[2022] KEHC 16209 (KLR)

Kwamboka v IEBC & 2 others (Election Petition E004 of 2022) [2022] KEHC 16209 (KLR) (13 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16209 (KLR)

Republic of Kenya

In the High Court at Nyamira

Election Petition E004 of 2022

K Kimondo, J

December 13, 2022

Between

Matoke Emily Kwamboka

Petitioner

and

IEBC

1st Respondent

Njoroge Anthony Douglas

2nd Respondent

Mongina Momanyi Jerusha

3rd Respondent

Ruling

1. The petitioner has challenged the election of the 3rd respondent as the Nyamira County Woman Member of the National Assembly in the general elections held on 9th August 2022.

2. She also lodged a notice of motion dated 14th November 2022 seeking scrutiny of all election materials in close to 249 polling stations spread out across the four constituencies of Nyamira with emphasis on the constituency of Kitutu Masaba.

3. There are two principal prayers-i.That [the] court be pleased to issue an order of scrutiny and recount of votes in Nyamira County Woman Representative elections for Kitutu Masaba constituency in its entirety, the Menyenya Primary School Polling Station 2 of 5 in Borabu Constituency, Etono Primary School in West Mugirango Constituency and Kiamogiti Primary polling station in Kitutu Masaba Constituency under the supervision of a Registrar or Magistrate and a report be filed in court.ii.That [the] court be pleased to order scrutiny and recount of votes in the stations set out in paragraphs 22(i)-(xiv), 23(i)-(iii), 24(i)-(xiv), 25(i)-(iv), 27(i)-iv), 28, 29(i)-iii), 33(i)-(iii), 35, 40(i)-(iii), 41(i)-(viii) and 48 of the Petition. Paragraphs 20(i)-(xiv), 21(i)-(iii), 22(i)-xiv), 23(i)-iv), 26(i)-(iv), 27, 28(i)-(iii), 32(i)-(iii), 35, 40(i)-vii), 41(i)-(viii) and 49 of the supporting affidavit under the supervision of a Registrar or Magistrate and a report be filed in court

4. There is also a prayer for costs or any further relief. The petitioner relied on skeleton submissions filed on 22nd November 2022 together with a list of authorities. The pith of the motion is that scrutiny is necessary to probe into the alleged irregularities or breaches of electoral law. I understood her to say that the examination will assist the election court to determine the integrity of the vote.

5. The motion is vigorously contested by all the respondents through replying affidavits and written submissions. The gravamen of their opposition is that the request is so wide and speculative as to constitute a fishing expedition; that it does not pinpoint with any accuracy the disputed polling stations; and, that the motion lacks evidential underpinning. I was implored to dismiss it with costs.

6. On 24th November 2022, I heard further submissions from all the learned counsel for the disputants.

7. I had earlier directed that the application be canvassed at the close of the trial. In doing so, I was guided by section 82 (1) of the Elections Act (hereafter the Act) which gives the election court the discretion on its own motion or on application by any party to the petition,during the hearing of an election petition, to order for a scrutiny of votes to be carried out in such manner as the election court may determine.

8. In a nutshell, the court would be guided by tested evidence to justify full or partial scrutiny of election materials. See generally Ayiera v Kimwomi & 3 others, Nyamira High Court Election Petition E002 of 2022 [KEHC 15660 (KLR)]; Kakuta Hamisi v Peris Tobiko & 2 others, Nairobi High Court Election Petition 5 of 2013 (Ruling No. 2) [2013]eKLR.

9. All the 39 witnesses called by the parties have testified. I will thus consider the motion in light of the submissions, pleadings, evidence and materials produced at the trial.

10. However, I am cognizant that neither the final submissions on the main petition have been made nor has judgment day come. It follows as a corollary that the findings in this ruling are made with circumspection and without a final finding.

11. The legal parameters of a motion of this nature are now well settled. Scrutiny of public documents and materials is deeply ingrained in Article 35 of the Constitution which guarantees the right of access to information.

