https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7124

Ndwiga v Independence Electoral and Boundaries Commission (IEBC) & 3 others (Election Petition E002 of 2025) [2026] KEHC 7124 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 7124 (KLR) Republic of Kenya In the High Court at Embu Election Petition E002 of 2025 RM Mwongo, J May 21, 2026 Between Newton Kariuki Ndwiga Petitioner and The Independence Electoral and Boundaries Commission (Iebc) 1st Respondent John Mwii Kinyua 2nd Respondent Curtis Njeru Mawira 3rd Respondent Njeru Leo Wa Muthende 4th Respondent Judgment Background and the Petition 1.On 16th April 2025, the Member of Parliament for Mbeere North Constituency Hon Geoffrey Kariuki Kiringa Ruku, of the ruling United Democratic Party (UDA), resigned. He was appointed by the President as a member of the national Cabinet effective on 17th April 2025, vide Gazette No 4834 dated 16th April 2025. His seat as a Member of the National Assembly was thereby declared vacant. 2.To fill the vacated seat, a by-election was declared by IEBC vide Gazette Notice No 11163 of 11th August 2025. The Notice provided that a by-election for the said seat would be held on 27th November, 2025. Nine candidates vied for the seat, and at the close of polling, the 4th respondent was declared the MP-Elect. The results declared by the 1st Respondent (IEBC) were as follows: Name Party Votes 1 Lawrence Mwaniki Ireri 113 2 Duncan Ireri Mbui 2480 3 Isaac Ngiri Muringi 084 4 Newton Kariuki Ndwiga Democratic Party 15308 5 Albert Murimi Ngari 036 6 Daniel Ireri Ngari 078 7 Leo Wa Muthende Njeru UDA 15802 8 Ruben Muriithi Njeru 028 9 Simon Mwaura Waiharo 018 3.The 4th Respondent’s election was gazetted vide Gazette Notice No.17611 on 1st December, 2025 4.Dissatisfied with the by-election outcome, the petitioner filed this election petition dated 22nd December 2025. 5.Through Gazette Notice No 3 of 24th December 2025, the Chief Justice designated this court as the Election Court pursuant to Article 165(3) and Rule 6(3) of the Elections (Parliamentary and County Elections) Petitions Rules. 6.The court convened a Preliminary Conference on 15th January 2026, attended by all parties. There, the roadmap for the entire hearing of the Petiton and all interlocutory and other applications was established, and subsequently meticulously adhered to. Additionally, orders were issued by the court for the preservation of all Mbeere North constituency by-election materials held by the IEBC. In an exercise carefully supervised by the Deputy Registrar of the High Court on 20th January, 2026, all such materials were by consent transferred into the custody of the court in a Preservation Room in the court precincts. Each party was given custody of their own padlock and keys to the Preservation Room, so that no party could access the Room in the absence of any other party, except by court order. 7.The Petition as filed, was initially premised on 10 grounds. This court, however, struck out grounds 1 and 2 of the petition by its ruling of 02nd March 2026 following determination of the respondents’ preliminary objections. By that ruling, those two grounds were found to be pre-election issues over which this court lacked jurisdiction. The pending grounds of the petition are condensed under the following heads:a.Spent;b.Spent;c.Irregular, opaque and unlawful appointment and dismissal of presiding officers in violation of the constitution and the elections (general) regulations;d.Failure to deploy the printed register of voters and resultant unlawful disenfranchisement of duly registered voters;e.Unlawful third-party interference with voter registration data and failure by the 1st respondent to secure and protect the register to secure and protect the register of voters;f.Violence, intimidation and disruption of voting in violation of the constitution, the electoral code of conduct and electoral law;g.Bribery, treating and undue influence in violation of the Election Offences Act and the Constitution;h.Exclusion of agents, opaque counting and tallying and falsification of Statutory forms in violation of constitutional and statutory requirements;i.Broken chain of custody, unlawful handling of election materials and violation of procedure on close of polling;j.Misuse of state resources and abuse of public office to influence the election. 8.The petition is supported by the facts appearing on its face and in the supporting affidavit thereof. 9.The reliefs sought by the Petitioner were as follows:a.A declaration that the Mbeere North Member of National Assembly By-election held on 27th November 2025 was not conducted in accordance with the Constitution of Kenya, the Elections Act, and the applicable regulations, and was therefore unconstitutional, illegal, and invalid;b.A declaration that the nomination, clearance, election, and declaration of the 4th Respondent as the Member of the National Assembly for Mbeere North Constituency were unconstitutional, unlawful, and void ab initio;c.An order nullifying the election and declaration of the 4th Respondent as the duly elected Member of the National Assembly for Mbeere North Constituency;d.…Spent…;e.…Spent…;f.…Spent…;g.…Spent…;h.…Spent…;i.…Spent…;j.An order invalidating results from polling stations where violence occurred, agents were unlawfully excluded, statutory forms were materially defective, electoral technology failed, or the chain of custody of electoral materials was compromised.k.A declaration that the conduct of the 1st, 2nd, and 3rd Respondents violated Articles 10, 38, 81, and 86 of the Constitution.l.A declaration that the use of state resources, state security apparatus, and public office to influence voters in the Mbeere North By-election violated Articles 10, 73, 75, and 81(e) of the Constitution and rendered the election unconstitutional.m.An order directing the Independent Electoral and Boundaries Commission to conduct a fresh election for Member of the National Assembly for Mbeere North Constituency in strict compliance with the Constitution and the law.n.…Spent…;o.A direction that the judgment of this Honourable Court be transmitted to the Inspector-General of the National Police Service, the Director of Public Prosecutions, and the Ethics and Anti-Corruption Commission for appropriate action arising from the findings of the Court;p.An order that the costs of this Petition be borne by the Respondents jointly and severally; andq.Any other or further relief that this Honourable Court may deem just, expedient, and fit to grant in the circumstances. 10.The petition was accompanied by a notice of motion of even date, seeking, inter alia, scrutiny and recount. By consent, that application was scheduled to be heard after all the parties had testified. The application was eventually, heard and determined on 27th March 2026. In its ruling, the court allowed limited scrutiny and recount supervised by the Deputy Registrar (DR). The exercise was conducted, and the court ordered a further scrutiny and recount in respect of aspects where the original scrutiny orders were not exhaustively complied with. Ultimately, the DR filed 2 reports: the first on the initial scrutiny and the second, on the further scrutiny. 11.Regarding ground 3 of the Petition, the petitioner contended that the 1st and 2nd respondents failed to disclose the list of appointed Presiding Officers (POs), Deputy Presiding Officers (DPOs) and Clerks to the petitioner and all other participants in the election within good time. He avers that on the eve of the polling day, the IEBC un-procedurally dismissed about 20 POs who had already been hired for that role; and that they were replaced with the trainers of the dismissed cohort. As a result, the polling day was presided over by officers who were unfamiliar, untrained or irregularly appointed officials. The petitioner asserted that this affected the election by significantly impacting on and reducing transparency, impartiality and accountability. 12.On ground 4, the Petitioner stated that although Articles 38(3), 81€, and 86 of the Constitution guarantee the right to vote and require elections to be free, fair, transparent, and verifiable, Presiding Officers failed to comply with Regulation 69 of the Elections (General) Regulations, 2012 on voting procedures at the polling station. He asserts that when KIEMS kits could not identify voters electronically, polling officers failed to use the printed register as mandated. As a result, there was unlawful disenfranchisement of duly registered voters. This failure allegedly occurred across all polling stations, disproportionately affecting areas considered to be strongholds of the Petitioner. 13.By neglecting to deploy the printed register and failing to reconcile KIEMS data with the official register, the IEBC violated both statutory and constitutional obligations. These systemic failures undermined the integrity of the election and provide substantial grounds for judicial intervention, including possible nullification of the results. 14.Regarding ground 5 of the petition, the petitioner asserted that despite the provisions of Articles 38(3), 81(e), and 88(4)(a of the Constitution which guarantee the right to vote, and also require the IEBC to maintain a secure, accurate, and verifiable register: and despite Sections 3, 5, 7, and 44A of the Elections Act, together with the Election Offences Act and the Data Protection Act, which prohibit unlawful alterations and mandate protection of voter data, the IEBC failed to achieve these statutory mandates by failing to provide a printed voters register. 15.As a result, the respondents relied on unlawful voter identification practices, and permitted voting by persons absent from the certified register. They urge that there was evidence of unauthorized access and manipulation of voter registration data, including additions of ineligible voters at multiple polling stations, while duly registered voters were disenfranchised. That these systemic failures compromised the integrity, transparency, and verifiability of the election and rendered the by-election constitutionally invalid and susceptible to nullification under Section 83 of the Elections Act. 16.On ground 6 of the petition, the Petitioner alluded to repeated acts of violence and intimidation triggered by politicians and top government officials who visited the polling stations. These people were accompanied by armed aides and rowdy crowds, despite the fact that their presence was unauthorised. In this regard, he named Hon. Alice Wahome, Cabinet Secretary Ministry of Lands, Public Works and Urban Development, Hon. Eric Wamumbi, Member of Parliament for Mathira Constituency, Hon. Cecily Mbarire, Governor, Embu County and Hon. Geoffrey Ruku, Cabinet Secretary for the Ministry of Public Service, Human Capital Development and Special Programmes and immediate former member of parliament for Mbeere North Constituency. 17.As a result of this violence, it was asserted, one James Muriithi sustained a gunshot wound, and other people were harrased. Polling was thus disrupted at Kaungu Primary School Polling Station to the extent that the polling station was closed for a period of time to contain the situation. The petitioner stated that this and similar acts of violence led to suppressed voter turnout, and disenfranchisement of voters who had already turned out to vote as they had to scatter for their own safety. He stated that these acts of violence, in the area known to be the petitioner’s stronghold, caused polling to continue under heavy police presence which was intimidating to the voters. That, in turn, the hostile polling environment contributed in the election not being free, fair, and peaceful. 18.On ground 7, which was anchored on sections 9 and 10 of the Election Offences Act, the petitioner highlighted alleged voter bribery by the 4th Respondent. That agents of the 4th Respondent at Kianamu and Kaungu Polling Stations bribed voters with cash payments of Kshs.200 and Kshs.500, requiring them to photograph their marked ballots as proof. The petitioner further alleged that Hon. Alice Wahome interfered with the electoral process, while senior government officials threatened voters by linking access to development projects and public services to their voting choices. He stated that these acts of bribery, intimidation, and undue influence were systematic and coordinated. The intent was to unlawfully influence the election outcome in favour of the 4th Respondent. 19.On ground 8, the petitioner claimed that at Gitiburi Primary School Polling Station, presiding officers delayed the vote counting process. This was allegedly in compliance to instructions to await the arrival of Hon. Geoffrey Ruku, a Cabinet Secretary, with no lawful authority over electoral procedures. This delay, coupled with the irregular lighting of a pressure lamp that caused a fire outbreak, disrupted order and compromised the integrity of the ballot counting environment. 20.Upon his arrival, Hon. Ruku allegedly stormed the polling station with hired gangs s, expelled agents of the Petitioner and other candidates, and unlawfully supervised the counting and tallying process. Agents were denied their statutory right to observe and object, and ballot papers from different streams were improperly consolidated, undermining accountability. Forms 35A were later found to bear forged signatures of agents who had been expelled.,At Siakago Social Hall, agents were prevented from recording objections. 21.The petition further claims that results were not displayed at several polling stations and that discrepancies between Forms 35A and 35B rendered the tallying process opaque. Collectively, the acts of exclusion of agents, suppression of objections, forgery of signatures, and failure to display results could only be characterized as systematic violations that destroyed transparency, accountability, and verifiability of the election outcome. 22.Regarding ground 9, the petitioner cited violations under Articles 81(e) and 86 of the Constitution, together with Regulation 81 of the Elections (General) Regulations, 2012. These require secure sealing, documentation, and delivery of election materials under a clear chain of custody. He alleged that at Kaungu Polling Station, ballot boxes and election materials were unlawfully diverted to Riandu instead of being delivered to the Constituency Tallying Centre. At Cianyi Primary School unused ballot papers were improperly removed and stored, without sealing or proper documentation. 23.At Gitiburi Primary School, ballot boxes and materials were accessed by non-IEBC personnel before counting, without lawful explanation, and agents were denied the opportunity to observe sealing or verify custody records. The petitioner concludes that these irregularities broke the chain of custody, exposed materials to tampering, and rendered the results unreliable. He termed the breaches as unconstitutional, undermining transparency, accountability, and verifiability, thereby invalidating the election outcome. 24.On ground 10, the petitioner alleged misuse of public office and state resources to improperly influence the electoral process. He cited Articles 10, 73, 75, and 81(e) of the Constitution, which require ethical, impartial, and accountable exercise of public power; and Section 14(17) of the Election Offences Act, which prohibits use of public resources or authority to sway voters. 25.The petitioner’s claim is that senior state officials and elected leaders threatened voters with denial or withdrawal of development projects and public services if they failed to support the 4th Respondent. These threats were tied to ongoing public initiatives, effectively weaponizing state resources. Additionally, that state security forces were deployed near polling stations in a partisan and intimidating manner, creating fear among voters and agents. Despite reports of violence, bribery, and intimidation police allegedly failed or selectively refused to intervene, thereby protecting perpetrators aligned with the 4th Respondent. 26.The petitioner characterizes these actions as deliberate and coordinated, amounting to abuse of office and misuse of state resources for partisan gain. As a result, such conduct corrupted the electoral environment, distorted voter choice through fear and inducement, and rendered the election to be neither free nor fair, in violation of constitutional requirements. 27.The petitioner urged the court to consider all these allegations and the discrepancies that would be found through evidence and scrutiny, in depth. Once this is done, it would be clear that the petitioner won the election. He drew the attention of the court to the narrow margin of 469 votes between his rewsult and that of the 4th respondent. 28.In a nutshell, the Petitioner expressed the cumulative effect of the irregularities in paragraphs 47-50 of the petition which is summarized as follows:a.At Gikuyari Polling Station: there was alleged unlawful transfer of voters and turning away of voters on polling day impacting 455 votes. This resulted in voter disenfranchisement.b.At Kaungu Primary School there was reported violence, gunfire, use of teargas, shooting, bribery and the diversion of election materials. The result was that the free will of votes was destroyed, affecting 392 votes.c.At Kianamu Primary School there was an alleged "collapse" of the polling environment stemming from violence, intimidation, suspension of voting and voter bribery. This affected 322 votes were affected.d.At Siakago Social Hall-County Council of Mbeere, at all 3 Polling Stations an armed invasion laced with gunshots by unknown persons and gunshots led to voters fleeing, causing a collapse of the polling environment across these three stations. This affected 283, 313, and 295 votes respectively.Gitiburi Primary School (2 Polling Stations): Irregularities here included an armed invasion with gunshots, expulsion of agents, forged or missing signatures on Form 35A, and ballot boxes being accessed by non-IEBC personnel. This affected 285 and 261 votes in polling stations 1 and 2.e.Cianyi Polling Station (2 Polling Stations): here, unused ballots were allegedly removed and stored unsecured, compromising ballot integrity. This affected 267 and 257 votes in the 2 polling stations. Responses to the Petition 1st -3rd Respondents 29.The 1st -3rd respondents assert that the Mbeere North by‑election of 27th November 2025 was conducted lawfully and in full compliance with the Constitution and electoral statutes. They emphasize that their mandate under Articles 88 and 101 of the Constitution, and provisions of the Elections Act, required them to organize and supervise the by‑election, including clearing candidates, and this they did. They state that Gazette Notice No. 4865 outlined the timelines for party primaries, nominations, campaigns, and submission of agents. They state that the Register of Voters was frozen as at 21st June 2022, meaning no alterations could be made to it after freezing. 30.Further, they stated that the by‑election proceeded with trained officials, presiding officers, and agents carrying out their duties and all having being hired according to the legal requirements. That the election had a voter turnout of 61.92%, and the results were declared on 28th November 2025. That Leo Wa Muthende Njeru emerged as winner with 15,802 votes, closely followed by Newton Kariuki Ndwiga with 15,308 votes. The same was confirmed vide Gazette Notice No. 17611 of 01st December 2025 indicating the 04th Respondent as the duly elected Member of Parliament. 31.In response to the petition, they denied all allegations of irregularities. They rejected claims of constitutional violations, manipulation of KIEMS kits, unlawful appointment of officials, disenfranchisement, interference with the voter register, violence, bribery, exclusion of agents, broken chain of custody, misuse of state resources, or systemic irregularities. 32.Ultimately, they prayed that the election be held as constitutional, legal, and valid and that the 4th Respondent was properly elected. They urged the court to dismiss the petition with costs given that the election reflects the will of the people, and that there are no grounds to invalidate the results. 4th Respondent 33.The 4th respondent filed a response to the petition. In it he expressly denied the assertions made in the petition. He argued that some of the issues raised such as nomination, clearance, voter registration, and party vetting are pre-election disputes that should have been addressed before the Political Parties Disputes Tribunal or the IEBC, and not through an election petition. He noted that this argument was indeed canvassed and determined by this court’s ruling after it was through a preliminary objection. 34.He stated that any allegations of violence, bribery, intimidation, misuse of state resources, and irregularities in tallying are unsubstantiated, and they ought to be dismissed. He stated that the petitioner did not raise the issues mentioned in the petition with the police He also invoked the doctrines of exhaustion, acquiescence, laches, waiver, and estoppel to argue that the petitioner either failed to use the proper dispute resolution mechanisms or delayed unreasonably in raising objections. 35.Regarding the cumulative effect of alleged irregularities, the 4th Respondent insisted that neither the quantitative results nor the qualitative integrity of the election were compromised. Ultimately, he sought dismissal of the petition with costs, asserting that the election was conducted transparently, the results were valid, and he was duly elected as Member of Parliament. Summary of the Evidence at trial Petitioner’s testimony 36.Newton Kariuki Ndwiga, the petitioner, testified as PW1. He stated that he was the immediate former Member of the County Assembly of Muminji Ward of Mbeere North before he resigned to contest for the Mbeere North Member of the National Assembly seat. He stated that the election was riddled with irregularities occasioned by the 1st respondent, and violence and undue interference by politicians and government officials who had no business in the elections. In his view, these issues rendered the process unverifiable. He stated that the margin of 469 votes between him and the declared winner was too small to ignore given the alleged irregularities. 