[2018] KEHC 4709 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA ATMALINDI

ELECTION PETITION APPEAL NO. 5 OF 2018

MOHAMED ABDUL OMAR .................................................. APPELLANT

VERSUS

KIPONDA JOSEPH JOSEPPE NGUMBAO .............. 1ST RESPONDENT

KATANA REUBEN MWAMURE ................................ 2ND RESPONDENT

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION (IEBC) ....................... 3rd RESPONDENT

MASHA SUDI ................................................................ 4TH RESPONDENT

JUDGMENT

(Being an Appeal against the judgment of Hon. C.O. Nyawiri (SRM) in CMCC ElectionPetition No. 3 of 2017, Malindi delivered on 6th March, 2018 between Kiponda Joseph Joseppe Ngumbaoand Katana Reuben Mwamure(Petitioners) vs Independent Electoral and Boundaries Commission, Masha Sudiand Mohamed Abdul Omar)

1. In the general election held on 8. 8.17, Mohamed Abdul Omar the Appellant herein, Kiponda Joseph Joseppe Ngumbao, the 1st Respondent and Katana Reuben Mwamure, the 2nd Respondent were all candidates for the position of Member of County Assembly, Ganda Ward in Malindi Constituency, Kilifi County. At the conclusion of the election, Masha Sudi, the 4th Respondent, the duly appointed returning officer by the Independent Electoral and Boundaries Commission the 3rd Respondent declared the Appellant as having been duly elected as the Member of County Assembly, Ganda Ward in Malindi Constituency, Kilifi County.

2. The 1st and 2nd Respondents being dissatisfied with the outcome of the results filed Petition No. 3 of 2017 (the Petition) in the Chief Magistrates’ Court at Malindi on 7. 9.17, challenging the election of the Appellant. In his Petition, the 1st Respondent alleged that for various reasons stated therein, the 3rd and 4th Respondents did not conduct the election of Member of County Assembly, Ganda Ward in Malindi Constituency, Kilifi County in accordance with the Constitution and the law relating to elections and further that the Appellant was not validly elected as the Member of County Assembly, Ganda Ward in Malindi Constituency, Kilifi County.

3. In the Petition, the 1st and 2nd Respondents contended that:

i) the 3rd and 4th respondents violated constitutional provisions particularly Articles 38(2) (a), 88 (4) (h), 88 (5), 81 (a) (d) (e ) (ii) (iii) (iv) (v), 84, 86 (d), 88 and /or other legal obligationsnamely section 109 of the Elections Act 2011 and part XII, XIII of the Elections (General) Regulations, 2017.

ii) 3rd and 4th respondents intimidated the petitioners' agents from raising complaints and that where the agents were adamant or persistent with their complains, they were ejected out of the polling station and tallying centres. Further, that the 1st and 2nd respondents were hostile, unfriendly and that first polling station opened late and closed early.

iii) 3rd and 4th respondents were biased when its came to assisted voters as the Presiding Officers did not allow all the agents to witness the presiding officer assisting a voter and that is most of the times only the ODM (Orange Democratic Movement) party agents were favoured.

iv) 3rd and 4th respondents in all polling stations did not allow agents to verify the votes during the sorting out and counting of votes.

v) 3rd and 4th respondents allowed the ODM agents and supporters to openly campaign in and around the polling stations.

vi) 3rd and 4th respondents declared results at Takaye Primary School Polling Station number 3, Mere primary School Polling Station number 1 and 2 and Gandeni Primary School Polling Station number 1 without Form 36A.

vii) 3rd and 4th respondents declared results at Milimani Nursery School Polling Station without declaration of results Form 36A being signed by the presiding officer.

viii) 3rd and 4th respondents declared results of Kijiwe Tanga Primary School Polling Station number 1, 2 and 3 and Miwani Nursery School Polling Station without declaration of results Form 36 A being stamped.

ix) 3rd and 4th respondents allowed persons who were not allowed to vote. That the persons who were not allowed to vote were not registered or were not registered in the respective Polling Stations.

x) 3rd and 4th respondents conveniently placed the agents far away from the KIEMS kit that they were not able to verify the persons being identified to vote.

xi) The 1st and 2nd respondents also contended that the aggregate votes of the Polling Station without lawful result is 1854 while the margin of votes between the declared winner and the candidate who was number two (2) is 449 and that of the candidate who was number 3 is 717.

xii) That the results for the Member of County Assembly (MCA) for Ganda were declared on 14th August, 2017 and that there was a sham to deny the petitioners a win.

4. In his Judgment delivered on 6. 3.18, Hon. C.O. Nyawiri Senior Resident Magistrate found that the Appellant had not been validly elected as Member of County Assembly of Ganda ward. He allowed the Petition and nullified the said election. The Learned Magistrate further directed the 3rd Respondent to conduct a fresh election in conformity with the Constitution and the Election Act 2011 and other laws governing elections in Kenya. He awarded costs to the 1st and 2nd Respondents capped at Kshs. 2,000,000/= payable by the 3rd and 4th Respondents jointly and severally.

