[2022] KEHC 16443 (KLR)

Panyako v Independent Electoral & Boundaries Commission & 2 others (Election Petition E001 of 2022) [2022] KEHC 16443 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16443 (KLR)

Republic of Kenya

In the High Court at Kakamega

Election Petition E001 of 2022

RB Ngetich, J

December 15, 2022

Between

Seth Ambusini Panyako

Petitioner

and

Independent Electoral & Boundaries Commission

1st Respondent

JUma Oduor Joseph, IEBC Constituency Returning Officer

2nd Respondent

Moses Malulu Injendi

3rd Respondent

Ruling

1. This is a ruling on two applications simultaneously. The first application is dated 4th October 2022, while the second application is dated 21st October 2022.

2. The first application dated 4th October 2022 seeks the following prayers: -i.That this Honourable court be pleased to order scrutiny of all election materials in the 2022 General Elections for the position of the Member of National Assembly in the Malava Constituency in the following polling stations;1. Shipala Primary Polling Station2. Mahusi Primary Polling Station3. Silungai Primary Polling Station4. Tombo Primary Polling Station5. Matete Primary Polling Station6. Namangara Primary Polling Station7. Fuvuye Primary Polling Station8. Teresia Primary Polling Station9. Namatala Primary Polling Station10. Muriola Primary Polling Station11. Mukhonje Primary Polling Station12. Lwanda (k) Primary Polling Station13. Bunuku Primary Polling Station14. Fuvale Polling Station15. Mukavava Primary Polling Station16. Namanja Polling Station17. Shilongo Polling Station18. Namushiya Polling Station19. St. Martins Primary Polling Station20. Burundu Polling Station21. Bulupi Polling Station22. Ingwe Polling Station23. Sawawa Primary Polling Station24. Kamuchisu Primary Polling Station25. Muting’ongo Primary School Stream 1 and 226. Mukhonje Primary School stream 1 and 227. Shitirira Primary School Stream 1 and 228. Tumbeni Primary School Stream 1 and 229. Kimang’eti Primary School Stream 1 and 230. Chimoroni Primary School Stream 1 and 231. Shivikhwa Primary School Stream 1 and 232. Malichi Primary School Stream 1 and 233. Mache Primary Polling Station Stream 1 and 234. Lugusi Primary Stream 1 and 235. Isanjiro Primary School Stream 1,2,3 and 436. Machemo Primary School37. Malava Bus/Matatu Park Terminus38. Shirulo Primary School39. Kokoyo Primary School40. Lukhokho Primary School41. Mazungutsa Primary School42. Lwanda Kabras Primary Stream 1 and 243. Shianda Primary School Stream 1 and 244. Mang’uliro Primary School Stream 1 and 245. Okoli Primary Polling Station stream 1 and 246. Kusavali Primary School47. Bunuku Primary School Stream 1 and 248. Nguvuli Primary School49. Chiveli Primary School50. Fuvale Primary School51. Kakoyi Primary School52. Chesoro Primary School53. Mukhuyu Primary School54. Mukangu Primary School55. Misimo Primary School56. Wavoka Polling stationii.This Honourable court is pleased to issue an order against the 1st and 2nd Respondent to grant access to the petitioner for a secured review of all KIEMS Kits deployed in the elections and specifically in the above-named polling stations with full disclosure of their GPRS locations, time the voting commenced at deployed stations, when the same stopped, when the same failed, when the same became full and the traffic, visits or number of voters as passed through the KIEMS KITS.iii.This Honourable court is pleased to issue an order against the 1st and 2nd Respondent to provide information/data on voters who used manual register to vote and electronic documents and devices and the data therefrom.iv.Abandoned by the petitioner.v.This Honourable court is pleased to grant any other orders it deems fit.

3. The application is premised on the grounds that the petition raises substantial questions which touches on the qualitative and quantitative aspect of the election of the National Assembly for Malava Constituency in the 2022 general elections. Further that, the election materials of the Malava constituency were transported by the 3rd Respondent Chief Agent Henry Muluya using motor vehicle KCU 995P, and other election materials to other stations were transported by close allies of the 3rd Respondent. The grounds further cited in the application are voter bribery, the failure of the KIEMS kits in various polling stations, the interference with the applicant’s agents by ejecting agents from the polling stations, violence meted on the voters, assistance of illiterate voters which affected the outcome of the result of the election depriving it the elements of being free, fair and transparent.