37.He described unprecedented heavy deployment of police officers, unmarked vehicles, and widespread violence in his strongholds such as Kaungu, Kianambu, Siakago Social Hall and Gitiburi. He alleged that state officers including CS Ruku, Governor Cecily Mbarire, CS Alice Wahome, MP Muchangi Karemba, and MP Erick Wamumbi interfered with the election despite not being IEBC officials or accredited agents. He claimed that at Gitiburi, counting was halted until CS Ruku arrived, ballot boxes were removed from the polling station and returned without due supervision and his agents fled, leaving the process compromised. 38.PW1 further testified that the absence of manual registers meant reliance solely on KIEMS kits, yet voters not identified by KIEMS were allowed to vote in some polling stations. He pointed to excessive numbers of assisted voters in certain polling stations, sometimes without proper forms being filled and instances of election materials being handled outside IEBC control. He also alleged that non‑registered persons, including individuals from outside Mbeere North, were allowed to vote. That his agents were sometimes denied full access during counting and the opportunity to accompany the ballot boxes to the tallying center. Further, that polling diaries did not record incidents of such violence or irregularities. 39.He accused rival supporters of engaging in massive voter bribery at several polling stations, naming Itira, Ciangare, Kabachi, Kune, Kageri, Ndutori, Kiathambu, and others. He referred to his affidavit in support of the petition as evidence and through it, he produced video clips showing violence, shootings, and voter agitation linked to CS Ruku. He insisted that these clips corroborated his affidavit. He argued that violence created fear, repelled voters, and opened room for ballot stuffing, ultimately benefiting the 4th Respondent. He urged the court to find that the election was not secure, transparent, or verifiable. In his view, the irregularities materially affected the outcome and the declared winner was not validly elected. 40.In cross‑examination, he maintained that the Mbeere North by‑election was not conducted properly and that irregularities undermined its credibility. He acknowledged that he had previously served as MCA for Muminji Ward and that this was his first attempt at a parliamentary seat. He reiterated that his strongholds were in Kaungu, Ngine, and other polling stations across Nthawa and Muminji wards, and emphasized that the vote margin between him and the declared winner was very small. 41.He was questioned extensively about incidents of violence, bribery, and irregularities and he admitted that some of his claims were based on information from agents rather than his own observation. In several instances, he abandoned specific grounds of his petition where he lacked evidence or witnesses. He conceded he had no proof of vote‑stuffing at Kaungu, even though he insisted violence in or around that polling station suppressed voter turnout. He also acknowledged that at Gitiburi, ballot boxes were removed during a fire incident, but he had no direct evidence of tampering. He accepted that some agents listed on forms were not his. He stated that his own agents were excluded from counting in some of the polling stations. 42.On voter identification, he complained about the absence of a manual register and alleged that KIEMS kits failed in places like Siakago and Gikuyari, allowing unverified voters to cast ballots. He cited specific cases such as Cecily, a voter allegedly disenfranchised, and Collins Muriuki, whom he claimed voted despite not being in the 2022 register. He asked for scrutiny of KIEMS logs, assisted voter forms, and polling station diaries to verify these irregularities. 43.PW1 also alleged that state officers, including CS Ruku, CS Alice Wahome, MP Muchangi Karemba, and Governor Cecily Mbarire, interfered with the election process, creating chaos and intimidating voters. he ,however, admitted he did not know the identities of those involved. He insisted that their presence benefitted the 4th Respondent. On bribery, he claimed agents of the 4th Respondent and state officers offered money and food stuffs to some of the voters but he lacked documentary proof and witnesses for some of these allegations. 44.PW2 was Peter Njeri Ngari, the petitioner’s chief agent. He stated that the by‑election was compromised by violence, bribery, irregular handling of ballot materials, and exclusion of agents. He stated that his role was to coordinate agents and monitor compliance with electoral law, but he recounted several incidents that, in his view, undermined the integrity of the election. 45.He described violence at Kaungu Polling Station, where CS Ruku, Governor Cecily Mbarire, MP Muchangi Karemba, and police officers attempted to enter with vehicles, leading to clashes and the shooting of a voter. At Gitiburi Polling Station, he was informed that counting was delayed until CS Ruku arrived, agents were harassed and chased away; that a fire broke out and ballot boxes were taken outside to a vehicle. Later all votes were counted in one stream instead of separately yet Gitiburi has 2 polling stations. He said that he reported these matters to the Returning Officer but no corrective action was taken. 46.On bribery, he testified that voters were promised food and cash inducements to vote for the 4th Respondent, with some being instructed to photograph their ballots papers after marking them as suggested, so as to receive payment. He cited incidents at Makunguru, Riandu, Mukunguru and Kanyuambora, alleging that state officers facilitated this bribery. He also observed unusually high numbers of assisted voters, including literate individuals, with some assistants helping multiple voters and directing them to support the 4th Respondent. 47.On cross-examination, he stated that as chief agent for the petitioner, he was responsible for supervising 134 agents across all the polling stations and at the tallying centre. He confirmed that polling generally opened on time, ballot boxes were empty and sealed, and KIEMS kits functioned without reported malfunctions. That a total of 1,072 Forms 32 for assisted voters were filled, while there were701 KIEMS validation forms used where KIEMS biometrics failed. 48.He recounted several incidents of irregularities and violence, including; at Kaungu. He stated that government officials including CS Ruku, allegedly forced entry into polling stations with vehicles, leading to violence and the shooting of a voter, James Muriithi Njagi, which disrupted voting for about two hours. At Gitiburi, a gas lamp explosion preceded the alleged removal and return of ballot boxes. He claimed that CS Ruku commandeered the vote-counting process. At Muchonoke, violence occurred during CS Ruku’s presence, while Riandu saw bribery outside the station. At Makunguru, voters were allegedly bribed with unga and cooking oil. 49.At the tallying centre, PW2 was present but admitted he did not verify Form 35 images against originals. He raised objections before tallying but did not request a recount despite knowing he had the right. He also reported exclusion of agents from tallying at some points. 50.PW3 was Grace Joy Gakii. She stated that she applied to IEBC to serve as a Presiding Officer in the Mbeere by-election, attended four days of training, took an oath, and was assessed, scoring 89 points. Despite this, she was among 20 trainees who were not deployed by IEBC. She voted at Kanyuambora Polling Station, where she noted the absence of a voter register on arrival. Later, she witnessed commotion and saw CS Ruku leaving the station hurriedly. 51.On cross-examination, PW3 explained the duties of a Presiding Officer which included: managing the polling station, ensuring agents were present, overseeing timely opening and closure, and safeguarding strategic materials such as registers, counterfoils, and spoilt ballots. She described the KIEMS kit process, confirming that it required scanning a QR code from the physical register. She was identified biometrically when voting and did not personally use the register. 52.She clarified that she attended the KIEMS training and admitted that IEBC had discretion to deploy or not deploy her. She received transport reimbursement but no employment letter. She denied holding a grudge against IEBC, though she felt discriminated against for being excluded despite being competent. Regarding irregularities, PW3 testified that CS Ruku’s vehicle was resisted at Kanyuambora.She said she was told that ballot papers were seen inside his vehicle, though she could not verify this and her source did not file an affidavit. She also observed bribery outside the polling station. 53.On re-examination, she emphasized that voter registers and counterfoils were strategic materials that should have been properly secured. She maintained that her removal from deployment was unfair and discriminatory, and reiterated that CS Ruku’s presence at the polling station caused disruption. 54.PW4, was Isaac Muriithi Kingendo. He stated that while stationed at Cianyi Polling Station (stream 2) he saw presiding officers removing unused ballot papers, bundled them in fifties and placed them in a box separate from the ballot box. He stated that voters unrecognized by KIEMS were photographed and then allowed to vote, and that there were many assisted voters, some allegedly being directed on how to vote in the presence of agents. He noted that the voter register was placed on a table but not opened or used for assisted voters. 55.He confirmed that he was trained as an agent and was present from opening to closure of the station. He observed KIEMS functioning throughout, ballot boxes being shown empty at opening, and apertures sealed at closure. He signed Form 35A and took photographs of results. His main complaint was that counterfoils were not placed in the ballot box with ballots but in a separate box, contrary to his training. 56.In cross-examination, PW4 admitted the following inconsistencies: his affidavit stated he was in stream 1, but he insisted he was in stream 2. His signature appeared on Form 35A for stream 1, though he claimed to have been in stream 2. He acknowledged he did not file written complaints but verbally raised concerns with the Presiding Officer and later with the Chief Agent. He confirmed he had issues only with the handling of counterfoils and not with the votes counted. . 57.PW5, was Cecily Muriuri Njgai. She stated that despite her being a long-term resident and voter at Gikuyari Polling Station since 2002, she was denied the opportunity of voting in the 2025 by-election. She arrived at 6am, but her fingerprints failed to scan on the KIEMS kit. Polling clerks then informed her she was registered at Karatina, despite her insistence that she had never transferred her registration. 58.She stated that she found her name on the voter list displayed on the polling station wall, yet she was still turned away. An official, Munene Mwathi, allegedly pushed her out of the station twice, threatened to slap her, and prevented her from voting. A video recording of the incident was produced in court, showing her asserting her right to vote and confirming she had never changed her polling station. 59.On cross-examination, PW5 admitted she had no documentary proof of her name on the Gikuyari register, and had not filed a complaint with the Returning Officer. She acknowledged her ID had been reissued in 2023 after being lost, and that IEBC records showed her registered at Mathira/Karatina. She denied ever requesting a transfer and maintained that her disenfranchisement was unlawful. She also testified that another individual, Njurumbi, had previously collected ID details from voters in her residential area, allegedly promising money from government-linked campaigners. She linked this to possible manipulation of voter registration data. 60.PW6 was Dan Ndegwa Macharia who stated that he was a Safina Party agent at Gitiburi Polling Station 2. He arrived at 6am, signed the polling station diary, and witnessed the day’s events. At closure around 5:15pm, a pressure lamp being lit by the DPO exploded, causing a fire and panic. Outsiders spilled into the compound, and IEBC officials and agents fled the classroom, leaving ballot boxes inside. He testified that locals salvaged the boxes and later placed them in a vehicle where the IEBC officials eventually retrieved them. 61.He stated that CS Ruku arrived at the polling station with about 300 people, commandeered events, and ordered police to handcuff him (PW6) when he protested. He was assaulted and denied any further access to the polling station. In fact, he was detained in a police vehicle until 8pm that day, but was never booked at a police station. He did not sign Form 35A as he was in custody during vote-counting. He maintained that intimidation marred the election and that counting was irregularly conducted in one stream instead of separately per station. 62.He stated that he saw ballot boxes sealed at closure and did not witness any election materials being burnt, contrary to other affidavits. He acknowledged inconsistencies in his affidavit (wrongly stating stream 1 instead of stream 2) but insisted the fire occurred in stream 2. He raised complaints about assisted voters, a voter clad in a UDA branded leso, and a press conference by CS Ruku and the 4th Respondent near the polling station, which disrupted voting for about ten minutes. 63.PW7 was Simon Kariuki Namu who stated that he is a registered voter from Gitiburi in Mbeere North. On the polling day, he went to cast his vote early in the morning and then returned to the polling station at around 4pm so that he could witness vote-counting. At closure around 5pm, a lamp exploded, causing a fire. Shortly thereafter, CS Ruku arrived with others, entered the polling station, and allegedly directed that ballots from both streams be counted together. He stated that ballots from stream 2 were placed back into a box and combined with stream 1, and that votes were counted without being individually displayed to agents. He described agents being beaten and chased out, while he was called inside by CS Ruku despite not being an agent. 64.He stated that his name, ID number and phone number appeared on Form 35A for both Gitiburi streams, but the signatures beside them were not his but forgeries. He insisted he was not an agent and never signed any IEBC documents. He reported the irregularities to the Petitioner and Chief Agent but did not lodge complaints with IEBC or police. 65.In cross-examination, PW7 admitted inconsistencies in his affidavit, such as references to him being an agent, which he denied. He acknowledged that he once campaigned for the 4th Respondent, before switching allegiance to the Petitioner. He confirmed that CS Ruku called him into the station, stood at the door during counting, and controlled the situation, while IEBC did not restrain him. He reiterated that ballot boxes were removed by members of the public during the commotion and that violence occurred at Gitiburi. 66.PW8 was James Murithi Njagi, a voter. He stated that he was shot outside Kaungu Polling Station on election day after casting his vote as he was waiting for a friend. He described being about four meters outside the polling station gate when a bullet struck his outer arm and exited through the inner arm. He was taken to Siakago Police Station first to obtain an OB number, then to hospital for treatment. There, medical notes recorded his report of being shot, though the doctor’s findings only noted a fractured radius without explicitly stating gunshot injury. 67.He explained that vehicles had arrived at the polling station before the shooting, causing commotion and fear among voters. Voting was disrupted as people fled, though he could not say for how long. He confirmed that he did not see who fired the shot and heard no other gunshots. 68.In cross-examination, he admitted inconsistencies between his affidavit and oral testimony, including how he learned of the shooting and whether he reported first to hospital or to the police. He acknowledged that the medical report did not explicitly confirm a gunshot wound and that some details in his affidavit were inaccurately recorded. Nevertheless, he maintained that he was shot after he voted, reported the incident to police, and was treated at hospital. He emphasized that the shooting caused fear and disrupted voting at Kaungu. 69.PW9 was Julieta Karigi Kithumbu. She stated that she was a polling agent for the Petitioner at Muchonoke Polling Centre (stream 2). She testified that she arrived at the station around 6:20am and witnessed the opening procedures; That the KIEMS kit took time to start recognizing voters but eventually worked. She herself was identified biometrically and voted. She remained at the station until closure and observed the voting process. Tracked 19-5-2026 70.She explained that voters first checked their names on a list at the gate, then presented IDs and fingerprints in KIEMS kits. She noted the following irregularities: about 15 voters were rejected by the KIEMS kit at Muchonoke and left in frustration, allegedly mobilized by the 4th Respondent’s team; some voters were said to be from other stations like Meru; and there were problems with assisted voting, where one mobilizer (named Eva Muthoni who did not testify) assisted multiple voters repeatedly, contrary to procedure. PW8 complained verbally to the Presiding Officer who did not record details in his notebook, nor did she make any record in her notebook. 71.Nevertheless, she said she signed Form 35A with her name, ID number and phone number, and stated that she was not coerced as she understood the process. She acknowledged filing an affidavit (translated from Kimbeere) and confirmed she had previously participated in Petition E001/2025, which was dismissed. She admitted that the Petitioner helped her to secure legal representation and supported her involvement in the case. 72.PW10 was Aniceta Wakere Maringa who stated that PW9 testified about bribery on election day at Kamugu, specifically at the home of Edward Njagi Thenge. She stated that at around 4am, she was called by people outside her home and taken to Edward’s house, where she found Njagagua (a former MP and lawyer) distributing food and cash. According to her, Njagagua said he was acting on behalf of Wa Muthende (the 4th Respondent). 73.She confirmed receiving 2kg of rice, 2kg of maize flour, 2kg of chapati flour, and KShs.500, which she admitted she eventually accepted and consumed. She noted that about 20 other people were present, some of whom were assisted to vote after receiving the gifts. She emphasized that the Petitioner’s supporters were denied the gifts unless they renounced their allegiance. 74.On cross-examination, she admitted she was not a polling agent and had no close relationship with the Petitioner, though she knew him from campaigns. She explained that she initially refused but later took the bribe items, which the giver claimed “belonged to the Government.” She confirmed she did not record the incident, that there were no corroborating affidavits from others, and she did not produce her phone as evidence. In re-examination, she reiterated that Njagagua openly stated he was acting on behalf of the 4th Respondent, and that bribery was widespread among those present. She also confirmed that the Petitioner’s supporters were excluded from receiving gifts unless they switched allegiance. 75.PW11 was Lydia Mbuya Njeru. She stated that on election day, she and others were given food items (2 kg each of sugar, maize flour, wheat flour, rice) and KShs.500 at the home of Edward Njagi Thengethe. The distribution was allegedly done by Muriuki Njagagua, a former MP, who told them to vote for the Government and specifically for Wa Muthende (the 4th Respondent, UDA candidate). She stated that the gifts were meant to influence voters, including assisted voters, and that KShs.15,000 was set aside to mobilize people to vote for Wa Muthende. 76.She admitted that she accepted the gifts and recognized this as bribery, an election offence. She described seeing individuals who could read pretending to be assisted voters, and that assisted voters were given money outside polling stations. She named specific individuals (e.g., Nicera Ngithi, Joyce Wanja, Rose Rita Muthoni, Anceta Muthoni) as recipients of money or food. She confirmed that Njagagua was campaigning for Wa Muthende and that the bribes influenced her and others. 77.On cross-examination, PW11 acknowledged inconsistencies as follows: her affidavit stated that she declined the bribes, but she admitted in testimony that she accepted and consumed them; She conceded she did not report the bribery to police or IEBC, lacked documentary evidence, and was illiterate, relying on others to prepare her affidavit. She confirmed she was approached by the Petitioner’s supporters to testify but was not paid. In re-examination, she reiterated that the gifts and money were intended to influence voters, that Njagagua openly campaigned for the 4th respondent, and that bribery occurred both before and after voting. Respondents’ testimony 78.RW1 was the 2nd respondent, the Returning Officer. He confirmed that all 134 polling stations in Mbeere North were equipped with KIEMS kits and physical registers, and that no KIEMS failure, bribery, or violence was reported inside polling stations. He acknowledged that six registers were initially said to be missing but explained they had been sealed in ballot boxes at their respective stations (Siakago Hall, Mbarwari, Ciangera, Nthigilani, Kwakaithi, Kamauwa). He emphasized that KIEMS cannot operate without scanning the QR codes on the physical registers, thus registers must have been present to unlock the KIEMS kits. 79.On cross‑examination, he admitted that although the voter register was frozen on 21st June 2022, one voter (Collins Munene) was registered later in October 2025 without gazettement, but this voter was flagged and not allowed to vote in the by-election. He maintained, however, that this did not affect the integrity of the register. He also conceded that some strategic materials (unused ballots, counterfoils, rejected ballots) were not properly sealed in the requisite boxes, and that documentation of register deployment to Presiding Officers was not produced in court. 80.He acknowledged that 701 KIEMS validation forms and 1,072 assisted voter declarations existed but were not disclosed in his affidavit, and that rejected ballots (71) could potentially affect the margin of 494 votes. He was aware that Gitiburi 1 and 2 votes were counted together. Regarding possible alteration of forms 35A, he stated that he was familiar with alteration rules: any overwriting or cancellation must be countersigned. Yet several documents showed overwriting without countersignature including results at Ngiiri Polling Station, total registered voters and unclear entries where Petitioner’s votes were legible but others appeared overwritten. These irregularities were highlighted as potential breaches of electoral procedure. 