5. The Appellant was aggrieved by the said judgment and filed the appeal herein dated 19. 3.18 and filed on even date. The grounds of the appeal are reproduced hereunder:

1)The Honourable Magistrate erred in law and in fact by finding that the elections held on 18/8/2017 for the member of the County Assembly for Ganda Ward, Malindi constituency, Kilifi were not so held in accordance with the constitution, the Election Laws and reputations.

2)The Honourable Magistrate erred both in law and in fact by finding that the petitioner in the petition proved electoral malpractices and irregularities and that the proved electoral malpractices and irregularities affected the outcome of the election of the 3rd Respondent therein (the appellant).

3)The Honourable trial Magistrate erred in law and in fact by making a finding that the 3rd Respondent therein (the appellant) was not validly elected as a member of the County Assembly for Ganda Ward, Malindi Constituency, Kilifi County.

4) The Honourable trial Magistrate erred both in fact and law in framing the issues from determination based on the evidence placed before him.

5)The Honourable trial Magistrate erred both in fact and in law by making afinding that the Petitioners(1stand 2nd Respondents) discharged his burden of proof onthe questions of illiterate voters.

6)The Honourable trial Magistrate erred both in fact and in law by finding that the Petitioners (1st and 2nd Respondents) discharged the burden of proof on issues surrounding counting, verification and tallying of voters.

7) The Learned Trial Magistrate further erred in law and in fact by finding that the alleged failure to declare the election results in form 36 B as required by law was a grave and fatal blow to the respondent.

8) The learned magistrate erred in law and fact in finding that the alleged failure to declare the results in form 36 B offended Articles 38 and 86 of the Constitution thereby rendering the election for Member of County Assembly Ganda Ward not verifiable, fair, credible and accountable and as a consequence thereof further finding that the appellant (3rd respondent in the petition) was not validly elected as Member of County Assembly (MCA) for Ganda Ward in the 8/8/2017 general elections.

9) The 3rd Respondent contends that the ultimate findings of the Learned Trail Magistrate are at odds and in contradiction to his finding under the following paragraphs:-

a) Invalidity of Statutory forms

The Learned Magistrate's was of the view that the irregularities pointed out this paragraph did not affect the result and could not affect the results of the election.

b)Intimidation and harassment of the petitioners Agents the Learned Trial Magistrate found that this allegation was not proved and the same failed.

c)Allowing persons not registered to vote

The Learned Trial Magistrate found that this allegation had been particularly proved but not to the extent sufficient to void the election.

d) That the aggregate votes of the polling stations without lawful resultsis 1854. This allegation failed.

10)The 3rd Respondent contends that the Learned Trial Magistrate's findings areat odds with the totality of the evidence.

11)The Honourable Trial Court erred in Law and in fact by making a finding that the 3rd Respondent therein (appellant) was to pay costs of the petition.

12)The Honourable Court erred both in fact and in law by coming to the conclusion that the elections of 8/8/2017 had to be nullified, nullified them and directed a fresh election.

13) The Trial Magistrate lacked impartiality and wrote an identical judgment as in CMCC ELECTION PETITION NO. 7 OF 2017 between MOHAMEDTWAHER ABDULKARIM (PETITIONER) =VS= INDEPENDENTELECTORAL AND BOUNDARIES COMMISSION, MASHA SUDI ANDKADENGE MWATHETHE ADAMSON. This was unconstitutional and against the Provisions of Article 50(1) of the Constitution.

6. The Appellant urged the Court to vacate, vary and set aside the judgment of the Chief Magistrate’s Court and substitute it with an order dismissing the Petition with costs to the Appellant. He also prayed for costs of the Appeal.

7. The 3rd and 4th Respondents filed a Memorandum of Cross-Appeal dated 11. 5.18 and filed on 15. 5.18. Their grounds are:

1) Learned Trial Magistrate erred in law and fact in holding that the First and Second Respondents had proved that the election of Member of County Assembly (MCA) for Ganda Ward was not conducted in accordance with the Constitution and other laws governing elections in the Republic of Kenya when no proper or explicable foundation had been laid by the First and Second Respondents in the proceedings before him.

2) THAT the Learned Trial Magistrate erred in law and fact in holding that the Third and Fourth Respondents had committed electoral illegalities and irregularities that affected the outcome of the elections of Member of County Assembly for Ganda Ward in consequence the Appellant herein was not validly elected as a Member of County Assembly for Ganda Ward when no proper or explicable foundation had been laid by the First and Second Respondents in the proceedings before him.

3) THAT the Learned Trial Magistrate wholly misapprehended the matters in issue for determination in the Petition before him in consequence of which he erred in the analyses of all the material placed before him as well as in the decision made.

4) THAT the Learned Trial Magistrate erred in law and fact in holding that the First and Second Respondents had laid a basis on the issue of assisted voters basing on the lack of Form '32 being filled by the Third and Fourth Respondents in respect of Takaye Primary School Polling Station Number 3 where two (2) voters were assisted.