4. The application is supported by the affidavits of Samuel Soita Mutali, John Kanusu, Kennedy Mukuyiti, Tom Shoto, and Enock Lutomia Murambi attached to the petition.

5. In response, the 1st and 2nd Respondents filed Affidavit sworn by Juma Odour Joseph on 18th October 2022. He averred that he is employed by the 1st Respondent as a Returning Officer in Malava Constituency and stated that the petitioner has not laid a sufficient basis for any of the prayers sought; that the application for scrutiny sought in prayers 1 and 2 were not specifically pleaded in the Petition and an order for scrutiny and recount is made in polling stations where the results are disputed and the court cannot therefore grant blanket orders for scrutiny where results are not disputed.

6. Further that prayer 1 of the GPRS location, time the voting commenced and ended was not pleaded in the petition. He further stated that the petitioner’s motion introduces a new cause of action and seeks the production of election materials from polling stations whose results are not disputed; that by dint of Regulations 14 and 15 of the elections Technology Regulations 2017, the IEBC is under a statutory mandate to guarantee the secrecy of the Ballot and to confidentially keep/ store voters data in it’s possession and urged this court to dismiss the application.

7. The 3rd Respondent filed the grounds of opposition dated 19th October 2022 set out hereunder: -a.The petitioner has not laid any and/or sufficient basis to warrant an order for scrutiny.b.The huge margin of 2,758 votes between the 3rd Respondent and the petitioner negates the need of scrutiny.c.The application is a fishing expedition to procure fresh evidence that is not pleaded and /or contained in the Petition.d.The Petitioner has not pleaded in the petition, any complaint whatsoever about sixty-six (66) out of Seventy–Six (76) Polling Stations in respect of which he seeks scrutiny.e.The petitioner’s allegation in respect of the remaining Ten (10) Polling Stations have been sufficiently addressed and controverted by the Respondents.f.The Petitioner’s application is vague and does not point out specific areas and reasons for the request for scrutiny. The Petitioner has cast a wide net in a bid to gather new evidence and has failed to indicate the parameters of the request for the scrutiny exercise.g.The application is devoid of merit and should be dismissed with costs.