81.RW2 was the 3rd respondent who testified on the procedures for polling officers’ recruitment, register deployment, and handling of election materials. He denied irregular appointments, explaining that the trainee, Joy Gakii PW3), absconded training and was never deployed. He stated that all polling stations had POs, DPO’s and clerks. He insisted that registers were deployed to every station, that no voter was denied the right to vote, and that KIEMS reconciled with results without evidence of double voting. 82.On allegations of unlawful registration, he acknowledged that Collins Munene was registered by an IEBC officer but maintained that Collins could not have voted since the electronic register would have flagged him out disabling him from voting. That he is not the only new entrant to the register after it was frozen since the voter registration exercise is continuous. He denied knowledge of violence inside polling stations, bribery, or exclusion of agents, stressing that Form 35A was signed without reservation. He also rejected claims that politicians interfered with polling stations, noting that alleged incidents were outside the 400‑meter polling station jurisdiction. 83.Upon cross‑examination, Mawira stated that he was the Deputy Returning Officer, stationed at the tallying centre rather than polling stations. He therefore could not personally verify events occurring at polling stations. He did not witness the signing of PSDs, receipt of registers, or registration of Collins Munene until the petition. He confirmed that the Returning Officer was custodian of the register, received it a week before polling, and that he himself did not handle the register dispatch exercise although he confirmed that the IEBC has a checklist of all the materials received for used at each polling station. 84.RW3 was Lydia Muthoni, the presiding officer at Gitiburi 2. She confirmed that on the day of elections, she had a printed register, from which she scanned its QR code to start KIEMS kit, and that all voters were identified electronically without resort to the manual register. She denied violence inside the station, exclusion of agents, or interference by CS Ruku. She described a fire caused by an exploding gas cylinder at 5:30pm which destroyed some forms and personal items. She testified that ballot boxes and KIEMS kits were secured, sealed, and transferred by agents and security officers to an IEBC vehicle outside. Later, ballots were counted in the Gitiburi 1 room after its tally was completed. That the incident was recorded in the PSD. 85.On cross‑examination, she admitted that the Safina agent did not return after the fire, that she did not disclose in her affidavit the relocation of counting to another room, and that Simon Namu mistakenly signed for both stations. She acknowledged that the PSD did not capture all seal numbers and that some annexes were missing. She also conceded that her affidavit stated CS Ruku came to the station, though she denied seeing him personally. She reported the fire incident to police immediately. 86.RW4, Jane Karimi Nduma, was the presiding officer at Gitiburi 1. She stated that she opened at 6:00am and closed at 5:00pm. She oversaw vote-counting without incident until disruption from the fire in the neighbouring polling station (Gitiburi 2). She testified that ballot boxes were sealed, agents signed Form 35A, and she personally witnessed Simon Namu insert his details and sign as agent. She described moving her materials to an IEBC vehicle with police assistance when commotion arose after the fire. 87.On cross‑examination, she admitted she had a printed register but only used it to open KIEMS kits at the start of the polling day. She also hosted Gitiburi 2 for vote-counting albeit without authorization, and did not record any commotion involving CS Ruku in the PSD. She denied seeing CS Ruku herself, although she acknowledged awareness that he came after close of voting. When shown video evidence of agitated crowds with sticks inside the station, raising questions about security and unauthorized presence of people, she admitted that that was the situation. She conceded that agents were not in the vehicle when boxes were moved, and that the PSD did not capture all seal details. 88.In re‑examination, she emphasized that agents later signed Form 35A without objection, that she maintained custody of election materials, and that no agent complained. She reiterated that CS Ruku’s presence at the station was after voting, and that the fire in Gitiburi 2 caused alarm but did not compromise her station’s ballots. 89.RW5 was Edwin Ibrahim Golicha, Assistant Registration Officer at IEBC. He confirmed that he mistakenly registered Collins Munene on 8th October 2025 in Ruiru Constituency. He explained that he was overwhelmed by youthful applicants who attended registration. He processed Munene’s ID, photo, and biometrics, and only realized the error after submission. He reported the matter informally to the ICT officer of IEBC but did not file an official report or provide supporting documents (Form A, ID copies, KIEMS serial number) to court. 90.In cross‑examination, he admitted that the voter register had been frozen on 21st June 2022, and that his act amounted to an unauthorized alteration of the voter’s register. He acknowledged he had no authority to amend the register and that no gazettement was issued. He conceded that flagging Collins Munene in the register meant marking him to prevent voting in Mbeere, but he could not confirm whether Collins remained in the register or appeared on KIEMS. He accepted that he did not contact Collins after registration and that his reporting was limited to a phone call to a colleague in the ICT department. 91.He further defended himself by stating that continuous voter registration remained open in regions outside of by‑election areas; that the KIEMS kit used for registration was the same as that for polling; and that “open kits” could register voters across all constituencies. He insisted that he had acted with IEBC authority and therefore he was not in breach of Section 33 of the Election Offences Act. 92.RW6 was Paul Wachanga Mugo, an IEBC ICT Officer. He testified that he was informed of Collins Munene’s registration by an Assistant Registration Officer. He thus checked the system and flagged Collins to prevent him from voting in any by-election since the register had been frozen. He explained that upon flagging, the KIEMS kit would produce a sound and block the voter. He reported the matter to his superior at IEBC headquarters but admitted he did not file any formal documentation or attach minutes of meetings in regard thereto. 93.In cross‑examination, he stated that Collins’ entry altered the register and affected its integrity, since Mbeere was a gazetted election area with registration frozen. He acknowledged that open KIEMS kits could register voters anywhere in the country, but transfers required the physical presentation of the voter to the station preferred for registration. He did not conduct an audit to check for other unauthorized registrations and could not confirm whether Collins remained in the register or voted. He also admitted that his affidavit relied on information from colleagues, and had inconsistencies about who informed him and when. 94.RW7 was Paulino Nthiga Njeru, Presiding Officer at Kaungu Primary School. He testified that violence occurred outside the station, with stones thrown into the polling station classroom breaking windows and forcing suspension of voting for about 30 minutes at around lunchtime. He recorded the incident in the PSD, resumed voting at 14:15pm, and closed polling at 5:30pm. He stated that only one person was in the queue at the time of suspension of polling and that turnout reduced after the disruption. He denied seeing anyone shot, but confirmed that he heard gunshots outside the gate, and could not identify politicians involved, although he noted vehicles and crowds. 95.In cross‑examination, he admitted that his affidavit mentioned a shooting incident and politicians, although he could not name them. He confirmed that the commotion reduced voter numbers and acknowledged that seals used during the suspension of polling after the commotion were not recorded in his affidavit or PSD extracts. He insisted that agents witnessed sealing of the ballot boxes at close of polling, and that they signed the PSD. When shown video evidence of the scene during the commotion, he affirmed it showed crowds within the school compound, some armed with sticks, raising questions about security. He maintained that the ballot box was sealed during suspension and at closeof polling, and that backup police were called by the Returning Officer after his report. 96.RW8 was Wilson Mugendi Njeru, Presiding Officer at Muchonoke Polling Station 2 of 2. He stated that he had a printed register and scanned its QR code to open the KIEMS Kit. He added that no voter was turned away due to identification failure. He denied allegations of interference by politicians such as CS Ruku or Alice Wahome, stating he did not see them at the station. He emphasized that agents, including Julieta Karigi for DP, signed Form 35A without complaint. 97.In cross‑examination, he admitted that although he had the physical register, he did not use it for verification and kept it sealed throughout. He could not state the number of voters in the register or recall the exact number of assisted voters, although he recorded about 15 in Form 32. He confirmed that each assisted voter was helped by one person, whose thumb was inked. He acknowledged that no PSD extract was annexed to his affidavit and that he did not record incidents of alleged political interference because none occurred at his station. 98.RW9 was John Njenga Kamau, Presiding Officer at Cianyi Station 1 of 2. He confirmed that he had both KIEMS and a physical register, which he scanned to open the KIEMS kit. He testified that about ten assisted voters were processed, two of whom he assisted personally in the presence of agents, recorded in Form 32 and marked with ink. He stated that there were no complaints from agents during polling. On cross‑examination, he admitted that he did not annex statements on unused ballots and acknowledged that not every incident was recorded in the PSD. His evidence supports IEBC’s position that KIEMS kits functioned and assisted voters were handled procedurally, though documentation gaps remain. 99.RW10 Elias Njagi Njira, was the Presiding Officer at Gikuyari Primary School. He stated that voter Cecily Mururi was identified in KIEMS but not in his station’s register, and he informed her that she was registered in Karatina. He confirmed a register had been pinned on the wall a week before the by election. However, he did not annex it, nor did he record the incident in the PSD. He denied knowledge of other voters being misidentified and emphasized that he was not required to prove the Petitioner’s claims. On cross‑examination, he conceded he had not provided a certificate of authenticity for the register screenshot and could not show that Cecily’s case was distinct from Collins Munene’s irregular registration. Submissions by the Parties Petitioner’s Submissions 100.The petitioner relied on the Preamble of the Constitution and Article 81 thereof. He argued that the Mbeere North by-election was constitutionally required to safeguard the freedom of citizens to exercise their political rights under Article 38 of the Constitution. These rights encompass the ability to vote in free and fair elections conducted by secret ballot, free from violence, intimidation, improper influence, or corruption, and administered transparently, impartially, and accountably as mandated by Article 81. 101.It was submitted that while the people of Mbeere North turned out in large numbers to exercise their sovereign will, the process was marred by deliberate irregularities and illegalities. Counsel stated that the evidence points to instances of voter intimidation, bribery, and misuse of state resources, which undermined the free expression of the electorate’s will. The unlawful alteration of the voters’ register during a frozen period further compromised the integrity of the election, disenfranchising eligible voters while allowing ineligible persons to participate. 102.Counsel stated thay these actions betrayed the constitutional promise of democracy and subverted the will of the people. The election was neither transparent nor impartial, and its administration fell short of the standards of efficiency, accuracy, and accountability required by law. Consequently, the by-election failed to meet the constitutional threshold of a free and fair election, and the sovereign will of the citizens of Mbeere North was not faithfully reflected in its outcome. 103.The evidence from Kaungu, Kianamu, and Gitiburi polling centers paints a picture of an election marred by violence, intimidation, and unlawful interference. Witnesses consistently testified that politicians, accompanied by armed police and unidentified individuals, stormed polling stations, causing commotion, assaults, and even shootings. At Kaungu, a voter was shot within the polling station’s vicinity, leading to a sharp decline in turnout. At Gitiburi, ballot boxes were seized, agents assaulted, and counting delayed until the arrival of Cabinet Secretary Geoffrey Ruku, who, with his entourage, effectively took control of the process. Similar disruptions occurred at Kanyuambora and Kathitu, where voters fled or refrained from voting out of fear. 104.Affidavit evidence from presiding officers confirmed incidents of bribery, intimidation, and interference with lawful procedures. Even respondent witnesses admitted that the presence of CS Ruku and his group caused “commotion,” though they sought to downplay its impact. Video evidence showed armed individuals accompanying politicians, contradicting claims of benign intent. 105.According to the petitioner, the cumulative effect of these events was the erosion of transparency, impartiality, and accountability required under Article 81 of the Constitution. The violence and intimidation suppressed voter participation, compromised the integrity of counting and tallying, and subverted the free expression of the electorate’s will. As the petitioner argued, an election that fails to meet the constitutional threshold of being free from violence, intimidation, improper influence, or corruption cannot stand. The by-election was therefore fundamentally flawed, lacking the legitimacy necessary to reflect the sovereign will of the people of Mbeere North. 106.Counsel placed reliance on the cases of Munya v Kithinji & 2 others [2014] KESC 38 (KLR), John Okello Nagafwa v Independent Electoral and Boundaries Commission & 2 others [2013] KEHC 1885 (KLR), Cherono v Independent Electoral and Boundaries Commission (IEBC) & another [2024] KEHC 141 (KLR) and Okiya Omtatah Okoiti v Independent Electoral and Boundaries Commission & 3 others [2016] KEHC 7347 (KLR). He contended that the IEBC officials confirmed that after freezing of the register, Collins Munene was added to it. Similarly, One Cecily was transferred to Karatina without her prompting the IEBC to do that. He urged the court to note that there is the possibility that more additions/ changes to the register were made after it was frozen, hence the IEBC mishandled the register. 107.The petitioner relied on Regulation 69 of the Election Regulations and the Court of Appeal case of National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 others [2017] KECA 342 (KLR) and argued that the manual register ought to have been present and used at the election to fulfil the requirements of a fair election according to the constitution. Further reliance was placed on the cases of Kenya Human Rights Commission & 6 others v Independent Electoral and Boundaries Commission & 2 others; Communication Authority of Kenya & 3 others (Interested Parties) [2022] KEHC 10579 (KLR) and United Democratic Alliance Party v Kenya Human Rights Commission & 8 others (Civil Application E288 of 2022) [2022] KECA 813 (KLR). 108.He stated that regulation 72 (6) of the Elections (General) Regulations 2012, requires that assisted voter’s needs must be attended to by the presiding officer who should record all such incidents in the PSD. However, in this election, that was not done. That the court affirmed theposition on assisted voters in the case of Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] KECA 677 (KLR). He also referred to the Benchbook on Electoral Dispute Resolution, 2nd Edition on the threshold for election disputes. 109.He urged that the evidence from Kaungu and Gitiburi polling stations demonstrates grave irregularities that compromised the integrity of the Mbeere North by-election. At Kaungu, and violence earlier in the day drastically reduced turnout, disenfranchising many voters, and Form 35A was altered without countersignature. At Gitiburi 1 and 2, ballots and votes were mishandled; placed in unsealed envelopes, tally discrepancies emerged between recorded and actual votes, counterfoils were missing, and extra votes appeared in favor of the 4th Respondent. One candidate’s vote was erased from the official record, while another’s was wrongly tallied. 110.The fire incident at Gitiburi 2 left no clear record of destroyed materials, and KIEMS kit logs showed closing times inconsistent with lawful procedure. These were not minor clerical errors but systemic breaches of Articles 81 and 86 of the Constitution, undermining transparency, accountability, and verifiability. 111.Taken together, the failures of the 1st to 3rd Respondents to secure the process rendered the election fatally defective. The petitioner contends that votes from Gitiburi should be excluded, reducing the margin by 310 votes, while Kaungu’s irregularities further tainted the results. In totality, the election did not reflect the free and true will of the people and is constitutionally invalid. 112.The evidence from Riandu polling station in Nthawa Ward shows voter bribery and unlawful interference with the electoral process. A man named Nthiga was arrested for giving voters money (Kshs.200–500) to support the 4th Respondent, but was released after Cabinet Secretary Alice Wahome intervened, demanding his release and the return of the recovered money. The incident was never formally documented by the Presiding Officer, undermining transparency and accountability. 113.This conduct violated Articles 81 and 86 of the Constitution, which require elections to be free from corruption, transparent, verifiable, and secure. The petitioner relied on the cases of Morgan v Simpson [1974] 3 All ER 772, Suleiman Said Shabhal v IEBC & 3 others [2014] eKLR, IEBC v Maina Kiai & 5 others [2017] eKLR, In Ledama Ole Kina v Samuel Tunai [2013] eKLR, Gitarau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, Mohamed Ali Mursal v Saadia Mohamed & 2 others [2013] eKLR and Paul Posh Aborwa v IEBC & 2 others [2014] eKLR. 114.Taken together, these events establish that voter bribery, interference by powerful state officers, and failure to document electoral offences fatally compromised the integrity of the election. The Riandu incident exemplifies systemic breaches of constitutional standards, rendering the process neither free, fair, nor credible, and therefore constitutionally invalid. 115.Counsel urged the court to properly apply both the qualitative and quantitative tests in assessing the validity of the Mbeere North by-election. As emphasized in Manson Nyamweya v Omigo Magara & 2 Others [2008] eKLR, elections are not merely about numbers; the integrity of the process must be scrutinized. The Supreme Court in Joho & Another v Suleiman Shahbal & 2 Others [2013] eKLR confirmed that declared results must be tested quantitatively, but also qualitatively to ensure compliance with constitutional principles. 116.Authorities such as Morgan v Simpson [1974] 3 All ER 728, Richard Kalembe Ndile & Another v Dr. Patrick Musimba Mweu & 2 Others [2013] eKLR, and Gitarau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR underscore that substantial compliance with Articles 81 and 86 of the Constitution is mandatory, and persistent irregularities vitiate an election. The Court of Appeal in Ledama Ole Kina v Samuel Tunai [2014] eKLR clarified that “human error” cannot excuse multiple, systemic mistakes. Similarly, the court in Mbowe v Eliufoo (1967) EA 240 held that results are affected not only when the winner changes, but also when irregularities significantly narrow margins. 117.Here, irregularities in Forms 35, voter bribery, and misuse of state resources were proven. Under Musikari Nazi Kombo v Moses Masika Wetangula & 2 Others [2013] eKLR, even a single proven incident of bribery suffices to void an election. The law, through Sections 62 and 64 of the Elections Act, criminalizes treating and bribery, and Section 83 codifies that elections not conducted substantially in accordance with the law are invalid. 1st-3rd Respondents Submissions 118.Through their submissions, the 1st -3rd respondents stated that the evidence answered the question of whether the election reflected the will of the people. They also prayed for costs upon dismissal of the petition. Acknowledging its obligations under Articles 248 and 249 of the Constitution, the IEBC stated that it discharged its mandate under Article 88 of the Constitution; and that it is presumed to have acted regularly unless proven otherwise. 119.The respondents relied on the cases of Harun Maitamei Lempaka v Lemanken Aramat & 2 Others [2013] eKLR (Election Petition No. 2 of 2013), Raila Odinga v IEBC & 3 Others (Presidential Election Petition No. 5 of 2013) [2013] eKLR, Hassan Mohamed Hassan & another v Independent Electoral & Boundaries Commission & 2 others [2013] eKLR (Election Petition No. 6 of 2013) and Kibathi vs Independent Electoral and Boundaries Commission & 2 others (2023) KEHC 1697 (KLR). They argued that the standard of proof to disprove the presumption of regularity was not met in this case. They stated that in accordance with Sections 44 and 44A of the Elections Act, the voter register was well secured and it was properly used to verify the voters. 