12. Scrutiny is meant to measure the integrity of the election. Paraphrased, to interrogate further any malfeasances, irregularities and breaches of electoral law including disputed votes or tallies. See Raila Odinga & another v IEBC & 2 others, Supreme Court of Kenya, Presidential Petition 1 of 2017 [2017] eKLR, Kakuta Hamisi v Peris Tobiko & 2 others [supra], William Maina Kamanda v Margaret Wanjiru Kariuki, Nairobi, High Court Petition 5 of 2008 [2008] eKLR, Ayiera v Kimwomi & 3 others, Nyamira High Court Election Petition E002 of 2022 [KEHC 15660 (KLR)].

13. As a general rule, scrutiny is appropriate where the margin of votes is very narrow. See Hassan Ali Joho v Hotham Nyange & Anania Mwasambu Mwaboza (Ruling No 2), (2008) 3 KLR (EP) 188.

14. Article 159 of the Constitution as read together with Rule 4 (1) of the Elections (Parliamentary and County Elections) Petition Rules 2017 (hereafter the Rules) call for just, expeditious, proportionate and affordable resolution of election disputes.

15. Section 82 (1) of the Act which I highlighted earlier, donates power and discretion to the court to order for scrutiny of election materials. Rule 28 on the other hand provides that a petitioner may apply for a recount or examination of the tallying “if the only issue for determination in the petition is the count or tallying of votes received by the candidates”.

16. Rule 29 allows an application “for scrutiny of the votes for purposes of establishing the validity of the votes cast”. The exercise under that Rule is more elaborate. It extends to the marked register; statements by returning officers and copies of results for each polling station; polling day diaries; packets of counterfoils of used ballots; rejected ballots and so forth.

17. There must be a prayer for scrutiny in the petition. See Abdikhaim Osman Mohamed and another v Independent Electoral and Boundaries Commission and others, Garissa, High Court Petition No 2 of 2013 [2013] eKLR. I am satisfied that the main petition here contains express prayers for scrutiny.

18. The petitioner must also lay a basis. It is not a matter of right. SeePeter Gatirau Munya v Dickson Kithinji & 2 others, Supreme Court of Kenya Petition 2B of 2014 [2014] eKLR, Nicholas Salat v IEBC & 7 others, Supreme Court of Kenya Petition 23 of 2014 [2014] eKLR.

19. The application should not be a roving expedition. Peter Gichuki King’ara v IEBC & another, High Court at Nyeri, Petition 3 of 2013 [2013] eKLR. It must also be confined to polling stations in which the results are disputed. See Nathif Jama Adama v Abdikhaim Mohamed & 3 others, Supreme Court Petition 13 of 2014 [2014] eKLR.

20. That point was underscored by the Supreme Court in its recent decision in Youth Advocacy for Africa (YAA) & 7 others v IEBC & 17 others (Election Petition E002, E003 & E005 of 2022 (Consolidated)) [2022] KESC 42 (KLR) held as follows-(7)(i)…..We note that this court, while considering an application for access and scrutiny in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others, Presidential Petition No 1 of 2017; [2017] eKLR determined that, while considering a request for scrutiny of either the Forms or the technology used in an election,the request for scrutiny must be made for a sufficient reason and that any prayer that would in effect be a fishing exercise to procure fresh evidence not already contained in the petition must be rejected. Further any prayer couched in general terms, not pleaded with specificity or such request is impracticable in terms of scope and time will also be declined…… [underlining added]

21. Finally, the parties are bound by their pleadings. Paraphrased, the petitioner cannot augment her petition through the notice of motion. See Raila Odinga & another v IEBC & 2 others [supra]; Ayiera v Kimwomi & 3 others [supra].

22. When I juxtapose those principles against the evidence here, I find further as follows. Prayer (i) of the motion seeks scrutiny of “for Kitutu Masaba constituency in its entirety”. When you add the other polling stations comprised in prayer 2, the list balloons into nearly half of all the polling stations in the county.

