[2017] KEHC 1857 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

ELECTION PETITION NO. 2 OF 2017

MICHAEL GICHURU..........................................PETITIONER

VERSUS

HON. RIGATHI GACHAGUA...................1ST RESPONDENT

KAHURA KANUA JOHN.........................2ND RESPONDENT

INDEPENDENT ELECTORAL

& BOUNDARIES COMMISSION..........3RD RESPONDENT

RULING

This ruling is in respect of the petitioner’s notice of motion dated 17th of November 2017 seeking, in general, a scrutiny of the votes cast in all the polling stations in Mathira constituency for the election of Member of National Assembly during the general elections held on 8th August, 2017. In particular, the applicant seeks scrutiny and recount of the votes cast in respect of this particular seat or, in the alternative, a scrutiny and recount of votes in 58 of the 190 polling stations in Mathira Constituency; the applicant also seeks a scrutiny of copies of the registers, including the marked ones, used in the polling stations in that constituency; and, finally, he seeks a scrutiny of polling station dairies.

The motion is made under Article 86 of the Constitution, Section 82 of the Elections Act, No. 24 of 2011 and Rules 28 and 29 of the Elections (Parliamentary and County Elections) Petition Rules, 2017.

The affidavit in support of the motion is sworn by the petitioner himself who has singled out 29 polling stations where Forms 35A were not stamped by the official stamp of the 3rd respondent. According to him, since it has been admitted by the 2nd and 3rd respondents, that the stamping of these particular forms was an administrative requirement, it was a legitimate expectation that the authenticity of these forms can only be ascertained if they were stamped.

Besides stamping, the applicant also pointed out several other polling stations where, in his opinion, there were irregularities or illegalities that would warrant scrutiny and recount of the votes cast. For instance, he has sworn that in the first of the two polling stations at Kieni Primary School, neither the candidates nor their agents appended their signatures on Forms 35A and that no reason was given for this omission. Similarly, at Gitangaruri tea buying centre, only the agents of Jubilee party signed the forms and no reason was given for the omission of signatures of the agents for the rest of the parties. At Hiriga primary school, the presiding officers did not sign the forms in respect of the first of the two polling stations at that centre. Yet at Kiangoma primary school and old Kiaruhiu polling stations the vote counts were not entered in the forms. In the first polling station at Karatina Girls High School polling station the signature of Duncan Mugo who was an independent candidate’s agent was forged.

Other polling stations which, according to the applicant, were tainted with illegalities or irregularities were Kihuri, the third station at Karatina stadium and the first station at Kiamabara where the forms were not signed by the presiding officers. At Karatina open air market, Karatina Girls High School, old Ngorano Dispensary and Kahuru polling stations the forms were not signed by the Deputy Presiding officers. Similarly, the presiding officers also did not sign the forms at the second polling station in Gatundu, the first station in Kiamabara, the second station at Gathugu and the first station at Wakamata centres.

The respondents opposed the motion and filed their respective replying affidavits in that respect. According to the 1st respondent, it is only in 29 polling stations that the petitioner specifically pointed out as stations mired in irregularities and illegalities; however, the allegations of illegalities or irregularities were discounted by the evidence of the 2nd and 3rd respondents. In particular, it was noted that it was not a legal requirement that Forms 35A should be stamped. In any event, it had been proved that 11 of those forms out of the 29 alleged not to have been stamped had actually been stamped.

Again, the petitioner is alleged to have included in his application more polling stations where irregularities or illegalities are alleged to have occurred yet these particular stations were not pleaded in his petition.

As for the omission of the signatures of the parties’ agents, he swore that it is only those agents who are present at the polling stations that are required to sign Forms 35A. On whether the forms used were valid, it was submitted that there was sufficient evidence that these forms were secure and tamperproof.

Considering that all the questions raised by the petitioner had been answered, so the first respondent swore, there was no sufficient reason for an order of scrutiny or recount of votes. He also swore that he had been advised by his counsel, which advice he believed to be true, that a recount of votes is only necessary if that is the only question for determination in the petition.

Counsel for the 2nd and 3rd respondents swore a replying affidavit on their behalf and deposed that the petitioner’s application has no basis. He also swore that the petitioner has not specifically pointed out the polling stations in which a recount or scrutiny of the votes should be conducted.

Like the 1st respondent, counsel swore that there is no legal requirement for stamping of Forms 35A and failure to stamp them is not, of itself, a sufficient ground for scrutiny or recount of the votes. As for the omission to sign those forms by the agents, he swore that failure to sign also cannot invalidate the results.

In the learned counsel’s view, the applicant is on a mission to introduce fresh evidence to his petition.