120.That as required under Regulation 61 of the Elections (General) Regulations, both the electronic and physical voter registers were present on the polling day and this was proved through evidence and through scrutiny. They relied on Article 86 (b) of the Constitution, and stated that the votes cast were counted, tabulated and results announced promptly as required. Further reliance was placed on the cases of United Democratic Alliance Party v Kenya Human Rights Commission & 8 others (Civil Application No. E288 of 2022) [2022] KECA 813 (KLR) which declared limited use of the physical register necessary only where biometric identification failed. They argued that their witnesses confirmed that an additional voter was inadvertently added onto the register after it was frozen but all diligence was done to ensure that this new additional voter did not cast his vote. 121.That this does not amount to systemic interference with the register as the petitioner attempted to portray it. They relied on the case of Raila Amolo Odinga & another v IEBC & 2 others (Presidential Election Petition No. 1 of 2017) [2017] eKLR, Philip Mukwe Wasike v James Lusweti Mukwe & 2 others, Bungoma High Court Petition No 5 of 2013; [2013] eKLR and Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others (SC Petition No. 2B of 2014) [2014] eKLR. They submitted that the scrutiny of box number 135 did not reveal any irregularity on their part and that the items found therein raised no alarm. That the incidences that should have been recorded in the PSDs were all recorded as the scrutiny exercise revealed. 122.In the case of assisted voters, they submitted that scrutiny of forms 32 found no major discrepancies, with only 6 people having assisted more than 1 voter. That this number is negligible, being 0.56% of the assisted voters in that election. They added that no major discrepancies were found from scrutiny of Forms 35A in the selected polling stations; and all the polling stations had physical and electronic registers at all times. They also relied on the results of the recount of votes in the ordered stations and stated that no discrepancies were found, confirming the integrity of the election. They concluded that the constituency had 55,124 registered voters, of whom 34,134 cast valid votes representing a turnout of 61.9%. 123.That the 4th Respondent won with 15,802 votes (46.3%) against the Petitioner's 15,308 votes (44.8%), a winning margin of 494 votes representing just 1.45% of valid votes cast and 0.9% of all registered voters. They urged the court to uphold the election, whose credibility has been affirmed through evidence and scrutiny and recount exercise, and dismiss the petition. They urged the court to be guided by the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra). 124.On the issue of costs, they relied on section 27 (1) of the Civil Procedure Act and they broke down their attendance register and all the activities undertaken in defending this petition. They prayed for costs of Kshs.5,000,000/= supporting their claim upon section 84 of the Elections Act and the cases of Jasbir Singh Rai & 3 others vs Tarlochan Signh Rai & 4 others (2007) eKLR where the court stated that costs are at the court’s discretion, and Wavinya Ndeti & Another v IEBC & 2 others (2018) eKLR where the court awarded costs of Kshs.5,000,000/=. 4th Respondent’s Submissions 125.The 4th respondent relied on the case of Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) [2017] KESC 42 (KLR). They argued that the standard of proof in electoral disputes is the intermediate level - higher than on a balance of probabilities but below reasonable doubt - and that the petitioner’s case failed to satisfy that standard. He stated that for a court to nullify an election, it is paramount to prove that it was conducted so irregularly that the only recourse lies in nullifying it (Morgan v Simpson [1975] 1 QB 151). 126.Finally, it was submitted that in this case, the petitioner has failed to prove that the election was so irregular it must be nullified. Further reliance was placed of Section 83 of the Elections Act, the case of Katiba Institute & 3 others v Attorney General & 2 others [2018] KEHC 7560 (KLR) and the text by Justice Otieno-Odek titled Election Technology Law and the Concept of “Did the irregularity affect the result of the elections?” published in 2017. He referred to the distinction between qualitative and quantitative elements of the election petition as posited by Justice Otieno-Odek in his above book Technology Law. Counsel urged the court to apply the qualitative test. The 4th respondent further relied on the case of Daniel Ongong’a Abwao v Mohamed Ali Mohamed & 2 others [2018] KECA 408 (KLR) and urged the court to dismiss the petition for failing to meet the evidentiary threshold. Issues for Determination 127.From my perusal of the petition, the evidence adduced, the reports of the scrutiny and recount exercise and the submissions made, 2 categories of issues arise: qualitative issues which speak to the process/conduct of the election and quantitative issues which speak to the outcome of the election. Upon consideration of these 2 categories of issues, it is necessary that the court determines whether, overall, the election ultimately reflected the will of the people. 128.In his submissions, the petitioner appears to have abandoned the specific issues for determination which he sought answered, as drafted into the petition. Instead, he redrew four (4) compounded issues including costs, which did not particularise the violations alleged, as well as his drafted issues had done. On their part, the 1st -3rd respondents set out only one broad issue for determination, namely: whether the overall outcome of the election reflected the will of the people. The 4th respondent’s framed issue was: whether the presumption of validity of the acts of IEBC had been undermined and the burden of proof for nullification established. 129.For specificity and on account of the wide public interest evident in this case, the Court has opted to adopt the issues which were first drafted by the petitioner as the issues for determination. They accurately reflect the case made out in the petition itself. 130.The specific issues which are drawn from the petition (the unspent issues) are as follows in their respective categories.a.Those raising questions of a qualitative nature:1.Whether there was irregular, opaque and unlawful appointment and dismissal of presiding officers in violation of the constitution and the elections (general) regulations;2.Whether alleged failure to deploy the printed register of voters resulted in unlawful disenfranchisement of duly registered voters;3.Whether there was unlawful third-party interference with voter registration data and failure by the 1st respondent to secure and protect the register of voters;4.Whether there was violence, intimidation and disruption of voting in violation of the constitution, the electoral code of conduct and electoral law;5.Whether there was bribery, treating and undue influence in violation of the Election Offences Act and the Constitution;6.Whether there was broken chain of custody, unlawful handling of election materials and violation of procedure on close of polling;7.Whether there was use of state resources, state security and public office to influence voters which constituted abuse of office and improper influence in violation of Articles 10, 73, 75 and 81(e) of the Constitution under the Elections Act.b.Those raising questions of both a qualitative and quantitative nature:1.Whether there was delay in counting votes, exclusion of agents, defective and falsified statutory forms, opaque counting and tallying in violation of Article 86 of the Constitution and Regulation 79 of the Elections (General) Regulations. (Hereinafter referred to as “Issue 8”) 131.As noted, the above categorization is made due to the fact that issues (a) (1 to 7) seem not to raise any issues concerning the tally, results, or the count relative to the numerical outcome of the election. Instead, they are concerned with the processes, issues of integrity, custody, interference and the propriety of the general conduct of the election. 132.On the other hand, issue (b)(1) (Issue 8) appears to straddle the twin questions of exclusion of agents and violation of legal requirements, on the one hand, and also that of counting and tallying of votes. These are issues of both a qualitative and quantitative nature. 133.In their respective submissions, the petitioner and the 4th respondent are agreed that the petition concerns not mere numbers but the quality and integrity of the whole electoral process. The 1st- 3rd Respondents focused on whether the will of the people prevailed. Analysis and Determination 134.Before commencing analysis of each of the issues, it is apposite to discuss the legal basis of the qualitative and quantitative nature of elections. Legal Basis of Qualitative and Quantitative Nature of Elections 135.In a paper by Hon. Justice (Prof.) Otieno-Odek Esq.- Judge of Appeal, titled Election Technology Law and the Concept of “Did the irregularity affect the result of the elections?” published in 2017, it is argued that the qualitative and quantitative principles in electoral disputes are represented by “Articles 81 (e) and 86” of the constitution. The author pointed out that:“Whereas Article 81(e) is essentially qualitative, Article 86 is primarily quantitative. The requirement for an accurate, verifiable and accountable electoral system imposes a quantitative assessment of the electoral results. The concept that elections must be free from violence, intimidation, improper influence and corruption buttresses the qualitative aspects of the electoral process. Equally, the requirement that the electoral process must be transparent and administered in an impartial, neutral and efficient manner is qualitative in nature. It is noteworthy that as a general principle, qualitative requirements cannot be measured quantitatively. The essence of qualitative requirements is to appraise the entire electoral process prior to and during the voting day. Qualitative requirements evaluate whether the environment in which the election was conducted was free and fair within the meaning of Article 81 (e) of the Constitution. Substantial non-compliance with the qualitative requirements render the entire electoral results void.” 136.Prof Odek goes on to cite Justice Kimaru (as he then was) in William Kabogo Gitau v George Thuo & 2 Others [2010] KEHC 4124 (KLR), where the learned Judge set out the principles on which the qualitative approach operates. He opined that the court should look more into the effect of malpractices upon the systems and processes employed in the conduct of the elections. The number of votes by which the candidate won will not be the issue, for it is the integrity of the process which has been fundamentally dented by the electoral malpractices. Any malpractices which seriously impeach the process so also impeach the results coming from that process. 137.Prof Odek goes on to state:“Making the same observation, Lenaola, J. (as he then was) in Masaka -v- Khalwale & 2 Others (2011) 1 KLR 390 at 392 expressed that:“…where there was no way of authenticating an election by use of statutory documents, the results were irrelevant because the whole process was as crucial as the final results”.“In a qualitative context, the election results are as good as the process that led to those results.The quantitative requirements deal with the mathematical or arithmetic calculations of results of the election. Quantitative aspects relate to the counting, tallying, accuracy, verifiability and transmission of results. It also deals with whether a vote cast was rightfully labelled as valid, invalid, rejected or stray. In this context, the paper trail of the votes cast is critical in determining quantitative aspects of the electoral process. The quantitative requirement deals with numbers and figures. In the Uganda case of Winnie Babihuga -v- Masiko Winnie Komuhamhia & OthersHCT-OO-CV-EP-004-2001, Justice Musoke Kibuka expressed as follows:“The quantitative test was said to be most relevant where numbers and figures are in question whereas the qualitative test is most suitable where the quality of the entire election process is questioned and the court has to determine whether or not the election was free and fair”” 138.The initial judicial interpretation of the post-2010 electoral framework was articulated in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others, Presidential Election Petition No. 5 of 2013 [2013] eKLR. There, the Supreme Court adopted a conjunctive reading of Section 83 of the Elections Act, requiring a petitioner to establish both: non-compliance with the Constitution or electoral law; and that such non-compliance affected the result of the election. 139.In Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 3 Others, Presidential Election Petition No. 1 of 2017 [2017] eKLR the Supreme Court then consolidated this process-oriented approach into binding doctrine. The Court departed from the restrictive conjunctive reading of Section 83 of the Elections Act and held that the provision admits of a disjunctive interpretation. Under this framework, an election may be invalidated either: where it is not conducted in accordance with constitutional principles; or where irregularities and illegalities affect the result. 140.The prevailing post-2017 approach, taken from Raila Amolo Odinga & Another v IEBC & 3 Others (2017) and subsequent jurisprudence, is that Section 83 of the Elections Act must be interpreted in a disjunctive manner in light of Articles 81 and 86 of the Constitution. An election may therefore be invalidated either where it is not conducted in accordance with constitutional principles governing elections, or where proven irregularities and illegalities are of such nature and extent that they affect the result. However, not every irregularity will justify nullification; only those that are material or substantial in effect on either process integrity or electoral outcome will meet the threshold. 141.Consequently, when read together, Articles 81 and 86 constitutionalize the electoral process itself as the object of legal scrutiny. Thus, the validity of an election is not exhausted by the correctness of the declared result - which seemed to be the position taken by the 1-3rd respondents, but extends to the integrity of the entire chain through which that result is produced –which was the petitioner’s position. Principles of a quality election under Kenyan Law: the IEBCs mandate to achieve it 142.Placed into the context of the Mbeere North by-election, Weveti, a proverbial peasant farmer in Embu County has political rights under Article 38 of the Constitution. Sub-article 2 of that provision gives her the fundamental political right “to free fair and regular elections based on universal suffrage and the free expression of the will of the electors.” This right may be realised only if IEBC can ensure that the voting system used complies with Article 86 of the Constitution 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; and(d)appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.” 143.The Constitution has also laid out general principles on how the electoral system and process in Kenya should operate. This is provided for under Article 81 (d) and (e) as follows:“The electoral system shall comply with the following principles—(a)…(b)…(c)…(d)universal suffrage based on the aspiration for fair representation and equality of vote; and(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; and(v)administered in an impartial, neutral, efficient, accurate and accountable manner.” 144.To achieve Weveti’s rights, the Constitution established the IEBC as the sole organ mandated to conduct elections. The functions and powers of IEBC are set out in the following terms under Article 88;“(4)The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(a)the continuous registration of citizens as voters;(b)the regular revision of the voters’ roll;(c)the delimitation of constituencies and wards;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development of a code of conduct for candidates and parties contesting elections; and(k)the monitoring of compliance with the legislation required by Article 82(1)(b) relating to nomination of candidates by parties.(5)The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation.” [Emphasis added] 145.In addition to these powers which are contained in Parts 1 and 2 of Chapter 7 of the Constitution, the IEBC is named as one of the Commissions which has the following additional seminal powers: The power to protect the sovereignty of the people (Article 249(1)(a); The power to secure the observance by all state organs of democratic values and principles (Article 249(1)(b)); and the mandate to promote constitutionalism (Article 249(1)(c)). 146.The IEBC is also vested with extremely significant Constitutional powers under Chapter 15, Article 252(1) as follows:“(1)Each commission, and each holder of an independent office—(a)may conduct investigations on its own initiative or on a complaint made by a member of the public;(b)has the powers necessary for conciliation, mediation and negotiation;(c)shall recruit its own staff; and(d)may perform any functions and exercise any powers prescribed by legislation, in addition to the functions and powers conferred by this Constitution….”[Emphasis added]In addition, Article 253 constitutes the IEBC as a body corporate with perpetual succession, capable of suing and being sued, which means it has institutional teeth and can do more than wring its hands when parties and powerful players ran roughshod over Weveti’s rights. 147.The functions of IEBC are also clearly spelt out under section 4 of the Independent Electoral and Boundaries Commission Act (hereinafter referred to as ‘the IEBC Act’) as follows:“As provided for by Article 88(4) of the Constitution, the Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by the Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—(a)the continuous registration of citizens as voters;(b)the regular revision of the voters' roll;(c)the delimitation of constituencies and wards in accordance with the Constitution;(d)the regulation of the process by which parties nominate candidates for elections;(e)the settlement of electoral disputes including disputes relating to or arising from nominations, but excluding election petitions and disputes subsequent to the declaration of election results;(f)the registration of candidates for election;(g)voter education;(h)the facilitation of the observation, monitoring and evaluation of elections;(i)the regulation of the amount of money that may be spent by or on behalf of a candidate or party in respect of any election;(j)the development and enforcement of a code of conduct for candidates and parties contesting elections;(k)the monitoring of compliance with the legislation required by Article 82 (1)(b) of the Constitution relating to nomination or candidates by parties;(l)…;(m)…; and(n)such other functions as are provided for by the Constitution or any other written law.” [Emphasis added] 148.The wide-ranging powers of the IEBC are extended under national legislation, for example, under section 107 of the Elections Act which mandates the Commission to prosecute offences under that law. The provision states;“(1)A member of the Commission or any officer designated by the Commission may order the arrest of a person who commits an offence under this Act.(2)The Commission shall have the power to prosecute any offences under this Act and impose sanctions against a person who commits an offence under this Act pending the hearing and determination of the offence.(3)A member of the Commission or any person designated by the Commission shall have the power to impound or to order the impounding of any state resources that are used in an election campaign.” [Emphasis added] 149.From the provisions highlighted above, there is no doubt that the IEBC can avert or pre-empt continuance of certain behaviors of political parties or contestants through arrest, prosecution or the impoundment of state resources used during election campaigns. The law is abundantly clear that the IEBC need not wait for a complaint, or for any prodding in order to exercise any of its powers in the pursuit of a transparent, impartial, neutral, efficient, accurate and accountable election. There is nothing in the law to suggest that use of these substantive IEBC powers is exercisable only on “election day” or is limited to only the area within the 400 metres radius of the polling station set out in Reg 63(6) of the Election (General) Regulations. The power to maintain order within that radius inside the polling station is vested directly in the Presiding Officer himself. However, IEBC a Commission is itself not limited to that radius in exercise of its powers to ensure a free and fair election. 150.Therefore, it is paramount that if any incident occurs anywhere during the “Election Period” which would hinder proverbial Weveti from reaching or accessing the polling station, or which endangers her life, or intimidates her such that she is unable or unwilling to cast her vote, or which corrupts the electoral process or system through bribery, interference or in any other manner that affects her right to vote, it is the duty of the IEBC to diffuse or void any such incident. This it can do on its own motion or upon application by any citizen, through its provided mechanisms. Indeed, during the election period, the IEBC additionally has the police at its disposal and it should be an easy thing for it to supervise or conduct elections in the transparent, accurate free and fair manner stipulated by the law. 151.On the IEBCs powers of prosecution and arrest set out in Sec 107 of the Elections Act, the court is aware that it is generally propounded that only the DPP has this power. However, Parliament is constitutionally empowered, under Article 157(12) of the Constitution, to confer such prosecutorial powers on any other authority other than the DPP, as it has done in the Election Act. Parliament’s power under that Article is clearly worded as follows:“Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions.” [Emphasis added] Enforcement of IEBC’s mandate to ensure a good quality election in Mbeere-North 152.The Mbeere North election period started on 11th August 2025 and ended on 01st December 2025. These are the dates of the gazettement of notice of vacancy (GN No. 11163 of 11th August 2025) and gazettement of declaration of persons elected (GN No. 17611 of 01st December 2025). The “Election Period” is defined under section 2 of the Elections Act, and means the period between the publication of a notice by the Commission for a parliamentary election under section 16 and the gazettement of the election results. 