8. The second application dated 21st October 2022 filed on 25th October 2022 seeks the following orders: -1. That this Honourable court is pleased to order that the annexed affidavits about the storage and fixing of additional seals of ballot form part of the trial record.2. This court is pleased to summons the Kakamega county Returning officer, ICT Manager Kakamega County, Malava constituency Returning officer Mr Juma Odour and IEBC staff Thomas Mwinamo for purposes of cross-examination on the conduct of the 1st Respondent staff about the exercise of fixing additional seals on ballot boxes for Malava constituency conducted on 14th October 2022. 3.The court does make a resultant finding that the 1st Respondent staff especially the Kakamega County Returning officer, ICT manager Kakamega County, Malava constituency Returning officer Mr Juma Odour and IEBC staff Thomas Mwinamo tampered with election materials in concert with the 3rd Respondent agents in identifying and isolating select ballot boxes without a court order.4. This court does order a probe and investigation on the conduct of the 1st Respondent’s staff about the order of sealing ballot boxes issued by the court on 12th October 2022 and making an appropriate recommendation to the security agencies and the ODPP.5. The court be pleased to expand the scope of scrutiny to include all the ballot boxes other than the 45 ballot boxes (annexed as annexure S3 to the Affidavit of Shea Isiye) which were isolated by the 1st Respondent staff on 13th October 2022 for the member of parliament for Malava constituency in the 2022 General elections6. Court to grant any other orders it deems fit.7. The application is premised on the grounds that the 45 ballot boxes were identified and isolated in the absence of the petitioner’s agents and the basis of the ballot isolation is not understood as the court had not issued an order for scrutiny. That the actions of the 1st Respondent in cohort with the 3rd Respondent amounted to tampering with election materials which amounts to electoral offences and the court should probe into the matter. That unless the court makes appropriate orders, the petitioner stands to suffer irreparable harm.8. The application is supported by the annexed affidavit sworn by Shea Isiye. She reiterated the grounds of the application and averred that 45 ballot boxes were identified and isolated in the absence of the petitioner or his representative which amounted to tampering with the ballot boxes. That the 1st Respondent allowed them to take the serial numbers of the new seal and not the old seal. She stated that the new additional seal was added to the other 153 ballot boxes.9. In response to the second application, the 1st and 2nd Respondent filed grounds of opposition set out hereunder: -i.The application is premature as no report has been filed by the Deputy Registrar to warrant the granting of the orders sought.ii.The application seeks orders that mutate the petition beyond its initial scope and expand the substantive grounds and particulars of electoral malpractices as contained in the petition.iii.That the application has been filed after the conclusion of the pre-trial conference and offends the mandatory provisions of rule 15(2) of the Elections (Parliamentary and County Elections) Petitions rules 2017. iv.That the petitioner seeks to introduce further affidavits of Shea Isiye and Elijah Karungani in support of the Petition after pleadings have closed without leave of the Court.v.That granting the orders sought would mean that the petitioner has by design been given an extension of time to present the petition beyond the time permitted by law.vi.That granting the application to allow scrutiny of all ballot boxes from all the 198 polling stations within the Malava Constituency, earlier not pleaded in the petition, will occasion undue delay and interfere with the timelines for the conclusion of the case which would affect the mandatory constitutional timelines under Article 87(2) of the constitution and Section 76(1) of the Elections Act Allowing the application would occasion prejudice to the respondents because it would entail taking fresh instructions and re-opening the case after the pleadings have been closed.vii.That the Petitioner’s grounds for the application are unmerited and fails to provide cogent evidence to warrant the granting of the application.viii.That the application is devoid of merit and should be dismissed with costs.10. The 3rd Respondent filed a notice of preliminary objection dated 22nd October 2022, together with the ground of opposition in response to the second application. The grounds of opposition are set out hereunder: -a.That the application has been filed after the conclusion of the pre-trial conference and offends the mandatory provisions of Rule 15 (2) of the Election Parliamentary and County Elections Petition Rules 2017. b.The application seeks orders that mutate the Petition beyond its initial scope.c.The order of 12th October 2022 was implemented under the supervision of the Deputy Registrar of the High Court in the presence of all parties.d.That the petitioner has not demonstrated any non-compliance with the orders granted by this Honorable court on 12th October 2022. e.Granting the applicant will occasion undue delay and interfere with the timelines for the conclusion of the case which affect mandatory constitutional timelines under Article 87(2) of the Constitution and Section 76 (1) of the Election Act.f.Allowing the application would occasion prejudice to the Respondents because it would entail taking fresh instructions and reopening the case after the pleading has been closed.g.That the petitioner’s grounds for the application are unmerited and fail to provide cogent evidence to warrant the granting of the application.h.That the application is devoid of merit and should be dismissed with costs.11. Directions were taken to have the applications canvassed by way of written submissions. Parties have complied.

PETITIONER’S SUBMISSIONS 12. Counsels for the Petitioner filed submissions dated 20th November 2022. He submitted that the court can expand the scope of the scrutiny to include ballot boxes for the whole Constituency. That the Respondents accessed the warehouse and isolated forty five (45) ballot boxes for scrutiny in the absence of the Petitioner; the basis of isolation of ballot boxes is unknown by the Petitioner.

13. Counsel further submitted that the prayer for scrutiny is anchored on the violence meted on the voters on the eve of Election Day, the Election day and before the election on the 16th of July 2022 at the Malava Primary, the violence caused some voters not to vote. Counsel further submitted that the polling stations where results were contested have been captured in the petition but he wishes to expand the scope of scrutiny to all polling stations in the Malava Constituency.

14. Counsel submitted that the petitioner proved that unauthorized strangers were sitting on the IEBC reserved desk at the Constituency tallying centre and the disparity of registered voters in form 34B and form 35B is a ground for scrutiny.

15. Counsel further submitted that the petitioner is entitled to apply for scrutiny at any stage of the proceedings after filing the petition and cited the case of Hassan Mohammed Hassan &Anor vs Independent Electoral & Boundaries Commissions & 32 Others (2013) where the court set out three stages when scrutiny may be applied being before trial, during the trial and after trial and argued that the scrutiny will unearth the rigging of elections by the Respondents.

16. Counsel submitted that the denial or forceful ejection of the Petitioner’s agent from the polling stations was a deliberate scheme by the respondents that the petitioner’s votes were not guarded to pave way for ballot stuffing and rigging, his agents were denied entry in eight (8) polling stations and scrutiny will allow the court to interrogate the transport documents such as work tickets and confirm that indeed the transportation of election materials was carried out by the supporters and close associates of the 3rd Respondent.