5) THAT the Learned Trial Magistrate erred in law and completely misapprehended what constituted a 'Declaration of Results' and that the Form 36B or Form 35B referred tc in his Judgement was not a 'Declaration of Results' as envisaged and enumerated in the holding of the case of Hassan Ali Joho & Anor. -vs- Suleiman Said Shabhal & 2 others (2014)eKLR.

6) THAT the Learned Trial Magistrate erred in law and fact in holding that various declaration forms were invalid thereby destroying the credibility and authenticity of the results contained therein rendering the election unverifiable.

7) The Learned Trial Magistrate erred m failing:-

a) To appreciate that the First and Second Respondents had, in fact, conceded in evidence that the declaration of the Member of County Assembly for Ganda Ward, Malindi Constituency in Kilifi County was made on the 10th day of August, ' 2017 and a certificate issued to the Appellant on even,:> date rendering the Petition before him time barred;

b) To make a determination on the question of limitation of time in the filing of the Petition by the Third and Fourth Respondents in view of the provisions of Article 87 (2) of the Constitution of Kenya 2010 and jurisprudence;

c) To appreciate that there were no affidavits filed in Court in support of the Petition all having been disowned by the First and Second Respondents' witnesses as having been sworn on 6th September 2017 AND NOT 7th September 2 017 contrary to the provisions*. of Rule 112(3) and (4) of the Election Rules, 2017;

d) To appreciate that the First and Second Respondents' witnesses admitted in evidence that they swore their respective Affidavits before the First and Second Respondents' Advocate in contravention of the provisions of the Oaths ands Statutory Declaration Act;

e) To strike out those affidavits altered at the hearing of the Petition by the First and Second Respondents' witnesses contrary to the strict provision of the Oaths and Statutory Declaration Act.

f) The Learned Trial Magistrate erred in making a finding that the Third and Fourth Respondents herein to pay costs of Kenya shillings Two Million (KShs. 2,000,000. 00) to the First and Second Respondents herein.

8. The 3rd and 4th Respondent urged the Court to allow the Cross-Appeal. They further prayed that the decision of the lower Court be set aside, varied, and be and substituted with an order dismissing the Petition with costs to them. They also prayed for costs in the Cross- Appeal.

9. The 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 21. 5.18 on the grounds that:

1. This Honorable Court has no jurisdiction to hear this appeal as the Record of Appeal does not contain a signed copy of the judgment appealed from as is required by Rule 34 (6) (e) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 and therefore there is no competent appeal before court hence it should be struck out with costs.

2. This Honorable Court has no jurisdiction to hear the 2nd and 3rd Respondents alleged cross-appeal as there is no provision allowing for parties in an appeal to file a cross-appeal hence the cross-appeal should be struck out with costs.

10. Parties filed written submissions as directed by the Court which were highlighted before me. The 1st and 2nd Respondents contend that because there is no provision in the Constitution, Election Act or Rules thereunder allowing the filing of a cross-appeal, the Court has no jurisdiction to hear the 3rd and 4th Respondents’ Cross-Appeal and the same should be struck out with costs. The 1st and 2nd Respondents further argued that the Court has no jurisdiction to hear the Appeal as the record of appeal does not contain a signed judgment as required by Rule 34(6)(e) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 (the Election Petition Rules). The Appeal being incompetent should be struck out with costs.

11. Before I consider the rival arguments on the Cross-Appeal, I have noted that the same is dated 11. 5.18 and was filed on 15. 5.18. Section 75(4) of the Elections Act 2011 stipulates the timelines within which appeals to this Court must be filed. It provides:

(4) An appeal under Subsection (1A) shall lie to the High Court on matters of law only and shall be-

a) filed within thirty days of the decision of the Magistrate’s Court; and

b) heard and determined within six months from the date of filing of the appeal.

12. A cross-appeal is an appeal the filing of which must be in compliance with Section 75(4) of the Elections Act. Given that the judgment appealed against was delivered on 6. 3.18, the last date the Cross-Appeal ought to have been filed was 5. 4.18. The Cross-Appeal was however filed on 15. 5.18 over 1 month late. In the case of Paul Posh Aborwa v Independent Election & Boundaries Commission & 2 others [2014] eKLR the Court of Appeal observed:

“…that the petition in the High Court was filed outside the time frame permitted under Article 87(2) of the Constitution; that accordingly this Court has no jurisdiction to hear and determine this appeal as it emanates from proceedings that were a nullity ab initio.

13. The Court is alive to the fact that no party has raised the issue of the Cross-Appeal being filed out of time. However, the competency of the Cross-Appeal goes to the jurisdiction of this Court and an issue of jurisdiction can be raised at any time even by the Court itself. I am duly guided by the decision in Election Petition Appeal No. 1 of 2018 Stanley Muiruri Muthama v Rishad Hamid Ahmed & Others, where the Court of Appeal stated:

It is trite law that an issue of jurisdiction, as the one that was argued by the 1st respondent’s counsel, can be raised at any time, in any manner, and even by the Court itself.

14. I find that this Court has no jurisdiction to consider the Cross-Appeal as the same was filed outside the time frame permitted under Section 75(4) of the Elections Act. The Cross-Appeal being incompetent and any proceedings relating to the same would be a nullity. In the premises, the Court suo moto strikes out the Cross-Appeal.