153.As such, IEBC’s critical focus on enforcement of the measures necessary for a transparent, free and fair election are expected to be heightened during the election period. One of the ways provided for enforcement includes the Electoral Code of Conduct found under Schedule 2 of the Elections Act as contemplated under section 110 thereof. This provision obliges every political party and every person who participates in an election or referendum under the Constitution and the Elections Act to subscribe to and observe the Electoral Code of Conduct. Unless the political party and the candidate have subscribed to the Electoral Code of Conduct, they may be excluded from participation in the election (Section 110(1) & (2) Elections Act). For this purpose, paragraph 15 of the Code requires IEBC to establish an Enforcement Committee. 154.Significantly, in order for IEBC to ensure a free and fair election, it is incumbent upon it to rigorously enforce the Electoral Code of Conduct which every party and candidate is obliged to subscribe to. The Code mandates IEBC to, inter alia, exercise the measures under Paragraph 7 of the Electoral Code of Conduct, in the event of infringement. The measures are summarized as follows, that the IEBC may:a.issue formal warnings,b.issue fines which shall be registered in the High Court,c.prohibit a party from using media time, issue prohibitions for public meetings, demonstrations or marches either of its own motion or in consequence of any report made to it,d.institute proceedings in the High Court as may be appropriate in the case of any alleged infringement of the Code by a political party or by the leader, any office-bearer or member of a political party or person who supports a political party or any candidate. 155.Undoubtedly from the foregoing, there is no shortage of power or legal means vested in IEBC to enable it, whether inside or outside the polling station, during an election period, to deliver a constitutionally sound, free and fair election. Indeed, it is public knowledge that, during the election period in Mbeere North Constituency, the IEBC’s Electoral Code of Conduct Enforcement Committee was functional. It even heard Complaint no. IEBC/ECCEC/BE/04/2025 at Nairobi, where the 5-person Committee reached a verdict on 17th November 2025 which was published on the IEBC’s website vide URL link https://www.iebc.or.ke/uploads/resources/3oXEzD1Tom.pdf. Thus the IEBC’s Electoral Code of Conduct Enforcement Committee contemplated under section 107 of the Elections Act was available to enforce discipline in the Mbeere North election. 156.It is not novel to suggest that IEBC must take a robust and active, rather than passive, role in ensuring discipline and a level playground during the elections period. In India, the Election Commission in its earlier days neglected to act proactively despite, like Kenya, there being a Code of Conduct in force. It was observed in “How India Votes: Election Laws, Practice and Procedure” by V S Rama Devi and SK Mediratta, 2011, at pg 633 as follows:“Rarely was any punitive action taken by anyone if any breach of the code was observed. It was only from the time of the tenth general election to the House of the People in 1991, that the Election Commission became pro-active to ensure the observance of the of the Model Code in its true letter and spirit by all concerned. The Commission expressed its open displeasure over the conduct of certain high dignitaries violating the Model Code and censured a few officers on that count and that had the due sobering effect on the others…”[Emphasis added] 157.The authors in “How India Votes (supra)” continue by giving examples of how in one election in Madhya Pradesh a governor misused official machinery in aid of his son’s election and the Election Commission publicly expressed its unhappiness with that action. The result was that the governor had to resign his office. In another similar scenario involving a Chief Minister, the Election Commission cancelled the by-election. 158.In “How India Votes (supra)” The authors further give the example of the Chief Minister of Punjab who during the election to the Madhya Praesh legislative assembly:“…used the state government aircraft for going from Chandigarh to Indore on some official visit and from there proceeded to Bhopal on an election visit. He was made to pay to the government at the asking of the Election Commission for the entire air journey from Chandigarh to Bhopal and back for his use of the government aircraft in violation of the model code. Likewise, the then Chief Minister of Chhattisgarh had also to reimburse the state government for the expenses for the air journeys that he performed using state government aircraft from Raipur to Delhi for party work during the general election…as the Election Commission considered these air journeys as violation of the model code” 159.With that background, I now turn to analyse the issues for determination Analysis and Determination Issue 1: Whether there was irregular, opaque and unlawful appointment and dismissal of presiding officers in violation of the Constitution and the Elections (General) Regulations 160.The Petitioner, in Para. 23 of his supporting affidavit, complained that the 1st respondent trained a set of officers to be appointed as POs and DPOs, but these were not the people who were eventually appointed and deployed. As a result, there was opacity in the appointments. In cross examination by Mr. Mwongela, PW1 admitted that he was not aware that some of the trained officers were eventually appointed as clerks. 161.PW3, Grace Joy Gakii, the key witness on this issue, stated that she was one of the persons selected by IEBC for a 4-day training for POs and DPOs; that there were 39 trainees; that she was assessed by IEBC and scored 89 points. On the last day, 20 names were read out and she was amongst them. However, she was not given an appointment letter and was removed from the list of those deployed. At the election, she voted at Kanyuambora. 162.On cross-examination, she stated that there were a total of 356 trainees. She denied that she was dismissed for failing to attend some parts of the training. She said that she had been verbally assured that she would be deployed as a PO or DPO and was called upon to remain on standby in the event that a deployed officer failed to turn up. In further cross-examination, she said that her non-deployment did not affect the election. She admitted that she was paid for the 4-day training. In re-examination, she stated that she was discriminated upon by not being deployed for alleged lateness whist others who were late were deployed. 163.When cross-examined about training and deployment of officers, RW2 said that PW3 did not complete the training or absconded. That this point was explained to her amongst 20 other trainees who were also dismissed. He asserted that PW3 did not complain at the time and that he heard about her complaint for the first time through the petition. 164.For the allegation under this issue to have been proved, the petitioner was required to identify the officers in question, and demonstrate that there was something irregular, or opaque or unlawful about the appointments, deployment, or dismissal of officers trained by the IEBC for the purpose of this election. The petitioner was also required to show which provisions of law were violated and by what acts or omissions they were so violated. 165.The evidence of the petitioner did not list the trainees, did not identify which of the trainees were opaquely or irregularly appointed and or deployed or dismissed, and did not specify which provisions of any law were violated. The petitioner also failed to draw out any evidence through cross-examination of the respondent’s witnesses, that would have supported his claim on this issue. The petitioner’s key witness on this issue PW3, conceded that her non-appointment had no effect on the conduct of the election. 166.In light of the above, and as earlier indicated, the issue under consideration concerns the qualitative nature of the election. However, based on the evidence availed, I find that no qualitative disqualifying attribute in appointment and dismissal of IEBC election officials was demonstrated. Issue 2: Whether alleged failure to deploy the printed register of voters resulted in unlawful disenfranchisement of duly registered voters. 167.The petitioner’s claim on this issue was underpinned on Regulation 69 of the Elections (General) Regulations. That provision is as follows:“(1)Before issuing a ballot paper to a voter, an election official shall—(a)require the voter to produce an identification document which shall be the same document used at the time of registration as a voter;(b)ascertain that the voter has not voted in that election;(c)call out the number and name of the voter as stated in the polling station register;(d)require the voter to place his or her fingers on the fingerprint scanner and cross out the name of the voter from the printed copy register once the image has been retrieved; and(e)in case the electronic voter identification device fails to identify a voter the presiding officer shall—(i)invite the agents and candidates in the station to witness that the voter cannot be identified using the device;(ii)complete verification Form 32A in the presence of agents and candidates;(iii)identify the voter using the printed Register of voters; and(iv)once identified proceed to issue the voter with the ballot paper to vote;” [Emphasis added] 168.On its face, this provision requires that a voter, prior to voting, should produce an identification document to an election official, who would then ascertain that the voter has not voted in that election, calls out the name of the voter as stated in the station’s register, before he then places the voter’s finger on the KIEMS scanner. Where the KIEMS identifies him, the officer crosses out the voter’s name from the printed copy of the register. Where the KIEMS fails to identify the voter, a verification process to identify the voter has to take place, under which the agents and candidates are involved in identifying the voter using the printed register and completing verification Form 32A. 169.The respondents argued that the requirement for use of a physical register at the point of voter verification was obviated according to the jurisprudence in the case of UDA and NASA. A brief background is necessary to understand the role of the physical register.In Raila Odinga & Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, the petitioners challenged the integrity of the voter identification process after the electronic voter identification devices (EVIDs) failed widely on polling day. The petitioners argued that the IEBC had improperly relied on multiple registers, including the biometric voter register, the “Green Book,” and a special register for voters whose biometric data could not be retrieved electronically. The Supreme Court rejected the challenge, holding that the Principal Register of Voters was legally capable of existing in multiple integrated form, and that the use of manual fallback mechanisms following technology failure was legally permissible in order to prevent disenfranchisement. 170.That decision was the first judicial recognition that technological failure cannot constitutionally extinguish the right to vote. Given the provisions of section 69 of the Elections Act, the physical register therefore emerged as a necessary backstop mechanism within the electoral process. 171.In addition, Judicial interpretation of Section 44A of the Election Act in relation to voter identification occurred in National Super Alliance (NASA) Kenya v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR. There, the petitioners argued that voter identification and transmission of results ought to be conducted exclusively through electronic systems and that the existence of manual fallback mechanisms created opportunities for electoral fraud. The High Court rejected that argument. 172.Upholding the High Court, on appeal, the Court of Appeal acknowledged that the Kenyan electoral framework contemplated an integrated electronic system for voter registration, voter identification, and transmission of results. In essence, the Court determined that the complementary mechanism contemplated under Section 44A was intended to operate precisely when that integrated system failed, as follows:.“To our mind, what was required of the Respondent was to put in place a mechanism that would complement the one set out in section 44 of the Act. The particulars of the mechanism, whether electronic, manual, or any other mode was not expressly provided in section 44A. If that were the intention of Parliament, nothing would have been easier than to specify so.” 173.The NASA case significant in that it rejected technological exclusivity, and instead asserted that the law contemplates the primacy of technology supported by fallback safeguards intended to preserve enfranchisement where technology fails. The Supreme Court’s reasoning directly informs the interpretation of Regulation 69(1)(e), which sets out the statutory sequence for identification failure: biometric identification, followed by alphanumeric search, and finally resort to the printed register. The NASA case confirms that Regulation 69 is a procedural expression of Section 44A’s constitutional complementary mechanism. 174.In Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, the petitioners challenged the integrity of the election on the basis of failures in electronic transmission, verification and accountability. Although the Supreme Court did not nullify the election specifically on voter-identification grounds, the decision fundamentally altered Kenyan electoral jurisprudence by emphasising that elections must be: transparent; traceable; auditable; accountable; and independently verifiable. 175.The Court repeatedly stressed that constitutional compliance depends not merely on whether votes are cast, but whether the process through which they are cast, identified, recorded and transmitted can later be verified through documentary and technological audit trails. 176.That principle later became central to both: the Regulation 69 identification cases; and the Regulation 72 assisted voting cases. 177.In Kenya Human Rights Commission & 4 Others v Independent Electoral and Boundaries Commission & 2 Others [2022] eKLR the petitioners challenged an IEBC issued directive proposing to abandon the printed register entirely and rely exclusively on KIEMS-based identification. The High Court building upon the NASA case and the constitutional principles articulated in Raila 2017, quashed the directive and held that the printed register was not merely an administrative contingency but a constitutional safeguard against disenfranchisement. The court found that abandoning the manual register violated Articles 38 and 86 of the Constitution because technological failure could not constitutionally result in loss of the right to vote. 178.On the eve of the 2022 general election, the Court of Appeal intervened through the case of United Democratic Alliance Party v Kenya Human Rights Commission & 8 Others Civil Application No E288 of 2022. It stayed the High Court’s directive requiring immediate universal deployment of the manual register. It did so without rejecting the legitimacy of the complementary mechanism. Instead, the Court of Appeal held that the following sequence governed voter identification:1.First biometric identification through KIEMS;2.Then alphanumeric search where biometric verification fails;3.Finally, resort to the printed register only after confirmation of KIEMS failure beyond repair or replacement, and with Commission authorisation. 179.The court therefore accepted the constitutional necessity of the manual register while insisting that its use remain controlled and sequential. 180.The Supreme Court applied this hierarchy directly in Raila Odinga & Others v William Samoei Ruto & Others [2022] eKLR where the petitioners alleged widespread KIEMS failures and argued that the resulting identification process was unverifiable. The Supreme Court upheld the election finding that although KIEMS kits failed in 235 polling stations affecting approximately 86,889 voters, the IEBC had properly implemented the fallback mechanism through Form 32A documentation and manual identification procedures. It concluded that the integrity and verifiability of the identification process had been preserved notwithstanding the technological failures. Raila (2022) thus confirmed that technological failure is not itself fatal and that what matters constitutionally is whether the fallback process remains documented, traceable and verifiable. In that case, the election survived because the fallback process was properly documented through Form 32A. 181.The case of Bardad Mohamed Farah v Independent Electoral and Boundaries Commission & 2 Others, Garissa High Court Election Petition No E001 of 2022 clearly illustrated the relationship between scrutiny proceedings and voter-identification integrity. There scrutiny and recount revealed discrepancies between the number of voters identified at the polling station and the number of ballots ultimately accounted for, including inconsistencies linked to KIEMS failures and manual voting entries. The scrutiny process therefore operated as a forensic audit of compliance with Regulation 69(1)(e), particularly the proper sequencing and documentation of fallback identification through Form 32A and the printed register 182.In the present case, scrutiny where it took place, did not reveal any significant level of irregularity, except as to Collins Munene’s registration and the allegation by Cecily. No basis had been laid specifically for the scrutiny of Forms 32A, which in the result were not scrutinised. Further there was no reported case of KIEMS failure to verify the votes nor was there any evidence, beyond allegations, of failure of the KIEMS kits. 183.In Hassan Mohamed Adam v Ahmed Abdullahi Jiir & 3 Others Garissa Election Petition No. E008 of 2022, the court found failures in the implementation of the supervisor method following KIEMS breakdowns but declined to nullify the election because the irregularities were insufficiently material to alter the outcome 184.In Musimba v Independent Electoral & Boundaries Commission & 2 Others Makueni Election Petition No. E001 of 2022 [2023] KEHC 1380 (KLR), delays in deploying the manual register following KIEMS failure were found not to invalidate the election. The court held that although procedural deviations occurred, the electorate was ultimately able to vote and the complementary mechanism, once activated, functioned sufficiently to preserve the integrity of the process. 185.The jurisprudence therefore demonstrates that failure to properly deploy the physical register becomes constitutionally significant only where: the irregularity is widespread; the documentary trail is absent; the process becomes unverifiable; and the affected votes are capable of altering the result. 186.The evidence in the present case was largely comprised of assertions that the petitioner’s agents had not seen the physical register at the polling stations. PW1 stated that there was no manual register at the polling stations. PW2, the petitioner’s chief agent, gave contradictory evidence on this issue stating that he did not see a manual register in any polling station that he went to, and no agent told him that they saw a manual register. That the agent at Gitiburi polling station told him that some people were voting even though they were not identified by the KIEMS. In cross-examination by Mr. Mwongela, however, he stated that he did not witness any KIEMS kit malfunction and the agents did not tell him how KIEMS kits were started. He also stated that he was not present when KIEMS was being started but he was shown how the kit was started. He did not recall seeing a QR code on the manual register. PW3, Grace Joy Gakii, in evidence in chief, stated that she did not see any manual registers on polling day. When cross-examined by Mr. Mwongela, she stated that during the IEBC training she was told that manual registers would be used only when necessary like when identifying a voter. When she voted, however, she was identified by KIEMS and so there was no need to refer to the manual register. 187.PW4, one of the petitioner’s polling agents, stated that the voters who were not identified by KIEMS kits were photographed and shown where to vote. He stated in cross-examination by Mr. Mwongela, that: “I saw the KIEMS being started. I saw the KIEMS Kit take a picture. I know it was a picture on voters Register. KIEMS worked from 6.00 a.m till closure.” In re-examination, he stated that people who were not identified in KIEMS, were photographed holding an ID. 188.RW1 stated that KIEMS kits were started through scanning the QR codes on the physical registers in all the polling stations. He did not receive any reports of complete failure of KIEMS kits being unable to identify a voter. That the physical register is used only when KIEMS fails completely, and in such cases use of the physical register must be authorized by IEBC headquarters. In cross-examination by Mr. Gachuba, RW1 stated that the petitioner did not specify any station without a physical register. When cross-examined and referred to paragraph 39 of his affidavit, the witness said that the physical registers were deployed 100%. He stated, in cross-examination by Mr. Njiru, that KIEMS cannot start without scanning the QR code on the physical register. That the register used was the same one used in the 2022 election. 189.RW2 stated in evidence in chief that a physical register was deployed to each polling station. RW3, the PO at Gitiburi 2, stated that: “I had a printed Register of voters which I scanned the QR code to start KIEMS. I did not use the Register of voters since all voters were identified by KIEMS Kit”. RW4 the PO at Gitiburi 1, stated in cross-examination by Mr. Gachuba that she did not use the register of voters except to open the KIEMS Kit. 190.RW8 was the PO for Muchonoke Polling station who stated that he had a physical register on polling day and that no voter was turned away. He stated that the register was sealed in a clear plastic paper and it remained that way all day. He did not know how many pages the register had. The top of the register indicated the number of voters in it but he did not open it to verify the number voters in it. 191.During scrutiny, when ballot boxes were opened, the DR noted that in each box there were voter registers wrapped inside a transparent, sealed, plastic bag. The physical register had, on its face, a QR code which was used to open the KIEMS kit when scanned. Once the KIEMS kit was opened through scanning, the kit gained access to the soft copy content of the physical register in the paper bag. 192.Further, when doing the scrutiny, the DR unsealed the physical registers, scrutinized, placed them side by side with the 2022 register and confirmed that they were identical in that they contained the same voters’ names. 