GENERAL) AMENDMENT REGULATONS, 2017 AND IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017 AND IN THE MATTER OF LEGAL NOTICE NO. 126 OF 2012, (THE ELECTIONS REGISTRATTION OF VOTERS) REGULATIONS, 2012

Between

Richard Moitalel Ole Kenta

1st Applicant

William Kenteiyia Oltetia

2nd Applicant

and

The Independent Electoral And Boundaries Commissions (I.E.B.C.)

1st Respondent

The Narok County Returning Officer (Dr. Namulungu R. I. Sidney)

2nd Respondent

Patrick Keturet Ole Ntutu

3rd Respondent

Tamalinye Koech

4th Respondent

Ruling

(Petitioners’ Application Dated September 7, 2022) 1. The notice of motion dated September 7, 2022 is brought under certificate of urgency under articles 19, 20, 22, 23(3), 35, 81, 86, 140, 159 and 258 of the Constitution and sections 39, 44 and 82 of the Elections Act, section 27 of the Independent Electoral and Boundaries Commission (IEBC) Act, sections 1A, 1B and 3A of the Civil Procedure Act, order 51 rule 1 of the Civil Procedure Rules 2010 and all enabling provisions of the law.

2. The applicants, Richard Moitalel Ole Kenta and William Kenteiyia Oltetia have filed a petition against the IEBC, (1st respondent) Dr Namulungu RI Sidney the Narok county returning officer, (2nd respondent), Patrick Keturet Ole Ntutu (3rd respondent) and Tamalinye Koech, (4th respondent) challenging the election of the 3rd and 4th respondents as the governor and deputy governor of Narok county.

3. Before I delve into the merits of the petitioner I find it necessary to point out that the manner in which pleadings are drafted and presented to the court really matters. This is because the pleadings will be handled by a person(s) who will need to read and make reference to them a number of times. The parties need to index their pleadings more so the petitioner whose pleadings are bulky.

4. In addition, I found the application to be repetitive in the prayers/orders sought

5. In summary the applicant seeks three (3) orders;i.The preservation and safe keeping all the KIEMS kits used for all the polling and tallying centers with respect to the gubernatorial election of Narok county held on August 9, 2022 by IEBC and the county returning officer. This is repeated word for word at paragraphs 9 &21, 10 &22, 11&23, 12&24, 13&25, 14&26ii.The delivery into safe keeping and custody of the court as evidence of all the election materials used in that election including ballot boxes, written statements by presiding officers, under the provisions of the Elections Act, printed copy of the register used during the elections sealed in tamper proof envelope, copies of results of each polling station in which the results are contested: packets of:- spoilt papers, counterfoils of used ballot papers, counter ballot papers, rejected ballot papers, the marked copy of the register, polling day diary, statements showing the number of rejected ballot papers, KIEMS kits used for all polling stations and all other electoral materials. This also comes in doubles to be found in paragraphs 3&15, 4&16, 5&17, 6&18, 7&19, 8&20 in the exact same words.iii.Provision of access to the applicant of all the voter registers, counterfeits and diaries indicating the 1st and last serial number of all ballot papers issued for all the polling stations and tallying centers.

6. It is evident that the applicant is alive to the fact that it is the duty of the 1st and 2nd respondent to take care of election materials. One can see that the prayer for preservation and safe keeping by or 1st and 2nd respondents and the bringing into custody and safe keeping by the court are not sought in the alternative. However, one cannot find any explanation for the tedious repetition of the prayers/orders sought.

7. Be that as it may these prayers are with respect to the 504 polling and tallying centers set out on the face of the application and the supporting affidavit of the 1st applicant in the six (6) constituencies of Narok county: viz: -1. Kilgoris2. Emurua Dikirr3. Narok North4. Narok East5. Narok South6. Narok West

8. The grounds of the application are contained on the face of the application and the applicant’s affidavit; generally that there was premeditated systemic rigging of the poll from the point of registration of voters; that there was no verification, tallying or declaration of results at the gazetted tallying centre; that the 2nd respondent failed/refused to supply applicants with the results, there was widespread tampering with election materials; that in view of these, the applicants are apprehensive that the respondents may further interfere with the ballots and other electoral materials, unless the orders of preservation are granted.

9. The application is opposed.

10. The 3rd the respondent filed grounds of opposition pointing out the constitutional and statutory mandates of the 1st respondent to preserve and safe keep all the electoral materials, the sworn testimony of the 2nd respondent as to the safety of the materials , and the likely dangers involved in the effecting of the orders if granted; and the lack of evidence showing that the materials were unsafe or compromised and that in any event the rules require that this issues be dealt with at the end of the pre trail conference.

11. Each party filed written submissions.

12. I have carefully considered the submissions, the authorities cited and the constitutional and statutory provisions with respect to the prayers sought.

13. The electoral materials the applicant seeks to have preserved and kept safely are as defined by section 2 of the Elections Act. The question to be determined is whether the applicant has laid basis for the orders sought.

14. On the prayer for preservation and safe keeping, the petitioner and all the other parties are in agreement that the 1st & 2nd respondents have the constitutional and statutory mandate to preserve all electoral materials. This is what is stated by article 86 of the Constitution which states:“At every election, the Independent Electoral and Boundaries Commission shall ensure that: -(d)appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.”

15. In addition, regulations 86 of the Election (General) Amendment Regulations 2012, and 17 of the Election (Technology) Regulation 2017place the duty on the 1st respondent to ensure the safe keeping and preservation of the election materials.

