[2022] KEHC 15827 (KLR)

Kidero & another v Independent Electoral and Bounderies Commission & 4 others (Election Petition E001 of 2022) [2022] KEHC 15827 (KLR) (26 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15827 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Election Petition E001 of 2022

RE Aburili, J

November 26, 2022

Between

Evans Odhiambo Kidero

1st Petitioner

Elijah Odondi Kodoh

2nd Petitioner

and

Independent Electoral and Bounderies Commission

1st Respondent

County Returning Officer, Homabay County Fredrick Apopa

2nd Respondent

Gladys Atieno Nyasuna Wanga

3rd Respondent

Joseph Oyugi Magwanga

4th Respondent

Orange Democratic Movement Party

5th Respondent

Ruling

1. Following this court’s ruling on the November 18, 2022 on the petitioners’ application dated September 29, 2022 and the meeting held between the Deputy Registrar and the respective parties’ representatives pursuant to the court’s ruling, the parties herein sought clarifications on the scope of scrutiny and recount which is to be undertaken by the Deputy Registrar.

2. In its ruling of the November 18, 2022, the court alluded to the fact that the petitioners’ application for scrutiny and recount dated September 29, 2022 was grounded on the petition as one of the prerequisites for grant of the order for scrutiny and recount.

3. To this end, the court observed that paragraph 16 of the supporting affidavit to the application for scrutiny and recount dated September 29, 2022 by Dr Evans Odhiambo Kidero in which he alleged glaring inconsistencies of the number of votes being cast being more than those identified by the KIEMS kit mirrored Paragraph 138 of the Petition.

4. Further, paragraph 17 of the supporting affidavit to the application for scrutiny and recount aforementioned that alleged that the KIEMS Kit identified more people than those recorded to have voted mirrored paragraph 139 of the petition and finally paragraph 20 of the supporting affidavit to the application for scrutiny that provided that form 37As were not signed by either agents, presiding officers or their deputies was a mirror of paragraph 174 of the petition.

5. The court then made orders for scrutiny and recount and referred to specific paragraphs before finally concluding that the scrutiny and recount was to be undertaken in the 7 out of 8 constituencies and in the polling stations mentioned in the paragraphs 11,16,17,20,22 and 28 of the affidavit of Dr Evans Odhiambo Kidero sworn on September 27, 2022. In particular, the parties sought clarifications on paragraphs 151 and 186 of the ruling of November 18, 2022.

6. This court notes that there is an error apparent on the face of the record regarding the reconciliation on the number of constituencies and polling stations that scrutiny and recount would take place and the error is that the scrutiny and recount would specifically happen in 7 out of 8 constituencies in Homabay County. This is an error because the specified polling stations as contained in the petition and the supporting affidavits to the petition and application for scrutiny and recount wherein the petitioner asked this court to undertake a scrutiny and recount and which this court in the aforesaid ruling allowed, cuts across the 8 constituencies and not seven. In addition, not all polling stations in the 8 constituencies were alleged to have had issues. The court upon reconciling the number of polling stations complained of, finds only 195 covering 8 constituencies and not seven.

7. The question is whether this court can review its orders made on scrutiny and recount made on November 18, 2022, having found that there is an apparent error on the face of the record in the ruling of November 18, 2022 regarding the application for recount and scrutiny.