17. The Petitioner’s counsel further submitted that IEBC officials Thomas Mwinamo and Juma Odour were highly compromised and added that Juma Odour the 2nd Respondent demanded kshs 300,000/= on several occasions from the Petitioner.

18. Counsel submitted that the failure of the Kiems Kits that forced voters to vote until late in the night was orchestrated by the 3rd Respondent in collaboration with the 1st and 2nd Respondent to create tension and scare the voters from voting and rig elections and that it was wise to postpone the elections of the polling stations where the KIEMS kits failed rather than proceed to vote until late in the night.

19. Counsel submitted that without mandatory form 32A filled and signed by the voters and the agent, the manual voter identification was irregular. Form 32A was introduced to curb the issue of dead votes.

20. Counsel submitted that a margin of 2000 votes is a small margin and should form a sufficient basis for scrutiny and urged this court to probe into the actions of the IEBC officials, Thomas Mwinamo, Joseph Ayatta and Juma odour for accessing the warehouse before the petitioner and /or his advocate and before the set time by the Deputy Registrar.

21. Counsel urged the court to allow both applications with costs.

1ST AND 2ND RESPONDENT’S SUBMISSIONS 22. Counsel for the 1st and 2nd Respondent filed submissions on 28th November 2022 and submitted that the law relating to the threshold to be met by a party seeking scrutiny was laid down by the Supreme court in the case of Peter Gatirau Munyua vs Dickson Mwenda Kithinji & @ others (2014) eKLR where the court stated that the right to scrutiny does not lie as a matter of course. The Party Seeking Scrutiny of votes in an election petition is to establish the basis for such a request, to the satisfaction of the trial judge or magistrate. Such a basis may be established through pleading and affidavits, or by way of evidence adduced during the petition hearing.

23. Counsel further submitted that the application for scrutiny is unmerited on the basis that there was no polling station where the results were disputed; that the petition is too general and the petitioner is on a fishing expedition with a view of widening the scope of the petition.

24. Counsel submitted that from the grounds relied on by the petitioner, no sufficient evidence has been adduced to warrant an order of scrutiny and that scrutiny of votes will not show whether there was any violence and no evidence has been placed before the court to demonstrate incidences of violence in the alleged polling stations.

25. Counsel submitted that the petitioner did not demonstrate that his agents were forcefully ejected from the polling stations; that the petitioner failed to call witnesses to support the allegation of the rigging of elections between 6. 00 am and 8. 30 am and further submitted that the petitioner’s agents were not denied entry into the polling station as the polling station diary clearly show the agents were present and they signed the polling station diary indicating the time each agent entered the polling station.

26. Counsel further submitted that the petitioner has not demonstrated how the election materials transportation by Panamark Enterprises Limited affected the election results; and the allegation of ballot stuffing during the transportation of the election materials was not substantiated by any petitioner’s witnesses. Further that the issue of ballot stuffing would have been raised at the polling station and agents would have declined to sign the polling station diary stating an anomaly; and the alleged figure of 5000 votes of ballot stuffing has not been pleaded by the petitioner; the petitioner did not dispute the election results in any polling station.

27. On the allegation of the voter bribery, counsel submitted that the petitioner has failed to discharge the requisite burden of proof as enshrined by the law as the petitioner failed to demonstrate any incidents of voter bribery.

28. Counsel submitted that whereas the failure of the KIEMS Kits is admitted, scrutiny of the failed Kiems kit will not assist the court in any way as there was no deliberate interference with the KIEMS Kits. That the mismatch of the KIEMs Kit happened at the IEBC offices in Nairobi and failure of the KIEMS Kit did not disenfranchise the voters in the affected polling stations; that the Petitioner has not adduced sufficient evidence to warrant scrutiny.

29. Counsel further submitted that the petitioner is on a fishing expedition to introduce new evidence in aid of the petition after the close of pleadings and the request of form 32A is in an attempt to introduce new and further evidence not grounded in the Petition.

30. Further that there was no evidence before the court to demonstrate that the 3rd Respondent’s agents assisted voters and owing to the living nature of the voter register, names of dead persons are still in the register but no dead voter was allowed to vote.

31. Counsel further submitted that voter differentiation in form 34 series did not affect the results of the Member of the National Assembly and the voter margin of 2000 votes is huge to warrant an order of scrutiny.

32. On orders sought in the Motion dated 21st October 2022 seeking cross-examination of the officers of the 1st Respondent, counsel submitted that it will not aid the court in determining the issues as framed and urged the court to dismiss both motions with costs.