15. The second Objection is that the judgment in the record of appeal is not signed. It was submitted that the Court has no jurisdiction to hear the Appeal and the same should be struck out. The Court notes that the copy of judgment in the record of appeal though certified, is not signed as required by the Rules. Rule 34(6)(e) of the Election Petition Rules provides:

6. The appellant shall within twenty-one days of the filing of the memorandum of appeal in accordance to sub-rule (3), file a record of appeal which shall contain the following documents:

a) The memorandum of appeal,

b) Pleadings of the petition,

c) Typed and certified copies of proceedings

d) All affidavits, evidence and documents entered in evidence before the magistrate and

e) A signed and certified copy of the judgement appealed from and a certified copy of the decree.

16. The wisdom behind the requirement of a signed copy of the judgment is to inform the appellate Court of the findings of the lower Court to enable it consider the merits or otherwise of the Appeal. This is the spirit behind the Rule 34(6)(e). In addition to the Rule requiring the record of appeal to contain a signed copy of the judgment, the Rules also require the trial Court to forward to this Court the proceedings and all relevant documents relating to the Petition. Rule 34(8) provides:

The election court from which an appeal is preferred shall, upon receiving a notice under sub-rule (7), send the proceedings and all relevant documents relating to the petition to the High Court to which the appeal is preferred.

17. The entire record containing proceedings and all relevant documents relating to the Petition was forwarded to this Court and I note that the original signed judgment of the lower Court is contained therein. From the original judgment the Court is able to ascertain the finding of the lower Court. The omission by the Appellant to provide a signed copy of the judgment in the record of appeal does not in my view go to the jurisdiction of the Court or the root of the dispute. It is a deviation and lapse in form which will not occasion prejudice or miscarriage of justice to the 1st and 2nd Respondents. This was the holding of Ouko, JA. in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR:

Deviations from and lapses in form and procedures which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since the rules of procedure are complex and technical. Instead, in such instances the Court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.

18. Article 159(2)(d) of the Constitution of Kenya 2010 enjoins this Court to administer substantive justice without undue regard to procedural technicalities. This Court will therefore rise to its highest calling to do justice by sparing the Appellant the draconian approach of striking out the Appeal due to a minor procedural infraction which will not cause injustice or injurious prejudice to the 1st and 2nd Respondents. In the circumstances, the Preliminary Objection fails.

19. Having determined the preliminary issues, I now proceed to consider the merits of the appeal. The 1st and 2nd Respondents have argued that the Appeal raises matters of fact and law contrary to Section 75(4) of the Elections Act which states that appeals to this Court shall be on matters of law only. To buttress this submission the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR was cited in which the Supreme Court of Kenya defined “matters of law” as follows:

[81] Now with specific reference to Section 85A of the Elections Act, it emerges that the phrase “matters of law only”, means a question or an issue involving:

a. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor;

b. the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;

c. the conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claims that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.

20. In order of this Appeal to be competent the same must involve the interpretation, or construction of a provision of the Constitution, an Act of Parliament, statutes or rules and regulations made thereunder or any legal doctrine. The Appeal must also involve the application of a provision of the Constitution, an Act of Parliament, statutes or rules and regulations made thereunder or any legal doctrine to a set of facts or evidence on record. The Appeal could also relate to determination of whether the conclusions of the trial Court are not based on the evidence on record or are so perverse or illegal that no reasonable tribunal would have arrived at them.

21. The law is clear that an election appeal to this Court must be on matters of law only. In spite of this, the Memorandum of Appeal contains the standard phrase that the learned Magistrate “erred in law and in fact…” This practice was condemned by the Court of Appeal in Pius Yattani Wario v Independent Electoral and Boundaries Commission & 3 others [2018] eKLR. The Court observed:

As we have already noted, many of the grounds of appeal and of the cross-appeal are prefixed by the assertion that the learned judge“erred in law and in fact” in arriving at various determinations. Of late, we have encountered two strands of response from appellants when we query why they have framed their grounds appeal in an election petition to include invitations to the Court to determine issues of fact. The first is denial that the appeal indeed raises issues of fact, notwithstanding how the grounds of appeal are framed. In this response, the matter is reduced to an issue of semantics, raising the question why a party who seeks determination of issues of law only is not able to say so in a straightforward manner. The second, a more honest, if lazy approach, is to admit that the appeal indeed raises issues of fact and throw back the problem to the Court to sort out matters of fact from matters of law, before making its determination. We think both approaches are to be deprecated. It is not the business of the Court in each and every appeal to jump into the haystack to look for the needle. It is for the appellant to frame the issues that aggrieve him or her with precision and clarity. Encouraging that kind of practice will ultimately make nonsense of the rules of pleadings and encourage parties to present to the Court a potpourri of myths, rumours, allegations, facts, and so on, in the mistaken belief that it is the business of the Court to sort out the relevant from the irrelevant, as it strives to sustain all and sundry claims, however presented.

