[2017] KEHC 1811 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARSEN

ELECTION PETITION NO. 1 OF 2017 (CONSOLIDATED WITH ELECTION PETITION NO 2 OF 2017)

IN THE MATTER OF THE ELECTION ACT, NO. 24 OF 2011 LAWS OF KENYA

AND THE ELECTIONS (GENERAL) REGULATIONS, 2012 AND ELECTIONS

(PARLIAMENTARY AND COUNTY ELECTION ) PETITION RULES, 2017

AND

IN THE MATTERS OF THE GUBERNATORIAL ELECTIONS TANA TIVER

COUNTY, COUNTY NO 4, HELD ON 8 AUGUST, 2017)

BETWEEN

MOHAMED DADO HATU............................................................................PETITIONER

VERSUS

DHADHO GADDAE GODHANA.....................................................1ST RESPONDENT

THE RETURNING OFFICER, TANA RIVER COUNTY....................2ND RESPONDENT

THE INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION...............................................3RD RESPONDENT

AND

COMMISSION FOR UNIVERSITY EDUCATION.........................INTERESTED PARTY

RULING THREE

1. This is the petitioner’s Application dated 2/10/2017 filed in Garsen Election Petition No. 2 of 2017 seeking the following orders.

(i) THATthe 1ST Respondent be compelled to supply the Court and the Petitioner/other parties in the petition, for their scrutiny and recount of the ballot papers as pleaded in the Petition and further supply of the following information;

(a) Certified copies of the original Forms 37A filled in at: Imani Primary School, Garsen Primary School and Kipini Primary School.

(b) A Certified copy of the Form 37B with respect to Galole Constituency;

(c) Certified copies of the original Form 37C with respect to Tana River County; and

(d) Certified copies of the original Form 37D with respect to Tana River County.

(ii) THATthe 1st Respondent be compelled to supply the Court and the Petitioner/other parties, for their scrutiny, the inventory of the Gubernatorial Result Declaration forms (with serialization') as distributed to the presiding officers at the polling stations set out at para 2 (a) above.

(iii) THATthe 1st Respondent be compelled to supply the Court and the Petitioner/other parties, for their scrutiny, the marked copy register(to wit KIEMS LOGS) as regards the polling stations at para 2 (a) above;

(iv) THATthe 1st Respondent be compelled to supply the Court and the Petitioner/other parties, for their scrutiny, polling day diaries with respect to all the polling stations listed at para 2 (a) above;

(v) THATthe 1st Respondent be compelled to supply the Court and the Petitioner/other parties, for their scrutiny the inventory of ballot boxes' serial numbers and ballot box seals' serial numbers delivered to Galore Constituency Tallying Centre.

(vi) THATthe 1st Respondent be compelled to supply the Court and the Petitioner/other parties, for their scrutiny, packets of rejected ballot papers and statements made thereto at the stations listed at para 2 (a) above;

(vii) THATthe 1st Respondent be compelled to supply the Court and the Petitioner/other parties, for their scrutiny, packets of spoilt ballot papers with respect to gubernatorial, at the stations listed at para 2 (a) above;

(viii) THATthe 1st Respondent be compelled to supply the Court and the Petitioner/other parties, for their scrutiny packets of counterfoils of used ballot papers (or certified copies thereof) with respect to gubernatorial, at the stations listed at para 2 (a) above;

(ix) THATthe 1st Respondent be compelled to grant the Court and Petitioner/other parties access to the KIEMS devices' results transmission logs ("and transmission error logs-if any) with respect to the gubernatorial elections and logs detailing the identification of votersat the polling stations listed at paragraph 2 (a) above;

(x) THATthe 1st Respondent be compelled to supply the Court with comprehensive documentation of all the incidences (if any) when as a result of identification failure by the KIEMS gadgets, manual identification had to be done at the polling stations listed at paragraph 2 (a) above;

(xi) THATthis court do order a scrutiny and recount of the votes cast within Galole Constituency.

(xii) THATthis Court grants leave to the Petitioner and any other party to file a supplementary affidavit as necessarily arising from the access to the information above;

(xiii) THATthe Respondents bear the Costs of this Application;

(xiv) THATthis Court grants any other reliefs that are in the circumstances, just and fair.

2. The Application is supported by the affidavit of TUNEYA HUSSEIN DADOand premised on the grounds;

(i) That on 8th August 2017, the gubernatorial elections were held in Tana River Countyand on 11th August 2017, the 2nd Respondent announced and declared the 3rd Respondent as the Governor-elect of Tana River County.