193.In conclusion, it is demonstrated by the evidence that there was a physical voter register available at every polling station, that they had a QR code on them to open the KIEMS kit at the Polling Station. The voter register contained in the KIEMS was a soft copy replica of the physical register which had the QR code. No evidence was availed that any voter was disenfranchised since the physical registers were present and were also replicated inside the KIEMS kit. 194.The prevailing jurisprudence on use of physical registers (UDA Case supra) is that such register is only to be used in instances where biometric or alphanumeric identification fails. There was no evidence of such failure of identification. Had there been failure of biometric and alphanumeric identification, followed by failure by IEBC to deploy the physical register, a case of voter disenfranchisement would have been made out. Issue 3: Whether there was unlawful third-party interference with voter registration data and failure by the 1st respondent to secure and protect the register of voters. 195.There were 2 key complaints sought to be demonstrated by the petitioner’s evidence concerning interference with the voter register. These were:a.evidence of unlawful interference concerning registration of Collins Munene in Mbeere North from Ruiru; andb.the alleged transfer of Cecily Mururi Njagi from Mbeere North to Karatina whilst the register had been frozen. 196.PW1 stated that Collins Munene did not appear in the 2022 register and that he was not a voter in Mbeere North. Collins Munene was not called to testify. 197.In response, RW5, Edwin Ibrahim Golicha IEBC’s voter registration officer at Ruiru stated in paragraphs 3, 4 and 5 of his affidavit:“Through an open KIEMS kit, a registration official at IEBC can register a voter at any registration center within the Republic of Kenya. That on 8th October 2025, I registered Collins Muriuki Munene as a voter through use of an open KIEMS kit at my Ruiru Constituency Office. That the said error occurred due to human error on my part and was no (sic) intended to favour any candidate during the conduct of the by-election”In his oral evidence, RW5 stated:On 8th October, 2025 I was overwhelmed by large number of youthful voters. In the process I made a mistake of registering Collins Munene. As soon as I realized the mistake, I reported to ICT of IEBC. Munene had appeared before me that day. I realized he was registered. I don’t know if he could have appeared on KIEMS. Collins was the only one I registered.” 198.In cross-examination by Mr. Ndegwa, RW5 stated that:“What I did amounted to an alteration. All Registers had been frozen as at 22nd June, 2022. I was aware of this. It is an alteration. I had no authority to alter the Register. I did inform ICT. I did not inform the Commission itself. Section 33 (sic. Section 3) Elections Offences Act read.” 199.RW6 was Paul Wachanga Mugo, ICT Officer at IEBC. He stated that he was informed of a discrepancy between the physical register and KIEMS; That the former had 399 registered voters while the latter had 400. He asserted that the discrepancy was caused by inadvertent human error by a registration officer at Ruiru resulting in one extra voter. In cross-examination, he stated that Collins Munene was registered as a voter on 8th October, 2025, and that he was alerted by the Assistant Registration Officer, RW5. Once he was told, he checked in the system and flagged out Collins Munene. That meant that he highlighted Collins Munene as a new entry, since one cannot remove the name but can only flag it out. 200.In cross-examination by Mr. Njiiri, he stated that even though the register was frozen for purposes of the by-election, an “open kit” can register voters anywhere in the country. He did not audit the register to find any other unauthorized registrations. When cross-examined by Mr. Ndegwa, he admitted that such registration affected the character and integrity of voter registration. 201.During scrutiny, the DR made the following finding regarding the issue of Collins Munene under paragraph 4.1.4(3)&(4) of the Supplementary Report dated 22nd April 2026:“3)According to the KIEMS logs the total registered voters is 400; whilst according to the 2022 Register of Voters registered voters are 399, and according to the 2025 By - Election Register the total voters registered is 399. The discrepancy was noted down in the PSD at page 30 by the P.O. The same is also noted in the initial DR’s Report filed on the 17th of April 2026.4)Number 154 on KIEMS logs indicates the name Muriuki Collins Munene, yet on both the 2022 and 2025 Registers number 154 is Mutala Daniel Muema (ID No. 53xxxx). Therefore, Muriuki Collins is not in the two Register of Voters. The Petitioner was interested in knowing whether Muriuki Collins Munene voted in the By- Election. The same was checked in the KIEMS logs voter register using the National ID Number. The result was, Muriuki Collins Munene did not vote in the By-Election.” 202.PW5 Cecily Mururi Njagi, stated that she had been a voter at Gikuyari Polling station since the year 2002. She said she was unable to vote in the 2025 by-election, as she could not be identified through KIEMS. She was instead informed that she is a registered voter at Karatina. However, she asserted that she had never transferred her voting station. When she checked on the online IEBC portal in her phone, she found that she was indeed in registered at Karatina. 203.During scrutiny, the DR noted in Paragraph 4.1.6(5) of the Supplementary Report dated 22nd April 2026 as follows regarding the case of Cecily Mururi Njagi:“5)The Petitioners asked to check the status of Alex (last name unknown) ID No. 32* and Cecily Mururi Njagi ID No. 23* (Both ID Nos retained in the DRs Hard copy Report) to confirm whether they were in the Register of Voters 2022, KIEMS Register, and KIEMS logs. The findings are that:- Cecily was not present in both Register of Voters (i.e) 2022 and 2025 for Gikuyari Polling Station and KIEMS biometric register. Her National ID number appears at 07:10 AM on KIEMS logs under the citizen ID 21659725 on 27th November 2025. Voter ID belonged to a polling station No. 01909604820991 which is in Nyeri County, Mathira Constituency.- Alex was not present in both the 2022 and 2025 Register of Voters for Gikuyari Polling Station. His national ID number was searched and found to be registered to polling station number 030162080909701 Baringo County in Eldama Ravine Constituency.- Both never voted in Gikuyari Polling Station.” 204.From the evidence above, particularly the admissions of RW5 and RW6, the following conclusions are inevitably drawn: (1) that an IEBC registration officer using an open KIEMS Kit can register a voter anywhere in the country for a constituency; (2) that an open KIEMS kit can override the “freezing” of a register in an area scheduled for an election. It is also concluded on the issue at hand, that there was no proof availed that the admitted interference with the register was either wide-spread, systemic or intended. In substance, therefore, there was no proof, and thus no finding can be made, of the fact that the stated interference with the register affected the will of the people. Issue 4: Whether there was violence, intimidation and disruption of voting in violation of the constitution, the electoral code of conduct and electoral law 205.Incidents of violence were primarily shown through evidence to be significant at Kaungu Polling station. PW1 testified that he was informed of incidences of violence, voter intimidation and disruption of voting at various polling stations. He stated that at Kaungu, the Embu County Governor and the 4th respondent forced their way into the polling station and chaos erupted. That the aides accompanying state officers fired shots in the air. He was shown videos titled “violence shooting victim” (which was admitted in part) and “CS Ruku voter agitation Kanyuambora”. PWI was not present at Kaungu at the time. 206.PW8 was James Muriithi Njagi who stated that he voted at Kaungu Polling Station. He said thereafter he left and was standing outside the polling station waiting for his friend. While standing there, he was shot on his upper arm. He reported to the police that he had sustained a gunshot wound before going to the Embu Level 5 hospital where he reported the nature of his injury. Dr. John Mwangi’s medical report indicated that the witness reported that he had been shot. Produced in evidence, there are hand written doctor’s notes showing that he had reported a shot wound and that there was a slight crack in the distal end of the radius. 207.RW7 Paulino Nthiga Njeru, the PO at Kaungu polling station, stated that he witnessed violence from a distance outside the polling station including stones thrown into the polling station. Voters were aggravated so he stopped the election process for 30 minutes. When he reopened voting continued but the voter turnout was lower than the earlier turnout. He recorded in the PSD that:“The locals and some politicians disrupted the polling process where some windows glasses for the polling room were broken. Voting was disrupted between 1345Hrs and 1415Hrs.” Action taken: “The aperture was sealed at 1345 Hrs. All election material and officials were put under tight security. The RO ensured there was a backup security.”” 208.In cross-examination by Mr. Njiiri, he stated as follows concerning the incident of invasion into the polling station:“Paragraph 9 – I say there was a shooting incident. Shown Pg. 345 The PSD I recorded that there were politicians. I don’t know which politicians. I did not know their names. The politicians and locals affected the polling by stoning the classroom. We had to stop the process of polling. The shooting was past noon. Yes, the number of voters reduced.” 209.PW6 was shown a video titled “Armed goons Gitiburi unattended”. It concerns the period after the fire at Gitiburi 2 and there are crowds with some of them armed with sticks. The video titled “Gitiburi Part Violence 001” shows agitated people armed with sticks confronting IEBC officers after the fire had occurred at Gitiburi polling station. 210.On viewing the videos, the court noted as follows: the most significant violence was experience at Kaungu polling station. The videos showed vehicles like Prados and Land Cruisers without number plates driving out of the polling station with hordes of people armed with sticks, jeering angrily and demanding their removal. 211.At Kaungu, there is the evidence of PW8 who testified that he was shot outside the polling station. 212.There is no doubt that whilst Kaungu was the epicenter of the violence demonstrated in this case, there were instances of disruption and commotion wherever any unusual event occurred such as a fire or attendance of politicians at polling stations in unmarked vehicles. 213.As to whether this violence has a substantial effect on the outcome of the election, the findings from the Supplementary Report dated 22nd April 2026 indicated that at Kaungu from the opening of the polling station at 600am upto 1pm, the voter turnout was 347 voters. From 1pm upto close of polling at 5pm, the voter turnout declined to 49 voters. This is clearly shown in the highlighted row number 2 on Table 3 on page 13 of the Report; ITEM Details as Per PSD Details as observed Discrepancies if any 1. … … … … 2. Record of Voter turnout at the Polling Station Total Registered Voters = 641:Voters who Voted as at:0900 Hrs = 177,1000 Hrs =287,1300 Hrs =347,1500 Hrs =372,1700 Hrs = 396 Physical count of ballots tallied with the Total Registered Voters at 641. The counterfoils for each ballot used matched with the ballots cast on checking the serial numbers, total of which was 396 ballots.Counterfoils bear IEBCStamps None. 3. …. …. …. …. 214.The other witness as to violence was PW6, Dan Ndegwa Macharia, the agent for Safina Party at Gitiburi 2. He said he had travelled from Laikipia to participate as a party agent. He testified that after the fire started, the station was invaded by about 300 outsiders - some armed with sticks - accompanying CS Ruku. He stated that the group entered the classroom and took things outside the classroom. He protested against CS Ruku commandeering the station but was handcuffed by police officers who were not uniformed. He was then beaten and detained in a police vehicle until 8.00 pm that day. He said that he was personally beaten by CS Ruku, and was later sent away from the station, denying him a chance to witness the vote counting exercise. 215.In cross examination, he confirmed that the video did not show the ballot boxes being carried; that he saw the ballot box aperture being sealed; that he later saw the ballot box being removed from the matatu vehicle by the Presiding officer and his assistant; that he could not tell if the seals were broken; and that the ballot boxes were taken to stream 1. He did not report the matter to the police. 216.Taking into account the evidence adduced concerning violence as a whole, the court is not able to find that such violence was widespread beyond the Gitiburi and Kaungu stations, or was systematic or pervasive within the electoral area/constituency. I am not persuaded, in the circumstances, that the violence substantially affected the overall result of the elections. Despite this, though, there is no doubt that after the violence occurred at Kaungu, there was a decline in voter turnout from about 347 voters between 6.00am and 1.00pm to 49 voters between 1.00pm and 6,00pm. The voter turnout at Kaungu being 396/641 or 53.9%; compared to Gitiburi1 where turnout was 285/428 (66.5%) and Gitiburi 2 which had 264/427 (61.8%) turnout. This is compared to the average constituency voter-turnout of 61.92%, submitted by the 1-3rd respondents. Theoretically, Kaungu may be said to have suffered a turnout decrease of about 8% or 51 voters as against the constituency average. Issue 5: Whether there was bribery, treating and undue influence in violation of the Election Offences Act and the Constitution. 217.PW1 stated that he received reports about serious cases of bribery at Kune, Kageri, Itira and Kianamu polling stations. He also alleged that bribery was connected to the high numbers of assisted voters. However, he was not able to give any concrete direct evidence of bribery. 218.PW2, the petitioner’s chief agent, received reports of bribery at Riandu polling station and treating of voters with unga and cooking oil at Makunguru polling station. He highlighted a person called Nthiga, at Nthawa area who was allegedly involved in bribery, but he had no proof that the named person was acting on behalf of the 4th respondent. PW3, testified that she witnessed bribery at Kanyuambora polling station but gave no further details. 219.PW10, Anceta Wakere Maringa and PW11, Lydia Mbuya Njeru were the key witnesses for the petitioner on the issue of bribery. PW10 testified that on the election day, she was called by her former MP, Muriuki Njagagua who she knew. He asked her to go to the home of her neighbor Edward Njage and when she got there, she found many people and was informed that there were presents available for them. She saw those items in Edward Njage’s home where Njagagua was. They were then each given 2kg each of maize flour, wheat flour, and rice and Kshs.500/=. The items were to be in exchange for her vote for the UDA government candidate in the by-election. When she refused to take the items and the money, she was told that she would not benefit and Njagagua left the items for them. Shown her affidavit, she said there is no indication that she took any bribe though she alleged that she saw others taking bribes. 220.In her oral testimony in cross-examination by Mr. Gachuba, PW10 stated that:“Njagagua was bribing people. He did it on behalf of Wa Muthende. He told us so. I did not see Wa Muthende. I took 2 kgs of rice, 2kgs of Ugali 500/- and Unga ya Chapati. I ate them. It was not written that they were for the election. I was hungry so I ate. Others also got and ate. Many who couldn’t write also ate and were helped to vote. I have no affidavits of others involved. Lydia was with me at Edward’s house. We were given the gifts together.” 221.Cross-examined by Mr Kamotho, she reiterated that she, indeed, took the gifts. That initially she declined, but eventually she took the things since they belonged to the government. 222.PW11 testified that she was also invited to Edward Njage’s home where they were offered bribes in the form of food. They were offered the goodies so as to be assisted to vote for the 4th respondent; and that she agreed to vote for the 4th respondent (paragraph 4 of her affidavit). They were told that if any of the invited recipients refused to vote for the 4th respondent, they would not benefit from the gifts. That most people took money and they were swayed to pose as voters needing assistance. In her oral testimony, she said that she was given 2kgs of each of Sugar, Unga, Unga Ngano and Kshs.500/= by Njagagua, who told them to vote for the 4th respondent. 223.Further, PW11 testified that there were 2 ladies and 1 man who were given Kshs.15,000/= to find people who would vote for the 4th respondent and that some of them would pose as assisted voters. She conceded that she took the bribes and was influenced to vote as suggested. In cross-examination, she stated that she witnessed bribery outside the gate of the polling station but she did not report the vice. Generally, she re-asserted that she was bribed and the bribe was intended to influence her to vote for the 4th respondent. 224.In the present case, PW10 and PW11 have admitted, repeatedly, that they took bribes intended to influence them to vote for the government candidate, namely, the 4th respondent. I listened carefully to their evidence, in which they corroborated one another. They did not strike me as incredible, lying or flippant. I believe their testimony as to the fact that they took bribes. I do not doubt that they were at Njage’s house where they said they were when Njagagua offered them the bribes. 225.The submission by the petitioner was that the bribery was not only intended to influence the voters to vote for the government candidate, but also enable them pose as illiterate voters needing assistance. However, neither PW10 nor PW11 alleged that they were actually assisted to vote, nor was a single witness brought to testify who was an assisted voter. On this, the IEBC submitted that that whilst PW10 knew that she was committing an election offence by taking the bribe from Njagagua, she did not report the same. 226.There was no witness availed by the respondents to controvert the evidence of PW10 and PW11, although Njagagua was named in the affidavits as was Njage of PW10 and PW11. 227.The petitioner invited the court to find that the bribery, treating and undue influence were offences in violation of the Election Offences Act. However, this court’s jurisdiction is to hear petitions under Article 105 which provides:“The High Court shall hear and determine any question whether –a.A person has been validly elected as a member of Parliament; orb.The seat of a member has become vacant” [Emphasis added] 228.Clearly, the Constitutional jurisdiction of the Election Court is limited to making a finding on validity of the election and vacancy of a seat. The Court does not sit as a criminal court when conducting an election petition. Thus, the finding this court can make regarding bribery, treating and undue influence is that prescribed under the Elections Act, and no other. In that light, the provision of section 87(1), of the Elections Act enables the Election Court to make a determination regarding an electoral malpractice of a criminal nature. The provision is in the following terms:“87 (1)” An election court may, at the conclusion of the hearing of a petition, in addition to any other orders, make a determination on whether an electoral malpractice of a criminal nature may have occurred.” [Emphasis added] 229.This provision merely entitles this court to make a finding as to whether a malpractice of a criminal nature may have occurred, not that it did occur. Further, in an election petition, the election court has no jurisdiction to determine a criminal matter or whether an offence under the Election Offences Act was, or has in fact, been committed, since that is an issue squarely within the jurisdiction of a special Magistrate’s court. Such court must be specially constituted by the Chief Justice, under section 23(1) of the Election Offences Act, which provides:“The Chief Justice may, by notification in the Gazette, appoint as many special Magistrates as may be necessary to hear and determine matters relating to offences under this Act.” 230.In light of the foregoing, this court as an election court can make a determination only on whether an electoral malpractice of a criminal nature may have occurred, in terms of section 87 of the Elections Act, but not on whether the offence of bribery was committed. I do find that an electoral malpractice of bribery may have occurred. 231.Ultimately, however, the question I must answer on this issue is whether the electoral malpractice of bribery and voter influence so found, results in the nullification of the election. From the evidence above, I am unable to find that the scope and prevalence of the malpractice substantially affected the result of the election in terms of section 83 of the Elections Act. Issue 6: Whether there was broken chain of custody, unlawful handling of election materials and violation of procedure on close of polling. 232.The petitioner made claims of a wide range under this issue, alleging broken chain of custody and unlawful handling of election materials. However, he was not an eye-witness in any of any of these events neither was his chief agent, PW2. The main evidence that emerged in respect of this issue was that concerning Gitiburi Primary School polling station 2 where there was a fire, and Kaungu polling station where there was an invasion by unauthorized people. 