3RD RESPONDENT’S SUBMISSIONS 33. Counsel for the 3rd Respondent Mr Anzala filed submissions on 23rd November 2022 and submitted that under Section 83(1) of the Election Act, Rule 239 (4) of the Election (Parliamentary and County Election Rules, 2017) scrutiny is confined to polling stations in which the results are disputed.

34. Counsel further submitted that application for scrutiny is not merited for the reasons that there is no polling station where results were disputed; that the application for scrutiny is too general and not anchored on the averments made in the Plaint; that the Petitioner is in a fishing expedition to widen the scope of the petition and the grounds upon which the application is anchored were sufficiently addressed at the trial.

35. Counsel further submitted in respect to transportation of election materials, the petitioner has not demonstrated that the 3rd Respondent and his supporters/allies participated in the transportation of election materials and the claim of ballot stuffing was not substantiated by any witness; that the petitioner did not demonstrate before the court the polling station where the alleged 500 votes were stuffed and figures of 500 as alleged have not been pleaded in the Petition; and the petitioner did not at any point dispute the results as announced by the Returning officer and proceeded to sign all forms 35B.

36. On the issue of bribery of votes, counsel submitted that the court cannot determine which votes were cast based on bribery and which were not based on bribery and added that the petitioner did not prove any of the claims of voter bribery; that the petitioner and his witnesses were unable to explain the allegation of bribery; and the petitioner has not supported the allegation with sufficient evidence.

37. Counsel further submitted that the issue of the failure of the Kiems Kits in the polling stations on Election day is not disputed and scrutiny of the votes will not help the court in determining whether there was voter suppression and added that the petitioner has not claimed any irregularity concerning the polling station where the KIEMs Kit worked.

38. Counsel further submitted that the Petitioner did not sufficiently demonstrate that his agents were evicted from the polling station stations and submitted that the petitioner had agents in all polling stations in the Malava constituency who signed the polling station diary and form 35A.

39. On issue of assisted voters, counsel submitted that no voter testified on having been assisted by the 3rd Respondent’s agent neither did any of the petitioner’s agents talked of witnessing any of the 3rd Respondent’s agent assisting voters as claimed.

40. On alleged violence, counsel submitted that violence is not a ground upon which scrutiny can be allowed and that no evidence was adduced on alleged violence in Kamichisu, Burundu or Lugusi, St Gerald Sasala Polling Stations and at Mahira Polling Station; the petitioner’s evidence adduced demonstrate that the Petitioner stormed into and attempted to interfere with the vote counting.

41. On the issue of dead votes, counsel submitted that there was no death certificate adduced before the court to ascertain that Paul Injendi was dead, further no evidence was adduced to show that someone voted on his behalf.

42. Counsel submitted that the position that the margin between the petitioner and the 3rd Respondent is so narrow is misleading to the court. The margin is 2,758 which is too huge to allow an application of scrutiny and cited the case relied on the petitioner of Joho vs Nyange & Another (2008) 3 KLR where the court held a margin of 1069 votes was too huge a margin to allow an application for scrutiny.

43. He further submitted that the amendments made to form 34B did not affect the results of a Member of the National Assembly as there were no alterations made on form 34B and urged the court to dismiss the application of scrutiny.

44. On the application dated 21st October 2022, counsel submitted that the orders to summon various officers of the 1st Respondent to be cross-examined on the exercise of sealing ballot boxes as sought by the petitioner will not aid the court in determining the issues framed and the jurisdiction of the court is to determine issues relating to the conduct of the election up to the declaration of the results and the request to expand the scope should be resisted by this court.

45. Further the exercise of placing additional seals to the ballot boxes was done under the guidance of the Deputy Registrar and as per the Deputy Registrar’s report, there were no grievances recorded. Further, there is no evidence adduced that the ballot boxes were opened and neither has evidence been adduced to prove that the seals put on the ballot boxes are different from the seals affixed at the Respective polling stations.

46. In conclusion, counsel submitted that the pleadings and evidence do not lay any basis for the expansion of the scope of scrutiny to cover the whole constituency and urged this court to dismiss the applications with costs.

