[2023] KEHC 1380 (KLR)

Musimba v Independent Electoral & Boundaries Commission & 2 others (Election Petition E001 of 2022) [2023] KEHC 1380 (KLR) (28 February 2023) (Judgment)

Neutral citation: [2023] KEHC 1380 (KLR)

Republic of Kenya

In the High Court at Makueni

Election Petition E001 of 2022

JN Onyiego, J

February 28, 2023

Between

Patrick Mweu Musimba

Petitioner

and

Independent Electoral & Boundaries Commission

1st Respondent

County Returning Officer Makueni County

2nd Respondent

Mutula Kilonzo Junior

3rd Respondent

Judgment

1. On 9th August 2022, the people of Makueni County walked to their respective polling stations ready to exercise their democratic right in electing their preferred political leaders in various categories of elective positions. Among the candidates who contested for the position of Governor in Makueni County were; Mutula Kilonzo Junior who emerged victorious after garnering a total of 214, 088 votes; Patrick Mweu Musimba who secured second position with 63,252 votes; David Masika 8,378 votes, Emmanuel Mutisya 2,929 votes and Anderson Kaloki 843 votes.

2. Consequently, on 13th August, 2022, the County Returning Officer (hereafter the 2nd respondent) declared the said Mutula Kilonzo Junior (hereafter the 3rd respondent) as the duly elected Governor Makueni County. This declaration was followed by a public Gazette Notice Vol.CXXIV NO.166 published on 19th August 2022 by the Independent Electoral and Boundaries Commission (hereafter the 1st respondent) the body constitutionally charged with the mandate of conducting and supervising elections and or referenda in Kenya declaring the 3rd respondent as the Governor Makueni County and Lucy Mumbua Mulili as his Deputy Governor. The two were subsequently sworn and effectively assumed their respective offices on 25th September 2022.

3. Dissatisfied with the results and declaration of the 3rd respondent as Governor Makueni County, the petitioner lodged a Petition dated 8th September, 2022 and filed on 9th September, 2022, seeking the following reliefs:a.Immediately upon the filing of the petition, the 1st respondent do avail all the election materials including electronic documents, devices and equipment used for the Gubernatorial election.b.Immediately upon the filing of the petition, the 1st respondent IEBC to give it(sic) full remote access to electronic devices which were used to transmit results to constituency tallying centres.c.Immediately upon the filing of the petition, the 1st respondent to provide details of smartphones that were used by all Returning Officers and access to their respective logs used at each constituency tallying centre.d.Immediately upon filing of the petition, the 1st respondent to provide certified copies of the raw images of Forms prepared at and obtained from all the polling stations.e.Immediately upon the filing of the petition, the 1st respondent to provide the IP address of each Kenya Integrated Election Management System (KIEMS) Kit used at each of the polling stations.f.Immediately upon the filing of the petition, the 1st respondent to provide specific GPS Locations of each KIEMS Kit and those of each polling station used between and including August 5 and August 15. g.Immediately upon the filing of the petition, the 1st respondent to provide a certified list of all KIEMS Kits unique device identifiers, including the Media Access Control(MAC) address, International Mobile Equipment Identity (IMEI) numbers, Sim Cards and their numbers as they were procured (used, unused and/or deployed during the election).h.Immediately upon the filing of the petition, the 1st respondent to provide the count of voters identified by KIEMS Kits at all polling stations by Biometric Data, Alphanumeric Search, Manual Register, and the overall count that includes voters found and those not found.i.Immediately upon the filing of the petition, the 1st respondent to provide KIEMS Kit logs, including login details of the users, opening and closing time, voters’ identification numbers, the device MAC addresses, the mode of identification, timestamp and codes of polling station.j.Immediately upon the filing of the petition, the 1st respondent to provide all Form 32As relating to voter identification and verification, all Forms 37As, all polling station diaries and all Forms 41 in respect to reports pertaining to assisted voting.k.An order be and is hereby made for the scrutiny of the rejected, stray and spoilt ballot papers recount of all the votes in respect in gubernatorial (sic)l.An order be and hereby made for the retallying of all the votes cast in 1130 in the county.m.An order be and is hereby made for the scrutiny and forensic audit of all equipment, system and technology and complimentary manual register used by the 1st respondent in the gubernatorial election.n.A declaration be and is hereby made that the non-compliance with the law, irregularities and improprieties in the gubernatorial election were so substantial and significant and that they affected the result thereof.o.A declaration be and is hereby made that the gubernatorial election held on 9th August,2022 was not conducted in accordance with the constitution and the applicable electoral laws rendering the declared result invalid null and void.p.A declaration be and is hereby made that the 3rd and 4th respondent was not validly declared as Governor Elect and Deputy Governor Elect respectively and the declaration announced on 13th August,2022 and published on 19th August 2022 is invalid null and void ab initio.q.An order be and is hereby issued quashing the certificate issued to the 3rd respondent and the Gazette Notice No (sic) declaring the 3rd respondent as governor elect.r.An order be and is hereby made directing the 1st respondent to organize and conduct a fresh gubernatorial election in strict conformity with the Constitution and Elections Act and all legislations enacted thereafter.s.Costs of the petition.t.Any other and or further orders that the court deems just and fit to grant in the circumstances.

4. Contemporaneously filed with the petition under certificate of urgency was a Notice of Motion dated 8th September 2022 seeking supply of all election materials, retallying and scrutiny of all votes cast in the entire county.

5. After canvassing the application, this honourable court did not find merit in it hence dismissed the same on 21st December, 2022. Subsequently, the petitioner lodged an application for review dated 6th January,2023 and filed on 9th January,2023. Equally, it was dismissed on 3rd February,2023.

Petitioner’s case 6. The petitioner’s case herein is anchored on the particulars set out on the face of the petition and averments contained in the affidavit in support thereof. From the on-set, the petitioner highlighted on the salient legal provisions governing conduct of elections exercise in Kenya inter alia; Article 38 of the constitution on the right to free, fair and regular elections; Article 10 on the binding principles of good governance on all state organs including the court; Article 81 regarding the freedom of citizens in exercising their political right through universal suffrage, free and fair elections conducted in a transparent, impartial, neutral, efficient, accurate and accountable manner; Section 39 of the Elections Act on the manner in which IEBC is supposed to conduct elections and declare results and, Section 44 of the elections Act which provides for the use of technology.

7. In his affidavit in support of the petition sworn on 8th September 2022, the petitioner stated that; the 1st respondent did not conduct credible, free and fair elections in Makueni County. He averred that, on 6th August 2022, the 1st and 2nd respondent during a media and county candidates briefing at Wote Technical Training Institute, confirmed that all systems for the election for Makueni County had been tested and were ready. That they had conducted a results transmission simulation, system checks and confirmed the same was functional. That contrary to the said assurance, 140 KIEMS Kits were inoperable in Makueni County at the time polls opened on the elections day.

8. The petitioner further stated that there was no proper testing on the KIEMS Kits which affected their functionality thus rendering them inoperable. That the 1st respondent failed to meet its constitutional and statutory obligation to provide functional KIEMS Kits to ensure that it presided over a credible, fair, secure and transparent elections as provided for under Article 86 of the constitution.

9. He averred that the use of manual voting system was characterized by numerous irregularities which could have been avoided if there was proper preparation, planning and advance testing of the KIEMS Kits allocated to Makueni County. That the KIEMS Kits’ failure disenfranchised and or suppressed voters’ turnout in the entire county particularly Kibwezi West Constituency where 84 polling stations out of 206 were affected. That at his polling station Sekeleni Primary School, voters started queuing as early as 4. 00 am but KIEMS Kits’ failure led to many of them leaving their polling stations in frustration without voting.

10. The petitioner further deposed that the manual register was not available in most polling stations as it took the 1st respondent over 6 hours from the time the polling stations opened, to issue directions on the use of complementary voting register by which time most voters had already left after waiting for long hours to vote.

11. He further stated that despite the Makueni County Gubernatorial election being peaceful, the counting and tallying process was characterized by irregularities which caused unexplained discrepancies in respect to thevotes cast for various elective positions as follows; Presidential (290,491), Governor (289,538), Senator (290,550), Women Representative (289, 465).

12. He expressed the view that the said discrepancies were unexplained thus confirming that the election exercise was not credible, fair, transparent and accountable.

1st and 2nd respondents’ response. 13. In response to the petition, the 1st and 2nd respondent lodged a response dated 20th September, 2022 and filed on 21st September,2022. They denied the allegation that they had failed on their mandate to preside over and conduct free, fair, transparent, reliable and credible elections. That they discharged their respective duties and mandates in accordance with the electoral laws specifically Article 10,27,38 81 and 86 of the Constitution and Section 39 of the Elections Act.

14. That the 2nd Respondent duly received all Forms 37As and 37Bs from all the Constituency Returning Officers in the County which were verified and collated in the presence of all agents of the gubernatorial candidates present before the announcement of the final results.

15. It was further averred that the petition does not disclose the grounds forming the petition as contemplated under Rule 8 of the Elections (Parliamentary and County) Petitions Rules, 2017.

16. That the petitioner misread, and totally misinterpreted the quoted excerpt of the 1st respondent’s press release of 13th June,2022 “Response to Concerns by Azimio La Umoja One Kenya Coalition Party regarding GE 22. In their view, the 1st respondent confirmed at paragraph 6 of the said press release that it would be guided by the NASA v IEBC (2017) case which adopted the 1st respondent’s protocol to use printed register of voters upon confirmation that the KIEMS Kits have completely failed and there was no possibility of repair.

17. That the issue of use of an alternative mode of voter identification in the event the technology deployed by the 1st respondent failed was dealt with in the case of United Democratic Alliance Party v Kenya Human Rights Commission and 12 Others Civil Application No. E288 of 2022.

18. They stated that the alpha numeric search referred to in paragraph 27 of the petition is an alternative system which is used by the KIEMS Kits to identify voters whose biometrics cannot be read. They further stated that that method can only be done by a functioning KIEMS Kit while the complementary system which comprises of the use of a manual register is only applicable once the KIEMS Kit completely fails and cannot be repaired.

19. They confirmed the fact that; there was a media briefing held on 6th August, 2022 in which the 1st respondent confirmed that the systems to be used during the election had been tested and were ready; further tests comprising of checking the availability of all the accompanying components, powering on and off of the KIEMS Kits, and launching of the voter identification applications were conducted at the County as well as the Constituency distribution centres and that, results transmission simulation exercise in respect of the presidential election results was conducted.

20. Regarding the procurement of KIEMS Kits from Smartmatic, it was stated that the 1st respondent had done an inventory of 45,000 KIEMS kits out of which 41,000 were in good condition. That Smartmatic only supplied the 1st respondent with 14,100 Kits making them 55,100 KIEMS Kits which were in good condition thus the allegation that they failed to procure and provide functional KIEMS Kits amounts to undermining the integrity, credibility and security of the gubernatorial elections. That the KIEMS Kits dispatched to various constituencies in Makueni County were properly tested before dispatch and no apparent defects were discovered.

21. It was further stated that the defects discovered on the day of the election related to opening of the polling stations for voter identification and such defects could not have been discovered during the testing exercise as the QR Code could not be scanned to commence polling earlier than the designated time. That had the Kits been subjected to a scanning test of the QR Codes before the day of the election, it would have amounted to opening of the polling stations prior to the day of the election which is an illegality.

22. That the 36 additional KIEMS Kits for Kibwezi West Constituency which registered the same defects were not enough to cover the 84 polling stations which were affected by the malfunctioning kits. They further stated that the KIEMS Kits’ failure affected all the candidates in all the six (6) elective positions equally and that all the voters were given a chance to vote for candidates of their choice using the manual register, thus there was no irregularity. They denied and described the allegation that the KIEMS Kits were intentionally manipulated as baseless and unsubstantiated.

23. It was their contention that any delay that may have been experienced in adopting the use of manual register was occasioned by the requirement for a detailed procedure the 1st respondent and its officers are mandated to adhere to prior to the suspension of use of technology during an election as well as printing and distribution of the Form 32As which would be used alongside the manual register.

24. That the process is provided for in Rule 26 of the Elections (Technology) Regulations 2017. They asserted that the time lost in resolving the challenges posed by the KIEMS Kits’ failure was duly compensated as required by the law by extending the voting period after 5pm by a commensurate period.

25. According to them, there was neither disenfranchisement nor suppression of voters. That the voter turnout for the 84 polling stations where the manual registers were used had a similar, if not higher voter turnout, than other polling stations within Kibwezi West Constituency neither does the same vary significantly from the polling stations where KIEMS Kits were used. That Makueni County having presented 41% of the failed KIEMS kits country wide is not enough proof that the election was marred with illegalities or irregularities.

26. Concerning the discrepancies in the number of votes cast for different ballots, the response was that they were not caused by inflation of results or any other irregularity but rather minor and genuine reasons duly communicated to the affected candidates. That in any event, the petitioner has not discharged the burden of proof on inflation of votes to the required degree. Finally, they urged the court to dismiss the petition.

3rd respondent’s response 27. The 3rd respondent in response to the petition presented his reply dated 20th September, 2022 and filed on 21st September, 2022 thus opposing the petition by denying the allegations on grounds that; the election was conducted in a free, fair, transparent, simple, accurate, accountable and verifiable manner; the same was conducted in accordance with the Constitution, electoral laws and regulations thereunder.

28. It is the 3rd Respondent’s case that; the petition does not set out firm and credible evidence of alleged departures from the Constitution, electoral laws and regulations thereunder; he is a stranger to the press release of 10th June, 2022 allegedly issued by the chairperson of the 1st respondent; that even if it was, such declaration could not supersede electoral laws or the supreme court decision in Raila 2013 election petition case where the Supreme Court noted that the manual register could be reverted to in case there was failure of the election technology.

29. It was further stated that; there was no disenfranchisement nor suppression of voters in Makueni County as alleged; voting time was extended in the affected areas and, no evidence of a single voter who was turned away or not allowed to vote on account of alleged failure of the KIEMS Kits was tendered.

30. He went further to state that the petitioner did not sufficiently plead the issues raised in the petition which renders the petition incurably defective. Lastly, the court was urged to dismiss the petition with costs.

Hearing 31. During the hearing, the petitioner adopted the particulars in his petition and averments contained in his affidavit in support. He told the court how he woke up very early in the morning on the election day ready to vote. That to his surprise, he was told that the KIEMS Kits had failed to function hence could not vote. That upon inquiry, he was informed that the problem of dysfunctional KIEMS Kits had only affected Kibwezi West Constituency.

32. He went on to state that; it was until 12. 00 mid-day when voters were allowed to vote manually; absentee voters were allowed to vote thus rendering the integrity of the voting exercise useless and questionable; there was external interference with the KIEMS kits; guidelines for operation of ICT infrastructure was not followed; tendering regulations were not adhered to; all ICT kits have manuals hence the kits’ problem was voidable and easy to address but the 1st respondent ignored the same.

33. He contended that if the electoral process is flawed, the output cannot be justified. According to him, most voters retired to their homes hence could not vote due to the delay in the commencement of the voting exercise thus voter suppression. He went further to question the delay in tallying of votes with some Constituencies like Mbooni announcing their results after four days. On cross examination by Mr. Nyaburi, he admitted that in his polling station at Sekeleni, voting time was extended to compensate for the lost time. Regarding the question of absentee and aided voters, he clarified that he did not witness any at his polling station. He further confirmed that he had no agent in any of the polling centres in the entire county save for the chief Agent and his deputy.

34. On their part, the 1st and 2nd respondent call three witnesses among them; Mr. Nderitu(RW1) County ICT Officer Makueni County, Evanson Githinji Ngomano returning officer Kibwezi West Constituency (RW2) and Maurice Kepoi Raria County Returning Officer Makueni County(RW3).

35. RW1, adopted the content contained in his affidavit sworn on 20th September 2022 wherein he explained on the voting process using KIEMS Kit. He told the court that on 19th July 2022 Makueni County received 90 kits for purposes of training election officials. He went further to state that on 4th August 2022, they received 1,220 kits which were tested and kept in the ware house by the Constituency ICT clerks. That on 8th August 2022, further testing was done at the Constituency. He was however surprised when the KIEMS Kits in 84 polling stations within Kibwezi West Constituency failed to function as they displayed a data validation error icon

36. He stated that, upon realizing the anomaly, he reached out to the Constituency ICT clerks, Smartmatic (vendor) and the Commission’s ICT directorate to try and resolve the problem. He went further to inform the County Elections Manager (RW3) to contact the headquarters for intervention. That when every effort to resolve the problem failed, the Commission authorized use of complimentary method of voting by use of manual voting register which exercise commenced swiftly upon authorization and the lost time compensated accordingly. It was his testimony that Form 32A was duly filled in accordance with the law and that none of the voters was prejudiced by the failure of KIEMS kits. He denied the claim that there was failure on their part.

37. On his part, RW2 adopted his affidavit sworn on 20th September 2022 as his evidence. He corroborated the testimony of RW1 in so far as the preparedness of the election exercise by IEBC was concern and the events that occurred on the voting day. That after being informed of the failure of the KIEMS kits, he reported to the County Elections Manager who escalated the matter to the IEBC headquarters and thereafter received instructions to conduct the elections manually using the manual register with necessary moderation of time to compensate for the wasted time.

38. That he facilitated the printing and filling of form 32A and each assisted voter was assisted by a different person as required by the law. It was his evidence that all the information on rejected ballot papers was captured in the respective forms 41 and also in the polling station diaries. That after closure of the voting exercise, votes cast at each polling station were counted, tabulated in form 37A and the result thereof announced by the respective presiding officers in each polling station.

39. He stated that after closure of the voting exercise, he received the physical Forms 37A from the presiding officers of all 206 polling stations in Kibwezi West Constituency in the presence of the gubernatorial candidates’ agents. It was his testimony that the agents did not raise any objection to the authenticity of the physical Forms 37A which he used to tally and announce the gubernatorial results and subsequently populated Form 37B in the presence of the agents present for onward transmission to the county tallying centre.

40. He further told the court that voter turnout percentages in the affected polling stations were consistent with the voter turnout in the polling stations where KIEMS Kits were used thus the allegation that KIEMS kits’ failure affected voter turnout is not true. That the Makueni County gubernatorial election was conducted in accordance with the law and any discrepancies or irregularities that might have occurred were so insignificant that they could not affect the outcome of the election.

41. RW3, Maurice Kepoi Raria also adopted the content of his affidavit sworn on 20th September 2022. He basically corroborated the testimony of RW1 and RW2 regarding the events and failure of KIEMS Kits on 9th August 2022. That on the Election Day at 6Am, he received a report that 84 Kits in 84 polling stations had failed. That the problem was unique as they could not have scanned the QR code before the time stipulated for voting process could commence.

42. That he dispatched RW1 immediately to find out what the problem was but it was in vain. He stated that after escalating the problem with a duly prepared report by his ICT department, he was authorized to advise the officials in the affected polling centres to use manual register in voting. In his view, manual voting did not affect voter turnout nor was any voter locked out as the lost time was compensated. That the votes cast were tabulated, results announced and forms 37A and 37B filled without any objection.

43. Regarding the discrepancy in results between different elective positions, he explained as follows; results for Women Rep. from Kasyelia, Kaseuni, Kithiiani and Komboyoo were disregarded in the final tally as the valid votes exceeded the registered voters; no Governor and Women Rep. results were received from Ngaakaa and Kathulumbi primary schools; no votes were cast for the position of Senator in Muvuti primary for lack of voting papers and, presence of stray and spoilt papers which were all accounted for. According to him, the differences were insignificant to invalidate the results.

44. On his part, the 3rd respondent adopted his response to the petition and the affidavit in support thereof sworn on 21st September 2022. He basically told the court that the election exercise was conducted in accordance with the Constitution and relevant electoral laws. He stated that the petition was defective and incompetent as it did not enjoin the Deputy Governor as a party nor did it plead all issues as required in law. He literally supported the 1st and 2nd respondents’ case to the extent that the failure of KIEMS Kits was nobody’s fault and that manual voting did not prejudice any voter. He denied the allegation that there was inordinate delay in voting and that the lost time was compensated by extending voting time.

45. Regarding voters who did not vote, it was his testimony that none of the alleged voters came forth to claim denial of voting rights. On the voter turn-out per constituency, it was his evidence that there was no much difference between Kibwezi West Constituency where manual voting took place and the others where electronic voting applied. That in Kibwezi East with electronic voting, the turn-out was lower than Kibwezi West at 57. 7 % and 58. 61% respectively.

46. Upon closure of the hearing, parties agreed to file submissions

Petitioner’s submissions 47. The petitioner through his advocate Andrew & Steve Advocates filed his written submissions dated 4th January, 2023 together with a list of authorities. Learned counsel reiterated the content contained in the particulars of the petition as well as the affidavit in support. Counsel submitted that the electoral system adopted by the 1st respondent was meant to comply with the provisions of Article 81 of the Constitution whereas the 1st respondent was mandated to comply with the provisions of Article 86 of the Constitution.

48. That in determination and declaration of results, the 1st respondent was mandated to comply with the provisions of Section 39 of the Elections Act and Part II and III of the Elections (Technology) Regulations 2017 which provides for acquisition, storage, deployment, testing and certification of the election technology.

49. According to Mr. Kimathi, the petitioner has discharged his burden of proof and therefore the elections could not be deemed to be free, fair, verifiable and credible.

50. It was counsel’s submission that electoral laws and regulations are meant to protect the right to vote and the legitimate expectation of the citizens that the elections would be conducted in compliance with the law for the same to be free, fair, credible and transparent. In counsel’s view, these elements were missing in the instant case.

51. On whether there was electronic failure in the voting process in Makueni County gubernatorial elections and if so, whether that compromised voter turnout, counsel submitted that it was not in dispute that there was electronic failure in the voting process in Makueni County. That the same would have been avoided had the 1st respondent discharged its mandate as required under Regulation 8 of the Election (Technology) Regulations 2017. He contended that the problem would have been fixed easily by use of the Kit’s manual. It was further submitted that the problem would have been detected before the voting day had the 1st respondent conducted end to end testing exercise.

52. Counsel opined that the time taken to escalate the issue to the headquarters on the failure of KIEMS Kits to secure approvals to use the manual register was inordinately long and in breach of the directions of the court of appeal in United Democratic Alliance Party v Kenya Human Rights Commission & 12 Others Civil Application No.E288 of 2022 and the provisions of Rule 69(e) of the Elections (General)Regulations.

53. In counsel’s view, the delay was attributable to poor preparation and training of the 1st respondent’s staff who were only trained in trouble shooting as a method of addressing the KIEMS kits’ failure. It was counsels’ submission that the discrepancy in the average voter turnout in the country and Makueni County shows that there was disenfranchisement of voters in Makueni owing to the failure of the KIEMS kits. Counsel placed reliance in the case of Morgan v Simpson [1974]3 All ER 722 to express the position that the election was conducted in a manner that was so gross and not substantially in conformity with the law hence vitiating the end result.

54. On whether the use of manual register voting system compromised the credibility, verifiability, integrity and transparency of the declared results, counsel referred the court to the case of United Democratic Alliance Party v Kenya Human Rights Commission & 12 Others (supra) on use of complimentary mechanism and filling of Form 32A. Counsel submitted that Form 32A which was supposed to be signed by the Presiding Officer,all agents and the voter prior to the issuance of the 6 ballot papers was not filled.

55. Mr. Kimathi contended that there was no doubt that the petitioner as a registered voter was never issued with Form 32A which was mandatory and the only way the use of manual register could pass the verifiable and credible test of the elections was by filling form 32A. That the issuance of a blanket order on the use of manual register and the fact that there were stations with high voter turnout than the registered voters compromised the credibility and verifiability of the election.

56. Touching on whether the 1st respondent carried out the verification of the results in accordance with the applicable electoral laws, counsel submitted that the tallying process was characterized by irregularities such as inflating of results in polling stations in excess of the registered voters and lack of transparency in the tabulation and submission of results. That the counting of the votes was undertaken in a manner that contravened Section 38A of the elections act, Rule 69(2) of the Election (General) Regulations 2012 and Article 81 of the Constitution.

57. On the question whether there were unexplained discrepancies to the votes cast for the County Governor’s position and other elective positions, counsel relied on Regulation 69(2) and (3),70,73,75 and 81(2)(d) of the Elections (General)Regulations thus submitting that the petitioner had discharged his burden of proof and the same had shifted to the 1st and 2nd respondent.

58. On whether the 3rd respondent was validly elected, counsel relied on Raila Odinga & Another v IEBC and Others Petition 1 of 2017 where the court observed that the irregularities and errors were not minor and inconsequential as they were due to noncompliance with the law during the testing and deployment of the election technology used in the elections. The court was further referred to the case of Lenny Maxwell Kivuti vs The independent Electoral and Boundaries commission(IEBC) &3 Others(2018)e KLR where it was held that irregularities or non-compliance with the electoral laws and procedures undermined the electoral process

59. Regarding costs, counsel submitted that the same should be awarded against the 1st respondent. In conclusion, counsel urged the court to allow the petition as prayed.

The 1st and 2nd respondents’ submissions 60. The 1st and 2nd respondents through their advocates Iseme, Kamau and Maema Advocates filed their written submissions dated 17th January, 2023 and submitted on the seven issues set down by the court during the pre-trial exercise. At the onset, reference was made to salient legal principles governing electioneering process and the relevant case law which I have taken into account.

61. Concerning the question whether there was electronic failure in Makueni gubernatorial election exercise and whether the said failure compromised the voter turnout, counsel relied on the evidence tendered by their witnesses. It was contended that despite the KIEMS kits’ failure, the voter turnout in the affected polling stations was consistent. To buttress that position, counsel placed reliance in the Supreme Court case of Raila Odinga & Another v IEBC & Others Petition No.E005 of 2022 where the court held that Kibwezi West voters were not disenfranchised by virtue of manual voting.

62. That every voter was granted an opportunity to vote by extension of closing hours by the number of hours lost thus the KIEMS kits’ failure did not compromise the voter turnout.

63. On whether the use of manual voting system compromised the credibility, verifiability, integrity, accountability and transparency of the declared results, counsel submitted that the Elections (Technology) Regulations 2017 under Rule 26 contemplated failure of KIEMS Kits and prescribed an alternative mechanism of voter identification in the event of such failure.

64. That the unpredictability of technology failure led the court of appeal in the case of United Democratic Alliance Party v Kenya Human Rights Commission and 12 Others (Supra) to allow the use of a complimentary mechanism in the 9th August, 2022 general elections subject to observance of the conditions set by the court and Rule 26 above.

65. Counsel further submitted that the issue of filling Form 32A in the affected polling stations was conclusively considered in Raila 2022 presidential election petition where the court held that voters were granted the right to vote manually and the requisite Form 32A filled successfully in Kibwezi West Constituency and Kakamega County.

66. That the said decision applies in the gubernatorial election as a voter was only required to fill Form 32A for the six ballots. That the petitioner did not produce any evidence by any voter who was identified manually in any of the affected polling stations and who did not fill Form 32A.That there was no complaint from the voters or candidates on the failure to fill form 32A in any of the affected polling stations a fact that was supported by the evidence of RW2 and RW3.

67. Counsel further submitted that the failure of the KIEMS Kits in the 83 polling stations in Kibwezi West Constituency affected all candidates in all the six positions and not just the petitioner alone. That the failure only affected the opening time of the polling stations and not the voters right to vote.

68. Counsel submitted that the petitioner did not adduce any evidence to show how use of the manual registers compromised the credibility, verifiability, integrity, accountability and transparency of the elections.

69. On the issue whether the 1st respondent carried out the verification, tallying and declaration of the results in accordance with the applicable electoral laws, counsel submitted that the petitioner did not specify the polling stations that were affected by the counting and tallying irregularities neither did he indicate the nature of the irregularities. That generalization of allegations lacking specificity was condemned by the court in the Indian Case of Charan Lal Sahu & Others v Singh [1985] LRC (Const) where the chief justice held that lack of a specific plea puts the respondent at a great disadvantage.

70. On whether there were unexplainable discrepancies between the votes cast for the county governor’s position and other elective positions, counsel submitted that RW3 explained in detail the cause for the apparent discrepancy in the total number of votes cast for the six positions within Makueni County. That the discrepancy is so insignificant that it cannot affect the outcome of the gubernatorial election. Counsel asserted that the said circumstances were experienced by all candidates across the board and no evidence that the petitioner was uniquely affected was tendered.

71. As to whether the 3rd respondent was validly elected, counsel submitted that the petitioner did not controvert the final results of the gubernatorial election.

72. On whether the reliefs sought can issue, counsel submitted that the 1st and 2nd respondent discharged their mandates in accordance with the law, resulting in a credible election where the 3rd respondent emerged the winner. Counsel urged the court to find that none of the reliefs sought by the petitioner ought to issue.

73. As to who is to bear the costs, counsel opined that costs follow the event hence the petitioner bears the costs of the petition for dragging the respondents to court on unsubstantiated allegations.

74. In conclusion, the court was urged to dismiss the petition with costs to the respondents.

3rd respondent’s submissions 75. The third respondent through his advocates Kyalo Mbobu & Associates filed his written submissions dated 18th January, 2023. Counsel submitted on the issues set down during case management conference as the issues for determination.

76. On the 1st issue, counsel relied on Section 44(4) of the Elections Act thus submitting that the 1st respondent complied with the said provision by ensuring that the electoral technology to be used during the elections was procured within the timelines stipulated. That RW2 confirmed that the KIEMS Kits were extensively tested before the elections to ensure that they were functional and working. Counsel relied on Raila 2022 election petition and submitted that the KIEMS KIT deployed for use in the election were in good condition and that laws for procuring the election technology were followed.

77. It was counsel’s submission that the world all over, there is no perfect elections or technology. To solidify that assertion, counsel relied on the supreme court holding in Odinga & 5 Others v Independent Electoral and Boundaries Commission & 4 Others(2013)e KLR

78. It was counsel’s contention that the failure in technology did not affect the outcome of the Makueni County gubernatorial election.

79. On the second issue, it was submitted that electronic failure did not compromise voter turnout and if it did, it did not only affect the petitioner but all candidates equally. That there was no nexus between the KIEMS kits’ failure and voter turnout in Kibwezi West Constituency as it had the highest voter turnout compared to Kibwezi East Constituency which did not experience KIEMS kits’ failure. That Sekeleni Primary School polling station where the petitioner voted and claims voter disfranchisement had a voter turnout of 64. 88% which was higher than the average voter turnout in the Makueni gubernatorial elections and that nobody complained of intimidation or denial of the right to vote.

80. On the 3rd issue, counsel submitted that Section 44A of the Elections Act was introduced to cater for the use of a complementary mechanism in case of biometric identification system failure. Counsel relied on Regulation 26 and 69(e) of the Elections (Technology) Regulations 2017 which sets out the procedure to be followed before resorting to the use of manual register. In counsel’s view, the said procedure was followed.

81. That the need for a complimentary system was considered in the case of National Super Alliance (NASA)Kenya v Independent Electoral and Boundaries Commission & 2 Others [2017]eKLR (Civil Appeal 258 of 2017) whereby the court observed that the IEBC has a constitutional duty of balancing all the rights and ensuring all voters, especially those whose biometrics are not picked by KIEMS kits are accorded an opportunity to vote if they are genuinely registered voters who can be traced from the register of voters and who can be identified by their identification card or passport.

82. Counsel further relied on the case of United Democratic Alliance v Kenya Human Rights Commission & 8 Others(Supra) and submitted that Forms 32A were only required where a voter was identified using the alpha-numeric system. That Form 32A was intended to provide an audit trail of those specific voters as they would not have been identified using the KIEMS kit. That the petitioner did not prove that the decision to resort to manual systems compromised the fairness, accuracy, verifiability and credibility of the elections.

83. On the 4th issue, it was submitted that in order to enhance transparency, accountability, accuracy and credibility, scrutiny of votes was carried out at the polling stations after the poll to determine valid and accurate No. of votes cast for each candidate. That the same was done in the presence of agents before votes were counted.

84. According to learned counsel, the procedure on the scrutiny of votes as set out in Regulations 75, 76, 77 and 80 of the Elections Regulations was done and, Section 39(1) of the Elections Law (Amendment) 2016 which envisages that after counting of the ballots at each polling station, tallying of gubernatorial election results would be done by the constituency returning officers who in turn submit their constituency results to the county returning officer was complied with.

85. Learned counsel submitted that all accredited candidates’ agents were allowed to verify the process and that the petitioner did not provide any evidence to show that he had agents or that any of his agents raised any complaint on the procedure followed at any polling station. That the petitioner did provide any evidence to show that the tallying process was marred with irregularities.

86. Touching on the 5th issue, learned counsel reiterated the position of the 1st and 2nd respondents on discrepancy of votes among the six elective positions. He contended that this court would only intervene if the alleged irregularities were of such magnitude as would affect the outcome of the election result.

87. On the 6th issue, counsel submitted that the 3rd respondent was validly elected as Governor of Makueni County as he garnered the highest number of votes in the free and fair gubernatorial election. Counsel placed reliance on the holding before the supreme court in the 2017 presidential election petition in case of Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [supra] to express the point that the burden of proof falls on the person alleging a fact and that in this case the petitioner has not met the required standard of proof.

88. On the question whether the reliefs sought should issue, counsel submitted that the petitioner has not discharged the burden of proof in the petition thus the same should not issue.

89. As to who bears the costs, counsel submitted that costs follow the event and that in this case, the petitioner should bear the costs as he has failed to discharge the burden of proof on the allegations stated in the petition. In conclusion, counsel urged the court to dismiss the petition with costs.

Analysis and Determination 90. I have carefully considered the petition herein together with the materials in support, various responses thereof, parties’ respective oral testimonies and rival submissions by counsel on record. During the pre-trial conference, the court made various directions a mong them issues for determination. I will therefore not deviate from the pre-determined issues for determination which I will reproduce as hereunder.a.Whether there was electronic failure in Makueni Gubernatorial election exercise and if so, whether the said failure compromised the voter turnout.b.Whether the use of manual voting system compromised the credibility, verifiability, integrity, accountability and transparency of the declared results.c.Whether the 1st respondent carried out the verification, tallying and declaration of the results in accordance with the applicable electoral laws.d.Whether there were unexplainable discrepancies between the votes cast for the County Governor’s position and other elective positions.e.Whether the 3rd respondent was validly elected.f.Whether the reliefs sought can issue.g.Who bears the costs

91. There is no doubt that in every five-year circle of the electioneering exercise in Kenya, Kenyan courts have been a bee hive of activities in electoral dispute litigation quite often generated by the losers. Apparently, and by their very nature, such disputes are quite emotive given the high premium attached to the positions contested.

92. The conduct of national general elections in Kenya and the attendant disputes arising therefrom are governed by legal principles underpinned in the Constitution, various electoral law statutes and subsidiary legislation. This court is therefore bound by the national values and principles of governance under Article 10 (1) of the Constitution to correctly apply and interpret the Constitution or any other law for the sake of serving the Kenyan people who are the donors of such powers.

93. In determining election disputes, a number of critical legal provisions come to play. Article 38(2) of the constitution does recognize the right of a Kenyan citizen in an election exercise. It provides as follows;Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—a.any elective public body or office established under this Constitution; orb.any office of any political party of which the citizen is a member.

94. The right to vote is indeed an inalienable democratic right that cannot be compromised at the altar of anything else. See Richard Kalembe Ndile & Another vs Patrick Musimba Mweu & 2 Others (2013) e KLR where the court held that;“Under our democratic form of government, an election is the ultimate expression of the people and the electoral system is designed to ascertain the intent of the voters and to give it effect whenever possible”

95. Article 81(e) of the constitution further provides that;The electoral system shall comply with the following principles(e)free and fair elections, which are—i.by secret ballot;ii.free from violence, intimidation, improper influence or corruption;iii.conducted by an independent body;iv.transparent; andv.administered in an impartial, neutral, efficient, accurate and accountable manner.

96. Article 86 does underscore the mandatory role of the IEBC in overseeing the conduct of elections so as to inspire confidence in the outcome. That provision does command as follows:At every election, the Independent Electoral and Boundaries Commission shall ensure that—a.whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;b.the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;c.the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; andd.appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

97. It then follows without any iota of doubt that confidence in the outcome of any election exercise is purely determined by the manner and style in which the IEBC conducts the exercise with integrity. See the case of William Kabogo Gitau vs George Thuo & 2 Others (2010) e KLR where the Learned Judge expressed the view that:“If there is any statutory body whose actions should be considered to be above the board and which should perform its duties to the required standard or integrity and probity, it should be the electoral commission. The electoral commission has a duty to inculcate and imbue confidence in the electorate that its process is transparent, free and fair. I would be speaking for many Kenyans when I state that the events subsequent to the 2007 elections made many Kenyans stand up and take note that an electoral process cannot under circumstances be compromised. Many Kenyans were ashamed when our country was referred in similar terms and in the same breath with a neighboring failed state. Kenya is not, and cannot be considered as a banana or a groundnut Republic. This court will stand up and be counted as not Countenancing or tolerating electoral irregularities and malpractices.”

98. On the aspect of election dispute resolution, Article 87 of the constitution does emphasize on the integrity of the election process by stating that:1. Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.2. Petitions concerning an election, other than a presidential election, shall be filed within 28 days after the declaration of the election. results by the Independent Electoral and Boundaries commission.3. Service of a petition may be direct or by advertisement in a newspaper with national circulation.

99. Section 83 of the Elections Act does provide as follows;Nullification of an election petition(1)A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that —a.the election was conducted in accordance with the principles laid down in the Constitution and in that written law; andb.the non-compliance did not substantially affect the result of the election.(2)Pursuant to section 72 of the Interpretation and General Provisions Act, (Cap. (2), a form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead

100. Whereas the IEBC is expected to be a neutral arbiter and the custodian of credible, transparent and accountable election results, a party alleging existence of any irregularities or malpractices in any election result bears the burden to prove to the required degree such allegations.

101. It is trite that the standard of proof in an election petition is slightly above that of proof on a balance of probability and below proof beyond reasonable doubt. The same is therefore intermediary in nature. In this regard, the Supreme Court in Raila Amolo Odinga & Another vs Independent Electoral and Boundaries Commission & Others SCK Presidential Petition No. 1 of 2017 (supra) held at Paragraph 152 that:“we maintain that, in electoral disputes, the standard of proof remains higher than the balance of probabilities but lower than beyond reasonable doubt and where allegations of criminal or quasi criminal in nature are made, it is proof beyond reasonable doubt”.

102. It is trite law and a basic rule of evidence that he who alleges must prove. The petitioner has alleged multiple violations of electoral laws and massive irregularities allegedly occasioned by the 1st and 2nd respondents hence sought to nullify the election results. It is incumbent upon the petitioner to prove those allegations to the required degree. The principle regarding burden of proof is a statutory requirement clearly spelt out under Section 107 of the Evidence Act Cap 80 which provides as follows:“Sub-Section 1 – 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.Sub-Section 2 –when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

103. To emphasize and underscore the importance of discharging the requisite burden of proof in an election petition, the Supreme Court in Raila Amolo Odinga and another vs Independent Electoral and Boundaries Commission & 3 Others SCK Petition No. 5 of 2013 (supra)held as follows:“A petition seeking to nullify an election should clearly and decisively demonstrate that the conduct of the election was devoid of merits and so distorted as not to reflect the expression of the peoples’ electoral intent and that the evidence should disclose profound irregularities in the management of the electoral process.”

104. Having highlighted on the basic legal principles underpinning the process of electioneering and resolution of disputes emanating from such exercise, I will now turn to the specific issues for determination.

Whether there was electronic failure in Makueni Gubernatorial election exercise. 105. The crux of the petition herein is the failure of technology during the 9th August 2022 voting exercise occasioned allegedly by disfunctional Kiems Kits deployed to about 84 polling stations within Kibwezi West Constituency within Makueni County. It is trite law that voting exercise in general elections in Kenya is managed electronically save for exceptional circumstances where manual voting can apply through a complimentary mechanism of voter identification.

106. Section 44 of the elections Act is clear on this issue to the extent that it provides as follows:Use of technology(1)Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission of results.(2)The Commission shall, for purposes of subsection (1), develop a policy on the progressive use of technology in the electoral process.(3)The Commission shall ensure that the technology in use under subsection (1) is simple, accurate, verifiable, secure, accountable and transparent.(4)The Commission shall, in an open and transparent manner —(a)procure and put in place the technology necessary for the conduct of a general election at least one hundred and twenty days before such elections; and(b)test, verify and deploy such technology at least sixty days before a general election.(5)The Commission shall, in consultation with the relevant agencies, institutions and stakeholders, make regulations for the better carrying into effect the provisions of this section.

107. From the wording of Section 44 above quoted, the underlying words are that the commission is mandatorily under obligation to ensure that electronic voting system put in place is simple, accurate, verifiable, secure, accountable and transparent. The objective of this provision is to ensure credibility and integrity in the election process which is expected to be tamperproof.

108. However, while fully aware that technology which is human made can fail, parliament in its wisdom enacted an alternative under Section 44A of the elections Act thus providing that:“Complementary mechanism for identification of voters.Notwithstanding the provisions of section 44, the Commission shall put in place a complementary mechanism for identification of voters that is simple, accurate, verifiable, secure, accountable and transparent to ensure that the commission complies with the provisions of Article 38 of the Constitution.

109. It is however worth mentioning that, on 10th June 2022, the chairperson of the 1st respondent issued a press release expressing the commission’s position that it was not intending to use manual register during the 9th August 2022 election exercise as it was prone to manipulation and misuse. This was in response to various concerns raised then by some political parties in Particular Azimio La Umoja One Kenya Coalition Party seeking to know whether the IEBC was prepared to use manual register in case of electronic failure.

110. It is common knowledge that the commission’s stand did trigger a legal dispute which ended up on appeal before the court of appeal in the case of United Democratic Alliance Party v Kenya Human Rights Commission and 12 Others (supra) wherein the court sanctioned the use of a complimentary mechanism in the 9th August 2022 general elections.

111. The court of appeal went further to give guidelines as follows:a.Presiding officers must ensure that voters are identified by biometrics upon production of an identification document used during registration. Biometric verification is a primary mode of identifying voters.b.Where a voter cannot be identified using Biometric, then the presiding officer shall use a complementary mechanism of alphanumeric search in the presence of the agents and the voter shall fill form 32A before being issued with the six ballot papers.c.The presiding officer will resort to the use of the printed register of voters after approval from the commission upon confirmation that the KIEMS kit has completely failed and that there is no possibility of repair or replacement.d.The contents of the said memo dated 27th July 2017 shall be adhered to by all concern persons in application for regulations 69 and 83 of the Elections (General) regulations,2021

112. The decision taken by the court of appeal was intended to fulfil the aspiration of each Kenyan to participate in the election exercise to elect a leader of his or her choice and without being locked out due to failures of the commission or circumstances beyond human control.

113. It has time again been stated that technology is not 100% error free hence the need for complimentary mechanism by way of manual voting using a physical register. See the case of Odinga & 16 Others v Ruto & 10 Others; law Society of kenya&4 others(Amicus curiae)(presidential Election petition E005,E001,E002,E003,E004,E007&E008 of 2022(consolidated)(2022)KESC 56(KLR)(Election Petitions)(26th September 2022)(Judgment) Neutral citation;[2022]KESC 56(KLR) where the court held that :“Technology no matter how advanced, was bound to fail at one point or another, leading to a bad user experience. Hardware breaks, software bugs and connectivity loss, among many challenges in automation. Imperfections in the process were inevitable. Some imperfections could have far-reaching ramifications, which in turn could lead to nullification of an election while others may not reach that level or degree of significance. The nullification of the Presidential Election of 2017 was partly based on that reality’’.

114. Similar position was held in Raila 2013 between Raila & 5 Others v Independent Electoral and Boundaries commission & 3 others (supra) where the court held that:“we take judicial notice that, as with all electoral technologies; it is rarely perfect, and those employing it must remain open to the coming of new and improved technologies…’’.

115. In the instant case, RW2 the Returning Officer Kibwezi West Constituency explained how he received 206 KIEMS Kits for his Constituency. He stated that prior to 9th August 2022, the commission had under taken training exercise for all staff involved in the election exercise. That on the material day at 6. am, he received calls from his presiding officers complaining that the KIEMS Kits were not working as they were displaying “a data validation error” message. According to him, he sent his ICT officers to the field to sort out the problem but all in vain.

116. Having escalated the issue to RW1, the County ICT Officer and RW3 the County Returning Officer, approval to use manual register was granted. However, it is the petitioner’s claim that the error was as a result of external interference with the intention of manipulating results. Further, that the problem complained of was simple and could have been easily resolved had proper procurement of KIEMS Kits done, proper training of the commission’s staff been done followed by end to end testing pursuant to Regulation 8 of the elections technology Regulations. He went further to claim that had the commission used the KIEMS Kits manual from the vendor instead of trouble shooting method, it could have resolved the problem.

117. There is no dispute that on 9th August 2022, KIEMS Kits in Kibwezi West Constituency failed to function hence manual voting as the last option. That fact was acknowledged equally in the presidential election petition in Raila vs Ruto 2022 where failure of KIEMS Kits in Kibwezi West Constituency featured prominently. From the evidence of RW1, RW2 and RW3, it is my conviction that the commission did its best by restarting the gadgets (trouble shooting method), changing STD cards and by use of contingency kits available but technology failed them.

118. Concerning the allegation that there was external interference and manipulation of the KIEMS Kits so as to distort final results, it is a matter of conjecture. There was no evidence adduced to corroborate that allegation.

119. As to whether the vendors’ manual would have saved the situation, there is no proof either. It is common knowledge that even on ordinary day to day application of house hold electrical appliances, use of manuals does not guarantee a solution. Touching on the question of failure to apply end to end testing, RW1 stated that the commission did preliminary and necessary testing including simulation exercise. According to the commission, end to end testing does not include or involve opening the kits before voting hours could commence.

120. It should be appreciated that electronic gadgets in use during elections are not supposed to be complex in application but simple. If by simple application of ordinary commands, the kits could not work, elections could not completely stop simply because an omission in terms of ill preparation had occurred.

121. Equally, an election result cannot be nullified or invalidated merely because there were minor omissions in preparation yet there was an alternative. Although parties could not agree on what end to end testing entails, non-conformity alone could not vitiate the results realized through another lawful method in this case manual voting.

122. I did not quite understand whether the petitioner was asking the court to nullify election results, order IEBC to go and train its staff first on end to end testing before it could hold fresh elections. I also do not understand how poor training could have affected only Kibwezi West Constituency and not any other Constituency within the same county where common training was done yet others were not affected.

123. I am convinced that the kits’ failure had a more underlying technical hitch which was complex to resolve within the shortest time possible hence the alternative voting method. In any event, the fact of poor training and testing was not unique to any particular candidate but affected all candidates and therefore, nobody benefitted or got preferential treatment more than the other as a consequence.

124. As to the flawed process of procurement of the KIEMS Kits, there is no proof or evidence demonstrating on how Kibwezi West could have been isolated out of the over 50,000,000 KIEMS Kits nationally procured from a common source. In my view, the claim that the process of procurement was flawed is far-fetched in this matter. Taking everything into context, there was no proof of any intended mischief or deliberate human interference in relation to the failed kits.

Whether manual voting compromised the credibility, verifiability, integrity, accountability and transparency of the declared results. 125. The significance of electronic voting cannot be underscored. It is convenient in engagement and time friendly. However, it is prone to fail hence the reason why parliament enacted Rule 26 of the elections (technology)regulations 2017 which provides that:“(1)The Commission shall suspend or terminate the use of election technology if the reliability of a system cannot be assured according to the requirements of the Act and these Regulations.(2)Before suspending or terminating the use of election technology under sub-regulation (1)—(a)the clerk at the polling station shall inform the presiding officer of the failure of the technology;(b)the presiding officer at the polling station shall retry the system to confirm the failure of the technology;(c)the presiding officer at the polling station shall document the incident on a incident report in the polling station diary which shall be signed by all the agents;(d)the presiding officer shall notify the returning officer of the failure and submit a copy of the incident report;(e)the returning officer shall inform the director in charge of information communication and technology of the incident and the director shall investigate the incident and advise on the suspension or termination of the use of the election technology;(f)the returning officer shall approve the request for suspension of the use of technology based on the advice under paragraph (e) and invoke the complementary mechanism.(3)Where the Commission suspends or terminates the use of the election technology, the Commission shall immediately notify the public and stakeholders of the suspension and of the measures put in place to restart the, or of any failover technologies or procedures to be used according to the operations continuity plan.(4)Where the Commission has made a decision to suspend the voting where there is failure of the election technology the Commission shall extend the hours of polling at the Polling Station where polling has been interrupted by the amount of time which has been lost.(5)The Commission shall publish a notice, through electronic or print media of national circulation, or any other easily accessible medium, to notify the public of the suspension or termination or of failover technologies or procedures to be used according to the operations continuity plan.(6)The Commission shall inform the returning officer of the decision accordingly

126. In the same spirit, the court of appeal appreciated in the case of United Democratic Alliance Party aforesaid that technology was prone to fail hence sanctioned use of manual register subject to observance of certain guidelines among them; use of biometritics for voter identification in default use of Alpha numeric search in the presence of agents and the voter to fill form 34A and in default resort to printed register of voters after approval from the commission. If I were to strictly interpret the court of appeal guidelines No. two and three, I would arrive at the conclusion that where the kit completely fails, only approval from the commission is required, a printed register and nothing more. That form 32A would only be required where Alpha numeric is applicable.

127. Never the less, the petitioner stated that form 32A was not filled in the affected 84 polling stations. On the other hand, RW2 and RW3 told the court that upon receiving the commission’s approval to use the manual register, they quickly communicated to the presiding officers to use the manual register and supply voters with form 32A. That they printed the said forms in large numbers to meet the demand. The petitioner persistently argued that that process was not followed and that he did not fill that form hence a flawed voting process.

128. During the hearing of the scrutiny application, the court did not find it necessary to conduct scrutiny to ascertain whether voters filled form 32A. This was informed from the background that the petitioner was on a fishing expedition as no voter or agent from any of the affected polling stations ever gave evidence to that effect. His claim was further defeated by the supreme court decision which had earlier on conducted scrutiny in a number of Kibwezi West Constituency where similar complaint was made during the Raila vs Ruto 2022 presidential election petition where the court found that form 32A was duly filled and that manual voting in Kibwezi West and Kakemega County where similar failure was reported did not suffer any prejudice.

129. In the said case, the court held as follows;“Whereas KIEMS kits failed in 235 polling stations in Kibwezi West Constituency and parts of Kakamega County, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly filled. The failure of the KIEMS kits in the identified polling stations could not be taken as a yardstick of the performance of KIEMS kits in the whole country. All affected voters who could have complained were not disenfranchised as they were able to exercise their democratic right to vote manually.

130. Based on the above holding by the Supreme Court, and considering that this court was being persuaded to repeat a similar exercise, I found it to be a waste of judicial time to embark on a scrutiny to find out an out-come that had already been ascertained by the apex court in the land. To that extent, there was no proof that a fundamental process was not followed so as to render the results invalid.

131. Regarding the question of voter suppression on account of delayed voting, the answer lies on the extension of time lost. It was admitted by all parties that it took time to resolve the problem on electronic failure and subsequently seek approval from the commission. It was mandatory that approval had to be sought after trying everything possible. Various offices were involved hence getting approval was a process.

132. Although voting commenced at 12 mid-day, voters who were willing to vote were given an opportunity to do so. Time was indeed extended to compensate for the time lost. Samples of forms showing polling stations closing past 11 pm and 1200 mid night were attached to the 2nd respondent’ response and marked MR-3. Nobody came forward to complain that he was denied an opportunity to vote. Indeed, no voter in Kibwezi West Constituency was disenfranchised by virtue of the failure of technology. This position was affirmed by the Supreme Court itself in the said Raila vs Ruto 2022 election petition. If there was anybody who did not vote, it was out of choice.

133. Regarding the claim that manual voting affected voter turn -out, the same can be ascertained from figures on voter turnout analysis submitted by the 1st respondent showing the performance of each constituency as follows; Kaiti 63. 72%, Kibwezi East 57. 20%, Kibwezi West 58. 61%, Kilome 59. 79, Makueni 59. 92% and Mbooni 62. 83%. It is clear from these figures that the marginal difference was nominal, negligible and inevitable. In fact, even Kibwezi East where voting was electronic, it performed poorly than Kibwezi West with manual voting. This is proof that manual voting did not necessarily impact negatively on the right to vote to Kibwezi West voters as claimed by the petitioner.

134. In my view, if manual voting had any effect on voter turnout, then, it did not affect the petitioner a lone but rather all candidates in the race including other elective positions. In a nutshell, I do not find any evidence to establish that as a result of manual voting, the outcome was not credible, verifiable, accountable, and transparent.

Whether the 1st respondent carried out the verification, tallying and declaration of results in accordance with the applicable laws 135. The petitioner alleged that the tallying process was characterised by irregularities such as inflation of results in polling stations where more people voted than registered in the KIEMS Kits hence lack of transparency in tabulation of results. He alleged that the 1st respondent did not adduce as evidence form37As to show how tabulation of results was done and results supposed to be signed by agents were not signed.

136. Regulation 76 of the election general Regulations 2012 provides the procedure of counting of votes. It provides as follows;(1)The presiding officer shall, in the presence of the candidates or agents—(a)open each ballot box and empty its contents onto the counting table or any other facility provided for the purpose and, shall cause to be counted the votes received by each candidate; and(b)record the total number of votes cast in favour of each candidate.(2)Each ballot paper shall be counted as follows—(a)the presiding officer shall in respect of every ballot paper, announce the candidate in whose favor the vote was cast;(b)display to the candidates or agents the ballot paper sufficiently for them to ascertain the vote; and(c)put the ballot paper at the place on the counting table, or other facility provided for this purpose, set for the candidate in whose favor it was cast.(3)The presiding officer shall record the count of the vote in a tallying sheet in Form 33 set out in the Schedule.(4)A candidate or an agent shall have a right to—(a)dispute the inclusion in the count, of a ballot paper; or(b)object to the rejection of a ballot paper, where upon the presiding officer may decide to uphold or reject the complaint and act as provided under regulation 80.

137. From the testimony of RW2, the Constituency Returning Officer, after he received form 37A from presiding officers at the Constituency tallying centre he populated form 37B in the presence of agents representing all candidates who signed the requisite form for declaration and transmission of results to the county returning officer who also populated form 37C anddeclared the winner as Governor without any objection. That the petitioner was represented by one King’ola Muthusi who signed the result declaration form as an agent.

138. It was the petitioner’s claim that he did not have any agent at the tallying centre as stated. There is nothing on record to show that there were any anomalies or irregularities in the manner in which verification, tallying and declaration of results was done. It is inconceivable for the petitioner to claim that voter verification was not properly done and results inflated yet he has no proof. None of the agents or voters came forward to claim the specific station/s where such anomalies or malpractices occurred. This is a generalised allegation which lacks substantiation.

139. On the aspect of four polling stations where votes cast exceeded registered voters, the same was explained and discarded hence nobody gained out of it. Consequently, I do not find any ground upon which to find that there were glaring irregularities or malpractices in verification, tallying and declaration of results of such a magnitude so as to vitiate the results.

Whether there were unexplainable discrepancies between the votes cast for the position of Governor and other elective positions 140. It is the petitioner’s case that there were unexplained discrepancies in respect to the votes cast for the six elective positions. To illustrate the discrepancies, the petitioner indicated that the total votes cast for each position were; Presidency 290,491; Governor 289,538; Senator 290,550 and Women Rep 269,465 votes. According to the petitioner, no explanation was given to justify the differences yet each voter was given six ballot papers.

141. In response, the 1st respondent through the affidavit of Maurice kepoi Raria sworn on 20th September at paragraph 27, explained the reason why the said discrepancies occurred. He stated that; results for County Women Rep.in Kasyelia priamary school kaseuni nursery, sch., Kithiini pri.sch. and Komboyoo were disregarded as the votes cast exceeded the No. of registered voters; no Governor and Women Rep. results were received from Ngaaka primary and Kathulimbi pri.as the same were misplaced thus calling for police action; no votes were cast at Muvuti pri. for the position of senator as the station did not receive senate ballot papers and lastly, there were spoilt and stray votes which were accounted for in the polling station diary.

142. According to the analysis presented by both parties, the difference between the presidential votes and Governor was about 1001 in favour of the presidency while that between Governor and Senator was 1060 in favour of senator. There is no dispute that there were discrepancies in votes cast in the four a foresaid county elective positions.

143. I have taken into account the total votes cast vis avis the votes garnered by each candidate as well as the difference in terms of votes cast for each position. The 3rd respondent garnered 214,088 votes against the petitioner in second position with 63,252.

144. Taking into account the explanation given to justify the said vote discrepancies, I am satisfied that the discrepancies were not deliberately created with any mischief in mind. The explanation given is convincing. In any event, the discrepancies in question are negligible as to vitiate any election result. It trite that in any election exercise minor infractions, omissions and commissions are bound to occur. The discrepancies in question are not so glaring so as to call for nullification of election results.

145. In the case of Raila vs Ruto presidential election petition of 2022(supra), the supreme court at para.285 restated its position in Raila 2017 presidential election petition at para.373 where it was held that not every irregularity or procedural infraction is enough to invalidate an election. That the irregularities must be of such a profound nature as to affect the actual result, or the integrity of an election, for a court of law to nullify the same.

146. Similar position was held in Wavinya Ndeti vs IEBC & 4 Others(2013) e KLR where the court held that an election is a human endeavour and is not carried out by programmed machines. It went on to state that perfection is an inspiration but allowance must be made for human error hence what is paramount is that in the such errors, the ultimate will of the people is ascertained and upheld. This position was also held by the supreme court in Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 Others (2014) e KLR where it was stated that;“No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the constitution and in the written law or that non- compliance did not affect the results of an election”

147. Having taken into account the wide margin between the petitioner and the 3rd respondent, the alleged errors, omissions or irregularities leading to the discrepancies in terms of tallying votes cast for each elective position do not in my view raise any red flag. Indeed, as stated in the case of Mercy Kirito Mutegi vs Beatrice Nkatha Nyaga & 2 Others (2013) e KLR, not every non-compliance or every act of omission or breach of elections regulations or procedure can render an election invalid. In a nut shell, the petitioner has not established to the required standard how the vote discrepancies affected the validity of the election results.

Whether the 3rd respondent was validly elected 148. Mr. Kimathi submitted on this issue on two aspects. Firstly, an election is not about numbers but a process. In his view, the Makueni gubernatorial election exercise was tainted with irregularities that rendered the declared results invalid. Secondly, that the delayed time of voting occasioned by failure of KIEMS Kits rendered the whole exercise a sham as over 91000 voters were hindered from voting. On the other hand, the respondents maintained that the huge margin in numbers of the votes garnered by the 3rd respondent is a clear manifestation that he was validly elected even without the entire Kibwezi West constituency votes.

149. Whereas an election perse is not about numbers alone but the process employed before realizing those numbers, winners are also determined by the highest number of votes obtained in an election. Numbers are therefore equally important and critical especially where the gap is so expansive such that to nullify the results based on minor infraction would be akin to disenfranchising of voters their right to vote. See Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017) e KRL where the court of appeal held that numbers are not only unimpeachable, they are everything in an election.

150. Having found that there were no glaring irregularities nor malpractices of such a magnitude as to render the election result herein invalid, it goes without say that the 3rd respondent was validly elected thus reflecting the will of the people of Makueni County. The ultimate objective of any competitive election is to elect leaders who represent the will and choice of the people through universal suffrage. See Justin Ringa Chirume and 2 others vs Independent Electoral and boundaries commission and 3 Others Election petition number E005 of 2022 where the court held that where irregularities in an election petition are not established, the will of the people should be upheld.

Whether the reliefs sought can issue. 151. According to the petition, so many reliefs including scrutiny were sought. Having disposed of the application for scrutiny, the same is not applicable here. Equally, having held that the 3rd respondent was validly elected, I do not find any relevant relief to grant the petitioner.

Who is to bear costs 152. Authority to award costs is provided under Section 84 of the Elections Act and rule 30 of the elections (parliamentary and county elections) petitions rules 2017. Ordinarily, costs follow the event. However, the court has the discretion to determine who bears costs and how much depending on the circumstances of the case. See Denis Magare Makori & another v Independent Electoral & Boundaries Commission&3 Others (2018)e KLR and Martha Wangari Karua v Independent Electoral & Boundaries Commission &3 Others (2018) e KLR where the court held that when determining whether to award costs or not, the court should be guided by the principles of fairness, justice and access to justice.

153. Indeed, an award of costs should not be treated like a commercial enterprise and a hindrance to the right to access justice. Therefore, fairness and circumstances of each case shall be some of the factors to be taken into consideration. In the instant case, I have considered the time taken in preparation of the pleadings, prosecuting the petition, the complexity of the matter and number of counsel involved. In the circumstances, I do award the respondents costs capped at a maximum of three million out of which the 1st and 2nd respondent being government agents supported by tax payer’s money to share one million equally and two million to the 3rd respondent.

154. Before concluding this matter, I wish to appreciate and recognize the sobriety with which parties conducted themselves throughout the proceedings. I also wish to thank counsel engaged in these proceedings for exhibiting a high degree of professionalism and appreciation of the law, maturity and utmost respect when addressing each other. Lastly, I wish also to acknowledge judicial staff deployed to assist the court for their dedication and commitment to duty.

Final Orders 155. Having held as above, the following are the final orders of the court;SUBPARA a.The petition herein is hereby dismissed.b.That the Gubernatorial elections held on 9th August 2022 in Makueni County were constitutionally and validly held.c.That the 3rd respondent herein Mutula Kilonzo Junior was validly elected and gazetted as the Governor of Makueni Countyd.That the petitioner shall bear costs of the petition assessed and payable at one million shillings to the 1st and 2nd respondents jointly and in equal amount and two million to the 3rd respondent.e.A certificate of determination in accordance with Section86(1) of the Elections Act to issue to the IEBC and speaker of the senate.

DATED, SIGNED DELIVERED IN OPEN COURT THIS DAY 28TH DAY OF FEBRUARY 2023 AT MAKUENI.J. N. ONYIEGOJUDGE