23. The posture taken by the petitioner at the trial was that she was the more popular candidate in Kitutu Masaba. The retort by the 3rd respondent is that she (the 3rd respondent) had deeper family and political roots in the area and was running as an incumbent.

24. I have kept in mind that the margin of votes between the petitioner and the 3rd respondent was not narrow: The gap was 12,409 votes or thereabouts. I stated earlier that as a general rule, scrutiny would be appropriate where the margin of votes is very low.

25. The petitioner’s case is that the 1st and 2nd respondents failed to conduct a free, fair, transparent and accurate poll in contravention of the Constitution and the Elections Act and Regulations.

26. The petitioner and her 13 witnesses led evidence on a plethora of complaints including: Bribery or attempts to influence electors; interference by some high ranking government officials; blocking of, harassment or intimidation of her polling agents; “padding of votes”; suspicious “homogeneous results” for candidates in some stations; and, multiple alterations and cancellations in results declaration forms. I will delve deeper into those matters in my final judgment.

27. Nyamira County had 643 polling stations or thereabouts in the last elections. The prayers for a county-wide scrutiny are thus too wide and ill-supported by the evidence at the trial. Like I stated earlier, scrutiny should be confined to polling stations in which the results are disputed. See Nathif Jama Adama v Abdikhaim Mohamed & 3 others [supra]. It follows that the sweeping prayers for a full scrutiny of all election materials is unmerited.

28. I would reiterate the holding by the Supreme Court in Youth Advocacy for Africa (YAA) & 7 others v IEBC & 17 others [supra] that any “request for scrutiny must be made for a sufficient reason and that any prayer that would in effect be a fishing exercise to procure fresh evidence not already contained in the petition must be rejected”.

29. The other important consideration to keep in mind is that the results at the polling station are final. See IEBC v Maina Kiai & 5 others, Court of Appeal, Nairobi, Civil Appeal 105 of 2017 [2017] eKLR. The obvious implication is that the primary and most important declaratory form for this election is 39A: The 39B and 39C series of forms are spreadsheets transferring and consolidating the scores in 39A.

30. Furthermore, an aggrieved candidate or agent has a right to call for a recount at the polling station. Regulation 80 of the Elections (General) Regulations 2012 provides as follows: -“80. (1)A candidate or agent, if present when the counting is completed, may require the presiding officer to have the votes rechecked and recounted or the presiding officer may on his or her own initiative, have the votes recounted: provided that the recount of votes shall not take place more than twice.(2).No steps shall be taken on the completion of a count or recount of votes until the candidates and agents present at the completion of the counting have been given a reasonable opportunity to exercise the right given by this regulation”.

31. In addition, the determination of electoral disputes is on a very strict constitutional and statutory timetable. In Henry Tiole Ndiema v IEBC & 2 others, Kitale High Court Election Petition 2 of 2017 [2018] eKLR, I had this to say on the subject-The point to be made is that Courts are ill-equipped to carry out an extensive recount for a whole county. It is a laborious and time consuming exercise. The polling stations provide a better forum, soon after close of polls, and in the presence of agents or candidates. In that scenario a fairly smaller number of votes would be recounted.

32. Pursuant to the orders of the court at the pre-trial conference on 13th October 2022, all the certified copies of the Forms 39As, 39Bs, 39C and 39D were lodged in court by the IEBC on 15th November 2022. Those materials were referred to extensively by witnesses at the trial. I had also ordered the IEBC and the 2nd respondent to ensure that all the materials used to conduct the election for Nyamira County Woman Member of the National Assembly were placed in safe custody; and, to present them to the Court if necessary.

33. The petitioner had filed with the petition a notice to produce voting logs for the KIEMS kits used in the election. The present motion is largely silent on the matter and no follow-up was made by her learned counsel at the trial. Although there are references to the KIEMS kits in the petition, there was no precise or clear-cut evidence disputing the registration or identification of voters, the use of or integrity of the KIEMS kits deployed at the last poll or in the stations cited in the motion.

34. Under section 60 of the Evidence Act, I take judicial notice, as a matter of local notoriety, that the KIEMS kits were used for all the six elections held on 9th August 2022. Rule 16 (4) provides that only the material relating to a particular petition may be furnished to an election court.

35. At paragraphs 6, 7 and 8 of the supporting affidavit to the present motion, the petitioner claims that there was a discrepancy between the votes cast in the election of County Woman Member and that of the Governor. She also queried how the 3rd respondent ended up with more votes in Kitutu Masaba Constituency than the area Member of Parliament. Her analysis was disputed at the trial by the County Returning Officer (DW1) primarily on the ground that the Form 37C she relied on was not the one used to declare the gubernatorial results. I will revisit the issue in the final judgment.

36. In her oral testimony and paragraph 41 of her affidavit in support of the petition, the petitioner (PW1) also claimed that there was “padding up of the 3rd respondent’s votes” in 8 specified polling stations. She averred that her votes would be reduced while those of the 3rd respondent would be added. These claims were denied by the 2nd respondent (DW1) and in particular by the West Mugirango Constituency Returning Officer, Sylvia Jepchumba (DW3) in paragraphs 16 to 21 of her replying affidavit.

37. The 3rd respondent (DW24) in paragraph 34 of her replying affidavit to the petition and in her oral testimony also denied the allegations of vote padding. Her view was that she won fair and square; and, that the petitioner failed to present cogent evidence to prove such serious or criminal allegations.

38. The petitioner cited paragraphs 20 to 23 of her earlier affidavit sworn on 7th September 2022. She averred that Forms 39As in 24 polling stations in Kitutu Masaba; 14 stations in West Mugirango; 4 stations in North Mugirango; and, 3 others in Borabu contained alterations that were not countersigned by the Presiding officers.

39. I heard rebuttals on that point from the 2nd respondent (DW1) and his Constituency Returning Officers (DW2 to DW5). I have closely studied the certified copies of the Forms 39As. I will deal in more detail in the final judgment with what amounts to an alteration or cancellation; or, whether countersigning or stamping of the forms is necessary; and, whether it impacts validity of the results.

40. A related complaint was that the forms were not signed by the petitioner’s agents. Examples were given at polling stations in Kitutu Masaba at Kegogi P.A.G. Primary School 1 and 2 of 2; Nyaibasa D.O.K Primary School 1 of 2; and Nyachichi D.O.K Primary School 2 of 2. Others were Amakura D.E.B. Primary School 2 of 2 in Borabu; and, three stations in West Mugirango (Getaari D.E.B. Primary School 2 of 2, Otanyore ELCK Primary school I of 2 and Kebirigo S.D.A Primary School 4 of 4).

41. Again, I will deal with the effect of failure by agents to sign results declaratory forms and the import of Regulation 79 (6) of the Elections (General) Regulations 2012 in my final judgment.

42. That said, I am alive that the true dispute is whether the personal agents of the petitioner were present or signed the forms and whether it affected the result. But I have also kept in mind that the petitioner ran on an ODM ticket while the 3rd respondent was a jubilee candidate. Some of the impugned forms were signed by some ODM agents and other party agents.

43. But I have also seen a number of certified Forms 39As that were not signed by any agent. A number of examples will suffice: Amakura D.E.B Primary School 2 of 2 in Borabu Constituency; Nyamira D.E.B Primary School 2 of 8 and 4 of 8 in West Mugirango Constituency; and, other polling stations situated in Kitutu Masaba Constituency namely, Kegogi D.O.K Primary School 1 of 2, Sengereri D.E.B Primary School 2 of 2, Nyamwanga D.O.K Primary School 1 of 2, , Nyaibasa D.O.K Primary School 1 of 2, Otanyore ELCK Primary School 1 of 2, Nyaikuro D.E.B Primary School 2 of 2, Etono D.O.K Primary School 2 of 2, Kebirigo SDA Primary School 4 of 4 and Rionguti D.O.K Primary School 2 of 2.

44. But I am again reminded of Regulation 79 [supra] and will reserve my comments for the final judgment.

45. I have also noted that some of the errors are arithmetic or poor summation. At Kiamogiti Polling Station 2 of 2 in Kitutu Masaba, the petitioner complains that the 3rd respondent got 238 votes which “was more than the 117 valid votes cast”. The IEBCexplained through the 2nd respondent (DW1) and Benson Ambuko (DW5) that it was a tabulation error for the votes garnered by all candidates. I have nevertheless in the interests of transparency ordered a re-count there.

46. Some of the other complaints on the forms are generic. For instance, at Menyenya Primary School 2 of 5, the petitioner contends that Form 39A was signed by the Deputy Presiding Officer on 9th August 2022 but the Presiding Officer only signed it the following day. In West Mugirango, the results for Etono were announced at 7:00 p.m., but the petitioner claimed the Form 39A did not get to the nearby Constituency Tallying Centre until the following day at 3:00 p.m., a fact contested by the IEBC.

47. Scrutiny is also sought to answer suspicions by the petitioner of what she terms “homogeneous results”. At paragraph 35 of her affidavit in support of the petition, the petitioner has set out a table to show there were “homogeneous results with the 3rd respondent and myself garnering a specific number of votes extremely close in each polling station….pointing to a sinister plan to rig the election” . The respondents flatly denied it. Again, I will deal with the evidence in the final judgment.

48. The 1st and 2nd respondents conceded that the entire results for one stream at Embaro D.O.K Primary School 1 of 2 in Kitutu Masaba were unaccounted for. In the certified forms presented to court by IEBC, the results for polling station 2 of 2 are presented for stream 1 of 2. In that one station, the basis for a full scrutiny is self-evident.

49. From the pleadings and evidence, I am also satisfied that partial scrutiny is justified in a number of other disputed polling stations across all the four constituencies in the county. In view of some errors in transferring data from the primary Forms 39As into Forms 39Bs and 39C, a re-tally of the votes is also appropriate.

