[2017] KEHC 1492 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

ELECTION PETITION NO. 1 OF 2017

MUSA CHERUTICH SIRMA…..……………………….……………...………. PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION (I.E.B.C) ……………….…………….….1ST RESPONDENT

THE ELDAMA RAVINE CONSTITUENCY RETURNING OFFICER

(NDIRANGU PETER KURIA) ……………………..……………………..2ND RESPONDENT

MOSES LESSONET………………………………………...………….….3RD RESPONDENT

RULING

Introduction

1. This is a ruling on a Notice of Motion dated 11/10/2017 filed by the Petitioner principally seeking Orders as follows:-

“2. THAT an order does issue granting the Petitioner leave to introduce more witnesses and witness statements specifically expert witnesses, to with; a statistician, data analyst, IT expert and a document examiner/handwriting expert.

3. THAT an order for scrutiny and d verification of the ballot boxes does issue at this interlocutory stage.

4. THAT an order of amendment of the petition does issue forthwith.

5. THAT 1st and 2nd Respondents were duty bound to supply the Petitioner with all election materials within their custody, which they have partially done through their responses to the petition thus an order of mandamus compelling the 1st and 2nd Respondents to supply all election materials do issue, and the Petitioner/Applicant be at liberty to amend the petition whereof accordingly in reflection of the potential adjustments therein.

6. Pending the hearing and the determination of the petition and subject to directions as the Court may grant an order for the opening of the ballot boxes and scrutiny of the votes for the following 24 polling stations; Emkwen Nursery. Koibilwo. Tripkatoi, Kipkunyang, Sigoro, Kibias, Kinjilul, Poror Primary, Momoniant, Eldama Ravine Town Hall, Kipsigot, Moringwo, Kaplombe, Sinende, Mochongoi, Kiplongon, Kapdenning, Seguton Nursery, Tarigo, Chemwswon, Nyakio, Tugumoi and Matipso Polling stations for the purposes of establishing the contents whereof and the reasons for the broken, missing and or irregularly fixed seals as observed upon the Courts orders and exercise at Eldama Ravine on 6th October, 2017.

7. Any other order the Honourable may deem sufficient to grant in the interest of justice.”

2. It is based on grounds set out in the NOTICE OF MOTION as follows:-

1. The Petitioner/Applicant is seeking to scrutinize the information contained in the 154 Kenya Integrated Management System (KIEMS) kits used in the 8/8/2017 election for the member of National Assembly, Eldama Ravine Constituency which the Respondents states are unavailable hence need for redress.

2. The 1st Respondent has through its chairman announced that in compliance with the order of the Supreme Court of Kenya in Election Petition No. 1 of 2017, Raila Amolo Odinga v. the independent Electoral and Boundaries Commission, the fresh election for the position of president will be held on 17/10/2017 which has since been deferred to 26th October, 2017 with preparations in high gear.

3. There is a real apprehension and honest likelihood that the 1st and 2nd Respondents will configure and/or delete the information contained in the 154 Kenya Integrated Election management systems (KIEMS) kits used in the 8/8/2017 election for the Member of National Assembly, Eldama Ravine Constituency.

4. If the interim orders sought herein are not granted, this entire Petition is likely to be rendered nugatory and a mere academic exercise.

5. Under Article 35(1) (a) and (b) of the Con situation, and Section 4(1) of the Access to information Act, Section 27 of the Independent Electoral and Boundaries Commission Act, the Petitioner is entitled to access any information held by the 1st and the 2nd Respondents, and information held by another person and required for the exercise or protection of any right of fundamental freedom.

6. The Petitioner has on numerous occasions sought for the information sought in this Application but the 1st and 2nd Respondents have failed, refused and/or neglected to avail this information to the Petitioner, when they did so in shelf and compartment.

7. The Petitioner has pleaded in his petition the malpractices and/or irregularities that warrant the 1st and 2nd Respondents to avail the information sought and for scrutiny and verification of the KIEMS kit to be conducted.

8. The results from the polling stations to the tallying centre in Eldama Ravine were transmitted electronically, yet the source of the said electronic details more particularly the KIEMS machine is now asserted by the 1st and 2nd Respondents to be unavailable.

9. The scrutiny and verification of the KIEMS kits will enable this Court to investigate if the allegations of irregularities and breaches of the law are valid.

10. The scrutiny and verification of the KIEMS Kits will enable this Court to better understand the vital details of the Electoral process and gain impressions on the integrity of the electoral process.

11. Scrutiny is necessary to enable the Court arrive at a just and fair determination of this petition owing to the unexplained but irregular state of the more than 24 ballot boxes as observe d on the 6th October, 2017 at Eldama Ravine during the preservation exercise.

12. The Respondents have filed cross petition disguised as responses and have even motioned to tender evidence in such regard.

13. The order for access of the 3rd Respondents Bank Account as well as tele-conversation towards buttressing voter bribery and treatment.

3. The 1st and 2nd Respondents filed their respective responses by replying affidavits thereto, of 30/10/2017 and 25/10/2017 respectively, together with skeleton agents and list of authorities, and counsel for the parties made supplemental oral submissions at the hearing and ruling was served.

Submission for the parties

4. Mr Biko for the Petitioner urged the Court to grant prayer (2) for prayer (2) for leave to the Petitioner to introduce additional affidavits by handwriting IT and computer data and statistics and statistics experts citing several Forms 35As which were lacking in signature and record to determine the persons who made the entries. He submitted that:-

“Electronic data is supplied with KIEMS kit. There is need for an analysis of the same. The expert in ICT is necessary to examine the KIEMS kits and a data analyst [is needed] to extract the data and a statistician to present the data. A handwriting expert will examine the handwriting.”

5. In seeking prayer (3) for scrutiny of votes, counsel relied on the report by the Deputy Registrar of 6/10/2017 on the occasion of placing additional seals where the Petitioner raised the issue of status of the ballot boxes. He further contended that with the conclusion of the repeat of presidential election on 26/10/2017, the KIEMS kit would now be available for scrutiny.

6. Counsel for the Petitioner further urged prayer (4) for the amendment of the petition pointing out that in their respective responses to the petition, the Respondents had raised new issues in the nature of counter-claim against the Petitioner. As regards prayer No. (5) for supply of election materials, Counsel specified that the KIEMS kit had not been supplied and it was necessary for determination of the veracity of the results.

7. In view of the question of excess voting by multiple and aliens voting it was contended that the KIEMS kit as the Register of votes examined. Pointing out that not a single Form 32A was filled from any of the polling stations, counsel submitted it was, therefore, necessary to examine the KIEMS kit which must have recorded all the voters, in the absence of Form 32A.

8. Counsel then referred to various polling stations where the statutory forms were not clear as to who entered the data as they were not signed and some where the total number of votes cast for each of the six elections were mismatched lending credence in the allegation of irregularity, and justifying the opening of the boxes as support in prayer no. 6 of the Notice of Motion. Counsel also complained of statutory forms indicating signature by agents other than the agents of the Petitioner, purporting to be such agents . Counsel contended that the Respondents were also declared to admit the facts as set by the petitioner when they raised a preliminary objection making Biscuits case.

9. Counsel for the 1st and 2nd Respondents, Mr. Kahiga, opposed the application on principal grounds that leave to amend the petition may not be granted so as to effect amended to the petition to expand the petition or introduce a new cause of action outside the time limit prescribed under section 76(4) of the Elections Act, that the request for supply of KIEMS kits was part of the prayer for scrutiny of votes on which the Court had already ruled, that the prayer for opening of the ballot boxes could only be granted in the context by scrutiny, that the prayer for supply of all election materials was non-specific and no request for supply of election materials had been made to the 1st and 2nd Respondents; and that the complainant of alien agents or agents being imposed on the Petitioner and signing the statutory forms was a new matter which could not have introduced into the petition this stage as the time prescribed for amendment had lapsed.

10. For the 3rd Respondent, Mr. Kipkoech, urged that the application was for dismissal and opposed the same as being a fishing expedition for purposes of expanding the petitioner’s case set out in the petition. It was contended that all the prayers of the Notice of Motion save prayer No. (2) for the additional affidavits were spent by virtue of the court’s ruling of 23/10/2017 herein. The specific prayers of the Notice of Motion were however opposed on the respective grounds that the details duties of expertise of the proposed experts were not disclosed and it was not possible to gauge their expertise, that scrutiny of votes may be considered during the hearing but not as an open door for fishing expedition at interlocutory stage; application for leave to amend cannot provide a carte blanket for introduction of a new petition and it had to be done with the boundaries of the existing petition in accordance with the ruling of 23/10/2017 and that there being no draft of the proposed amendment, it could not be said whether the amendments were valid;, that prayer (5) for the supply of election materials was vague and omnibus prayer; and that prayer (6) for opening of ballot boxes was proper for scrutiny and that what the application sought to have is the hearing of the entire petition by interlocutory application

11. Counsel pointed out that some of the errors on the statutory forms taken up by the Petitioner could be explained and urged the Court not to make a determination on the petition based on photocopies attached in the affidavits as the original documents will be supplied to the Court during the hearing.

Issues for determination

12. The Court considers that the following issues arise from deliberation in application:-

1. Whether the Court will grant an order for scrutiny at this interlocutory stage of the proceedings.

2. Whether the Court will order the IEBC to make available the KIEMS kits for examination by the Petitioner’s experts.

3. Whether the Court will grant leave for additional affidavits to be filed by the Petitioners experts on handwriting, ICT and data experts on examination of the KIEMS, statistician for presentation of the data; and

4. Whether the Court will allow amendment to the petition herein.

Determination

Leave to amend the petition

13. Section 76 of the Election Act limits amendment of Election Petitions to the same period of 28 days prescribed from the filing of an Election Petition from the date of declaration of the results. There will come a time and occasion for the court to consider the fishy principles that informed this limitation but as this court has not been served with agents therein, I can only venture that the legislatures’ idea consisted with its duty under Article 87(1) of the Constitution to enact a law “to establish mechanisms for timely setting of disputes”, is provided for the same amount of time for hearing and determination of any cause of action set out in a particular or amended petition so that time starts running on the same date on the 28th day after declaration of the election results. If amendments were effective after the 28 days period it would follow that there would be lesser time to determine the amended cause of action whose time for determination starts running from the date of declaration of the results and not form the later date of amendment. It is all a question of fair hearing of the causes in the petition or Amended Petition, as the case may be, both which must be determined within six months from the date of lodging the petition against the election result, in terms of Article 105 (2) of the Constitution.

14. The question of leave to amend Election Petition has already been determined by this Court in its ruling of 23/10/2017 at paragraph 12-14 as follows:-

12. While I respectfully agree with the learned judge on the special nature of the election petition proceedings and of the limited provision for amendment of a Petition for purposes of section 76(4) of the Elections Act, I do not agree that the Petition may never be amended for any other purpose including clarifying matters set out in the Petition. What an amendment cannot do is to question the election or a return on the ground of an election offence the Petition unless it is done with the period of 28 days after the publication of the results in the Gazette.

13. I consider that an Election Petition may be amended for any other purpose other than for “for the purpose of questioning a return or an election upon an allegation of an election offence,” say to correct dates, names, other particulars and any errors in the Petition, any time before hearing giving the Respondents time to respond to the amendment, as necessary. The principle of amendment of pleadings in regular civil proceedings, that amendments before hearing should be freely granted if they can be done without injustice to the other side and that there is no injustice if it can be remedied by an award of costs must be applicable to the Election Petitions. [Eastern Bakeries vs Castellino (1958) EA 461.

14. Accordingly, a Petitioner may amend his petition only to correct any errors in pleading and to the extent that it does not effect amendments “for the purpose of questioning a return or an election upon an allegation of an election offence” or introduce another cause of action which would be time barred under section 76 of the Elections Act. I consider that the requirement of Article 159 of the Constitution and section 80 (d) of the Elections Act that the Court deals with petitions before it without undue regard to technicalities, must be such as to allow the Court some latitude in dealing with applications for amendment which do not go to change, out of the statutorily prescribed time, the root of the cause of action set out in the Petition filed within time.

15. The Petitioner did not in the Notice of Motion dated 3/11/2017 indicate by a suitable drafts amended petition, the nature of the proposed amendments. I respectfully agree with the judicial policy observed in John Nahashon Mwangi v. Kenya Finance Bank ltd (in liquidation)[2015] eKLR that application for amendment should be accompanied by a draft amended pleading showing the nature of proposed amendments. As such the Court is able to ascertain whether the amendment sought would affect the statutory provisions as to amendment of Election Petitions prescribed under section 76 of the Election Act.

16. The Court is, therefore, unable to grant the prayer for amendment of the Petition.

Scrutiny of votes at interlocutory stage

17. While ruling on the preliminary objection raised by the Respondents to present the Notice of Motion in its ruling of 23/10/2017, the Court barred the issue of scrutiny by grant of the Preliminary Objection at the extent only that the petition may not be amended for purposes of, if it is so sought of questioning a return of or an election upon an allegation of an election offence “and with respect to the repetition of application for scrutiny and related orders which are already before the Court.”

18. At this juncture, and having determined a similar application for scrutiny in KBT Election Petition No. 2 of 2017, it is convenient for the Court to give directions as to the application for scrutiny and related orders in the original Notice of Motion dated 4/10/2017. As I held in the said petition, scrutiny of votes is most conveniently dealt with in terms of section 82 (1) of the Election Act during the hearing of the Petition when the Court shall have heard evidence on the petitioner’s claims of illegality/irregularity as well as the Respondents answers thereto.

19. At paragraph 43 of the said ruling, the Court said:-

43. Although an order for scrutiny may in a proper case be made before commencement of hearing, it would appear to be more appropriate as contemplated by the Elections Act, that it should made in the course of hearing of the Petition, when the Court has had an opportunity to receive the evidence presented by the parties with cross-examination of the witnesses to assess whether sufficient basis has been demonstrated for an order of scrutiny of the votes. This approach is particularly appropriate in this case where the Petitioner’s claims on the lack of clarity and errors in Form 35As has been responded to and explained by replying affidavits by the 1st and 2nd Respondent and the Court to test the veracity of depositions in the respective affidavits before considering an order for scrutiny. Unlike, the case in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others, 2017 it cannot be readily said, at this stage, that the irregularities pointed out by the Petitioner are inexplicable. In any event, the Court has, under section 82 of the Elections Act, the discretion to order scrutiny for sufficient reason on its own motion.’

20. Accordingly, the prayer for scrutiny and related orders for opening of ballot boxes is deferred.

Application for supply of KIEMS Kits

21. I would agree with counsel for the IEBC that the KIEMS kit are part of the election materials which would be subject of a scrutiny order. They are also part of the election materials which the Court is obliged to give directions on their production before the Election Court upon conclusion of the pre-trial conference. Under Rule 16(1) (c) of the Election (Parliamentary and County Elections) Petitions Rules 2017 [hereinafter the Election Petitions Rules, 2017]. See also Regulation 17 of the Election (Technology) Regulations, 2017 relating to retention of all electronic data relating to an election.

22. The application for the supply of the KIEMS kit, which may in any event be available before the Election Court at the hearing of the Petition, shall therefore be considered as part of the scrutiny application which is deferred to the full hearing. However, access to the information therein contained may be granted pursuant to the right to information under Article 35 of the Constitution. The information contained din KIEMS kits and its storage disks [SD] cards is data for purposes of the Election (Technology) Regulations defined as “an attribute to an entity recorded [in] a format which can be processed to produce information by equipment in response to instructions given for that purpose, and includes representations of facts in form of quantities, characters, symbols and images, transmitted in the form of electrical signals and stored on magnetic, optical or mechanical recording media or as defined in the Kenya Information and <communication Act, 1998 (NO. 2 of 1998).” The 1st respondent IEBC is required to store the data and provide access thereto in accordance with the said regulations.

23. The Court noted the objection by the 1st and 2nd Respondents that the Petitioner has not requested in writing any of the election materials sought. Indeed, Regulations 15 and 16 of the Election (Technology) Regulations 2017 provide for application for access in writing in English or Kiswahili in a statutory form and in accordance with section 27 of the Independent Elections and Boundaries Commission Act, 2011. Regulations 15 and 16 of the Elections (Technology Reputations provide as follows:-

Data storage and access to information

15. (1) The Commission shall store and classify data in accordance with the principles set out in the Access to Information Act, 2016.

(2) An application to access information shall be in writing in English or Kiswahili and shall be made in the Form set out in the Second Schedule providing details and sufficient particulars for the public officer or any other official to understand what information is being requested.

(3) Where an applicant is unable to make a written request for access to information in accordance with sub-regulation (2), because of illiteracy or disability, the information officer shall take the necessary steps to ensure that the applicant makes a request in the manner that meets their needs.

(4) The information officer shall reduce to writing, the request made under sub-regulation (3) in the Form set out in the Second Schedule and the information officer shall then furnish the applicant with a copy of the written request.

16. A person may request for information from the Commission, in accordance with section 27 of the Independent Elections and Boundaries Commission Act, 2011.

24. It is clear that the object of the provisions of the Regulation 15 and 16 of the Technology Regulations is to facilitate, rather than hinder, access to technological data or information on elections. The Court also observes that the requirement of application in writing for access to information under Regulation 15(2) of the Elections (Technology) Regulations 2017 is not meant to hinder but to facilitate the exercise of the right to information under Article 35 of the Constitution in seeking “details and sufficient particulars from the Public Officer or any other official to understand what information is being requested.”

25. Notwithstanding lack of request in writing to the IEBC, in the interest of justice and the constitutional principle of expeditious disposal of electoral disputes, the Court will deem applications before the Court as properly made as the Petitioner has through repeated applications herein sought to have access to the information in the KIEMS kit. Moreover, in accordance with Section 80(d) of the Election Act, the election Court is required to “decide all matters that come before it without undue regard to technicalities”.

26. Accordingly, the Court shall deem the application for access to information in the KIEMS kit with regard to the election for the MP for Eldama Ravine, 2017 to be properly made to the 1 & 2 Respondents by way of the prayers for such orders in the Notice of Motion of 4/10/2017 and 11/11/2017 but which were served on the said Respondents before hearing in Court. The Court will therefore direct that the 1 & 2 respondents do provide the petitioner with access to information relating to the election the subject of this petition and is extended in the KIEMS kit and necessary storage Disks (SD cards).

27. For avoidance of doubt, the order of the Court only directs access to information contained in the KIEMS kits and in the relevant Storage Disks and it does not authorize any taking of possession thereof, custody of which remains at all times with the IEBC in accordance with Rule 16 (3) of the Election Petition Rules, 2017 and Regulation 17 of the Election (Technology) Regulations 2017 until further orders of the Court.

28. The general request for supply of an election materials rejected for lack of specificity necessary to identify the materials requested, noting that some of the said materials have already been supplied by way of Replying affidavits of the 1st and 2nd respondents herein.

Application for leave to file affidavits

29. The discretion of the Election Court to grant leave to file further or additional affidavits in an election petition has statutory under-pinning by the Elections Act under section 80 (3) and Rules 12 (9) and 15(1)(h) of the Election Petition Rules, 2016 as follows:-

Section 80(3) of the Elections Act – Interlocutory Applications

(3) Interlocutory matters in connection with a petition challenging results of presidential, parliamentary or county elections shall be heard and determined by the election court.

Rule 12(9) on Affidavits

“(9) The election court ma/, on its own motion or on the application by any party to the petition, direct a party or witness to file a supplementary affidavit”.

Rule 15 (1) (h) on pre-trial directions

“[1] Within seven days after the receipt of the last response to a petition, an election court shall schedule a pre-trial conference with the parties in which the election court shall-

(h) give directions as to the filing and serving of any further affidavits or the giving of additional evidence;”

30. The discretion of the Court is also judicially acknowledged in the several case-law authorities cited by the 1st and 2nd Respondents, Joel Makori Kinga & another v. IEBC & 4 others [2017] eKLR, Johana Kipemei Too v. Hellen Tum, E & L 975 of 2017, [2014] eKLR, andArthur Kibira Apunga & another v. IEBC & 20 others,[2013] eKLR. I respectfully agree with Ogola, J. in Apunga v. IEBC, supra, where he makes a distinction between the exercise of the discretion to allow further affidavits by the Supreme Court and the High Court in exercise of their representatives respective as follows:-

“23. Notably, the circumstances at the Supreme Court were different from those that obtain in this petition. Unlike the parliamentary and county election petitions whose adjudication period is 6months, the time-line stipulated to adjudicate over a presidential election petition is limited to 14 days. Consequently, introduction of a further affidavit in such an instance would present an unlevelled playing field to the other parties. The Supreme Court also intimated that each case must be considered on its own merits in regards to the nature of the additional evidence.

24. It is noteworthy that even if the Court has discretion to grant leave to extend time, such discretion ought to be exercised judiciously in furtherance to the purpose of the rules, which is just and efficient disposal of an election. Have the petitioners given sufficient ground to warrant this court to grant the orders? This application was filed on 3/5/2013 a little over three weeks after filing the petition. Indeed, it was filed before any of the Respondents filed their responses. I have looked at the witness affidavits that the petitioners intend to file. These affidavits do not raise new issues that depart from the petition. In my view, some of the affidavits merely elaborate the alleged malpractices on the part of the respondents, whereas some affidavits make reference to specific polling stations that in the petitions were referred to as “various polling stations”. I also find that there will be no prejudice occasioned to the respondents as they will be given sufficient time to respond to the said affidavits.”

31. In this petition, from the nature of additional affidavits sought to be introduced, it is not possible to have the proposed affidavits annexed to the application for leave because they are expert opinion of proposed witnesses to me made upon examination of the KIEMs kits and other materials. Further, the hearing of the petition is yet to start and there is no indication that the Respondents shall be prejudiced by filing of additional affidavits by the Petitioner to place on record expert evidence of the proposed witnesses. The respondents shall be at liberty to file affidavits by their own experts and to cross-examine the petitioner’s expert witnesses at the hearing.

32. Moreover, as may be discovered from case law on the matter, it is trite law that expert opinion is not binding on the court and in reaching its determination the court is entitled to consider other relevant facts. In cases where opinion of experts conflicts, the court is entitled to resolve the conflict or acquire the evidence of one exert in preference of the other. It is also trite that a person who is offered as an expert must be qualified by presentation of evidence indicating his expertise before his evidence on the facts of the case is accepted as expert evidence. See Shah and Another v. Shah and others[2003] 1 EA 290, Juliet Karisa v. Joseph Barawa & another Civil Appeal No. 108 of 1988 cited in Radhabhai Shivji Bhanderi (suing as the Administrator of the Estate of Shivji Ramji Banderi (Deceased) v. Jyotibhala S. Desai & 3 others [2015] eKLR, Onyango v. R [1969] E A 362 and Mutonyi v. R [1982] KLR 203, and Wainaina v. Republic [1978]KLR 11 cited by the counsel for the 3rd Respondent.

33. Most significantly, and to the comfort of counsel for the 3rd Respondents who doubted the expertise of the petitioner’s witnesses in their proposed fields of testimony, the Court is not bound by the opinion of an expert and it has to make its own conclusion on the facts of the case. See Onyango v. R [1969] E A 362, Wainaina v. The Republic [1978] KLR 11,Mutonyi v. R[1982] andAsira v. Republic[1986] KLR 227.

34. In Asira, supra, the Court of Appeal held [citing Wainaina v. The Republic] that -

“The act of comparing handwriting is no doubt one in which time and thought are given to formation of letters and words, and therefore expert stations may be accorded to a person versed in such comparisons. but has been accepted in Wainaina’s case such an expert is not able to say definitely that anybody wrote a particular thing. The reasoning is based upon the knowledge that handwriting can be easily forged. Moreover, a person may not write in the same style all the time. The expert is therefore faced with trying to analyze forged writing as well as disguised writing. In cases where there is a problem about the writing, it is the duty of the Court to satisfy itself after examination whether the experts opinion can be accepted and cannot blindly accept such opinion. In these areas of conflict it is prudent to look for other evidence so that forgery can be excluded on the one hand, and mistaken identification excluded on the other side.”

35. Indeed, in Mutonyi v. R, the Court of Appeal considered evidence of a purported forensic powder expert finding it unsatisfactory and held -

“These were matters of forensic science, to be proved by expert evidence. The prosecution evidence given on these matters were unsatisfying that we do not think that we shall place any reliance upon it.

Expert evidence is evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the analysis he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements and the like.

Section 48 of the Evidence Act (Cap 80) provides that where, inter alia, the court has to form an opinion upon a point “of science or art, or as to identify or genuineness of handwriting or finger or other impressions” opinion on that point are admissible if made by persons “specifically skilled” in such matters.”

36. Quite apart from admissibility of the opinion of the proposed experts in the case, in terms of section 48 of the Evidence Act, the court shall have to determine at the hearing whether the “person offered as an expert is a person specifically skilled in the purported sphere of knowledge as to qualify as an expert. It is however not a determination that the court can make off-hand even before the prospectus experts have filed their affidavits to establish their special skill, instruct the court the criteria of their science or art and give evidence of the facts ascertained by him. See Mutonyi, at p. 201.

37. In addition, the Court of Appeal in Shah v. Padamshi [1984] KLR 531 citing Shah v. Aguto [1970] E A 263, 268 held that “it is normally wrong for a court to compare handwriting without the assistance of an expert.”Section 70 and 76 (1) of the Evidence Act provides additional basis for receipt of expert evidence on handwriting as sought by the Petitioner, and for a response thereon by the respondent, if it is contested that the documents under investigation are in the hand of the relevant presiding officer, as follows:- ”

“70. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document is as alleged to be in that person’s handwriting, must be proved to be in his handwriting.”

76(1) an order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature writing or seal admitted or proceed to the satisfaction of the court to have been written or made by that person may be compared by a witness or by the court with the one which is to be proved although that signature, writingor seal, has not been produced or proved for any other purpose.”

38. Having looked at the petitioner’s Petition herein dated 5/9/2017, I am, with respect, unable to hold the Notice of Motion dated 11/10/2017 is a fishing expedition calculated to obtain evidence for purposes of amendment to expand the petition or introduce new causes of action. I observe that the issues of lock out of petitions agents, and planting agents that are unknown to him and kicking out his duly appointed agents are set out at and particularized at paragraph 96, 109 (vii) 110 and 111 of the Petition. The complainant of failure to use KIEMS kits for identification of votes and resort to manual voting and use of innumerable Forms 32As without affecting the petitions agents opportunity to witness the same is set out at paragraph 123-132 of the petition.

39. In addition, the Petitioner complains of strangers signing the returns (Forms 35A), alterations of the statutory forms without counter-signing, and of lack of signature by presiding officer on some of the Forms and of failure by agents to sign the forms with no reasons given.

40. In Response to the Petition dated 25th September, 2017 and a Replying affidavit by the Returning Officer of 25th September 2017, the 1st and 2nd Respondents deny that the petitions were signed by strangers and asserts that the returns were signed as required under the new law by the Presiding Officer. They further deny that any voting was done outside the KIEMS kits or that there were alterations in respect of Forms 35As which alteration affected the results. As regards agents, the respondents aver that the Forms were signed by the Presiding Officers as required by the law as well as the agents present at the time of counting, and that they had no control over the petitioners agents if the option to walk out of the polling stations or refused to sign.

41. I would agree with the judicial philosophy that parties are bound by their pleadings. The effect of these pleadings is that petitioner asserts, and the respondents denies, that the respondents used manual voting when voters could not be detected by the KIEMS kits and that some presiding officers did not sign the statutory forms. In accordance with section 2 of the Evidence Act , ‘fact in issue’ is defined as follows-

‘'fact in issue' means any fact from which, either by itself or in connexion with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows;’

42. Clearly, the issues of use of KIEMS kits and the signature of statutory forms by presiding officer and agents are facts in issue the evidence on which is admissible under section 5 of the Evidence Act. Similarly, the rule on framing of issues under Order 15 rule 1 of the Civil Procedure Rules provides that “issues arise when a material proposition of fact or law is affirmed by one party and denied by the other party”.Accordingly, the issues of KIEMS kits and the signature by the Presiding Officers and agents squarely within the matters to be determined in the Petition. Consequently, evidence thereon cannot be considered an attempt illegally to amend or expand the Petition. If the petitioner contends that he has or is able to provide evidence to prove or disprove a fact in issue, or evidence relevant to the issues of fact or law framed in the suit, he should be allowed to do so, subject to giving the respondent opportunity to adduce evidence in rebuttal. That is not fishing expedition; it is merely elaborating by evidence a cause of action already pleaded in the petitioner’s suit before the Court. It would only be fishing if he were permitted to bring a new set of complaints amounting to a fresh cause of action not previously set out in the suit, arising out of his newly discovered evidence.

43. However, I would agree with the 1st and 2nd Respondents that the alteration of forms 35s without countersigning alleged at paragraph 112 of the Petition did not affect the results. However, the court is not at this point required to make final determinations on disputed matters on the basis of affidavits which have not been subjected to cross-examination.

44. I have noted polling stations nos. 021 and 099, Kabulyot Primary School and Kipkoriony Primary School both with a total of 510 votes and which from the copies attached to the replying affidavit of the 1st and 2nd respondents do not indicate who the Presiding Officer were and are not signed by the Presiding Officers and only an IEBC stamp is affixed on the forms 35As. At an appropriate time, the court will determine whether placing the IEBC stamp on a Form 35A which does not indicate the names of the Presiding Officer and or his deputy is a signature for purposes of Regulation 79(1) of the Election General Regulations 2011. The 1st and 2nd respondents assert that all forms were signed by the Presiding Officers in accordance with the law.

45. Suffice to observe that where the polling station diary for the affected stations, where presiding officers do not sign the form only show the particulars of the presiding officer, the question as to who made the entries on Forms 35As for polling stations 021 and 099 may be determined with the help of a handwriting expert, in accordance with case law authority cited above. I agree with counsel for the 3rd Respondents that some complaints on the agents who signed Form 35As in different names may be explained by reference to the national identity card particularly on the Form and the polling station diary.

46. I have also perused Form 35A on Chemisusu Primary School (034) where counsel for the Petitioner has sought to have a handwriting expert demonstrate that the form 35A was signed by the same person, and I as the House of Laws in Wakeford v. Bishop of Lincoln[1921] 90 LJ PC 174 will accept that evidence of a handwriting expert may require a determination on the question of whether certain writing was by the same hand be corroborated of this evidence. The House of Lords in Wakeford case cited with approved in Asira v. R, supra, observed as follows:-

“Looking at the papers before them, Their Lordships, upon the evidence of their own eyes, have reached the conclusion that there can be no doubt upon the matter. If this were the only piece of evidence, their lordships, without doubt in their minds as to the authenticity of the writing would not willingly rest their payments on a single fact as to which an error might be possible. But the only alternative to the genuineness of the writing is the supposition that it was a carefully planned forgery of the appellant's name as an integral part of the alleged conspiracy. For the reasons already given Their Lordships feel that the hypothesis of such conspiracy furnishes an overwhelming corroboration of the other evidence.

47. I note that at Chemususu Primary School (034), it was the Petitioner who is shown to have garnered the winning votes of 114 against the 3rd Respondents 36, but if forgery were established through handwriting expert opinion, the quality of election results in the polling station, which is an issue for determination in the entire petition which alleges illegalities, irregularities and breaches of election law, would be seriously undermined.

48. There is no risk of prejudice by the additional affidavits as the respondents will, before the hearing, have an opportunity to respond by replying affidavits and, at the hearing, to challenge the evidence therein by cross-examination of deponents. Ultimately, even when the additional affidavits are filed and responded to, they as all other affidavits in ELECTION PETITIONS are subject to the admissibility requirement procedure of cross-examination, unless the parties consent to their admission without cross-examination under Rule 12 [13] of the Election Petition Rules, 2017 as follows-

‘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.’

49. In addition, the court may at the hearing direct the expunction of an offending affidavit of paragraphs thereof which offend the principles set out above or otherwise contravene he provisions of Order 19 rule [6] of the Civil Procedure Rules which are expressly incorporated into the Election Petition procedure rules by Rule 12 [14] of the Election Petition Rules 2017, as follows;

‘14. The Oaths and Statutory Declarations Act [cap. 15] and Order 19 of the civil procedure Rules 2010 [L.N. No. 151/2010] shall apply to affidavits under these Rules.’

Conclusion

50. The application for supply of “all election materials” by the IEBC is too vague to be granted in view of the fact that the IEBC has already supplied some election materials by its response and replying affidavits in the Petition.

51. In accordance with the court’s ruling of 23/10/2017 herein and of 31/10/2017 in Election Petition No. 2 of 2017, the application for scrutiny is deferred for consideration during the full hearing of the Petition when the parties’ affidavit evidence filed herein shall have been subjected to cross-examination making the respective cases of the parties clearer and substantiated.

52. The application for leave to amend the Petition is declined for being time-barred by virtue of Section 76 of the Election Act.

53. In terms of section 48 of the Evidence Act, the Petitioner is entitled to adduce expert evidence, and the value of such expert evidence shall be determined at the full hearing upon the Petitioner qualifying the respective experts and upon necessary corroboration of their evidence to enable the Court arrive at its own independent decision on the matter subject of the expert opinion.

54. The KIEMS kits and the storage disks are part of the election materials the original whereof will be presented before the Court at hearing and at scrutiny, if the court so orders, along with the ballot boxes and other election materials as the Court may, upon the hearing, order.

55. However, the petitioner is by virtue of Article 35 of the Constitution entitled to access information in the election by enforcement of the provisions of regulation 15 [2] of the Election (Technology) Regulations, 2017. As the IEBC is under Regulations 14 and 17 of the said Regulations required to ensure integrity and to maintain custody of the original of the data on all electronic data relating to an election, the access of information contained in the KIEMS kits and SD cards for the election subject of the petition must be on read only format.

56. The court has discretion to order the filing of additional or further affidavits under Rules 12 [9] and 15 [1] [h] of the Election Petition Rules, 2017. How could the court refuse what is granted by the Constitution and Statute, if it can be done consistently with the enabling statute?

57. Of course, the discretion to allow filing of further and additional affidavits does not, as that would be ultra vires the provisions of section 76 of the Elections Act, extend to allowing, out of the prescribed time, the introduction of amendments to the Petition as filed. The Respondents are in fair hearing entitled to adequate time and facility to file responses to the additional/further affidavits, and there must, therefore, be an injunction against making affidavits that introduce new cause of action or expand the present petition to the prejudice of the respondents.

58. Needless to state, the affidavits shall not, save with the consent of the parties, be deemed as evidence in the Petition without their deponents being subjected to cross-examination. Accordingly, the deponents of the additional affidavits by the Petitioner and any affidavits filed by way of the reply thereto by the respondents shall together with deponents of the already existing affidavits be subjected to cross-examination at the hearing, failing any consent as to their admission into evidence without cross-examination.

59. Finally, the Petitioner cannot object that the 3rd respondent has in the Response introduced a 'counter-claim' against him. This the 3rd respondent is entitled to do by Rule 11 (6) of the Election (Parliamentary and County Elections) Petitions Rules 2017 which provides as follows:

“Where the petitioner claims the seat in issue for himself or herself or any other person, the response to a petition shall state the facts upon which the respondent relies to prove that the petitioner was not duly elected in the same manner as if the respondent had presented a petition against the election of that person.”

The Court does not, therefore, find any merit in this objection.

Orders

60. Accordingly, for the reasons set out above, the court makes the following orders on the Notice of Motion dated 11/10/2017 and 4/10/2017,

1. The Petitioner’s application for scrutiny of votes including the KIEMS kits is deferred until the hearing of the evidence at the full hearing of the petition.

2. The Petitioner’s application for leave to amend the petition is declined.

3. The 1st and 2nd Respondents shall within seven [7] days on a date and time to be agreed between the parties give to the Petitioner and or his appointed representatives access to the KIEMS kits and Storage Disks used for the election of 8/8/2017 at the Eldama Ravine Constituency’s all 154 polling stations, on a Read-Only access formats.

4. The Petitioner shall have the leave of court to file and serve additional affidavits by his proposed experts in handwriting, ICT, data analysis and statistics within (7) days of his being granted access to the information in KIEMS kits and SD cards under Order No. (3) above.

5. The respondents may within 7 days of service of the additional affidavits under Order No. (4) above file affidavits in response thereto within 7 days.

6. Thereafter, the petition shall come up for further hearing on dates to be fixed in consultation with the parties.

61. The costs shall be in the cause.

DATED AND DELIVERED THIS 4TH DAY OF DECEMBER, 2017.

EDWARD M. MURIITHI

JUDGE

Appearances: -

Mr. Biko instructed by M/S Prof. Tom Ojienda & Associates, Advocates for the Petitioner

Mr. Kahiga instructed by M/S Mirugi Kariuki & Co. for the 1st and 2nd Respondent

Mr. Kipkoech instructed by Gordon Ogola, Kipkoech & Co. Advocates for 3rd Respondent.