22. The Appellant was under an obligation to frame issues that aggrieve him with precision and clarity which he failed to do. The Court is now compelled to sort out matters of fact from matters of law. It shall be necessary to look at each of the issues for determination individually to determine whether they raise matters of fact or matters of law. The Grounds of Appeal were condensed into 2 broad issues:

i) Whether there was a competent petition before the Magistrate’s Court.

ii) Whether the 1st Respondent discharged the burden of proof in respect of the allegations in the Petition.

Whether there was a competent Petition before the Magistrate’s Court

23. It was submitted for the Appellant that for the lower Court to make a finding that the Appellant was not validly elected the presumption is that there was a competent Petition before it. The Appellant submits that there was no competent Petition before the lower Court to enable the Court arrive at the finding it did. The elections results were declared on 10. 8.17 which was confirmed by the issuance of the statutory certificate by the 4th Respondent. According to the Appellant, the Petition ought to have been filed by 6. 9.17 but the same was filed out of time on 7. 9.17. The Appellant relied on the cases of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014]eKLR (the Joho case) and Andrew Toboso Anyanga v Mwale Nicholas Scott Tindi & 3 others [2017] eKLR (the Toboso Case). For the 1st and 2nd Respondents, it was submitted that this ground was not in the grounds of appeal and should not be considered by the Court.

24. The question whether the Petition was filed within the time stipulated by law goes to the jurisdiction of the Court to entertain the matter. An issue that touches on the jurisdiction of the Court can be raised at any time (see Mary Wambui Munene v Peter Gichuki King’ara & 2 others [2014] eKLR).

25. Any ground that challenges the jurisdiction of the Court is a matter of law as envisaged in Section 75(4) of the Election Act. The Appellant’s case is that the Petition before the lower Court was filed outside the constitutional 28 days of declaration of the election results. Article 87(2) of the Constitution provides:

Petitions concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.

26. The date of declaration of results in an election was settled by in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014]eKLR. The Supreme Court stated:

[72]“Declaration” takes place at every stage of tallying.For example, the first declaration takes place at the polling station; the second declaration at the Constituency tallying centre; and the third declaration at the County returning centre. Thus the declarationof election results is the aggregate of the requirements set out in the various forms, involving a plurality of officers. The finality of the set of stages of declaration is depicted in the issuance of the certificate in Form 38 to the winner of the election. This marks the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority.

[92] … We discern from the above regulations that one of the specific mandates of the returning officers is to declare the election results. As we have depicted in the analysis, these officers declare the election results at various stages in the election.For the purposes of computation of time in respect to the filing of the election petition, we hold that the final declaration presents the instrument of declaration in accordance with Article 87 (2) of the Constitution

[100] After considering the relevant provisions of the law, as well as the submissions made before us, and after taking due account of the persuasive authorities from a number of jurisdictions, we have come to the conclusion that the ultimate election outcome, for the gubernatorial office which is in question here, is the one declared at the county level by the County Returning Officer who issues the presumptive winner with a certificate in Form 38.

27. The Supreme Court made it clear that for the purposes of computation of time with respect to the filing of the election petition, the final declaration presents the instrument of declarationin accordance with Article 87 (2) of the Constitution. This final declaration in the election herein is contained in the certificate in Form 36C. I have looked at the record. Form 36C which was issued to the Appellant is dated 10. 8.17. The time for challenging the election results began to run on 10. 8.17. Article 259(5)(a) of the Constitution provides:

(5) In calculating time between two events for any purpose under this Constitution, if the time is expressed—

(a) as days, the day on which the first event occurs shall be excluded, and the day by which the last event may occur shall be included

28. Going by the foregoing provision, considering that the election results were declared on 10. 8.17, the first date of computation is 11. 8.17 and 28 days ended on 7. 9.17. Petition No. 7 of 2017 was filed in the lower Court on 7. 9.17. In the premises, this Court finds that the Petition was filed within the 28 days stipulated in Article 87(2) of the Constitution. The Toboso case is distinguishable because in that case, the results were declared on 9. 8.17 and the petition was filed on 7. 9.17, one day outside the deadline. I therefore reject the contention that there was no competent Petition before the lower Court that would have enabled the Court arrive at the finding that the Appellant was not validly elected as the Member of County Assembly, Ganda Ward in Malindi, Constituency, Kilifi County

Whether the 1st & 2nd Respondents discharged the burden of proof

29. It was submitted the 1st & 2nd Respondents failed to discharge the burden of proof in respect of the allegations in the Petition and that the lower Court relied on illegal material to arrive at its finding. It was contended that the learned Magistrate erred in considering the affidavit evidence of deponents who did not testify and were not cross-examined. This was in violation of Rule 12 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 (the Election Petition Rules). The Appellant takes issue with the conclusion by the learned Magistrate that the affidavits of these deponents were of less probative value. The learned Magistrate stated in part:

Guided by the authorities I have quoted, save for the affidavits of the witnesses who testified in this petition, the rest shall remain of less probative value to this Court as their deponents have not testified and cross-examined to enable this Court verify the contents thereof

30. To the Appellant this was a fatal error that vitiated the whole trial with regard to the evidence tendered in court. The consequence of which is that every finding of fact made by the trial Court was prima facie erroneous as the court considered evidence that ought not to be considered in the first place. He did not make a distinction between the evidence of deponents who testified and those who did not. It was further argued that petitions are determined on evidence adduced before Court. In the absence of such evidence, there was no basis to disturb the will of the people. This in my view is a matter of law.