(ii) That the Petitioner, being aggrieved by the results, sought to challenge the said election through an election petition and as he was denied access to the result declaration forms sought to have the said forms and other documentation availed to him.

(iii) That one of the grounds of the Petitioner's petition was result of inflation/manipulation at specific polling stations to witGarsen Primary School and Kipini Primary School.

(iv) That another ground that is linked to that of result manipulation/padding is that of violence at Garsen Primary School.

(v) That in a number of polling stations, Forms 37A are not signed by the Presiding Officer and in other Forms the names of the Petitioners agent is not appearing.

(vi) That FURTHER most of the Forms 37A are neither signed by the agent nor the presiding officer.

(vii) That it is in the interests of truth, fairness, justice, accountability and the Sovereign will of the Tana River County Electorate that the Orders sought are granted.

(viii) That none of the parties will be prejudiced by the granting of the Orders sought.

(ix) That the Reliefs sought are merited and Orders thereto will aid this Court in the expedient determination of the present Petition.

3. The petitioner has deposed in the supporting Affidavit as follows;

(i) THATI am the Petitioner/Applicant herein and being well versed with the matters pleaded in the petition and this Application dated 22nd September 2017, I am competent to swear this affidavit in support thereof.

(ii) THATon 7th September 2017, I filed Election Petition No. 2 at the Garsen High Court Registry.

(iii) THATon 20lh September 2017, the Respondents filed their responses to my Petition.

(iv) THATI have read the Respondents' responses and had their contents thereof explained to me by my advocates on record.

(v) THAT I have read and had the contents of the present Application explained to me by my advocates on record and I tender this affidavit in support of the same.

(vi) THAT I depone this affidavit on the basis of matters within my own knowledge and as regards matters of law, on the basis of advice from counsel on record which advice I verily believe to be correct.

(vii) THAT following the gubernatorial elections conducted in Tana River County, I decided to challenge the announcement of Dhadho Gaddae Godhana as the Governor of Tana River County on account of several gross irregularities and illegalities.

(viii) THAT one of the grounds of the Petitioner's petition was result of inflation/manipulation at specific polling stations to witGarsen Primary School and Kipini Primary School, Imani Primary School and landa Primary School.

(ix) THAT in a number of polling stations, for example Dhayo Primary School and Maromi Primary School Forms 37A are signed by the Presiding but not witnessed by any agent and no explanation is given for the failure by the agents to sign.

(x) THAT another ground that is linked to that of result manipulation/padding is that of violence at Garsen Primary School.

(xi) THAT the severity of the violence that broke out at the Galole Constituency Tallying Centre disrupted the tallying and resulted in the killing of three people. I believe this incident was orchestrated by agents of the 3rd respondent to give him unfair advantage in the elections.

(xii) THAT it would be in the interest of justice that the votes brought at the Galole Constituency Tallying Centre be scrutinized and recounted.

(xiii) THAT the form 37A from Landa Primary School polling station is not filled in, hence the results from that polling station cannot be established. The form is annexed to the affidavit of Mohamed Gojobe Raka sworn on 15th September, 2017 at page 290.

(xiv) THAT none of the parties will be prejudiced by the granting of the Orders sought.

(xv) THAT the reliefs sought are merited and Orders thereto will aid this Court in the expedient determination of the present Petition.

(xvi) THAT I am advised by my advocates on record, whose advise I verily believe to be true, that this Court has the powers to scrutinize election materials and order for a recount.

(xvii) THAT I swear this affidavit in support of this application and the Reliefs sought therein.

(xviii) THAT it is the interests of fairness, accountability, transparency, justice and the sovereign will of the Tana River County electorate that the Reliefs sought are granted.

4. The petitioner submitted in writing as follows;

(i) That the applicable provisions of the law in contention are Section 82 of the Elections Act (Cap. 7, Laws of Kenya), and Rules 16, 28 and 29 of the Elections (Parliamentary and County Election) Petition Rules, 2017.

(ii) That before filing this instant petition, the petitioner had sought for the declaration forms and other serious documentation and the same was denied.

(iii) That the Petitioner has specifically pleaded for scrutiny in the petition and sufficient grounds for such scrutiny disclosed. See Gatirau Peter Munya v Dickson Mwendia Kithinji & 2 Others (2014) e KLR.

(iv) That the Petitioner prays for an order of scrutiny in the following polling stations; Garsen Primary School, Imani Primary School, Dhayo Primary School, Maw mi Primary School, Landa Primary School,Kipini Primary School and ALL THE POLLING STATIONS IN GALOLE CONSTITUENCY.