As I understand it, the order for scrutiny or recount of votes is discretionary. As far as scrutiny is concerned, it is expressly provided for in section 80(4) of the Elections Act which states:

82. Scrutiny of votes

(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 election court may determine.

The provision for recount is not as explicit in the Act but it is inferred by necessary implication in Section 80 which spells out the powers of an Election Court; amongst these powers is the power to order the 3rd respondent to issue a certificate to a president, a member of Parliament or of a county assembly upon a recount of the ballots cast; this is provided for in subsection (4) (a) which states as follows:

(4) An election court may by order direct the Commission to issue a certificate of election to a President, a member of Parliament or a member of a county assembly if—

(a) Upon recount of the ballots cast, the winner is apparent;

(Underlining mine).

The Elections (Parliamentary and County Elections) Petitions Rules, 2017are unequivocal that both orders for recount or scrutiny are available in appropriate circumstances. Rule 8 which prescribes the form and contents of a petition states in sub-rule (3) that amongst the prayers a petitioner may seek is an order for scrutiny and a recount of the ballots cast at the election in dispute.

Rules 28 and 29 are even clearer and leave no doubt that a petitioner may apply for a recount of the votes received by the candidates or their tallying. He may also apply for scrutiny not just of the votes but all the election material or any other representation made in the course of the election. Owing to their centrality to the present application, it is necessary that I reproduce the rules here:

28. A petitioner may apply to an elections court for an order to—

(a) recount the votes; or

(b) examine the tallying, if the only issue for determination in the petition is the count or tallying of votes received by the candidates.

Recount of votes or examination of tallying.

29. (1) The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.

(2) On an application under sub-rule (1), an election court may, if it is satisfied that there is sufficient reason, order for scrutiny or recount of the votes.

(3) The scrutiny or recount of votes ordered under sub-rule (2) shall be carried out under the direct supervision of the Registrar or Magistrate and shall be subject to the directions the election court gives.

(4) The scrutiny or recount of votes in accordance with sub-rule (2) shall be confined to the polling stations in which the results are disputed and may include the examination of—

(a) the written statements made by the returning officers under the Act;

(b) the printed copy of the Register of voters used during the elections sealed in a tamper proof envelope;

(c) the copies of the results of each polling station in which the results of the election are in dispute;

(d) the written complaints of the candidates and their representatives;

(e) the packets of spoilt ballots;

(f) the marked copy register;

(g) the packets of counterfoils of used ballot papers;

(h) the packets of counted ballot papers;

(i) the packets of rejected ballot papers;

(j) the polling day diary; and

(k) the statements showing the number of rejected ballot papers.

(5) For purposes of sub-rule (4) (b), every returning officer shall upon declaration of the results, seal the printed copy of the Register of Voters used at that election in a tamper proof envelop and such envelop shall be stored by the Commission subject to the elections court directions under rule 16.

The rules are more or less self explanatory that in appropriate circumstances, an order for a recount and the tallying of the votes, or their scrutiny and scrutiny of other election material may be made by an Election Court. When both the statutory provisions and the rules are considered in their entirety, certain factors that ought to be considered in an application for any of these orders emerge; these are:

(a) The order for either a recount, tallying or scrutiny is discretionary;

(b) The order for scrutiny may be made by the court suo motu or upon an application by any of the parties to the petition;

(c) The application for scrutiny may be made during the hearing of the petition;

(d) Amongst the reliefs a petitioner may seek specifically is for an order for scrutiny and recount of votes;

(e) A petitioner may also apply for the tallying of the votes except that whenever such an application is made, the only issue for determination in the petition must be count or the tallying of votes received by the candidates;

(f) It is the discretion of the Election Court to order for scrutiny and recount of the votes, if in its opinion, a sufficient cause has been provided by the applicant; and,

(g) If the order for scrutiny and recount is made, it can only be confined to those polling stations in which the results have been disputed and includes the examination of the election material and any other documentary representations that may have been made in the course of the elections such as written complaints of the candidates or their representatives and written statements of the returning officers.

As much as the order for scrutiny and recount is a discretionary remedy, it is not made at the whims of the court; it must be made judiciously. Neither is it granted as a matter of course whenever an application for such an order is made by any of the parties to the petition.

Regardless of whether the Election Court makes the order for scrutiny and recount on its own motion or whether it is made on an application of any of the parties, the court must, at the very least, be satisfied that based on the evidence before it and, in order to determine the issues before it conclusively and reach a just determination, it is necessary that the votes or any other election material be scrutinised. This, in my view, is what would amount to a sufficient cause for the order for scrutiny. It follows that where an applicant beseeches the court to exercise its discretion in his favour, he must have laid a firm basis on which this order can be made.