50. For all those reasons, the orders that commend themselves to me to grant are as follows:a.That there shall be a full scrutiny and recount of the votes cast for the Nyamira County Woman Member of the National Assembly at only one polling station, namely,Embaro D.O.K Primary School 1 of 2, located in Kitutu Masaba Constituency.b.That there shall be a partial scrutiny but limited completely to a recount of the votes cast for the Nyamira County Woman Member of the National Assembly and the entries in Form 39A in the following 12 polling stations situated in Kitutu Masaba Constituency-i.Nyaibasa D.O.K Primary School 1 of 2;ii.Kegogi D.O.K Primary School 1 of 2;iii.Kiamogiti Primary School 2 of 2;iv.Moitunya S.D.A Primary School 2 of 3;v.Rionguti D.O.K Primary School 1 of 2;vi.Rionguti D.O.K Primary School 2 of 2;vii.Nyamwanga D.O.K Primary School 1 of 2;viii.Ikobe D.E.B Primary School 1 of 3;ix.Nyaikuro D.E.B Primary School 2 of 2;x.Riamisi T.B.C 2 of 2;xi. Nyachichi D.O.K Primary School 2 of 2; andxii.Sengereri D.E.B Primary School 2 of 2. c.That there shall be a partial scrutiny but limited completely to a recount of the votes cast for the Nyamira County Woman Member of the National Assembly and the entries in Form 39A in the following 3 polling stations situated in North Mugirango Constituency-i.Ikonge Primary School 2 of 6;ii.Ikonge Primary School 6 of 6; andiii.Kebariga Primary School 2 of 2;d.That there shall be a partial scrutiny but limited completely to a recount of the votes cast for the Nyamira County Woman Member of the National Assembly and the entries in Form 39A in the following 16 polling stations situated in West Mugirango Constituency-i.Masosa AIC Primary School 1 of 2;ii.Masosa AIC primary School 2 of 2;iii.Bondeka ELCK Primary School 1 of 1;iv.Moruga ELCK Primary School 1 of 2;v.Girigiri D.E.B Primary School 1 of 2;vi.Nyamira D.E.B Primary School 2 of 8;vii.Nyamira D.E.B Primary School 4 of 8;viii.Bomondo C.O.G Primary School 1 of 2;ix.Otanyore ELCK Primary School 1 of 2;x.Etono D.O.K Primary School 2 of 2;xi.Nyagachi D.E.B. Primary School 2 of 2;xii.Kuura D.E.B. Primary School 2 of 2;xiii.Gucha S.D.A. Primary School 2 of 2;xiv.Embonga D.O.K. Primary School 2 of 2xv.Bomondo C.O.G. Primary School 1 of 2; andxvi.Kebirigo SDA Primary School 4 of 4. e.That there shall be a partial scrutiny but limited completely to a recount of the votes cast for the Nyamira County Woman Member of the National Assembly and the entries in Form 39A in the following 3 polling stations situated in Borabu Constituency-i.Manga Girls Primary School 1 of 3;ii.Menyenya Primary School 2 of 5; andiii.Amakura D.E.B Primary School 2 of 2f.That in addition, and in the interests of transparency, there shall be a re-tally of the results in Forms 39Bs and Form 39C from the original Forms 39As which were submitted to the County Returning Officer.g.That the scrutiny and re-tally in orders (a) to (e) above shall be undertaken under the direct supervision of the Deputy Registrar of this Court. The Deputy Registrar shall be assisted by such number of Court Assistants as shall be necessary to ensure efficiency and expediency.h.That the scrutiny shall commence on Tuesday 20th December 2022 at 9. 00 a. m. and proceed on a day to day basis, except the Sabbath or public holidays, until Thursday 19th January 2023. i.That the 1st respondent (IEBC) shall submit the original Forms 39As and the ballot boxes for the polling stations specified above; and, the Forms 39Bs and Form 39C for the election of Nyamira County Woman Member of the National Assembly on or before 9:00 a.m. on Tuesday 20th December 2022. j.That in view of constraints of space at the Nyamira High Court; and, the need to secure the materials, the exercise shall be conducted at the premises of theIEBC nearest to Nyamira Town.k.That the Deputy Registrar shall at the end of the exercise make a detailed report of his findings which report shall form part of the proceedings in this petition.l.That the petitioner, the 3rd respondent and any candidate who stood for Nyamira County Woman Member of the National Assembly shall not be allowed into the examination centre. Their lawyers shall also not be present at the venue.m.The petitioner and the 3rd respondent are entitled to appoint a maximum of five (5) agents each during the entire exercise. However, the Deputy Registrar will be at liberty to limit the number of agents allowed into the examination centre at any given time.n.That the IEBC shall be entitled to have 5 (five) agents at the venue of the scrutiny.o.That the Officer Commanding Police Division in the jurisdiction of the venue shall provide adequate security to the Deputy Registrar, Court Assistants,IEBC staff and the agents above-mentioned.p.That the petition shall be mentioned virtually on Thursday 26th January 2023 at 11:00 a.m. for further orders and directions.q.That the costs shall be in the petition.It is so ordered.

DATED, SIGNED AND DELIVERED THIS 13TH DAY OF DECEMBER 2022. KANYI KIMONDOJUDGERuling read virtually on Microsoft Teams in the presence of:Mr. Anyega Ondieki for the petitioner instructed by Ondieki, A Hashi & Company Advocates.Mr. Ng’eno for the 1st & 2nd respondents instructed by Z. K. Yego Law Offices.Dr. Nyaundi and Mr. Onyango for the 3rd respondent instructed by Marende & Nyaundi Advocates.Ms. Anita, Ms. Aminah & Mr. Terer, Court Assistants.