(v) That one of the grounds of the Petition is that there was manifest manipulation of specific polling stations such as Garsen Primary School, Imani Primary School, Landa Primary School and Kipini Primary School and as such it will be in the interest of justice that the said polling stations be scrutinized and the votes in the ballot boxes be recounted.

(vi) That violence in Garsen Primary School is one of the grounds pleaded in support of thePetition and it has not been denied by the Respondents.

(vii) That in a number of the listed polling stations, Forms 37A were never signed by thePresiding Officer and in the other Forms, the names of the Petitioners agent is missing and no observation has been noted by the 2"and 3rd Respondents of that serious allegation. This is a serious irregularity committed by the 2nd and 3rd Respondents.

(viii) That for instance, Forms 37A from Landa Primary School Polling Station is not filled in, the results from that polling station cannot be established. The Form is annexed to the affidavit of Mohamed Gojobe Raka sworn on 15th September, 2017 at page 290. This is clear evidence that scrutiny is called for. Scrutiny will finally enable the court to understand the vital details of the entire election and gain impression on the integrity thereof.

(ix) That a further irregularity committed by the 2nd and 3rd Respondent is that in DhayoPrimary School and Maromi Primary School, Forms 37A have been signed by thePresiding Officer but not witnessed by any agent and no explanation has been given for the failure by agents to sign the said Forms. Scrutiny in this instance will assist the Court to investigate if the allegations of irregularities and breaches of law complained of are valid.

(x) That there was severe violence in Galole Constituency Tallying Centre, which violenceis not denied by the respondents which disrupted the tallying and resulted in thekilling of three people. This kind of violence must have been orchestrated by the 3r Respondent to give him unfair advantage in the closely contested election and as such it is imperative that an order of recount be made for all the polling stations in Galole Constituency.

(xi) That it is clear that the margin between the petitioner and the 3rd Respondent electionresult is that scrutiny would be the best way in which to settle the dispute as to who won the election. The valid votes cast in favor of the Petitioner and the 3rd Respondent shall henceforth be determined.

(xii) That seeking guidance under Article 81 of the Constitution, a recount as prayed has the upshot of assisting the court in making proper and fair enquiry whether the 3rdRespondent was validly elected the Governor of Tana River County.

(xiii) That no party shall be prejudiced in granting the prayers sought.

5. The 1st and 2nd Respondents submitted in writing as follows:

(i) That the Petitioner filed an application dated 2nd October 2017 seeking that this Honorable Court be pleased to order for scrutiny and recount within Galole Constituencyin respect of the General elections as conducted on the 08. 08. 2017 and more particularly in respect of the Gubernatorial position in Tana River County upon the 1st & 2,nd Respondents availing the polling station diaries for all polling stations within Galole Constituency, both the electronic and hard copy of the Register of voters as contains the biometric and alpha numerical details of the voters entitled to vote at all the polling stations in Galole Constituency, the information stored in the Kenya Integrated Electronic Machine System (KIEMS) used in Galole Constituency and all declaration of Results Forms 37A's used in the declaration of results for the election of the Governor, Tana River County.

(ii) While opposing this application, the 1st & 2nd Respondent aver that the prayers for availing the polling station diaries for all polling stations in Galole Constituency within Tana River County, both the electronic and hard copy of the Register of voters as contains the biometric and alpha numerical details of the voters entitied to vote at all the polling stations in Galole Constituency, the information stored in the Kenya Integrated Electronic Machine System (KIEMS) used in Galole Constituency as well as all declaration of Results Forms 37A's used in the declaration of results for the election of the Governor, Tana River county and the declaration of Results Form 37B used in the declaration of results for the election of the Governor, Tana River county is an abuse of the court process and a mere tactic by the Petitioner to drag and delay the hearing of the present Petition and that the Applicant is merely on a fishing expedition as he seeks to have the orders herein so as to search for evidence in order to back up the assertions and allegations made in the Petition without any such evidence in support thereof. The 1st and 2nd Respondent contend that the application has been made prematurely and that no basis has been established to seek the orders sought by way of calling evidence and that that the orders sought may only be granted during substantive hearing of the petition.

(iii) The principles upon which an election court will order scrutiny and/or a recount of votes cast are not in doubt. An election court has jurisdiction to order scrutiny of votes. Section 82(1) of the Elections Act, 2011 gives the court wide jurisdiction in this respect. It states that,

(iv) "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 scrutiny of votes to be carried out in such a manner as the election court may determine."