In making the order, the election court must always be on guard against descending into the arena reserved for the contesting parties to look for evidence in support of the petitioner’s case where such evidence does not exist. When I first had occasion to determine this issue in Peter Gichuki King’ara versus Independent Electoral & Boundaries Commission & Others (2013) eKLR, I noted as follows:

The law on scrutiny and recount that I have addressed hereinbefore suggests that scrutiny and recount in a petition such as the present one is not an exercise that is supposed to place an election court on a level higher than that of the presiding officer or polling clerks in the electoral structure of counting or recount of votes; neither is it a gambling exercise that sets the court to rummaging through the ballot boxes to see whether any scintilla of evidence of electoral malpractice or irregularity can be found. If the Petition is based on any particular electoral malpractice or irregularity that would warrant scrutiny or recount of votes, the malpractice or irregularity must be pleaded and the evidence of such malpractice must be laid out or established prior to an order for scrutiny or recount; the court must be satisfied that, on the basis of the evidence before it, it is necessary to call for a scrutiny and recount, if not for anything else, to confirm the truth of that particular evidence. Asking the court for a scrutiny or recount where there is no evidence or basis for such an exercise would be more or less engaging the court on a mission of searching for evidence where none exists, a practice that would not only be prejudicial to the respondents but would also be deprecatory in a legal system that believes in fair and impartial administration of justice.

At the core of the dispute between the petitioner and the respondents in the present application are Forms 35A and 35B. I need not spend much time on the latter because as far as I can see, save for the serial number, it is similar in every respect with the version supplied by the 3rd respondent.

The former, on the other hand, is basically a declaration of the results for the election of a member of national assembly at a polling station; it is provided for under Regulation 79(2) (b) as read with Regulation 79(1) of the Elections (General) Regulations, 2012 as amended by Legal Notice No. 72 of 2017. Regulation 79(1) (2) (a) and (b) reads as follows:-

79. (1) The presiding officer, the candidates or agents shall sign the declaration in respect of the elections.

(2) for purposes of sub- regulation 1, the declaration for-

(a) Presidential elections results shall be in Form 34A set out in the schedule; and

(b) National Assembly, County women representatives, senator, Governor and county assembly elections shall be in Forms 35A, 36A, 37A, 38A and 39A a set out in the Schedule.

The form is serialised and also has provisions for specific details including such details as the name of the polling station, the ward, the constituency and the county in which the polling station is located. The polling station, the ward, the constituency and the County have specific code numbers.

The form also has a provision for the names of the candidate and a column for the number of valid votes which each candidate obtained; the number of votes obtained by any candidate is filled against the name of that particular candidate. At the end of the column of the valid votes obtained is the space for the total number of valid votes cast.

There is also a provision for the polling station counts; the information filled in this space include the details of the total number of registered voters in a particular polling station; the number of rejected ballot papers; the number of rejection objected to ballot papers; the number of disputed votes and the number of valid votes cast.

If there is any decision on disputed votes, there is a space provided for the serial number of the disputed vote or votes and the name of the candidate to whom that vote or votes are assigned.

There is then a declaration by the presiding officer, the deputy presiding officer and the agents or candidates (if they are present) that the results indicated in the form are true and accurate account of the ballots in the polling station. The presiding officers signify their declaration by writing their names and signing against them. They also indicate the date when the declaration was made.

The candidates or their agents on the other hand, have to write their names; the identification card or passport number; the party they are representing or if they are contesting as independent candidates they indicate so; the telephone numbers and their signatures and the date on which they made the declaration.

If any of the candidates or their agent has any reason not to sign or refuses to sign, there is a space provided for him to write the reason for the refusal to sign.

Finally there is a space for the presiding officer’s comments.

Except for the space where the candidates or their agents fill in their particulars and their reason for refusal or failure to sign, the rest of the required information is filled by the presiding officer. His responsibilities with respect to this form are covered in Regulations 2A, (3), (4), (5) and (6); for better understanding, it is necessary to reproduce these regulations here:

2A The presiding officer shall-

(a) immediately announce the results of the voting at the polling station before communicating the results to the returning officer;

(b) request each of the candidates or agents present to append his or her signature;

(c) providing each political party, candidate, or the agent with a copy of the declaration of the results; and

(d) affix a copy of the declaration of the results at the public entrance to the polling station or at any place convenient and accessible to the public at the polling station.

(3) Where any candidate or agent refuses or otherwise fails to sign the declaration form, the candidate or agents shall be required to record the reasons for the refusal or failure to sign.

(4) Where a candidate or an agent refuses or fails to record the reasons for the refusal or failure to sign the declaration form, the presiding officer shall record the fact of their refusal or failure to sign the declaration form.

(5) Where any candidate or agent of a candidate is absent, the presiding officer shall record the fact of the absence.

(6) The refusal or failure of a candidate or an agent to sign a declaration form under sub- regulation (4) or to record the reasons for their refusal to sign as required under this regulation shall not by itself invalidate the results announced under the sub- regulation (2)(a).

(7) In the absence of a candidate or an agent at the signing of a declaration form of the announcement of the results under sub- regulation (2) shall not by itself invalidate the results announced.

(8) After complying with the provisions of this regulation, the presiding officer shall, as soon as practicable, deliver the ballot boxes, and the tamperproof envelopes to the returning officer who shall take charge thereof.

I must hasten to state here that the present application has been made, as it ought to be, in the course of the hearing of the petition. It is noted that it has been made after all the witnesses have given their testimony in the course of which they have been cross-examined on the depositions in their respective affidavits. All that is now pending, subject to the outcome of this application, is for counsel to make their submissions on the evidence on record after which this Court shall deliver its judgment on the petition.

In these circumstances, it behoves this Court not to make any remarks that may be interpreted to mean that the petition has been decided. It follows that in this ruling, I can only say as much as is necessary for determination of this application and nothing more.

The basis of the petitioner’s application is largely copies of forms 35A and 35B exhibited to his affidavit in support of the petition. If my count is correct they are 54 Forms 35A representing an even number of some of the polling stations within Mathira constituency. The common feature in most, if not all of these forms, is that apart from the print, the handwritten information is barely legible or not legible at all. It is not clear whether the faint or illegible writings arose from the quality of the copies from which these copies were made or was a result of a defect or malfunction of the photocopier. Whatever the case, it is apparent that in their current form, it is difficult to make a fair comparison between the information contained in most of the forms exhibited to the petitioner’s affidavit and the corresponding original forms produced in court by the 3rd respondent. For the same reason, it is equally difficult to make any findings based on the information that is alleged to be contained in the copies exhibited in court by the petitioner. Needless to say, if the applicant intended the court to consider his version of forms in assessing the merits of his application, then it was incumbent upon him to exhibit evidence from which the court could deduce his case.

The original forms availed to court by the 3rd respondent are clearly legible. I have had the opportunity to peruse carefully each of these forms and compared them with the ones exhibited by the 1st respondent in respect of some of the polling stations which the petitioner has complained about; the two sets are similar both in print and in the filled in information.

I have noted, however, that in several of these forms, the errors which the petitioner has raised issue with are self-evident. There are instances where either the presiding officer or his deputy or either of them did not sign the declaration; there is at least one instance where none of the agents signed the declaration; it is also true that while some forms have been stamped with the official stamp of the 3rd respondent others have not. Yet in others the sum total of the vote counts for each candidate have not been given.

Again in instances where the candidates or their agents have not signed, there are no remarks by the presiding officer whether these were cases for refusal or failure to sign or that the agent or agents who did not sign were simply absent.

All these omissions have been established to exist; as a matter of fact, the 2nd and 3rd respondents while conceding them offered what, in their respectable view, is a sufficient explanation for the omissions. Faced with this kind of evidence, it is my humble view that this Court is in good stead to make a determination, one way or the other, on whether a breach of Regulation 79. (2A),(3),(4),(5),(6),(7) and (8) of the Elections (General) Regulations, 2012 has any effect on the election of any person to an elective post and in this particular case, the election of the member of National Assembly for Mathira constituency; if there is any impact, I am certain that this Court is still in a good position to determine the extent to which the election was affected without necessarily having to conduct a scrutiny or recount of the votes or other election material.

On this question of recount, Regulation 80(1) of the Regulations provides for a recount at the polling station where a candidate or his agent is not satisfied after the completion of the counting; it states:

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 own initiative, have the votes recounted:

Provided that the recount of votes shall not take place more than twice.

There is no evidence that any candidate or their respective agents requested for and were denied this right of a recheck or recount of the votes in any particular polling station. Having failed to exercise their rights at the polling stations, it is an afterthought and indeed it smacks of bad faith for the petitioner to ask for a recount of the votes at this particular stage.

In the final analysis I must reach the conclusion that there is no sufficient basis that has been laid for scrutiny or recount of votes cast for election of Member of National Assembly for Mathira Constituency.

Similarly, there is reason to order for scrutiny of the voter’s registers or the polling day diaries because these election materials were availed to court as early as 14th November, 2017 before the respondents began testifying; nothing prevented the petitioner or his counsel from inspecting these documents between the time they were put in the court’s custody and the time this application was filed in Court. The Court cannot order for scrutiny of election material to which the petitioner has always had access to.

In the ultimate I do not find any merit in the petitioner’s application and it is hereby dismissed; costs will abide the outcome of the petition.

Signed, dated and delivered in open court this 6th December, 2017

Ngaah Jairus

JUDGE