16. It is evident that rule 16 of the Elections (Parliamentary and County Elections) Petition Rules 2017 provides direction as to when the court may give directions on the storage of ballot boxes and other materials, it states that this is to be done at the conclusion of the pre-trial conference. The rules also give guidelines to the court on the factors to be considered. It states;“Storage of ballot boxes and other materials(1)On conclusion of the pre-trial conference under rule 15, the election court may give directions on-(a)the storage of the election materials including ballot boxes and documents relating to the petition;(b)the handling and safety of the election materials; or(c)the time for furnishing the election materials to the election court.(2)In giving directions under sub-rule (1), the election court shall -(a)consider the prudent, efficient and economic use of storage and transport facilities;(b)consider the maintenance of the integrity of the election materials; and(c)ensure that the election materials are not interfered with.(3)An election court may direct that the commission maintains the custody of all election materials in relation to a petition.(4)Only the material relating to a particular petition may be furnished to an election court.(5)The election court may order that additional seals be placed on the ballot boxes related to the election for which a petition has been lodged.”

17. Having come to the conclusion of the pre trail conference, this is the right time to give directions. Has the applicant laid any basis for the court to exercise its discretion outside of these provisions?

18. First, it is true that the application as drafted seeks prayers that are contradictory. That stands out the face of the application. In the one breath the petitioner is saying that the electoral materials are not safe with the 1st and 2nd respondents, that these two cannot be trusted with the electoral materials, and that they should be directed to bring them to the custody and safekeeping of the court: and in the same breath the petitioner is asking the court to direct the two, the 1st and 2nd respondents to preserve the said materials.

19. It is on the basis of this that I say that I have carefully considered the applicant’s supporting affidavit in the light of Hassan Aden Osman v IEBC & 2others[2017] eKLR and have not found ground upon which to make any orders to remove the custody, safe keeping and preservation of the election materials from the 1st & 2nd respondent to that of this court.

20. On the issue of access, the applicant’s complaint is that he was denied copies of the results of the election of the governor Narok county 2022 The applicant has also made specific requests for data of voters identified manually in Narok South, Emurua Dikir and Kilgoris to be supplied to all the parties.

21. From the pleadings these forms are now to be found in the annexures to the replying affidavit and response to petition of the 1st and 2nd respondents. All the forms have been annexed there and are available for the perusal of the applicant.

22. The applicants want access to all the materials in 504 out of 883 polling stations. These are materials set out under regulation 86 of the Elections [General] Amendment Regulations 2012which states;“(1)After the final tallying and announcement of results, the returning officer shall keep in safe custody the following documents:a.Copies of all election result declaration forms.b.Copies of the register of voters sealed and labelled; andc.The electronic voter identification device.(2)The returning officer shall: -(a)Put the polling station diaries in a separate ballot box, seal and label the box and,(b)Keep the sealed ballot boxes and all material relating to the election in safe custody for such period as may be required under these regulations and the act.”and regulation 17 of the Election [Technology] Regulations 2017, provides for the safe keeping of election electronic data thus:“All electronic data relating to an election shall be retained in safe custody by the commission for a period of three years after the results of the elections have been declared, and shall, unless the commission or the court otherwise directs, be archived in accordance with procedures prescribed by the commission subject to the Public Archives and Documentation Service Act (cap 19) and the Kenya Information and Communications Act, 1998. ”

23. Going byJustus Mogumbu Omiti v IEBC & another [2017] eKLR there can only be limited access to election materials pretrial. I share the view in Elizabeth Ongoro Amollo v Francis Tom Joseph & 2others [2017] eKLR, that an application for access like the one before me does not fit into the mould of an Access to Information Act application. In this case the applicant has demanded access on grounds that require that a basis be laid as in my understanding the kind of access sought is in the form of scrutiny and clear as to what purpose this pre-trial access is intended to serve. Since there is that application for scrutiny, re tallying and recounting of all votes then a basis must be laid.

24. In addition, the 1st and 2nd respondents have provided copies of all forms 37A, 37B, 37C. They have undertaken to provide any other evidence as required by the parties or the court.

25. In the upshot, this is the outcome of the application:a.The prayer for orders compelling the 1st and 2nd respondents to deliver to the custody of the court the election materials is denied as being untenable. The duty and responsibility, constitutional and statutory remains with the 1st respondent. No evidence to persuade the court otherwise exercise its discretion.b.The prayer for an order the preservation and safe keeping of all the electoral materials in this matter by the 1st & 2nd respondent is not grounded on evidence of violation as that is their constitutional and legal mandate. The 1st and 2nd respondent are reminded that they will be held accountable for those materials.c.The prayer for access to all the election materials for the gubernatorial election, Narok county 2022 as sought is too wide and in the nature of scrutiny which requires the laying of a basis.d.For the purpose of this case access is allowed in the following limited form:i.That the 1st respondent do provide certified copies of the manual voter registers for Narok South, Emurua Dikir and Kilgoris to the deputy registrar of this court and to serve the parties with the same on or before the October 28, 2022. ii.The 1st respondent to provide the deputy registrar of this court with certified copies of the print outs of all the KIEMS kits with respect to the gubernatorial election Narok county 2022 on or before the October 28, 2022. iii.The 1st respondent to provided certified copies of all forms 37A, 37B and 37C and the declared results to the deputy registrar of this court on or before the October 28, 2022. iv.The applicant is at liberty, with the participation of the other respondents, the guidance of the 1st respondent, and under the supervision of the deputy registrar of this court, to place extra seals on the election materials before the hearing of the petition. The date for this exercise be fixed with the deputy registrar to be on or before the October 28, 2022. v.The costs of the application to abide the petition.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 18THOCTOBER, 2022. MUMBUA T MATHEKAJUDGENarok Election Petition Number E001 OF 2022 Page 5 of 5