(v) The broad authority in Section 82 of the Actis given effect by the Elections (Parliamentary and County Elections) Petition Rules, 2017. Rule 28 and 29 of the Rulesmake provision for a recount and/or scrutiny and/or examination of tallying.

(vi) That the issues for determination are as follows:

(vii) Whether basis has been laid by the Petitioner for a scrutiny and recount of votes in respect to all polling stations in Galole Constituency with respect to the Gubanatorial Elections, Tana River County, conducted on 08. 08. 2017.

(viii) Who bears the cost of this application?

(ix) The Petitioner has not laid any basis to entitle him to the said prayers for scrutiny and/or a recount of votes by virtue of Rules 28 and 29 of the Elections (Parliamentary and County Election) Petition Rules 2017.

(x) Further, by reason of section 82 of the Elections Act and rule 29 (4) of the Elections (Parliamentary and County Elections) petition Rules, the application is bad in law as it does not specify the polling stations it seeks an order of scrutiny. It amounts to a fishing expedition and a general enquiry without any legal basis

(xi) The Petitioner alleges that Forms 37A for Landa Primary School polling station is incomplete as it is not filled. The 1st and 2nd Respondent would like to point this to the Honourable Court to refer to page 289/290 of the response in the Bundle of exhibits which demonstrates that this form was indeed filled and signed by all agents present as well as the Presiding Officer in this station. The annexure is just blurred and/or faint and/or illegible as a result of running and/or making copies.

(xii) The errors made, whether by mistake or deliberate, and which the respondents have not admitted exist, do not possibly affect the outcome of the general elections in respect of the Gubernatorial elections, Tana River County.

(xiii) In the instant case therefore, no basis has yet been laid by the Petitioner as all that the court has been given are allegations that are yet to be tested during the hearing of the petition.

(xiv) The Petitioner alleges the gubernatorial elections in Tana River county were marred with manifest manipulation of election results, inflation and violence. These allegations can only be proved during the hearing of the Petition. In any case, no prejudice will be occasioned on the Petitioner if his prayer for scrutiny and recount is denied at this stage since it is one of the prayers he is seeking in the Petition.

(xv) In Nicholas Salat v. Wilfred Rotich Lesan & Others,the Court of Appeal at Nairobi, Civil Appeal No. 228 of 2013(Kiage, Gatembu & M'Inoti, JJA), (See paragraph 117 of the supreme court decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR) the Court of Appeal endorsed the trial Judge's refusal to order scrutiny in certain polling stations, on the ground that nosufficient basis had been laid for such scrutiny. In a majority decision (Kiage JA dissenting), Kairu JA stated thus:

(xvi) "Rule 33 (2) requires the court to be satisfied that there is sufficient reason and manner in which the scrutiny is to be carried out is set out in detail. An order for scrutiny is therefore not automatic; sufficient reason has to be shown before the court orders scrutiny and

recount.......... The first part of the appellant's prayer sought an order for

recount throughout the entire Bomet County. The appellant laid no basis whatsoever to justify that request...it seemed that the appellant was on a fishing expedition. The alternative prayer for recount wasrestricted to some polling stations in three constituencies, namely Chepalungu, Bomet East Constituency and Sotik Constituency. Each of those constituencies had numerous polling stations with respect to which the appellant made no complaints."

(xvii) Two conditions have to be proved in order for a court to grant an order forscrutiny. Firstly, the Petitioner has to establish that there were irregularities found to have been committed by 1st and 2ndRespondents and secondly where the margin between the winning candidate and the runner-up is such that scrutiny would be the best way in which to settle the dispute as to who actually won the election.

(xviii) In Malindi Election Petition No. 6 of 2013 Rishad Hamid Ahmed Amana & 2 Others, the petitioner had sought Court orders for scrutiny, recount and retallying of votes, in disputed polling stations set out in the petitioner's affidavit in support, and in the replying affidavit. Kimaru J set out the law on scrutiny at paragraph 31, and the position of the law in regard to the circumstance under which scrutiny of votes can be ordered. He referred to the decisions in William Kamanda v. Margaret Wanjiru[2008] eKLR, and Joho v. Nyange[2006] eKLR which he agreed with, and on the basis of these two decisions he concluded that:

"It is clear that scrutiny can be ordered under two (2) circumstances: firstly, where irregularities have been established to have been committed by election officials and secondly where the margin between the winning candidate and the runner-up is such that scrutiny would be the best way in which to settle the dispute as to who actually won the election."

(xix) Save for repeatedly stating that the Gubernatorial Elections, Tana River County were marred with manifest manipulation, inflation and violence, he has failed to prove with specificity a particular incidence of voter manipulation and inflation of votes cast. The Petitioner has neither established whether any of the alleged irregularities were committed by election officials.

(xx) Secondly, he has failed to clearly set out the margin between the 3rd Respondent and him to demonstrate that a scrutiny would be the best way in which to settle the election dispute herein.

(xxi) Given the special nature of election petitions, the burden and standard of proof required in their resolution is different from the one required to prove other civil suits. However, just like in civil suits where parties shoulder the burden of proving their respective cases the burden of proof in election petitions rests on the petitioner since he/she is the one who seeks for an order of scrutiny and recount of votes.

(xxii) This is in tandem with the cardinal precept of the law of evidence codified in section 107 of the Evidence Act which requires that a person urging the court to give judgment on any legal right or liability citing the existence of certain facts bears the burden of proving the existence of those facts.

Section 107 of the Evidence Act, Cap. 80 states thus:

"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."

Section 109 further provides:

"The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

(xxiii) Affidavit evidence in the circumstances may not be sufficient evidence to warrant this court to issue and grant an order for scrutiny. The Petitioner and Respondents will have to call in witness to testify and be cross examined as to the allegations that certain form 37A are not stamped and others not signed by the respective presiding officers. It is only during the hearing of this petition that the Petitioner shall have an opportunity to buttress his allegations of manipulation and vote inflation

(xxiv) It is noteworthy that Majanja j in Richard Kalembe Ndile And Another V Dr Musimba Mweu & 2 Others 2013 eklr stated thus:

"A court ought to bear in mind that an election is a human endeavour and though perfection wasan aspiration, allowance must be made for human error"

(xxv) The reasons warranting scrutiny relied upon by the Petitioner for all polling stations within Galole Constituency are vague, ambiguous, general and lacking in specificity and do not therefore meet the threshold set by the Courts to warrant this Honourable Court make an order for scrutiny.

(xxvi) In a blanket application, the Petitioner prays for an order of recount in all polling stations within Galole Constituency. The Petitioner alleges manipulation and inflation of votes in Garsen, Kipini, Imani and Landa Primary Schools. He further alleges that in Dhayo and Maroni Primary Schools, the forms 37A are not signed by the presiding officers notwithstanding the fact that they have been signed by all party and contestants' agents. If these were the polling stations the Petitioner had issues with, he ought to have specifically prayed for an order of scrutiny and recount for them.

(xxvii) It is without doubt that the Petitioner is on a fishing expedition with an intention and search for fresh evidence to boost his already collapsing case. Kimaru J endorsed the decision in Philip Ogutu -Vs- Michael Aringo & 2 Others, Busia HC Petition No. 1 of 2013 (unreported)(See paragraph 122 of supreme court decision in GATIRAU PETER MUNYA V DICKSON MWENDA KITHINJI & 2 OTHERS [2014] eKLR) and was of the view that scrutiny cannot be ordered when the petitioner has not specifically pleaded for scrutiny in his petition. He observed:

"It will not do for the petitioner to aver in the petition that he desires scrutiny and recount to be undertaken in respect of all the polling stations in the electoral area that is the subject of the dispute. The petitioner must plead in sufficient detail why he requires the court's intervention to order scrutiny. In that regard, the petitioner is required to state the specific polling stations that he alleges there were irregularities and therefore should be scrutinized."

(xxviii) Kimaru J further stated that a party must not be allowed to use scrutiny as a fishing expedition to discover new and fresh evidence. It would be an abuse of process to allow a party to use scrutiny for purposes of chancing on new evidence. Scrutiny should not be looked upon as a lottery."

(xxiv) In Nakuru High Court, Election Petition No. 3 of 2013 Ledama ole Kina v. Samuel Kuntai Tunai & 10 Others, the Petitioner claimed to have laid a basis for scrutiny. However, Wendo J wondered whether sufficient cause had been established, to warrant an order for scrutiny for the whole of Narok South Constituency. The learned trial Judge, R.P.V Wendoh stated thus:

"An application for scrutiny of all of Narok South Constituency lacks specificity, is a blanket prayer that, in my view, cannot be granted. The applicant needed to be specific on which polling stations he wanted a scrutiny done [in]. If he wanted scrutiny in all the polling stations, then a basis should have been laid for each polling station. The rationale is clear, the process of scrutiny is laborious, time-consuming, and the applicants cannot be let at liberty to seek ambiguous prayers and waste precious court's time and incur unnecessary costs. They must be specific. For the above reason, the court cannot give a blanket order for scrutiny of Narok South Constituency because such order will be prejudicial to the respondent now that the evidence of witnesses has already been taken. Therespondent would not have an opportunity to respond to any new issues that may be unraveled during scrutiny."

(xxx) The rationale for specificity is that the process of scrutiny is laborious, tin consuming, and the Petitioner cannot be let at liberty to seek ambiguous prayers and waste precious court's time and incur unnecessary costs. He must specific.

(xxxi) It is the 1st & 2nd Respondent's prayer that you do not grant the prayer for scrutiny of votes in all polling stations in respect of general elections for the Governor, Galole Constituency in line with the above decision.

(xxxii) Has the Petitioner laid basis for an order of recount in all polling stations with Galole Constituency?

In espousing the decision by Readhead J in Arthurton vs Fergus [1988] LRC (Constn) 115, Lady Justice Ruth Nekoye Sitati in Kisii High Court Election Petition No. 9 of 2013 between Charles Oigara Mogere and Christopher Mogere Obure & 2 others [2013] eKLR, had this to say at paragraph 17:

"The Petitioner or party calling for recount must substantiate the allegation otherwise he would not be entitled to an order for recount."

(xxxiii) Redhead J had this to say in Arthurton vs Fergus [1988] LRC (Constn) 115

"a party must have a basis for his challenge of votes and— that a recount is notgranted as of right but on evidence of good grounds for believing that there has beena mistake." That finding was followed in two Indian cases cited by counsel for the1st Respondent namely Vadivelu -vs- Sundaram & others - Appeal (Civil) 6543 of 1999 and Satyanarain Dudhani -vs- Uday Kumar

Singh & Others 1993 (Supp) 2 SCC 8 where it was held that "an order for recount cannot be granted as a matter of course. Only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the

contemporaneous evidence— - when there was no contemporaneous evidence to showany irregularity or illegality in the counting ordinarily it would not be proper toorder a recount on the basis of bare allegations in the Election Petition."

(xxxiv) The Petitioner has not substantiated why he is entitled to a recount of votes. No material facts have been brought forth or contemporaneous evidence so overwhelming to grant him the prayer. He has also fallen foul of the provisions of rule 29 (4) on grounds that the prayer for scrutiny or recount is not confined to the specific polling stations in which the results are disputed. The petition as filed does not raise recount as the only issue for determination by the court, but is seeking a determination on the validity or otherwise of the declaration of the 3rd Respondent as the winner of the Tana River County gubernatorial elections conducted on 08. 08. 2017.

(xxxv) On the issue as to who bears the costs of this Application,the 2nd and 3rd Respondents submitted that this court is mandated by section 84 of the Elections Act to award the costs of and incidental to a petition. Such costs shall follow the cause. In essence; the party in whose favour a ruling/judgment is awarded is also awarded costs of the suit. We urge this court to award the 1st & 2nd Respondents costs of this application.

6. The 3rd Respondent also submitted in writing as follows;

(i) That scrutiny of votes is governed by Section 82 of the Elections Act and Rules 28 and29of the Elections (Parliamentary and County Elections) Petition Rules, 2017 and it states that scrutiny of votes is at the discretion of the Court.

(ii) For this court to grant such an order for scrutiny of votes the Petitioner's Applicationmust meet the legal test which is the laying of a basis for an order of Scrutiny, then itwill be granted ex debito justiciaesubject to the court's power of limitation of thescope of the scrutiny. However, should it fail the test, then it should be declined.

(iii) The Petitioner herein has not laid a basis of the said scrutiny and/or recount beforethis for this Honourable Court to grant the orders sought in the Application herein. Abasis must be laid before an order for scrutiny is made and is only discernible fromthe Petition and hearing of witnesses.

(iv) Rule 29(4)of the Elections (Parliamentary and County Elections) Petition Rules,2017provides that scrutiny or recount is only on respect of the polling stations whose results are in dispute, and therefore it is not available for all polling stations in a Constituency. Therefore prayer number 12 should not be allowed as it is vague and ambiguous. The case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR at the Supreme Court, it was held that scrutiny is polling station centered. The Petitioner herein is asking for blanket scrutiny based on general assertions and allegations. The Court further in Jacob Mwirigi Muthuri vJohn Mbaabu Murithi & 2 others [2013] eKLR states: - "Rule 33(4) makes it clear that where a Petitioner seeks scrutiny, he must make it clear the polling stations whose results are disputed as these are the ones in relation to which scrutiny will be done. The court should not grant a blanket order for scrutiny in all polling stations unless they were all pleaded as disputed results in the petition....For the Petitioner to deserve an order for scrutiny then, as a starting point, the Petition and the Affidavit in support must contain concise statements of material facts upon which the claim of impropriety or illegality of the casting or counting of ballots is made...""The Petitioner must state clearly and concisely what it is he is alleging was done irregularly and upon what evidence and facts he basis his claim."

(v) Scrutiny we believe in most cases is made at the end of a hearing where evidence ofwitnesses has been tested. The case of Philip Ogutu vs. Michael Aringo and 2Others Busia EP No.l of 2013 (Unreported) as cited in (Harun Meitamei Lempaka v Lemanken Aramat & 2 others [2013] eKLR)after setting out the lawregarding scrutiny stated that: - "An order for scrutiny will not be made as a matter of course. In the words of Rule 33(2) of the Election Petition Rules, thecourt must be satisfied that there is sufficient reason to require an examination of the ballots. This rule codifies a long held judicial opinion that scrutiny may only be ordered where a foundation or basis has been laid."

(vi) The Court Mohammed Mahat Kuno v Abdikadir Omar Aden & 2 others [2013]eKLRdefined the purpose of scrutiny as.:-

a) To assist the court to investigate if the allegations of irregularities and breaches of the law complained of are valid.

b) Assist the court in determining the valid votes cast in favour of each candidate.

c) Assist the court to better understand the vital details of the electoral process and gain impressions on the integrity of the electoral process."

The above cannot be seen by court without both parties being heard and evidenceproduced before this Honourable Court.

(vii) That for an order of scrutiny or recount to be granted the court must actually hear thePetition and the evidence adduced and it is only at that stage that the court will onlybe able to assess the veracity of the allegations made by the Petitioner that there is need for scrutiny. This was held in the case of Rashid Hamid Amana v IEBC andOthers Malindi EP no. 6 of 2013 as cited in Justus Gesito Mugali M'mbaya v Independent Electoral & Boundaries Commission & 2 others [2013] eKLR;

" the recent trend is that scrutiny can only be ordered where a Petitioner lays sufficient basis. Such basis can only be laid after the Petitioner has adduced evidence during the actual hearing of the petition. The Petitioner cannot therefore demand that there be scrutiny and recount of the votes before the commencement of the trial. The Petitioner may do so after his or her witnesses have testified. The ideal situation, however, is that such an application for scrutiny should be considered by the Court after all the witnesses of the Petitioner and the Respondents have testified. At that stage of the proceedings, the Court will be in a position to properly assess the veracity of the allegations made by the Petitioner that there is need for scrutiny

(viii) The Petitioner is on a fishing expedition so as to justify the claims of inflation/manipulation at the following Polling Station: Garsen Primary School, Kipini Primary School, Imani Primary School and Landa Primary School as there is no proof before this court of any such inflations/manipulations.

(ix) The Petitioner in paragraphs 8 and 9 of his Supporting Affidavit has introduced newpolling stations that are not part of his Petition, this Polling stations are Landa Primary School, Dhayo Primary School and Maromi Primary School. It would be an abuse of process to allow a party to use scrutiny for purposes of chancing on new evidence. Scrutiny should not be looked upon as a lottery.

(x) The perusal of copies Forms 37 A and B annexed by both the Petitioner and the 1st & 2nd Respondents do not show any polling stations by the names Landa Primary School, Dhayo Primary School and Maromi Primary School.

(xi) The Petitioner in their Petition dated 7th September, 2017 only asked for a recount of votes they cannot come again and ask this court for a scrutiny. The law provide under Rule 29 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 that one can either ask for a recount or scrutiny but not both. We also rely on the case of Justus Gesito Mugali M'mbaya v Independent Electoral & Boundaries Commission & 2 others [2013] eKLR where justice Ogolla stated at paragraph 26 "....Thus, can a Petitioner ask this Court for an order of recount and/or scrutiny of votes at the same time? I think not. As stated above the outcomes of these two processes are different and in my view, it would beillogicalto conductthese two processes in one petition. One cannot have it both ways. It is either an issue of miscounted numbers or validity of votes. Moreover, a Petitioner cannot on the one hand loathe an election process for being flawed and perform a recount or tally of the same process with the aim of being declared the winner if he/she emerges victorious pursuant to Section 80(4) (a) of the Elections Act..."

(xii) The Petitioner therefore cannot purport to ask for both scrutiny and recount as clearly stated above. The Petitioner has to differentiate between a recount, which determines the number of votes a candidate received in an election and Scrutiny of votes which on the hand on the other hand determines the validity of the votes cast in an election.

(xiii) It is clear that an order for scrutiny is at the discretion of the court and should be exercised judiciously by the trial court upon sufficient and satisfactory grounds being advanced/tendered by the applicant and scrutiny of votes shall be confined to polling stations in which the results are disputed. Scrutiny is not automatic. This was held in Election Petition No. 5 of 2017 Mugambi Imanyara vs I.E.B.C & 2 others.

(xiv) The Petitioner has not in his Petition challenged the validity of the votes cast in any of the polling stations to warrant the issuance of an order for scrutiny. There was nocomplaint on any figures (votes cast) as entered in the Forms 37s in any polling station.

(xv) The Petitioner's Application is made up of general statements of violations that are attributed to parties other than the 3rd Respondent. There is no proof that the violence that broke out at Galole Constituency Tallying Centre were orchestrated by agents of the 3rd Respondent. I have annexed to my Response to the Petition that the contrary happened and that indeed all the violence at Galole was the doing of the Petitioner.

(xvi) As we have already established above scrutiny is Polling station centered, the Petitioner therefore cannot purport to ask for scrutiny of a whole constituency with no specificity. This is against Rule 29 (4) Elections (Parliamentary and County Elections) Petition Rules, 2017 which clearly states that scrutiny or recount of votes shall be confined to polling stations in which results are disputed. The Court in Joash Wamang'oli Vs The Independent And Boundaries Commission & 2 Others, Bungoma High Court Election Petition Number 6 Of 2013 observed that: - "However in the same breath, it will be overtly indulgent for the court topay regard to each polling station the petitioner whimpers about, even if it did not feature in the pleadings or in evidence."

(xvii) It is not true that Forms 37 A were not signed by the presiding Officers nor the agents.The Petitioner/Applicant has not shown any proof to this court in regards such allegations as required by the law.

(xviii) There are no results that were inflated/manipulated at Garsen Primary School andKipini Primary School. That in my response to the Petition dated 20th September,2017 there are various Affidavits annexed of various witnesses attesting that the counting and tallying of results was not interfered with at Galole Tallying centerduring and after the violence that broke.

(xix) The lack of signing of form 37 A by Agents as is provided in the law shall not on itsown invalidate an Election. The Petitioner claims Form 37 As have not been signed, itis not practicable for all the forms to lack signatures from Agents and PresidingOfficers.

(xx) There is no nexus established between the complaints raised by the Petitioner and the intended result of the scrutiny and as such, this Honourable Court is being invited to engage in an academic exercise and a mere fishing expedition. Scrutiny had to be aimed at establishing a specific outcome as oppose to groping in the dark.

(xix) An order for scrutiny is therefore not automatic; sufficient reason has to be shownbefore the court orders scrutiny or recount. The process of scrutiny is laborious, time-consuming, and the applicants cannot be let at liberty to seek ambiguous prayers andwaste precious court's time and incur unnecessary costs.

7. I have considered the submissions filed by the parties in the Application dated 2nd of October 2017, I have also perused the authorities relied upon by the parties. My findings are as follows;

(i) The guiding principles on the right to scrutiny and recount were laid down in the case of GATIRAU PETER MUNYA V DICKSON MWENDA KITHINJI & 2 OTHERS [2014]e KLR at page 35 paragraph 153 as follows;

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 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.

(ii) I find that the Application in this case by the petitioner seeking for scrutiny and recount has not established a basis for the request. The court has to have sufficient reasons in the context of the pleadings or the evidence or both for making such an order and the said reasons should be recorded.

(iii) I find that the said Application which has been made before the trial is premature as this court has to hear the evidence before coming to a conclusion whether or not such a recount and scrutiny would be necessary to enable the court to reach a just and fair determination of the petition. If the court finds the recount or scrutiny necessary, the same can be ordered at any stage of the hearing. The petitioner is at liberty to renew the said Application at a later stage.

(iv) I accordingly dismiss the petitioner’s Application dated 2/10/2017 filed in Garsen Election Petition No. 2 of 2017 and direct that the petition proceeds to pre-trial conference and hearing in view of the strict constitutional time lines for hearing and determination of election petitions.

(v) On the issue of costs, I direct that the costs to abide the petition.

Dated, signed and delivered at Malindi this 6th day of December, 2017.

ASENATH ONGERI

JUDGE.