[2017] KEHC 1827 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

PETITION NO.1 OF 2017

LESRIMA SIMEON SAIMANGA………...……….....……..….PETITIONER

V E R S U S

INDEPENDENT AND ELECTORAL

BOUNDARIES COMMISSION…………...……...….…1ST RESPONDENT

RETURNING OFFICER

SAMBURU COUNTY………………………...………..2ND RESPONDENT

LENOLKULAL MOSES KASAINIE…….....…………3RD RESPONDENT

R U L I N G(5)

Before me is the application dated 5/9/2017, which is expressed to be brought pursuant to Articles 19, 20, 22, 23(3), 35, 38, 81, 86 159 and 258 of the Constitution, Section 39 of the Elections Act; Section 27 of the Independent Electoral Boundaries Commission Act 2011 and the Election (Parliamentary and County Elections) Petition Rules, 2017.

The application seeks the following orders:

(1 & 2 spent)

(3) That the Hon. Court be pleased to order the 1st respondent to give access to the petitioner the following:

(a) Full and unfetered physical and remote access to each biometric electronic appliance used at each voting/polling station later used to verify voter’s identification against the list of registered voters and for the appliances to be forensically imaged to capture, inter alia, metadata such as data files; creation times and dates, devices IDs MAC addresses IP;

(b) Electronic devices used to capture form 37As and form 37Bs onto the KIEMs system and transmitted to (c) CTNs and (b) NTC;

(c)Full and unfetered access to any form of scanning device which saved images onto access local service(s) for onward transmission;

(4) The Hon. Court be pleased to order the 1st respondent to give access to all the parties for purposes of scrutiny, and supply to the court and to the parties original form 37As 37Bs and 37C prepared at and obtained from the polling stations by presiding officers and used to generate the final tallying of the Governor’s Election and pursuant to such production, leave be granted for the use of an aid or reading device to assist in distinguishing the fake forms from the genuine ones:

(5) The 1st respondent be compelled to give the petitioner access to the original forms 37As, 37Bs and 37Cs;

(6) The court do grant the petitioner leave to put in any other and or further affidavits to or in reply to any responses filed by the respondents;

(7) The Hon. Court be pleased to grant any other relief that it deems just and fit to grant in the interest of justice.

The application is based on grounds inter alia, that the the petitioner has noted extensive anomalies/irregularities, similar to those that the Supreme Court noted in E.P.1/2017, Raila Amollo Odinga v IEBC; that the said anomalies go to the root of the integrity, accountability and verifiability of the Gubernatorial elections conducted in Samburu County; that the petitioner is aggrieved and questions the authenticity of the statutory forms supplied to it; that some of the forms do not bear security features as prescribed and are therefore forgeries and hence the need to have access to the original forms; that there were irregularities in forms 37Bs for Samburu East; Samburu North, Samburu West.

The application was also supported by the affidavit of the petitioner sworn on 5/9/2017 where it is deposed that the elections were marred by systematic and calculated irregularities which were designed to favour the 3rd respondent; that the irregularities include unstamping of form 37As, unsigned form 37As, by various party agents; signing form 37As by agents without candidates; forms signed by single party agents, unstamped and unsigned forms without reasons being given and forms without security features. The various irregularities are set out on paragraphs 5 to 26 of the affidavit where the deponent stated that in the affected Constituencies and polling stations, the irregularities were designed to tilt the results in favour of the 3rd respondent.

The petitioner filed submissions dated 30/9/2017. In his submissions, Mr. Ochieng’ learned counsel for the petitioner submitted that the foundation of their application is Section 27 of the IEBC Act and Article 35 of the Constitution which mandate the 2nd respondent to avail information held on behalf of the public. Counsel relied on the Hon. Justice Maraga’s Article titled “Security in Election Disputes: A Kenyan Judicial Perspective; where the author observed that the objective of Judicial scrutiny is to determine whether the electoral process was transparent, accountable and verifiable as required by the Constitution; that the primary objective is to determine the validity of election results as well as integrity of the electoral process; counsel also made reliance on the decision in Philip Mukwe Wasike v James Lusweti Mukwe EP.5/2013, (Bungoma) where the court considered the purpose of scrutiny. Counsel further relied on the decision of Mark Nkonana v IEBC E.P.1/2017 (Kajiado) and Jane Muringi v IEBC EP.19/2017 (NRB) where access to Kiems Kit was allowed. Counsel also submitted that section 44(1) of the Elections Act incorporates use of technology in elections i.e. the integrated electronic electoral system which enables bio metric voter registration, electronic voter identification and transmission of results; that this is supposed to enhance transparency of the process; that Reg.82 mandates the presiding officer to transmit the results to the county tallying centre where actual results are tallied and results declared; that the process is to safeguard and to ensure verifiability; that it is only after the court grants access to the forms that their authenticity can be ascertained.