31. The 1st and 2nd Respondents in their submissions in opposing the Appeal argued that they proved the allegations of illegalities and malpractices beyond reasonable doubt through the scrutiny allowed by the lower Court. The failure by the 3rd and 4th Respondent to have Form 32 completed in respect of assisted voters was a violation of Rule 72 of the Election Petition Rules. It cannot be ascertained for whom assisted voters cast their votes. This in their view violated Article 86 of the Constitution. It was further submitted that Juma Ismail Gathungu, a polling clerk was arrested and charged in Court for allowing 43 people to vote without being validated by the KIEMS Kit. It was submitted that the total votes affected by irregularities were 2117 while the margin between the winner and the runner up was 449 which would affect the results.

32. It is also the 1st and 2nd Respondents’ case that the 3rd and 4th Respondents did not declare the results in the prescribed forms. The explanation that the printer broke down and hence the need to print results in a form other than the prescribed Form 36B was not believable and was not e by the trial Court. It was further argued that if there is no declaration in Form 36B at the constituency level then Form 36C issued by the returning officer is illegal. Relying on the case of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR (Raila 2017) it was argued that the Supreme Court nullified the presidential election because the returning officer declared the results without having received a number of Form 34As.

33. On Affidavit evidence, the record shows that of the 28 affidavits filed in support of the Petition, only 14 deponents testified. Rule 12 of the Elections Petitions Rules provides that deponents of affidavits shall be examined in Chief and cross-examined as indicated hereunder:

(3) Each person who the petitioner intends to call as a witness at the hearing, shall swear an affidavit.

(12) An affidavit shall form part of the record of the hearing and may be deemed to be the deponent’s evidence for the purposes of an examination-in-chief.

(13) Every deponent shall, subject to the election court’s direction, be examined-in-chief and cross-examined:

Provided that the parties may, by consent, accept not to cross-examine the deponents but shall have the deponent’s evidence admitted as presented in the affidavits.

34. In the cited case of Moses Wanjala Lukoye v Bernard Alfred Wekesa Sambu & 3 others [2013] eKLR, Gikonyo, J. observed that in an election petition deponents should be called to testify and when they do not, the court will not consider their evidence. Similarly, in Josiah Taraiya Kipelian Ole Kores v Dr. David Ole Nkedienye & 3 others [2013] eKLR Mabeya, J. stated and I concur, that failure by the petitioner to attend court for the testing of allegations in his deposition makes the Affidavit to be just that, mere allegations. It is evidence without any probative value. Likewise, the affidavits of the deponents herein who did not testify is of no probative value. While I disagree with the learned Magistrate that the depositions that were not tested by cross-examination were of “less probative value” I am unable to find that this statement vitiated the whole trial as argued by the Appellant. Indeed the Appellant has not stated which of the said affidavits,that ought not to have been considered by the learned Magistrate, were in fact considered. In the circumstances, the submission by the Appellant in this regard is in my view without merit.

35. On assisted voters, the learned Magistrate stated:

No Form 32 required under Rule 72 was availed to the Court as evidence by the 1st and 2nd Respondentsfor purposes of verifiability and accountability on the part of election officials.

To me, this confirms the allegation of the petitioners that some voters were assisted irregularly and in contravention of the laws. In my mind this conduct on the part of the 1st and 2nd Respondents compromised Articles 86 of the Constitution.

36. Regulation 72 of the Elections (General) Regulations, 2012 provides:

(1) On the application of a voter who is, by reason of disability or being unable to read or write, and therefore unable to vote in the manner prescribed in these regulations, the presiding officer shall permit the voter to be assisted or supported by a person of the voter’s own free choice, and who shall not be a candidate or an agent.

(2) Where the person who applies to be assisted is not accompanied by a person who is qualified to assist him or her the presiding officer shall assist such voter, in the presence of the agents.

(3) …

(4) …

(5) The following shall apply with respect to a person who assists a voter under this regulation:-

(a) the person shall, before assisting or supporting the voter, make a declaration of secrecy before the presiding officer in form 32 set out in the Schedule…

37. Regulation 72 is designed to facilitate voters who by reason of disability or illiteracy are unable to vote in the manner prescribed in the Regulations, to be assisted to vote by a person of their choice. This ensures that in spite of their limitations, such people are able to exercise their right to vote as guaranteed by Article 38(3)(b) of the Constitution. The Regulation requires the person assisting such a person to make a declaration of secrecy in Form 32. Form 32 forms part of the electoral materials as defined in Section 2 of the Election Act which under Article 86 of the Constitution are to be kept by the returning officer in safe custody.