8. In the case ofGodfrey Masaba v IEBC & 2 others [2013] eKLR, where the Election Court was called upon to review its orders on account that it had not considered the replying affidavit and written submissions filed by the applicant H Omondi J (as she then was) stated as follows, extensively, and I concur:“21. Having read both the Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules 2013 I can confirm that they make no provision for review of an Election court's orders.Secondly, the Election (Parliamentary and County) Petition Rules are complete and the only instances that the Civil Procedure Rules are invoked are as provided under rule 15 (7) of the Election (Parliamentary and County) Rules.22. The question which arises is whether the failure to expressly provide for review of the courts orders negates the application of this remedy in the appropriate circumstances?23. Article 35(2) of the Constitution guarantees every person the right to correction or deletion of untrue or misleading information that affects the person. Article 20(3)(a) on the other hand, enjoins a court when applying a provision of the Bill of Rights, to develop the law to the extent that it does not give effect to a right or fundamental freedom.24. By failing to make provision for the court to review its orders in the appropriate circumstances, especially where there is a mistake or error apparent on the face of its record that needs to be corrected or deleted in order to set the record straight, it would appear that the Elections Act, 2011 and the Rules made thereunder offends the spirit and letter of article 20(3)(a) as read with Article 35(2) of the Constitution.25. For this reason notwithstanding lack of any express provisions for review in the Election Act and the Rules made thereunder, I hold the view that an election court would, in the appropriate circumstances, review its orders if in so doing, it would give effect to a right or fundamental freedom that the law in question had failed to recognize or give effect to.26. There are decisions to the effect that an election court has power, in exercise of its inherent power, to review its orders. For instance in Mohamed Ali Mursal v Saadia Mohamed & 2 others (2013) e KLR SN Mutuku J, conceded that An Election Court has power to review its orders and invoked Order 45 of the Civil Procedure Rules in resolving the matter before her. Similarly, in Nuh Nassir Abdi v Ali Wario & 2 others (2013) e KLR EP No 6 of 2013 GV Odunga J, observed:-“A decision whether or not to vary, set aside or review earlier orders was an exercise of judicial discretion and the court could only exercise such discretion if so to do would serve useful purpose...”27. It is apparent that an election court has power to review its order if doing so would serve a useful purpose in the just determination of the issue before it.”

9. Odunga J (as he then was) in the case of Nuh Nassir Abdi v Ali Wario & 2 others [2013] eKLR stated that:“I have considered the foregoing. The order for scrutiny was made pursuant to section 82 of the Elections Act which provides:“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.)”Apart from the foregoing section 80(1)(d) and (e) of the said Act empowers the Court to decide all matters that come before it without undue regard to technicalities. Rule 4 of the Elections (Parliamentary and County Elections) Petitions Rules provides:The overriding objective of these Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act.(2)The court shall, in the exercise of its powers under the Constitution and the Act or in the interpretation of any of the provisions in these Rules, seek to give effect to the overriding objective.These provisions derive their Constitutional underpinning on Article 159(2) of the Constitution which provides:"In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(a)justice shall be done to all, irrespective of status;(b)justice shall not be delayed;(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);(d)justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted”

10. From the above provisions of the law and persuasive case law, I find that in the circumstances of this case, this court has jurisdiction to review its orders in election petitions and therefore on the court’s own motion or on application by any party to the proceedings may review and clarify its order. I therefore proceed and review the ruling delivered on November 18, 2022 touching on the application dated September 29, 2022 seeking for scrutiny and recount and more specifically clarifying paragraphs 150, 151 and 186 of the ruling delivered on November 18, 2022 as follows:a.A scrutiny and recount shall be undertaken as per this court’s findings in paragraph 150 of the ruling dated November 18, 2022 for the gubernatorial election carried out on the August 9, 2022 in Homabay County in respect of the following polling stations:

Constituency Ward Polling Station

Homa Bay Town Homa Bay Central Pap Ndege Primary School

Homa Bay Arujo Shauri Yako Primary School

Homa Bay Central Nduta Primary School

Homa Bay Arujo Opande Rarage Primary School

Homa Bay East Marindi Primary School

Homa Bay East Pala Masogo Primary School

Homa Bay Central Rodi Kopany Market

Homa Bay East Walambla Primary School

Homa Bay Central Asego Nursery School

Homa Bay Central Got Rabuor Primary School

Homa Bay Central Homa Bay Polytechnic

Homa Bay Central Homa Bay Primary School

Homa Bay Arujo Gogo Kochungo Primary School

Kabondo Kasipul Kabondo East Kolweny Primary School

Kabondo West Orera Primary School

Kabondo East Nyamwaga Primary School

Kokwanyo/Kakelo Dudi Primary School

Kokwanyo/Kakelo Ragogo Primary School

Kokwanyo/Kakelo Gangre Primary School

Kabondo West Ongoro Primary School

Kabondo East Wang’apala Primary School

Kabondo East Othoro Primary School

Kojwach Ringa Primary School

Karachuonyo Wangchieng Apuko D.O.K Primary School

Wangchieng Seka D.O.K Primary School

West Karachuonyo Gogo Primary School

Central Ngeta Primary School

Kanyaluo Kowuor Primary School

Wangchieng Gongo Primary School

Kanyaluo Rabware Primary School

Kibiri Oriwo Primary School

Kendu Bay Town Nyaburi Primary School

Wangchieng Kamwala Primary School

Wangchieng Karabondi Primary School

West Karachuonyo Masogo Primary School

Kendu Bay Town Gendia Primary School

Kanyaluo Kamolo Primary School

Central Kital Primary School

Central Paul Mboya Vocational Training

Kendu Bay Town Kideswa Primary School

North Karachuonyo Ngolo Primary School

Kibiri Omolo Agar Primary School

West Karachuonyo Jonyo Primary School

North Karachuonyo Otaro Primary School

Central Simbi Primary School

North Karachuonyo Kagai Primary School

Kanyaluo Wikondiek Primary School

Kanyaluo Omboga Primary School

Kibiri Nyaola Primary School

West Karachuonyo Lwala Primary School

Central Alego Primary School

Central Warao Primary School

Wangchieng Kajiei Primary School

Kibiri Kandiege Primary School

Wangchieng Samba Primary School

North Karachuonyo Kanyamfwa Primary School

Central Pier Got Primary School

Kibiri Rabuor Primary School

Wangchieng Kamser Primary School

Wangchieng Mirembe Primary School

Wangchieng Kamwala Primary School

North Karachuonyo Migunde Primary School

Kibiri Nyabiage Primary School

Kasipul Central Kasipul Kaluoch Primary School

East Kamagek Sino Kagola Primary School

West Kamagek Agoro Sare Primary School

South Kasipul Ayoro Primary School

South Kasipul Kamuga Primary School

South Kasipul Yala Primary School

South Kasipul Kotieno Primary School

South Kasipul Kasimba Primary School

West Kasipul Nyagowa Primary School

South Kasipul Buoye Primary School

Central Kasipul God Nyango Primary School

West Kasipul Nyabola Primary School

Central Kasipul Aolo Primary School

Ndhiwa Kabuoch South/Pala Ober Primary School

Kanyadoto Nyarongi Primary School

Kanyadoto Rapedhi Primary School

Kanyamwa Kosewe Ndhiwa Primary School

Kanyikela Otange Primary School

Kabuoch North Ongako Primary School

Kanyamwa Kosewe Unga Primary School

Kanyamwa Kologi Malela Primary School

Kanyamwa Kologi Kombe Primary School

Kabuoch South/Pala Kamenya Primary School

Kanyamwa Kologi Abuoro Primary School

Kabuoch North Rarage Primary School

Kabuoch North Adek Primary School

Kwabwai Nyoniang Primary School

Kwabai Apuoche Primary School

Kabuoch North Maranga Primary School

Kabuoch North Aluor Primary School

Kanyamwa Kologi Goyo Primary School

Kanyamwa Kologi Dunga Primary School

Kwabai Osani Primary School

Kanyadoto Osodo Primary School

Kabuoch South/Pala Maroo Primary School

Kwabwai Osogo Primary School

Kwabai Wayara Primary School

Kabuoch North Lwanda Kawuor Primary School

Kabuoch South/Pala Ober Primary School

Kwabai Ngere Primary School

Kabuoch South/Pala Anding’o Pala Primary

Kanyikela Thuon Gweno Nur School

Kwabai Aorachuodho Primary School