As regards request for original form 37, it was urged that attempts made to have the respondents deliver the said forms have proved futile; that the forms need to be verified for the benefit of Samburu people and for the court to understand whether the process was accurate.

The petitioner also relied on the decision of Gitarau Peter Munya v Dickson Mwenda Kithinji E.P.2B of 2014(CA). Where the Supreme Court gave guidelines on how the court can determine when to order for security or recount. Lastly, reliance was also made on Raila Amollo Odinga v IEBC and others EP 1/2017 (Supreme Court) where the Court underscored the need for scrutiny of form 34 used in the tallying the presidential votes to establish the accuracy of the total tally indicated in the form; establishing the total number of registered voters, the number of valid votes cast and those rejected.

The application was opposed by the 1st and 2nd respondents through an affidavit sworn by Ben Misati, on 19/10/2017. Submissions and a list of authorities were filed by learned counsel Mr. Karanja on 30/10/2017. It is the 1st and 2nd respondent’s case that an order of scrutiny is to determine whether there were polling stations with a dispute as to the results; that scrutiny has to be pleaded in the petition and sufficient basis laid to warrant the scrutiny; that the technology that was used, which includes KIEMS Kit has no relation to the Gubernatorial elections as the KIEMS Kit was used for voter identification of all voters and transmission of results in the Presidential Elections but that filing of form 37A by the Presiding Officer and transmission to the Constituency Returning Officer was manual.

It was further submitted that the prayer to supply original form 37As, 37Bs and 37Cs is untenable because one original form is sealed in the ballot box and one set is left in 1st Respondent’s custody.

Mr. Karanja argued that no basis had been laid why biometric appliances used in every polling is required because there is no allegation that unregistered people voted; he also questioned why the kit that took photographs is required. Counsel also relied on the Gitarau case and urged that scrutiny does not lie as a matter of course and must only be conducted at polling stations with disputed results and the prayer being for all, polling stations in Samburu, it cannot be granted. Counsel echoed what the Supreme Court had said in Ole Kina’s case that the petitioner must plead specific stations that need scrutiny and a specific dispute must be disclosed before such order can be made.

Counsel urged that the process should not be turned into a fishing expedition and a basis to generate material for the petitioner. Counsel also relied on the decision in Jane Muringu (Supra) and Harun Lempaka v Aramat EP.2/2013 (Nakuru) where an order of scrutiny was denied because there was no violation of Section 82.

As regards the prayer to access original form 37A-C counsel said that they had already supplied the forms to the petitioner and that the petitioner has not disclosed what the forms are for.

The 3rd respondent also opposed the application and learned counsel Mr. Mwangi, associated himself with submissions made by Mr. Karanja. He also relied on an affidavit sworn by the 3rd respondent on 23/10/2017, Mr. Mwangi argued that all interlocutory applications should have their foundation on the petition; that the irregularities alluded to at Para 5 – 26 of the petitioner’s affidavit which include signing of forms by agents or deputy presiding officers and stamping do not have any nexus with prayer 3 of the Notice of Motion which seeks access to Biometric electronic appliances used in all the polling stations; that KIEMS Kits have nothing to do with signing of forms and there have been no allegations or errors in identification of voters or that there was an error in the transmission and imaging of the forms. Counsel further submitted that the petitioner seems to be presenting the presidential election petition as prayer 3(b) relates to transmission of results to the National Tallying Centre. (NTC).

In a rejoinder, Mr. Ochieng’ submitted that the conduct of elections is a process under Article 38(1) of the Constitution and the whole process has to be examined; that the petitioner has demonstrated that forms 37 that were issued to the petitioner had irregularities and anomalies while some forms lacked security features and hence the need to see the original forms for verification.

Lastly, counsel argued that the biometric kits are stored in SD cards which have been availed to the petitioner in other petitions in Kajiado and Embakasi Constituencies where the respondent admitted that the results were transmitted in terms of Regulation 82 of the Regulations.

I have considered the affidavits, submissions and authorities presented by the rival parties in the application under consideration.