38. Article 86 of the Constitution provides:

86. At every election, the Independent Electoral and Boundaries Commission shall ensure that—

(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;

(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;

(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and

(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

39. The 3rd and 4th Respondents were required at all material times during the election to ensure that Article 86 is complied with. It is manifest that in the absence of Form 32, the 3rd and 4th Respondents failed to comply with the constitutional requirement that an election should be transparent, accountable, verifiable and credible and that election materials are kept in safe custody. Faced with a similar scenario, Mabeya, J in Ahmed Abdullahi Mohamad & another v Mohamed Abdi Mohamed & 2 others [2018] eKLR stated:

It is a fact that there were two registers in the 8th August, 2017 elections, electronic and a hard copy. The requirement inRegulation 72 that Form 32 be filled and that the Presiding Officer does mark the register in respect of an assisted voter whom he assists is for good reason. It is meant to comply with the constitutional requirement that an election should be transparent, accountable, verifiable and credible. In the absence of the Forms 32 and marked register, how is the 2nd and 3rdrespondent to account for the assisted voters? In the absence of suche evidence, this Court doubts if that election is verifiable?

40. Upon scrutiny which was ordered by the lower Court, it was found that there were irregularities and discrepancies such as missing Forms 36A, discrepancies between Forms 36A presented in Court and those in the ballot boxes, unsigned Forms, discrepancies in the number of votes garnered by the different candidates, discrepancies in the number of spoilt votes in the polling station, diaries and those discovered upon scrutiny. The learned Magistrate stated in his judgment:

In my view, the irregularities as pointed out under this paragraph did not affect the result or could not affect the result of the election but is a grave irregularity that destroys the credibility and authenticity of the results contained in the documents therein. The documents do not meet the verifiability test (they are not verifiable).

41. The scrutiny report showed that some Forms 36A which is the primary declaration form at the polling stations did not have security features or IEBC stamps and some did not have the date, name or signature of the presiding officer. Some did not have the total number of votes cast. In one polling station there was no Form 36A in the ballot box. The 4th Respondent stated in his testimony that he improvised Form 36B on A4 paper on 10. 8.17 when he declared the result because the printer that could print the prescribed A3 form had broken down. The record has a Form 36B dated 14. 8.17.

42. Regulation 83 of the Elections (General) Regulations, 2012 prescribes the duties of a Retuning Officer upon receipt of the poll from all polling stations in the constituency. Regulation 83(i) states in part:

(i)Immediately after the results of the poll from all polling stations in a constituency have been received by the returning officer, the returning officer shall, in the presence of candidates or agents and observers, if present—

(e) complete the relevant Form 35B and 36B for the respective elective position set out in the Schedule in which the returning officer shall declare, as the case may be, the—

(i)name of the respective electoral area;

(ii) total number of registered voters;

(iii) votes cast for each candidate or referendum side in each polling station;

(iv) number of rejected votes in each polling station;

(v) aggregate number of votes cast in the respective electoral area; and

(vi) aggregate number of rejected votes;

(f) sign and date the relevant forms and publicly declare the results for the position of –

(i) member of County Assembly

(ii) member of the National Assembly.

(g) issue certificates to persons elected in the county assembly and National Assembly elections in forms 36C and 35C respectively set out in the schedule.

43. The duty of the 3rd Respondent as the returning officer is stipulated set out in the foregoing provisions. It would appear that the 4th Respondent did not fully comply with the regulations particularly Regulation 83(1)(e). He used A4 paper to print out the tallied and collated results. He did not complete Form 36B as set out in the Schedule. The question that begs is having no form 36B on 10. 8.17, on what basis did the 4th Respondent declare the results and issue Form 36C to the Appellant?

44. The discrepancies in Forms 36A and further the failure by the 3rd and 4th Respondents to generate Form 36B on the date of declaration and the subsequent generation of Form 36B 4 days after declaration of results raise doubt in my mind as to the certainty of the outcome of the election. In Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014]eKLR the Supreme Court had this to say concerning declaration of results:

[72]“Declaration” takes place at every stage of tallying.For example, the first declaration takes place at the polling station; the second declaration at the Constituency tallying centre; and the third declaration at the County returning centre. Thus the declarationof election results is the aggregate of the requirements set out in the various forms, involving a plurality of officers. The finality of the set of stages of declaration is depicted in the issuance of the certificate in Form 38 to the winner of the election. This marks the end of the electoral process by affirming and declaring the election results which could not be altered or disturbed by any authority.

[92] … We discern from the above regulations that one of the specific mandates of the returning officers is to declare the election results. As we have depicted in the analysis, these officers declare the election results at various stages in the election.For the purposes of computation of time in respect to the filing of the election petition, we hold that the final declaration presents the instrument of declaration in accordance with Article 87 (2) of the Constitution

[100] After considering the relevant provisions of the law, as well as the submissions made before us, and after taking due account of the persuasive authorities from a number of jurisdictions, we have come to the conclusion that the ultimate election outcome, for the gubernatorial office which is in question here, is the one declared at the county level by the County Returning Officer who issues the presumptive winner with a certificate in Form 38.

45. It is to be discerned from the foregoing holding of the Supreme Court that declaration takes place in 3 stages. In the case of the election of a Member of County Assembly as in the instant case, the first declaration takes place at the polling station. This is where Form 36A is signed by the presiding officer.The second declaration is at the constituency tallying centre where the aggregate number of votes cast in the respective electoral area in Form 36A are collated and tallied. The tallied results are thereafter printed in Form 36B which is then is signed by the returning officer. The third declaration is when the certificate in Form 36C is issued to the winner of the election. The Supreme Court stated that the declaration of election results is the aggregate of the requirements set out in the various forms, involving a plurality of officers. This process culminates in the issuance of Form 36C. In the instant case, as evident from the scrutiny report, Forms 36A had regularities and discrepancies. This is perhaps the reason why 4th Respondent was unable to generate Form 36B on the day of declaration of results. Form 36B informs Form 36C. Without Form 36B, it could not have been possible to issue Form 36C. It is clear that Regulation 83(1)(e) was not complied with.

46. In Ahmed Abdullahi Mohamad (supra), the Returning Oficer in that electiuon was unable to produce Forms 37A. Mabeya, J. stated as follows:

To my mind, for the results in that Form to be said to be accountable, credible and verifiable, it was imperative for the said Returning Officer to produce Forms 37A from all the 119 polling stations so as to verify that what was in that an unofficial form, was what had been transferred from acceptable verifiable statutory Forms 37A. He produced none. I have seen the copies of Forms 37A produced by the 1strespondent in his Replying Affidavit to scrutiny application. They are for only 80 polling stations out of the 119 polling stations in the Wajir South Constituency. A total of 29 Forms 37A were not produced. The results in that Form 37B cannot therefore be said to be verifiable. I should point out here that the 2nd and 3rd respondent did not produce in court Forms 37A for all the polling stations.

47. Likewise in the instant case, the scrutiny yielded Forms 36A that numerous discrepancies. He attempted to issue a Form 36B in an unofficial form wjhich was rejected by all candidate. He then proceeded to declare the election results without a Form 36B. In view of these irregularities, the results in this election cannot possibly be said to have been accountable, credible and verifiable and failed the test set in Article 86 of the Constitution.

48. In Raila 2017, the Supreme Court stated:

[373] It is also against this background that we consider the impact of the irregularities that characterized the presidential election. At the outset, we must re-emphasize the fact that not every irregularity, not every infraction of the law is enough to nullify an election. Were it to be so, there would hardly be any election in this Country, if not the world, that would withstand judicial scrutiny. The correct approach therefore, is for a court of law, to not only determine whether, the election was characterized by irregularities, but whether, those irregularities were of such a nature, or such a magnitude, as to have either affected the result of the election, or to have so negatively impacted the integrity of the election, that no reasonable tribunal would uphold it.

49. The Supreme Court went on to say:

[376]However, the scrutiny ordered and conducted by the Court, brought to the fore, momentous disclosures. What is this Court for example, to make of the fact that of the 290 Forms 34B that were used to declare the final results, 56 of them had no security features? Where had the security features, touted by the 1st respondent, disappeared to? Could these critical documents be still considered genuine? If not, then could they have been forgeries introduced into the vote tabulation process? If so, with what impact to the “numbers”? If they were forgeries, who introduced them into the system? If they were genuine, why were they different from the others? We were disturbed by the fact that after an investment of tax payers money running into billions of shillings for the printing of election materials, the Court would be left to ask itself basic fundamental questions regarding the security of voter tabulation forms.

50. With the aforestated discrepancies in Forms 36A and the failure to issue Form 36B on the date the results were declared can one tell with certainty what the results were or indeed who won the election? The answer is in the negative. The discrepancies in Forms 36A and the non-compliance with Regulation 83(1)(e) are in my view irregularities of such a nature and magnitude, as to have affected the result of the election in that it is uncertain what the results actually were. Further the conduct of the 3rd and 4th Respondents in the election so negatively impacted the integrity of the election, that no reasonable tribunal would uphold it.

51. In view of the foregoing, I find that the 1st and 2nd Respondent discharged their burden of proofin respect of the allegations in the Petition. I therefore find no reason to interfere with the decision of the lower Court save for the order on costs which I find excessive. I make the following orders:

i) The Appeal dated 19. 3.18 is hereby dismissed.

ii) The costs for the Petition are awarded to the 1st and 2nd Respondents and are hereby capped at Kshs. 1,000,000/= to be shared equally by the Appellant on the one hand and the 3rd and 4th Respondents on the other.

iii) The costs for this Appeal are awarded to the 1st and 2nd Respondents and are hereby capped at Kshs. 1,000,000/= to be shared equally by the Appellant on the one hand and the 3rd and 4th Respondents on the other.

DATED, SIGNED and DELIVERED in MALINDI this 10th day of August 2018

___________________________

M. THANDE

JUDGE

In the presence of: -

…………………………………………………………… for the Appellant

…………………………………………………………… for the 1st Respondent

…………………………………………………………… for the 2nd & 3rd Respondents

……………………………………………………..………Court Assistant