233.PW6, Dan Ndegwa Macharia, the party agent for Safina Party stated that he was at Gitiburi 2 when a lamp fell and triggered a fire in the classroom that was set up as the polling station. He said that they rushed out, and he then rushed back into the room to retrieve his phone which was charging there, as he helped put out the fire. He stated that CS Ruku came to the station with about 300 people in tow, and they occupied the classroom. That the “votes” (sic) were placed inside a Nissan van which was left unguarded outside, and he believed that they could have been interfered with. He said that by that time, he had been handcuffed on the instructions of CS Ruku and some agents had run away. 234.In his affidavit, PW6 could not confirm what happened at the voting in the classroom as he was seated at the back observing. In his oral evidence, he re-confirmed that it was about 5pm when the fire broke out as the PO was attempting to light a gas lamp. That bedlam broke loose and that a crowd of people started coming into the polling station. A video named “NNK 23 collection Gitiburi” was shown. He said that the crowd comprised of about 300 people and at the time the ballot boxes were still in the classroom where they were left when the fire broke out. 235.He further stated that locals salvaged the ballot boxes and took them to the vehicle. That the PO and DPO were not in the vehicle when the ballot boxes were taken to it. IEBC officers were called to come and collect the ballot boxes from the vehicle and they complied and picked the boxes. On further cross-examination, PW6 stated that there were things taken outside the polling station classroom by strangers. He said that he did not see, in the video, the ballot boxes being carried by locals to the vehicle. 236.Upon viewing the aforesaid videos, the court noted that: there, indeed, was a fire; that there was commotion at Gitiburi; there was involvement of large crowds of people some armed with sticks. There was also a van into which some IEBC officials in IEBC reflective vests were seen attempting to enter. However, no ballot boxes were seen in the videos. Hence the videos do not support the allegation of third parties handling the ballot boxes. 237.In his affidavit, PW7, Simon Kariuki, a voter at Gitiburi, stated that shortly after the fire was controlled, CS Ruku came to the station accompanied by people armed with sticks and rungus and they took the ballot box to the vehicle whilst beating people. That CS Ruku demanded that the ballot boxes be brought to one classroom and ordered that the ballots from both Gitiburi 1 and 2 polling stations be counted together. One of the ballot boxes emerged from amidst the crowd and was given to CS Ruku who gave it to IEBC officials. That CS Ruku demanded that the votes be counted and tallied. He did not witness re-opening of the ballot boxes again and he denied signing forms 35A. He stated that the counting took place in one polling station at Gitiburi. 238.RW4, Jane Karimi Nduma, was the PO at Gitiburi 1. It was her evidence through her affidavit that after the polling ended at 5pm, she secured the room before counting started. She confirmed that CS Ruku came to the station and caused commotion. She noted that there was a fire at Gitiburi 2; That she prepared the polling station as a counting room. She made no mention of Gitiburi 2 in her affidavit. 239.In her oral evidence, RW 4 testified that there was a fire at Gitiburi 2. It led to commotion because there was a large crowd of people. She took the ballot box and took cover in a vehicle; that vote counting started at 7pm; that the votes for Gitiburi 2 were also counted at Gitiburi 1. In cross-examination, she stated that she did not see CS Ruku and that he was not involved. She admitted that she hosted another polling station and that no-one authorized her to do so. 240.When shown a video of the fire incident at Gitiburi, RW4 confirmed the scenario was as depicted in the video. She saw the PO of Gitiburi 2 in the video with people in the crowd holding sticks at the scene. By that time, she said, she had secured her ballot box in the vehicle. She said no polling officer for Gitiburi 2 was in the vehicle, but the boxes for Gitiburi 2 were there. On re-examination, her evidence was that after getting to the vehicle with her ballot box and with the security officer, she realized that she had left some personal items in the polling station. She thus left the ballot box in the vehicle to get those items. That was the only time she left the ballot box unattended. 241.RW3 was Lydia Kamau, the PO for Gitiburi 2. In her affidavit, she stated that after closing the station, she closed the KIEMS and sealed the aperture at 5pm. She then called for a short break before counting began. At around 5:30pm, her DPO Felix Mwaniki, lit a gas lamp which burst into flames. She managed to secure the ballot boxes She telephoned Siakago Police Station, reported the incident and was issued an OB No. 34/28/11/25. She stated that CS Ruku came to the station, and that his arrival “caused some commotion”. 242.RW3 further stated in her affidavit that during the brief incident of the gas lamp explosion, the election materials remained secure. She denied that when CS Ruku came, at no point was the ballot box outside the counting room, and the CS never took over her responsibilities. In cross-examination, RW3 stated that when the fire broke out, she took the boxes to the vehicle hired by IEBC, together with the security officers and agents. She said that she and her team transferred their materials to Gitiburi 1 to count ballots, and they found station 1 already going ahead with counting. In further cross-examination by Mr. Ndegwa, she stated that the forms which were burned were KIEMS forms 32A. 243.From the DR’s Scrutiny Report dated 17th April 2026, the DR noted that the PSD for Gitiburi 1 recorded the fire incident as follows: “Incidents recorded on page 30 as an accidental fire in station 2 at 1730Hrs. Fire was put out and calm restored. Security back up.” In Gitiburi 2, the PSD indicated that the PO recorded “Gas cylinder exploded and some of the forms were burnt. We were able to secure the ballot papers, ballot boxes, KIEMS and some forms.” 244.It is clear from the totality of evidence adduced, that in Gitiburi 1 and 2, polling had concluded by the time the disruption arose from the fire and the crowd that invaded the polling stations. That, RW4 took cover from the crowd in the vehicle, and at that time, the boxes from Gitiburi 2 were in the same van without any officer from that polling station. It was admitted by RW4 that, at some point, she also left the box for Gitiburi 1 in the van, unattended, when she left to get her bags which she had left inside the polling station. 245.With regard to evidence on Kaungu, RW7 Paulino Nthiga Njeru, the PO, stated that he witnessed violence from a distance outside the polling station including stones thrown into the polling station. He then stopped the election process for 30 minutes. When he reopened, voting continued but the voter turnout was lower than the earlier turnout. He recorded in the PSD that “The locals and some politicians disrupted the polling process where some windows glasses for the polling room were broken. Voting was disrupted between 1345Hrs and 1415Hrs.” Action taken: “The aperture was sealed at 1345 Hrs. All election material and officials were put under tight security. The RO ensured there was a backup security.”” 246.Thus, for Kaungu, it was the actual polling that was interrupted at 1.45 pm, and the polling station was closed for 30 minutes. However, there is no evidence that during that time, the election materials were removed from the polling station or were outside the PO’s control. 247.In summary, the evidence on this issue is as follows: (1) at Kaungu, despite the fact of disruption of polling, the election materials were not interfered with; (2) at Gitiburi 1 the disruption occurred after closure of the polling station at 1730hrs as recorded in the PSD; (3) at Gitiburi 2 the disruption occurred after close of the polling station according to the PO; (4) at Gitiburi 1 the evidence is that the election materials were left unattended in the van according to the PO; (5) the evidence concerning the election materials at Gitiburi 2 is inconsistent – namely, that they were handled by unauthorized persons, and also that they were left unsecured/unattended in the van, or were secured. 248.From the DRs Supplementary Report dated 22nd April 2026, page 15, the results in Gitiburi 1 as recorded in the PSD, Form 35 and KIEMS were consistent save for 1 ballot paper marked in favour of the 4th respondent with no corresponding counterfoil. For Gitiburi 2 (page 17 of the Report), the KIEMS kit showed that the last voter was verified at 16:55hrs while the PSD indicated that the polling was closed at 1700hrs. There was one ballot cast in favour of the 4th respondent but no corresponding counterfoil for it. 249.The totality of the above evidence discloses that for Gitiburi 1 and 2, there was broken chain of custody, possible unlawful handling of voting material but no violation of poll closing procedure except for delay For Kaungu, there was no evidence of broken chain of custody, unlawful handling or violation of poll station closing procedure. Consequently, there is no basis for a finding that the irregularity or non-compliance was substantial and that it affected the election outcome in terms of section 83(1) of the Elections Act. 250.Had it been demonstrated that the sort of violence shown at Kaungu was pervasive or widespread, a positive case would have been made to conclude that the violence affected the overall quality of the election, and had a significant impact on the result. Issue 7: Whether there was use of state resources, state security and public office to influence voters which constituted abuse of office and improper influence in violation of Articles 10, 73, 75 and 81(e) of the Constitution and the Elections Act. 251.The petitioner’s complaint on the use of state resources, state security and public office to influence voters, was, from an evidential standpoint, entirely contained in allegations. I have carefully perused all the evidence that was adduced with a view to identify concrete evidence concerning the use of state resources state security and public office to influence voters. I have not found any. 252.What I find in this case, is that there is evidence that CS Ruku together with the Embu Governor and other public officers were mentioned by witnesses as intimately involved in the campaigns leading to election day. It is probable, but not proved, that these officers were using state resources for transportation during the election period. They may also have used state resources such as police personnel. There is clear evidence that enhanced police presence was noted by many witnesses. That is also clear from the videos played in court, where in some cases vehicles with no number plates were seen. It is also likely that by virtue of the power, stature and influence of their public offices, these officers could readily command the attention of, or influence voters. No evidence, however, has been adduced concerning actual abuse of office and improper influence by any particular state or public officer. 253.It was incumbent upon the petitioner, in order to prove Issue 7, to provide at least the following evidence: names of the public officers involved (this they did), their designations or offices held, and particulars and nature of the alleged abuses of such offices, and the overall effect of such abuses upon the electorate and the election outcome. The petitioner failed to provide these through the evidence adduced, and accordingly, I am unable to find in his favour on this issue. Issue 8: Whether there was delay in counting votes, exclusion of agents, defective and falsified statutory forms, opaque counting and tallying in violation of Article 86 of the Constitution and Regulation 79 of the Elections (General) Regulations. 254.With regard to delay in counting votes, the only evidence presented related to Gitiburi 1 and 2 where the break-out of the fire affected the timely counting of votes. 255.Regarding exclusion of agents, the only evidence was that of PW6 who alleged that he was handcuffed and detained in a police vehicle until 8pm, hence he was denied a chance to witness counting of the votes. From the DR’s scrutiny reports, agents of the petitioner were present in the stations where scrutiny was ordered, and they signed Forms 35A. 256.With regard to defective and falsified statutory forms and opaque counting and tallying, the allegations in the petition were that Forms 35A were overwritten resulting in opacity in the results. 257.In respect of Kirie Polling station 2, Nazario Mugo who was the PO did not testify on the inconsistencies between Forms 35A and 35B showing the total number of votes obtained and cast as 225 and 223 respectively. 258.In respect of Gitiburi 2, RW3, Lydia Kamau, the PO did not testify on the inconsistencies between Forms 35A and 35B which indicated that the number of valid votes obtained and cast as 262 and 261 respectively. However, during scrutiny, the votes were recounted and the number of valid votes cast remained 262 meaning that Form 35B was erroneous by 1 vote less. 259.In respect of Muchonoke 2, Timothy Nyaga Maringa, the PO did not testify on inconsistencies between Forms 35A and 35B showing 304 and 303 votes respectively on the number of valid votes obtained and cast. Scrutiny was not done for this station and the inconsistency of 1 vote remains unexplained. 260.At Kamugu polling station 2, Form 35A indicates the number of valid votes obtained as 449 (which is where the tally for each candidate is indicated), whereas in the section of ‘polling station counts’ at item 5, the total number of valid votes cast is indicated as 456 and total rejected votes are indicated as 7. Shadrack Nyaga Njagi, the PO at this polling station did not testify and no further explanations were made regarding this inconsistency of 449 and 456 votes. On this latter inconsistency, it appears likely to the Court that the 7 votes difference is attributable to the total rejected votes being carried to item 5 and added to votes obtained. 261.These unexplained inconsistencies add up in forms 35A to 10 votes in forms 35B so that the election result has a 10-vote difference, unknown as to whom they would benefit. The scrutiny did not find anything to suggest any irregularity, but rather careless mistake in translocation from the vote tally column of form 35A. 262.Regarding allegations that some 37 Forms 35A were overwritten and not countersigned, the court allowed scrutiny of only 8 of them where such overwriting demanded scrutiny. The DR’s Scrutiny Report Dated 17th April 2026 at pages 21-24, found that “Despite overwriting, the figures added up to the total valid votes as in the Form 35A. There was no major discrepancy noted.” The court agrees that the overwriting did not result in any discrepancy, and the irregularities cannot be said to substantially have affected the will of the voters. 263.The petitioner also complained during the hearing about errors on Forms 32 in respect of Assisted Voters. This issue is dealt with hereafter. Assisted voters 264.At the outset, it is essential to note that the issue of assisted voters was not pleaded either in the petition, in the petitioner’s issues or in his grounds or reliefs. It featured in the supporting affidavit of the petitioner and in the other affidavits of the petitioner’s witnesses, and also in witness testimony. In paragraph 94 of the supporting affidavit to the petition, the petitioner deposed:“That further, the said agents would bribe the voters on condition that they declared that they were illiterate and in need of assisted voting. This led to exhaustion of oaths of secrecy forms due to inexplicable influx of persons allegedly in need of assisted voting.” [Emphasis added] 265.The 2nd respondent filed an affidavit in support of the response to the petition. The 1st to 3rd respondent did not respond specifically to the allegation made under paragraph 94 of the supporting affidavit to the petition, even though on their behalf, the 2nd respondent acknowledged:“THAT I have read and been explained to by Charles Benedict Mwongela, Counsel on record for the 1st, 2nd and 3rd Respondents, the Election Petition dated 22nd December 2025 and the affidavit in support of the Election Petition sworn on 22nd December 2025 by Ndwiga Newton Kariuki and wish to respond as follows...” 266.In furtherance of his claims on assisted voting, the petitioner, during his testimony, on numerous occasions reiterated his claims on bribery and assisted voting, which featured in his supporting affidavit. Other witnesses of the petitioner, for example, PW10 and PW11, conceded that as they were accepting bribes, others in the group and premises at the house of Edward Njage where they were, were also accepting bribes to become ‘assisted voters’. 267.PW9 Julieta Kithumbu, testified that she saw many assisted voters at Muchonoke Health Centre 2 polling station where she was the agent. She said there were “mobilisers” who brought assisted voters to the station. In one case she saw an assistor assist four voters, and she complained to the PO but did not record the fact in her notebook, though she signed Form 35A without objection. 268.The issue of assisted voters became pronounced after the court ordered that election materials be preserved into the custody of the Court, and the DR to make a detailed report on the movement of materials. 269.The record of that movement of materials for preservation is contained in the DR’s Report pursuant to the Directions of the Court dated 15th January 2026 for Removal of Election Materials from IEBC to Embu High Court. The report is dated 27th January 2026. In it, the DR recorded having received the following boxes from the strong room of the IEBC offices in Embu:1.134 ballot boxes namely 1 from each polling station;2.1 box captured as the 135th ballot box delivered at the tallying center;3.4 boxes recorded in an “Inventory of Other Strategic Materials Issued To Embu High Court For The Mbeere North By-Election Petition”; and4.15 boxes containing KIEMS kits. 270.Of the 4 boxes in the “Inventory of Other Strategic Materials Issued To Embu High Court For The Mbeere North By-Election Petition”, Box Number 114337 contained, amongst other things, 1072 Forms 32 (Declaration of Secrecy Made by a Person Assisting a Voter). Naturally, this inventory raised concerns as to why these materials were produced from the IEBC offices at Embu without any record by the RO. 271.Accordingly, in its Ruling (paragraph 62(2)&(4)) delivered on 27th March 2026, the Court ordered scrutiny of “Other Strategic Materials issued to Embu High Court.” 272.Following scrutiny by the DR, she reported her findings at pages 15-19 of the DR’s Scrutiny Report Dated 17th April 2026 as follows: that there were 1072 Forms 32 folio-marked 1-1072. Out of these, 10 were blank or unpopulated in any way. There were forms by 6 declarants who had filled the forms twice, of whom 2 declarants filled 2 forms at 2 different polling stations while the other 4 declarants each filled 2 forms at one station (Table 4 at pages 15-16). 273.RW1 testified that at the tallying center, he received 134 ballot boxes. He also stated that he handed over to the DR 135 boxes, with one box containing strategic materials. He stated that he prepared Box 135 out of good faith. He gave no explanation for any of the other boxes. According to IEBC Polling Station Diary template, Forms 32 from each polling station where voters were assisted were required to be put in a tamperproof envelope and handed over to the returning officer. However, during scrutiny, all Forms 32 were found unsealed and loosely filed in a box file in Box Number 114337. 274.The foregoing handling of Forms 32 shows a rather casual approach to a very important act of verification and secrecy relating to assisted voters in exercise of their right to vote. Added to that casualness, was the neglect and failure to record the same in the register. Indeed, there was no way of accounting for these forms, for example, either in the polling station diary or in the voters register. 275.The stipulation of the law on aided voters is found in Regulation 72(6) of the Elections (General) Regulations which provides as follows:“Where a presiding officer grants the request of a voter under this regulation, the presiding officer shall record in the polling station register against the name of the voter the fact that the voter was assisted and the reason for the assistance.” [Emphasis added] 276.It was not contested that the physical voter’s register that was deployed was contained in a sealed tamperproof envelope, and that it was never physically opened but was only used to open the KIEMS kit through the QR code. 277.What requires interrogation is whether an election court may assess and make determination on irregularities or illegalities revealed during scrutiny or recount where such matters were not specifically pleaded. My understanding is that what is required is a continuous balancing between two competing constitutional and procedural imperatives. On the one hand is the cardinal rule of adversarial litigation that parties are bound by their pleadings, ensuring procedural fairness, certainty of issues, and protection against trial by ambush. On the other hand, there is the constitutional duty imposed on election courts to safeguard the integrity, verifiability, accountability, and transparency of elections under Articles 81 and 86 of the Constitution. 278.It is a substantive rule of adjudication that pleadings have a binding force. In Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others Civil Appeal No. 219 of 2013 [2014] eKLR, the Court of Appeal stated in unequivocal terms that parties are bound by their pleadings, and that evidence which departs from the pleaded issues, goes to no issue, and must be disregarded. The same logic was reiterated in Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others Supreme Court Petition No. 5 of 2013 [2013] eKLR, There the Supreme Court emphasised that parties are bound by their pleadings and evidence must be confined to pleaded issues. Similarly, the Supreme Court in Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 Others Supreme Court Petition No. 37 of 2014 [2014] eKLR reinforced the position that election petitions are strictly framed disputes: respondents are entitled to know with precision the case they must meet, and the court is equally constrained by the issues framed in the pleadings. This establishes pleadings as the primary jurisdictional boundary of electoral adjudication. 279.Against this strict framework, the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others Supreme Court Petition No. 2B of 2014 [2014] eKLR set out the governing logic on scrutiny, which is that scrutiny is not a fishing expedition. It is a verification mechanism tethered to pleaded allegations. The Court was clear that scrutiny cannot be used to discover new causes of action or to sustain a petition that fails on its pleaded grounds. However, the Court also recognised a controlled opening: namely, that where scrutiny is properly ordered—particularly by the court itself, as in this case – what emerges may be interrogated by parties and evaluated for its impact on the integrity of the result. 280.Can courts therefore ignore serious electoral irregularities that emerge from scrutiny? Where scrutiny is triggered by a party’s application, its scope is strictly confined to the pleaded issues and the specific polling stations in dispute. It cannot be used to enlarge the petition or introduce new grounds of challenge (Peter Gichuki King’ara v Independent Electoral and Boundaries Commission & 2 Others Nyeri Election Petition Appeal No. 8 of 2013 [2014] eKLR; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others Supreme Court Petition No. 2B of 2014 [2014] eKLR; Walter Enock Nyambati Osebe v Independent Electoral and Boundaries Commission & 2 Others Supreme Court Petition No. 28 of 2018 [2020] eKLR). 281.By contrast, where scrutiny is ordered suo moto, the court may direct scrutiny as part of its case management powers to clarify the evidentiary record, but this does not expand the issues for determination or convert scrutiny into an inquisitorial process. Any irregularities emerging from such scrutiny remain subject to contestation by the parties and must be evaluated within the pleaded issues and the constitutional standard of electoral compliance. 282.The question whether the court should turn a blind eye on malpractices arising from scrutiny was focused on in Musikari Nazi Kombo v Moses Masika Wetangula & 2 Others Supreme Court Petition No. 12 of 2014 [2015] eKLR, where the Court held that an election court cannot “turn a blind eye” to serious electoral malpractices revealed during scrutiny or recount simply because they were not pleaded. The Court justified this exception on constitutional grounds: electoral justice cannot be reduced to procedural technicalities where the process itself is shown to be fundamentally compromised. 283.In Peter Gichuki King’ara v Independent Electoral and Boundaries Commission & 2 Others Nyeri Election Petition Appeal No. 8 of 2013 [2014] eKLR, the Court of Appeal emphasised that scrutiny is not an avenue for building a new case. That position was reaffirmed in Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 Others Nairobi Election Petition Appeal No. 6 of 2018 [2019] eKLR. There the Court of Appeal reversed a High Court decision that had relied on scrutiny findings not anchored in the pleadings. The court reiterated that scrutiny must remain tethered to the pleaded issues unless exceptional procedural safeguards exist. 284.That caution was further emphasised in Walter Enock Nyambati Osebe v Independent Electoral and Boundaries Commission & 2 Others Supreme Court Petition No. 28 of 2018 [2020] eKLR, where the Supreme Court stated that scrutiny is not a fishing expedition and cannot be used to “latch onto whatever evidence” to construct a case not pleaded. 285.In Abdikadir Hussein Mohammed v Abass Ibrahim Kafow & 3 Others Nairobi Election Petition Appeal No. E004 of 2023 [2023] KECA, the Court of Appeal introduced a decisive procedural safeguard: that even where scrutiny reveals serious irregularities, an election court cannot rely on them without first placing the adverse party on notice and affording an opportunity to respond. The Court treated this not as a discretionary courtesy but as a requirement of due process. Unpleaded material cannot silently or automatically mature into grounds for nullification. 286.In the present case, and as already pointed out, the issue of assisted voters featured significantly in the Petitioner’s supporting affidavit and upon hearing of evidence of petitioner’s witnesses. The respondents thus had a full opportunity to deal with the issue. It was evident as far back as was recorded in the DRs Report on Movement of the Preservation Materials, and in petitioner’s witness affidavits. In my view, there was no ambush. 287.In its decision in Kombe v Karisa & 3 Others (Petition E020 of 2023) [2024] KESC 25 (KLR) the Supreme Court reaffirmed the core principles in Munya et al: scrutiny is not a fishing expedition, and pleadings remain the primary structure of electoral litigation. At para 107, the apex court stated:“The Court of Appeal relied on the decision of the Supreme Court in Munya 2 … that scrutiny is a vehicle to assist the court to verify the allegations made by the parties to the petition which allegations themselves must be hinged on pleadings; that it was never intended to enable the Court to unearth new evidence on the basis of which the petition could be sustained.” 288.From the record, the Supreme Court accepted that the trial court had engaged extensively with scrutiny findings such as unstamped counterfoils, polling station inconsistencies, and irregularities in statutory forms. The Court of Appeal had criticised reliance on some of these matters as unpleaded. The Supreme Court’s reaction was not to abandon the pleadings rule, but to re-characterise the function of scrutiny evidence within the broader evidentiary inquiry. It held, in substance, that: scrutiny findings do not operate as stand-alone causes of action, but neither are they legally inert simply because they were not expressly and specifically pleaded. At para 108, the Supreme Court noted:“It would appear therefore that the report of the scrutiny did not yield the outcome expected by the 1st respondent when he sought it. That did not preclude him from presenting and relying on other pieces of evidence to illustrate that the election in question did not conform with the constitutional and legal imperatives.” [Emphasis added] 289.In the present case the question of assisted voters was not specifically pleaded as already pointed out. Nevertheless, it does not arise as an ambush since the petitioner’s supporting affidavit and the 1-3rd respondents replying affidavits took notice of the issue. 290.When the court ordered scrutiny of the Assisted voter forms this emanated from the fact that they were produced for preservation without any record as to how they found their way into the box and box files they were delivered in. The court was thus entitled to order scrutiny thereof since oral evidence had been taken and no proper account of the Forms 32 had been given by the respondents. 291.Thus, scrutiny was duly ordered and forms part of the evidential matrix. In my view, the outcome of the scrutiny may be used to aid in the evaluation of whether the totality of the electoral process met the constitutional threshold of integrity, verifiability, and accountability. The decisive question is not whether each irregularity was individually pleaded, but whether the election, taken as a whole, complied with constitutional and statutory standards. 292.The authorities hold as follows: In Mohamed Abdi v Ahmed Abdullahi & 3 Others Petition 7 of 2018, the Supreme Court majority refined the remedial approach to Regulation 72 non-compliance by requiring that such breaches be assessed within the broader Article 86 framework of verifiability and materiality, rather than treated as automatically determinative of electoral invalidity. 293.Where, in the first instance, the failure to mark the register is isolated or inadequately proved, courts generally decline to nullify elections, although the failure weakens the credibility of the official account. This was the position in Mohamed Mahamud Ali v Independent Electoral and Boundaries Commission & 2 Others Mombasa High Court Election Petition No 7 of 2017. Further, if the failure becomes systemic — particularly in constituencies where assisted voting would predictably be widespread — courts may infer that the process itself became unverifiable. 294.In light of the foregoing analysis of the law, this court can now make the following conclusions. 295.Firstly, that Reg 72(6) of the Elections (Gen) Regulations was violated in respect of the 1072 assisted voters as they were not recorded in the physical register as required, nor was there evidence that they were indicated as such in the KIEMS register or PSD. 296.Secondly, that the only evidence available that there were assisted voters is the existence of Form 32 in compliance with Reg 72 (5) indicating the declaration of secrecy by persons that assisted the said voters. 297.Thirdly, with regard to the double declarations by the 6 declarants earlier discussed as found during scrutiny, these were in breach of Regulation 72(5)(c) of the Elections (General) Regulations which provides as follows:“The following shall apply with respect to a person who assists a voter under this regulation— the person shall assist or support only one voter at that election and have a mark as proof of assisting or supporting a voter.” [Emphasis added] 298.Fourthly, were the court to take the position that all assisted voter’s votes be struck off, it would not change the result of the election as it is impossible to identify for which candidate they voted. 299.Finally, taking into account the caution of the superior courts concerning un-pleaded issues, and considering these violations cumulatively with the other irregularities pleaded and on which evidence was availed and has been evaluated, I am not satisfied that it was ultimately shown that the results did not reflect the will of the people in relation to assisted voters. Conclusions and Disposition 300.On Issue 1: Whether there was irregular, opaque and unlawful appointment and dismissal of presiding officers in violation of the Constitution and the Elections (General) Regulationsa.The Court found that the evidence of the petitioner did not list the IEBC officers in issue, did not identify which of the officers were opaquely or irregularly appointed and or deployed or dismissed, and did not specify which provisions of any law were violated. The petitioner also failed to draw out any evidence through cross-examination of the respondent’s witnesses, that would have supported his claim on this issue. In any event the petitioner’s key witness on this issue PW3, conceded that her non-appointment had no effect on the conduct of the election.b.This issue concerns the qualitative nature of the election. Based on the evidence availed, I find that no qualitative disqualifying attribute in appointment and dismissal of IEBC election officials was demonstrated. 301.On issue 2: Whether alleged failure to deploy the printed register of voters resulted in unlawful disenfranchisement of duly registered voters.a.It was demonstrated by the evidence that there was a physical voter register available at every polling station, that each register had a QR code on it to open the KIEMS kit at the Polling Station. The voter register contained in the KIEMS was a soft copy replica of the physical register which had the QR code. No evidence was availed that any voter was disenfranchised since the physical registers were present and were also replicated inside the KIEMS kit.b.The prevailing jurisprudence on use of physical registers (UDA Case supra) is that such register is only to be used in instances where biometric or alphanumeric identification fails. There was no evidence of such failure of identification. Had there been failure of biometric and alphanumeric identification, followed by failure by IEBC to deploy the physical register, a case of voter disenfranchisement would have been readily made out. 302.On issue 3: Whether there was unlawful third-party interference with voter registration data and failure by the 1st respondent to secure and protect the register of voters.a.From the evidence availed, particularly the admissions of the respondents’ witnesses, it is inevitably found: (1) that an IEBC registration officer using an open KIEMS Kit can register a voter anywhere in the country for a constituency; and (2) that an open KIEMS kit can override the “freezing” of a register in an area scheduled for an election. It was not proved that the admitted interference with the register was either wide-spread, systemic or intended. In substance, therefore, there was no proof of the fact that the sole instance of interference with the register affected the will of the people.b.It is also held that in the case of one individual, where the register was shown to have been unlawfully altered, the officer involved may have committed a criminal offence. 303.On issue 4: Whether alleged failure to deploy the printed register of voters resulted in unlawful disenfranchisement of duly registered voters.a.The evidence availed concerning violence involved Gitiburi and Kaungu stations. Taken as a whole, the court is not able to find that such violence was widespread, systematic or pervasive within the electoral area. I am not persuaded, in the circumstances, that the violence substantially affected the overall result of the elections.b.It is also concluded that after the violence occurred at Kaungu, there was a decline in voter turnout from about 347 voters between 6.00am and 1.00pm to 49 voters between 1.00pm and 6,00pm. The voter turnout at Kaungu being 396/641 or 53.9%; compared to Gitiburi1 where turnout was 285/428 (66.5%) and Gitiburi 2 which had 264/427 (61.8%) turnout. Compared to the average constituency voter-turnout of 61.92%, Kaungu theoretically suffered a turnout decrease of about 8% or 51 voters as against the constituency average. 304.On issue 5: Whether there was bribery, treating and undue influence in violation of the Election Offences Act and the Constitution.a.There was uncontroverted evidence of bribery involving two witnesses. As an election court, This court can make a determination only on whether an electoral malpractice of a criminal nature may have occurred, in terms of section 87 of the Elections Act, but not on whether the offence of bribery was committed. I do find that an electoral malpractice of bribery may have occurred.b.As to whether the electoral malpractice of bribery and voter influence so found, results in the nullification of the election, the evidence does not show that the scope and prevalence of the malpractice substantially affected the result of the election in terms of section 83 of the Elections Act. 305.On Issue 6: Whether there was broken chain of custody, unlawful handling of election materials and violation of procedure on close of polling.a.The totality of the evidence availed disclosed that out of 134 polling stations, there was broken chain of custody, possible unlawful handling of voting material but no violation of poll closing procedure at Gitiburi 1 and 2 polling stations except with regard to time. For Kaungu, there was evidence of violence but no evidence of broken chain of custody, unlawful handling or violation of poll station closing procedure. Consequently, there is no basis for a finding that the irregularities or non-compliance were substantial and affected the election outcome in terms of section 83(1) of the Elections Act.b.Had it been demonstrated that the sort of violence shown at Kaungu was pervasive or widespread, a positive case would have been made out to conclude that the violence affected the overall quality of the election and had a significant impact on the result. 306.Issue 7: Whether there was use of state resources, state security and public office to influence voters which constituted abuse of office and improper influence in violation of Articles 10, 73, 75 and 81(e) of the Constitution under the Elections Act.a.It was incumbent on the petitioner, in order to prove Issue 7, to provide at minimum evidence of the names of the public officers involved (of this they provided some names); their formal designations or offices held; and particulars and nature of the alleged abuses of such offices; provisions of the law breached and the overall effect of such abuses upon the electorate and the election outcome. The petitioner failed to provide these through the evidence adduced. Accordingly, the court is unable to find in his favour on this issue. 307.Issue 8: Whether there was delay in counting votes, exclusion of agents, defective and falsified statutory forms, opaque counting and tallying in violation of Article 86 of the Constitution and Regulation 79 of the Elections (General) Regulations.a.The court found that there were unexplained inconsistencies in forms 35A and 35B. These inconsistencies add up to 10 votes in forms 35B so that the election result has a 10-vote difference, with no way of knowing whom they would benefit. The scrutiny did not find anything to suggest any irregularity, in the in the inconsistencies, but rather careless mistake in translocation from the vote tally column of the Form.b.Regarding allegations that a total of 37 Forms 35A were overwritten and not countersigned, the court allowed scrutiny of only 8 of them where such overwriting demanded scrutiny. The DR’s Scrutiny Report Dated 17th April 2026 at pages 21-24, found that “Despite overwriting, the figures added up to the total valid votes as in the Form 35A. There was no major discrepancy noted.” The court agrees that the overwriting did not result in any discrepancy.c.Accordingly, on this issue the inconsistencies noted cannot be said to have substantially affected the will of the voters. 308.On Assisted votersa.The evidence on assisted voters emanated from scrutiny and was not pleaded in the petition. The court warned itself that such evidence cannot be relied upon exclusively to inform the outcome.b.Regulation 72(6) of the Elections (Gen) Regulations was violated in respect of the 1072 assisted voters as they were not recorded in the physical register as required, nor was there evidence that they were indicated in the KIEMS register or the Polling Station Diary.c.The only evidence availed that there were assisted voters was the existence of Forms 32 in compliance with Reg 72(5) declaring secrecy by the persons giving the assistance,d.Scrutiny found that 6 people assisted voters twice and made declarations in Form 32. This was in breach of Regulation 72(5)(c) of the Elections (General) Regulations, and may also amount to a criminal offence undere.It is impossible to identify the distribution of the assisted votes, thus were the court to disregard all the 1072 votes of assisted voters, there would be no significant alteration of the result expressed by the outcome. DeterminationFor all the foregoing reasons, the Court finds that the petition was not proved to the standard required and it is hereby dismissed with costs. Costs 309.The parties made submissions on costs, generally to the effect that costs follow the event. The 1-3rd respondents counsel went into some fair detail indicating the depth of the case, the number of attendances, preparatory time, complexity and so on. The 1-3 respondents and the 4th respondent both indicated that costs should be at Kshs 5,000,000/=. 310.Having considered the nature of the case and the input of the parties, and noting that 4th respondent did not testify or avail witnesses, I hereby cap party and party costs at Kshs.4,000,000/= 311.The 1-3 respondents shall be entitled to 70% thereof and the 4th respondent to 30%.Report of Court on Electoral Malpractices under Section 87 Elections Act 312.The court finds that the following were malpractices of a criminal nature may have been committed and directs that this Judgment be transmitted to the DPP:a.Admitted alteration of register without authority, contrary to Section 6(1) of the Election Offences Act.b.Double assistance of voters - that is allowing 6 persons to assist more than one voter each contrary to Reg 72(5)(c) of the Regulations.c.Failure to record in the polling station register against the name of the voter the fact that the voter was assisted contrary to Reg 72 (6) Certificate of Court as to Validity of Election Under Section 86 Elections Act 313.Having concluded the hearing of the election petition, I certify that the petition was dismissed and the 4th Respondent remains the duly elected Member of Parliament for Mbeere North constituency. 314.This information is to be transmitted to the Speaker of the National Assembly by the Deputy Registrar. Acknowledgments 315.At the conclusion of this arduous matter, I wish to extend my deepest gratitude to all parties and counsel for the dedication, patience, and professionalism you have demonstrated throughout these proceedings. All your efforts are commendable and will be judged well by history. 316.To the litigants, your perseverance throughout the fast-moving proceedings is appreciated and the court acknowledges that the case would not even exist without your intention. 317.To the advocates, your tireless efforts, diligence, well-researched submissions and unwavering commitment to the rule of law have greatly assisted the Court in arriving at a fair determination. If the court did not expressly cite the cases you relied upon, it is not because they were disregarded; rather, they were used to give perspective to the court. Though the journey has been demanding, your civility and respect for the process have upheld the dignity of the Court and strengthened the administration of justice. 318.I must appreciate my Legal Researcher, Loice Ameyo, for her perseverance, commitment and efforts in availing well-articulated research material 319.I thank Hon. Mercy Kinyua, Deputy Registrar of the High Court Embu, for her tireless and enduring commitment to the arduous 4-day scrutiny exercise. Her preparations for and handling of the same were extremely professional. 320.Finally, I thank the Judiciary Committee on Elections and the Registrar High Court for the close support given throughout the exercise. 321.Orders accordingly. DeLIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 21ST DAY OF MAY, 2026....................R. MWONGOJUDGEDelivered in the presence of:Mr. Njiiri, Mr. Ndegwa Njiru,Mr. G. Karuthui & Mr. Kiragu Wathuta (For the Petitioner)Mr. C. Mwongela & Ms. Laureen Omondi (for the 1st to 3rd Respondents)Ms. Rose Migwi, Mr. M. Gachuba & Dr. A. Kamotho (for 4th Respondent)Francis Munyao - Court Assistant