The prayers sought herein are similar to those sought in the case of Raila Amollo Odinga v IEBC (2017) (Supra). Specifically prayers 3(b) and 3(e). Generally the petitioners seek three kinds of prayers:

(1) Access to information in relation to the hardware/software used in the Gubernatorial Election both as relates to the voters registers and transmission of results;

(2) Access and scrutiny of the original forms 37A-C;

(3) Leave to file further affidavits of access to information;

Article 35 of the Constitution of Kenya 2010, guarantees the right to access information held by the State and by another person and required for the exercise of protection of any right. The section reads as follows:

“Article 35 - Every citizen has the right of access to –

(1) (a) Information held by the State; and

(b) Information held by another person and required for the exercise or protection of any right or fundamental freedom;

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person;

(3) The State shall publish and publicize any important information affecting the nation;”

Other provisions of law that relate to access to information are Section 27 of the Independent Elections and Boundaries Act 2011 and Regulations 15, 16 and 17 of the Elections (Technology) Regulations, 2017 which provide for information, security and data storage.

Regulation 16 provides

“A person may request for information from the commission, in accordance with Section 27 of the IEBC Act 2011. ”

Article 81 of the Constitution requires the electoral system to comply with the principles of free and fair elections which are inter alia, transparent and administered in an impartial, neutral, efficient, accurate and accountable manner.

Article 82 of the Constitution has mandated parliament to enact legislation which has to ensure that voting at every election is simple and transparent. In furtherance of the requirements of the Constitution in order to ensure free and fair elections and curb any electoral malpractices, Section 44 of the Election Act provides as follows:

“Section 44

(1) Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.

(2)…..

(3) The Commission shall ensure that the technology in use under sub section (1), is simple, verifiable, secure, accountable and transparent.”

The integrated Electronic Electoral system is the one popularly referred to as KIEMs KIT. It registers voters, identifies voters and transmits results. The system is required to be verifiable, which means that is capable of being checked; accountable meaning answerable and obligated and lastly transparent which means open:

Access to information, being guaranteed by the Constitution, and technology used to be transparent, verifiable and accountable; the 1st respondent has a duty and responsibility to avail data and information on the electoral process where a basis has been laid by the petitioner for such request.

The respondents objected to the prayer for access to KIEMS KIT because the petitioner has not laid any basis in that he does not dispute the results for example, nor is there allegations unregistered people voted, or that the voters exceeded registered voters or voter identification. Even if the petitioner may be entitled to access under R.16 of Elections (Technology) Rules, yet the respondents have resisted this prayer under Section 27 of the Elections Act, that there is no basis for the request. I agree with the respondents’ submissions that no basis has been laid to warrant access. I therefore find no reason for the petitioner to access the KIEMS KIT in terms of prayer 3(a) of the Notice of Motion.

At prayer 3(b) and (c), the petitioner seeks access to electronic devices used to capture form 37As and 37Bs on the KIEMS system and any scanning device which scanned images onto the local servers and used in transmission of results.

Although the respondent argued that only the presidential results are transmitted electronically, Reg.82 of the Elections (General) Regulations, 2012 provides otherwise.

It reads as follows:

“R.82 (1) the Presiding Officer shall, before ferrying the actual results of elections to the returning officer at the tallying venue, submit to the returning officer the results in electronic form, in such manner as the Commission may direct;

(2) The results submitted under sub Section (1) shall be provisional and subject to confirmation after the procedure described in Reg.76. ”

The petitioner has pleaded that there are many anomalies and irregularities in forms 37A – 37C. Some of the forms were exhibited. Examples of the alleged irregularities are: unsigned forms, signed forms by the wrong people; some lacked IEBC stamps while some were alleged to have no security marks. Based on the above grounds, it is my view that the requests under prayer 3(b) and (c) are unreasonable and the respondents will not suffer any prejudice if access is granted.

As observed above the petitioner at paragraph 5 – 26 of the petitioner’s affidavit in support of the motion, set out the grounds for his complaints, that is, irregularities and anomalies in forms 37A, B & C. Though the counsel was given the forms, yet due to the alleged anomalies, they wish to access the originals for purposes of verification. In fact the 2nd respondent did not seem to have any serious objection to that request and I find that prayer 5 of the Notice of Motion is not unreasonable and I will grant the prayer for access to the original forms 37A, 37B & 37C.

Scrutiny:

The prayer for scrutiny was made in prayer 4 of the Notice of Motion. The law applicable to scrutiny is Section 82(1) of the Elections Act and R.29 of the Elections (Parliamentary and County Elections) Petition Rules. Section 82(1) provides as follows:

“(1) 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 court may determine.

(2) Where the votes at the trial of an election petition are scrutinized, only the following votes shall be struck off –

(a) The vote of a person whose name was not on the register or list of voters assigned to the polling station at which the vote was recorded or who had not been authorized to vote at that station;

(b) The vote of a person who committed or procured by bribery, treating or undue influence;

(c) The vote of a person who committed or procured the commission of personation at the election;

(d) The vote of a person proved to have voted in more than one constituency;

(e) The vote of a person, who by reason of conviction for an election offence or by reason of the report of the election court, was disqualified from voting at the election; or

(f) The vote cast for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification, or after sufficient public notice of the disqualification or when the facts causing it were notorious.”

The provision is clear, that an order of scrutiny can be made by the court either suo moto or on an application to the court by a party to the petition.

Rule 29 echoes provisions of Section 82 of the Act and goes further to provide the procedures for scrutiny under the direction of the Deputy Registrar.

From the above provisions an order for scrutiny can only be made after a basis is laid and it has to be in specified polling stations following a specific dispute.

In the case of Gatirau Peter Munya (Supra) the Supreme Court extensively considered the basis and purpose of scrutiny. At paragraph 153 of the judgment the court said:

a. The right to scrutiny and recount of votes in an election petition is anchored in Section 82(1) of the Elections Act and Rule 33 (Now Regulation 29) of the Elections (Parliamentary and County Elections) Petition Rules, 2013. Consequently, any party to an election petition is entitled to make a request for a recount and/or scrutiny of votes, at any stage after the filing of petition, and before the determination of the petition.

b. The trial Court is vested with discretion under Section 82(1) of the Elections Act to make an order on its own motion for a recount or scrutiny of votes as it may specify, if it considers that such scrutiny or recount is necessary to enable it to arrive at a just and fair determination of the petition. In exercising this discretion, the Court is to have sufficient reasons in the context of the pleadings or the evidence or both. It is appropriate that the Court should record the reasons for the order for scrutiny or recount.

c. The right to scrutiny and recount does not lie as a matter of course. The party seeking a recount or scrutiny of votes in an election petition is to establish the basis for such a request, to the satisfaction of the trial Judge or Magistrate. Such a basis may be established by way of pleadings and affidavits, or by way of evidence adduced during the hearing of the petition.

d. Where a party makes a request for scrutiny or recount of votes, such scrutiny or recount if granted, is to be conducted in specific polling stations in respect of which the results are disputed, or where the validity of the vote is called into question in the terms of Rule 33(4) of the Election (Parliamentary and County Elections) Petition Rules.

Guided by the above provisions and decision, I wish to point out that scrutiny is not one of the prayers sought in the petition. Secondly, the petitioner has not specified in which polling stations scrutiny should be carried out. Nowhere in the pleadings is the validity of the votes called into question. The petitioner’s prayer No.4 seeks a blanket prayer for scrutiny of all original form 37A – 37C in all the polling stations in Samburu County which prayer is untenable.

Apart from failing to specify the affected polling stations, the petitioner did not specify the nature of the dispute. The order of scrutiny cannot be granted at this stage. However, since the hearing of the petition has not commenced, the application for scrutiny may be revisited at a later stage before the case is determined or if the court finds need to order scrutiny, it may do so at a later stage of these proceedings.

In the end, the court makes the following orders:

(1) Prayers 3a and 4 are declined.

(2) As regards prayer 3(b) and (c) I allow the petitioner to a read only access to the data extracted from the KIEMS KIT in respect of forms 37A and 37B which is contained in the SD cards.

(3) As regards prayer 5, the 1st respondent to avail the original form 37A, 37B and 37C for access.

(4) The 1st respondent to make arrangements for the read only access to be conducted in the presence of the Deputy Registrar, all parties and/or their agents. Compliance to be within 5 days.

(5) The Deputy Registrar to prepare a report in respect of the access for the court.

(6) The counsel may take notes for use in cross examination or submissions later during the hearing of the petition.

(7) Costs to be in the cause.

Dated, Signed and Delivered at NYAHURURU this 6thday ofDecember,2017.

………………….

R.P.V. Wendoh

JUDGE

Present:

Mr. Mombo & Gilbert for petitioner

Mr. Karanja for 1st & 2nd respondents

Mr. Mwangi & Ms. Peinan for 3rd respondent

Soi – Court Assistant