Rangwe West Gem Anding’o Primary School

Kagan Got Nyalgosi Primary School

Kagan Kachar Primary School

Kochia Obengele Primary School

East Gem Rangwe Primary School

Kagan Luora Primary School

Kochia Ongoro Primary School

Kochia Kawiya Primary School

Kagan Aimo Primary School

West Gem Randung’ Primary School

East Gem Wikoteng’ Primary School

Kochia Nyajanja Primary School

Kochia Nyalienga Primary School

Kochia Ngegu Primary School

West Gem Nyandiwa Primary School

Kochia Ang’iro Primary School

Kagan Maugo Primary School

Kochia Kuoyo Kaura Primary School

Kochia Olare Primary School

West Gem Oluso Primary School

West Gem Sango Gem Primary School

Kagan Nyawita Primary School

Kochia Ligisa Primary School

West Gem Orero Primary School

West Gem Nyopuge Primary School

Kochia Ongeti Primary School

East Gem Nyakwadha Primary School

East Gem Nyambare Primary School

Suba North Kasgunga Mbita Primary School

Kasgunga Usare Primary School

Kasgunga Osodo Primary School

Rusinga Island Wakondo Primary School

Kasgunga Ogando Primary School

Kasgunga Nyamanga Primary School

Kasgunga Ndiru Primary School

Kasgunga Mbita Fish Banda

Kaksingri West Gingo Beach Fish Banda

Mfangano Island Takawiri Primary School

Kasgunga Nyamasare Primary School

Kasgunga God Awendo Primary School

Rusinga Island Dr. Williams Primary School

Kasgunga Urianda Primary School

Kasgunga Lambwe Primary School

Mfangano Island Rinya Primary School

Rusinga Island Waregi Primary School

Kasgunga Kamsama Primary School

Kasgunga Lambwe Primary School

Kasgunga Powo Primary School

Kasgunga Nyasanja Primary School

Kasgunga Got Kopolo Primary School

Kasgunga Obalawanda Primary School

Kasgunga Sikri Jerusalem Primary School

Kasgunga Chamakowa Primary School

Kasgunga Sen Kajwang Sec School

Kasgunga Genge Primary School

Kasgunga Gode Ariyo Primary School

Kasgunga God Jope Primary School

Ruma – Kaksingri Manyalla Primary School

Mfangano Island Wakiangata Primary School

Rusinga Island Nyamuga Primary School

Rusinga Island Kamayoge Primary School

Rusinga Island Uya Primary School

Rusinga Island Kiumba Fish Banda

Rusinga Island Ulugi Fish Banda

Mfangano Island Konyahero Beach Fish Banda

Rusinga Island Nyagina Fish Banda

Kasgunga Kisui Fish Banda

Mfangano Island Sena Primary School

Rusinga Island Uya Primary School

Kasgunga Wanga Primary School

Kasgunga Nyamaji Primary School

Kasgunga Kamoto Primary School

Kasgunga Sulwe Primary School

Suba South Gwasi South Orore Primary School

Gwasi South Magunga Primary School

Gwasi South Nyamdede Primary School

Gwasi South Kigoto Primary School

Gwasi South Miriya Primary School

Gwasi South Kisegi Primary School

Kaksingri West Ngeri Primary School

Gwasi South Kiabuya Primary School

Gwasi South Obanga Primary School

Gwasi North Nyagwethe Primary School

Ruma – Kaksingri King’Eyo Primary School

Gwasi North Kisegi Beach Fish Banda

Gwasi South God Bura Primary School

Gwasi South Nyaburu Primary School

Kaksingri Kianyumba Primary School

Gwasi South Kenchororio Primary School In addition, there shall be:b.A scrutiny of all the form 37As from the polling stations set out in table D1 and D2 of paragraph 20 of the petitioners’ affidavit sworn by Dr Evans Odhiambo Kidero in support of the application dated September 29, 2022. c.A scrutiny of form 37As from the polling stations set out in table F of paragraph 28 of the petitioners’ affidavit sworn by Dr Evans Odhiambo Kidero in support of the application dated September 29, 2022. d.The rest of the directions issued for the Deputy Registrar to supervise the scrutiny and recount as per paragraph 186 of the ruling delivered on November 18, 2022 shall remain as they are and the Deputy Registrar shall give directions in conference with the parties on the process and the timelines in accordance with the already established guidelines.

DATED, SIGNED AND DELIVERED AT HOMABAY THIS 26TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE