[2017] KEHC 2123 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

ELECTION PETITION NO. 3 OF 2017

MUTISYA ALBANUS PAUL..................................................................................PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION....................................................................1ST RESPONDENT

THE RETURNING OFFICER (MACHAKOSTOWN CONSTITUENCY)....2ND RESPONDENT

MUNYAKA VICTOR KIOKO......................................................................3RD RESPONDENT

RULING OF THE COURT

1. In the general election held on 8th August 2017 for Machakos Constituency Parliamentary Election, the Petitioner Mutisya Albanus Paul and the 3rd Respondent Munyaka Victor Kioko were the contestants. The elections were conducted by the Independent Electoral and Boundaries Commission (IEBC) (the 1st respondent). The returning officer for the Machakos Town Constituency election was the 2nd Respondent. When the results were declared, the 3rd Respondent had emerged victorious over the petitioner who came second.

2. The Petitioner was dissatisfied with the conduct of the election, the outcome and the declaration of the results. His case was that election was marred with illegalities and irregularities, and that there was substantial non-compliance with the constitutional and statutory provisions that affected the results. He filed this petition challenging the outcome of the elections. The respondents filed their respective responses denying the allegations in the petition, and stated that the election was conducted in accordance with the Constitution and the law, and that the results declared were valid.

3. The Petitioner brought the present application dated 9th October 2017 under Articles 35, 38, 48, 81, 82, 86 and 88 of the Constitution, Sections 4, 5, 8, 17, 18 of the Access to Information Act No. 31 of 2016, Section 26 of the Independent Electoral & Boundaries Commission Act No. 9 of 2011, Section 44, 44A, 80 and 82 of the Elections Act No. 24 of 2011, Rules 3, 4,5, 12(9), 16, 28, 29, 36, 79 and 86of the Elections (Parliamentary and County Elections) Petitions Rules 2017, Regulations 6,9, 14, 15, 16, 17, 18, 25, 28 and 38 of the Elections (Technology) Regulations, 2017, and Regulation 79 of the Elections (General Regulations, 2012)seeking the following orders:

(1) (spent)

(2) That the election materials used in the Machakos Town Constituency Member of National Assembly election be immediately delivered to the court for the safe custody and conservation.

(3) That the 1st and 2nd Respondents be compelled to supply the court and the petitioner/applicant, for scrutiny, the following information in their exclusive possession, which information they have refused and/or neglected to avail to the petitioner /applicant despite several requests (as pleaded in the petition and supporting affidavit).

I. Member of National Assembly Result Declaration forms

a. Certified copies of the original Forms 35A filled in at all the polling stations of Machakos Town Constituency;

b. A certified copy of the Form 35B with respect to Machakos Town Constituency; and

II. Concurrent Election Result Declaration forms for Machakos Town Constituency (for comparative analysis)

a.A certified copy of the original Form 34B;

b.Certified copy of Form 36B;

c.Certified copy of the original Form 37B;

d.Certified copy of the original Form 38B; and

e.Certified copy of the original Form 39B’s for Machakos Town Constituency.

(4) That the 1st and 2nd respondents be compelled to supply the court and the petitioner/applicant, for scrutiny, all of the following materials distributed to the presiding officers at all the polling stations for Machakos Town Constituency:

a. The inventory of the Member of National Assembly Results Declaration forms (with serialization);

b. The printed copy of the register of voters used during the elections;

c. The marked copy register;

d. The polling day diaries;

e. The inventory of all the ballot boxes’ serial numbers and ballot box seals’ serial numbers;

f. All the packets of the rejected ballot papers and statements made thereto;

g. All the packets of spoilt ballot papers; and

h. All the packets of counterfoils of used ballot papers (or certified copies thereof) with respect to the member of National Assembly.

(5) That the 1st and 2nd respondent be compelled to grant the court and the petitioner/applicant access to the Kenya Integrated Elections Management System (KIEMS) devices results transmissions logs (and transmission error logs-if any) with respect to Member of National Assembly elections and logs detailing the identification and numbers of voters at all the polling stations for Machakos Town Constituency.

(6) That the 1st and 2nd respondent be compelled to supply the court and the Petitioner/Applicant with compre-hensive documentation of all the incidences (if any) when as a result of identification failure by the KIEMS gadgets, manual identification had to be done at all the polling satiations for Machakos Town Constituency.

(7) That the court grants leave to the petitioner/applicant to file supplementary affidavits as necessary arising from the findings/discoveries upon access to the information sought herein.

(8) That this court grants any other or further relief as it may deem fit, just and fair in the circumstances.

4. The Application was supported by the affidavit of Mutisya Albanus Paul dated 9th October 2017 and a supplementary affidavit dated 27th October 2017. The following is the summary of his case:

a) that he participated as a candidate in the elections for member of national assembly held on 8th August 2017 in Machakos Town Constituency in which the 3rd respondent was unlawfully and illegally declared the winner;

b) that he requested for the results declaration forms but was denied; that he made efforts to stop the declaration of the results by writing a letter dated 10th August 2017 but the same was ignored;

c) that he requested to have a recount of the votes and to confirm the accuracy of the results before the final announcement of the results but the 1st and 2nd respondents denied him the chance and have continually acted in bad faith; that the refusal to provide the documentation and information sought was a specific plan to cover-up the rampant illegalities and irregularities that were perpetrated by the respondents and a deliberate strategy to frustrate his right to challenge the election process;

d) that a recount and scrutiny of votes is crucial to establish the veracity of the election results declared for member of national assembly, Machakos Town Constituency;

e) that the number of voters who turned out and voted in Machakos Town Constituency Member of National Assembly Elections can only be conclusively established if the KIEMS kits are audited;

f) that the 1st and 2nd respondents have a responsibility to deliver these materials to the court:

g) That allowing this application will serve to reinforce his constitutional right to access of information.

5. The Application was opposed by the 1st, the 2nd and the 3rd Respondents.

6. In the affidavit sworn by Marvin Mungah on his behalf and on behalf of the 1st respondent, he stated that: that the prayer for an order to compel the 1st and 2nd respondents to avail the original Forms 35A, certified copies of forms 34B, 36B, 37B, 38B and 39B’s has been overtaken by an order for preservation of the election materials at the 1st respondent’s warehouse within Machakos Town; that the polling day diary is with the court for the gubernatorial petition; that only KIEMS gadgets were used and the demand regarding delivery up of the printed copy of register of voters is irrelevant; that there were no instances or incidences where identification by the KIEMS gadgets failed; that the KIEMS Kits were already recalled for reconfiguration for use in the presidential elections of 26th October 2017 pursuant to an order of the Supreme court; that the petitioner may in an already established standard practice in all election petitions upon application and directions of the court be allowed to open, read and copy the data in the KIEMS Kits however the SD Cards have already been secured in the gubernatorial elections; that they did not receive any letter dated 10th August 2017 from the petitioner as the said letter is not stamped and received by their official stamp; that the 2nd Respondent never received any complaint regarding the accuracy of the results from the polling stations complained about; that the complaints by the Petitioner as set out in the application and the supporting affidavit cannot be resolved by way of an order for scrutiny; that the applicant has sought scrutiny of the register and market copy of the registers used in all polling stations in the Constituency notwithstanding the fact that the petitioner had in his pleadings not challenged the authenticity of any of the registers used; that the application seeks scrutiny and recount in all the polling stations for Machakos town Constituency even though only the results of two polling stations in the entire constituency have been disputed; that no material facts have been placed before court to warrant removal of the election materials from the safe custody of the 1st and 2nd respondents; that no sufficient basis has been set out in the application to warrant an order for scrutiny and recount; and that there is no nexus established between the complaints raised by the petitioner and the intended results for scrutiny.

7. The 3rd Respondent fully associated himself with the 1st and 2nd respondents’ case. In his replying affidavit dated 27th October 2017, the 3rd respondent stated as follows: that there was no irregularity during the election conducted on 8th August 2017 in Machakos Town Constituency in which he was validly elected; that no reasonable apprehension has been placed before this court to warrant the handing over of election materials by the 1st and 2nd respondents to court; that the election materials may be inspected or audited from the 1st respondent’s premises; that scrutiny and recount does not lie as a matter of right and basis may be established from the pleadings and/or evidence adduced; that where a party makes a request for scrutiny and recount, such scrutiny or recount is to be conducted in respect to specific polling stations in respect of which the results are disputed; that the court’s discretion of ordering recount of ballots should be cautiously exercised to avoid enabling the petitioner in indulging in a roving inquiry with a view to fish materials to invalidate an election; that the application is an abuse of court process as it is aimed at engaging in a fishing expedition and the same should be declined by the court.

8. Counsels for all the parties filed written submissions and their list of authorities on the application. Mr. Makundi and Mr. Kituku for the petitioner, Mr. Anyoka and Mr. Momanyi for the 1st and 2nd respondents, and Mr. Kyalo Mbobu and Mr. Nyamu for the 3rd respondent addressed the court at length on the application. I have considered the application and the submissions made by the learned counsels for the parties. I find the following issues necessary for determination namely:-

(1)Whether the request by Petitioner for documents fromthe 1st and 2nd Respondent for purposes of scrutiny is merited.

(2)Whether the Petitioner’s right to access information contained in KIEMs kits from the 1st and 2nd Respondent is merited.

(3)Whether the Petitioner’s request to file supplementary affidavits upon receipts of the information sought is merited.

9. As regards the first issue it is noted from the outset that the Petitioner’s learned Counsels Mr. Makundi and Mr. Kituku indicated that they are suspending a request for scrutiny at this stage of the proceedings and will raise it at the close of the hearing of the Petition herein. Even though the counsels for the Respondents have submitted that the suspension of scrutiny partially is not procedural since the same should be considered wholesome in the determination of this Application, I find the Petitioner’s move to be a tactical one in the sense that he has left the issue of scrutiny to be raised after the hearing of the Petition as dictated by Section 82 of the Elections act No. 24 of 2011. A thorough perusal of the Petitioner’s prayers in the Application save for prayer Number 7 appear to me to be akin to request for discoveries. The Petitioner seems to suggest that he needs certain documents from the 1st and 2nd Respondents to enable him prosecute the Petition. That is why he has sought reliance in Article 35 of the Constitution and Section 4(1) (2) and (3) of the Access to information Act No. 31 of 2016. These two provisions entitle any person to access information needed. Article 35(1) (2) of the Constitution provides as follows:-

35(1) every citizen has the right of access to:-

(a)Information held by the state: and

(b)Information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or election of untrue or misleading information that affects the person.

(3)The state shall publish and publicize any important information affecting the nation.”

With regard to the Access to Information Act, Section 4(1) (2) and (3) provides:-

(1)Subject to this Act and any other law, every citizen has the right of access to information held by:-

(a)The State: and

(b)Another person and where that information is required for the exercise or protection of any right or fundamental freedom.

(2)Subject to this Act, every citizen’s right to access information is not affected by:-

(a)Any reason the person gives for seeking access: or

(b)The public entity’s belief as to what are the person’s reasons for seeking access.

(3)Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.”

Going by the above provisions of the law it is clear that indeed the Petitioner is entitled to access information contained in certain documents particularized and requested by the Petitioner from the 1st and 2nd Respondent so as to enable him prosecute the Petition. Indeed every person has a right to access those materials and documents and that is why after every election cycle the 1st the 1st Respondent is required to keep the election materials for a period of three (3) years before they are destroyed. The Petitioner therefore cannot be denied access to the said documents now in the possession of the 1st and 2nd Respondent who are under a duty under Article 35 of the Constitution and Section 4(1),(2) and (3) of the Access to Information Act No. 31 of 2016 to supply to him or to enable him access the same. Even though the Petitioner has sought to compel the 1st and 2nd Respondents to supply the documents to the court, I find the court shall at its own time whenever so required order for supply of any relevant documents but for now it is the Petitioner who requires the said documents. Hence I find the Petitioner’s request for documents from the 1st and 2nd Respondent for purposes of his own scrutiny merited.

10. As regards the second issue it is noted that the Petitioner in prayer number five of his application has sought to access the Kenya Integrated Elections Management System (KIEMS) devices, results transmissions logs regarding the elections for Machakos Town Constituency. The said devices are in the custody of the 1st and 2nd Respondent. The 1st and 2nd Respondents have maintained that the KIEMS were recalled for reconfiguration for use in the just concluded presidential Elections held on 26/10/2017 pursuant to an order of the Supreme Court. The Respondents maintains that what is available at the moment could be the SD cards for which the Respondents’ have indicated they have no problem in allowing the Petitioner access. The Respondents have also indicated that the said items are contained in Machakos Election Petition 1 of 2017 where all the Election materials have been ordered to be kept in a separate warehouse. Under Regulation 93(2) of the Elections (General) Regulations 2012 it is provided as follows:-

“Any person may apply to the High Court with notice to all candidates in the election concerned for authority to inspect documents retained under these regulations other than ballot papers, and their counterfoils.”

The preservation of these election materials by the 1st and 2nd Respondent is for the interest of all parties involved in this Petition and to enable the court arrive at a just determination of the matter. The KIEMS Kits are part of the materials which are secured by the 1st and 2nd Respondents. They are part of the materials that may be inspected upon issuance of an order by the High Court. The court must however guard against giving parties unnecessary leeway to go on a fishing expedition to unearth new evidence that had not been pleaded. The court definitely will issue orders on the extent and scope of the access so as to guard the integrity of the materials and to prevent parties from engaging in a roving expedition. In such circumstances the court could allow a read only access to the data extracted from KIEMS Kits.

11. As regards the third issue, the Petitioner has sought for leave to file supplementary affidavits as necessarily arising from the findings/discoveries upon access to the information sought herein. This then goes without saying that the Petitioner is actually seeking to amend his petition. Article 87(2) of the Constitution and Section 76(1) of the Elections Act No. 24 of 2011 provides a clear time line of 28 days after declaration of results within which a petition ought to be filed or an amendment presented. The said provisions are couched in mandatory terms and parties must adhere to the same. If the Petitioner’s request is allowed then it would appear that his intentions are to expand the horizon through the late amendments. If the same is allowed at this juncture then it will amount to an amendment which is inconsistent with the provisions of Article 87(2) of the Constitution and Section 76 (1) of the Elections act. As the Petitioner intends to obtain information and to thereafter file supplementary affidavits in support of the Petition outside the stipulated period then there is a likelihood of the Respondents herein being disadvantaged and out-manoevred. I find such an action amounts to a fishing expedition. In the case of KATUTA HAMISI =VS= PERIS TOBIKO AND 2 OTHERS [2013] eKLR PETITON NO.5 of 2013 the court held as follows:-

“A party cannot expand the boundaries of pleadings to seek additional reliefs not prayed for. A party shall not lead evidence inconsistent with the pleading and a court shall not grant a relief not prayed for.”

In the Raila Odinga =Vs= IEBC and 3 others Supreme Court Petition 1 of 2017 the Supreme Court held thus:-

“A Petitioner must not be on an evidence fishing expedition

and must not expand the scope of his pleadings and a party

is bound by its pleadings and must indicate what kind of

information they seek to obtain from the production.”

I am guided by the above court decisions and find that the Petitioner herein is out to expand the horizon and thereby amend the Petition to the disadvantage of the Respondents. I am therefore inclined to decline the request.

12. As regards the prayer number 6 of the Application for comprehensive documentation of all the incidences (if any ) due to failure of the KIEMS Kits, I find that the 1st and 2nd Respondents in their replying affidavits as well as their counsels submissions indicated that there were no such incidences and therefore this prayer is declined.

13. Lastly I note that the Petitioner in prayer No.2 of his Application has sought for the delivery of the election materials used in the Machakos Town Constituency Member of National Assembly to the Court for safe custody and preservation. It must be pointed out that during the initial appearance by the parties in court, it was pointed out that the court did not have adequate and secure facilities to store the materials and it was then agreed that the parties proceed and place additional seals on the ballot boxes which are currently stored in some warehouse maintained by the 1st and 2nd Respondent. It is believed that the said exercise was carried out and therefore the prayer by the Petitioner has already been taken care of.

14. In the result and for the aforegoing observations I proceed to make the following orders:-

(1)The 1st and 2nd Respondent do supply within five (5) days from the date hereof the Petitioner with the documents sought vide Prayer 3 and 4 of the Application.

(2)The Petitioner is granted a read only access to the data extracted from the KIEMS Kits in respect of all the polling stations at Machakos Town Constituency. The 1st Respondent to make arrangements for the read only access to be conducted in the presence of all the parties and/or their agents and in the presence of the Deputy Registrar who shall supervise the exercise. Compliance must be within five (5 ) days from the date hereof.

(3)Costs herein shall be in the cause.

It is so ordered.

Dated, signed and delivered at Machakos this 15th day of November, 2017.

D. K. KEMEI

JUDGE

In the presence of:-

Makundi/Kituku for the Petitioner

Anyoka for the 1st and 2nd Respondents

Nyamu/Mbobu for the 3rd Respondent

Kituva - Court Assistant

Mutisya Albanus Paul – Petitioner

Marvin Mungah – 2nd Respondent

Munyaka victor Kioko – 3rd Respondent