ANALYSIS AND DETERMINATION 47. I have considered grounds upon which the two applications are made, averments in affidavits filed, evidence adduced during trial and submissions filed by parties herein. I consider the following as issues for determination.i.Whether the petitioner has laid a basis for grant of order sought in the two applicationsii.If basis has been laid for scrutiny, determine scope of scrutiny.

i. Whether the petitioner has laid a basis for grant of order sought in the two applications 48. Section 82 of the Elections Act, No. 24 of 2011 provides as follows: -“An election court may, on its motion or application by any party to the petition, during the hearing of an election petition, order for scrutiny of votes to be carried out in such manner as the election court may determine.”

49. Further, Rule 31 (1) of Elections (Parliamentary and County Elections) Petitions Rules, 2017 provides that parties to the election proceedings may at any time apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.

50. And Rule 32 (2) (4) of Elections (Parliamentary and County Elections) Petitions Rules, 2017 provides that an Election court has to be satisfied that there is sufficient reason to order either scrutiny or recount of the votes and the scrutiny shall be confined to the polling stations in which results are disputed.

51. From the foregoing, a party seeking scrutiny must establish the basis for seeking recount and scrutiny. The petitioner in the instant application alleged dead voters voted there was violence and stuffing of ballot boxes as the 3rd Respondent’s agents and close allies were allowed to transport election materials before and during the day of the election.

52. In the Petition, the Petitioner identified forty five (45) polling stations in which he had sought scrutiny but has now expanded the scope of the scrutiny to all polling stations within Malava Constituency on the ground that during the resealing of the ballot boxes, the Respondents had isolated the forty five (45) boxes identified in the petition in the absence of the Petitioner and allege the exercise is a mechanism orchestrated in an attempt to hide the rigging that was done during the election day.

53. In Raila Odinga vs IEBC & others (2013) eKLR the court held that scrutiny must relate to specific polling stations where results are disputed and the evidence called has to be specific in that regard.

54. Further in the case of Ledama Ole Kina v- Samwel Kuntai Tunai & 10 Others [2013] eKLR, the court held as follows: -“An application for scrutiny of all of Narok South Constituency lacks specificity, is a blanket prayer that in my view, cannot be granted. The applicant needed to be specific on which polling stations he wanted scrutiny done in. If he wanted scrutiny in all the polling stations, then a basis should have been laid for each polling station…”

55. The Respondent’s argument is that the petitioner has not laid any basis for scrutiny and recount of votes and further contend that disparity of 2758 votes is a huge margin to warrant scrutiny and recount. The petitioner’s view of the margin is that it big and added to allegations raised, recount and scrutiny should be allowed.

56. The petitioner alleged ballot stuffing by persons associated to the 3rd respondent who according to the petition had close association to the 1st respondent’s officials or played a role in transportation of ballot boxes. The petitioner also alleged that dead voters voted.

57. The allegations are generalized. However, in view of the allegation of ballot stuffing, I am of the view that scrutiny and recount should be conducted in a few polling staffing to assist the court to determine whether indeed their existed ballot stuffing. I will therefore allow scrutiny and recount in the polling stations listed below: -1. Kimangeti Polling Station2. Manda Shivanga Ward3. St. Gerald Polling Station4. Mahira Polling Station5. Shitirira Polling Station6. Chemoroni Polling Station7. Lutali Polling Station8. Emusali Polling station9. Lwanda K. Polling Station10. Mali Mali Polling Station11. In respect to application dated 21st October 2022 seeking to call the IEBC official before the court and cross-examine them on the conduct of the re-sealing of ballot boxes, I have perused Report compiled by the Deputy Registrar on 19th October 2022 and note all 198 ballot boxes for all polling stations in Malava Constituency were affixed with an additional seals. The Report by the Deputy Registrar does not capture the said allegations and noting that all boxes were affixed with additional seal, I therefore do not see the sufficient reasons to warrant grant of reliefs sought by the petitioner in the second application.

ii. Scope of Scrutiny and Recount 63. The scrutiny and recount in the above polling station is limited to establishing whether there was ballot stuffing as alleged by the petitioner.

FINAL ORDERS:- 1. Scrutiny and recount allowed in the following polling stations:1. Kimangeti Polling station2. Manda Shivanga Polling Station3. St. Gerald polling Station4. Mahira Polling Station5. Shitirira Polling Station6. Chemoroni Polling Station7. Lutali Polling Station8. Emusali Polling Station9. Lwanda K. Polling Station10. Mali Mali Polling Station

2. The scrutiny and recount in the above polling stations is limited to establishing whether there was ballot stuffing as alleged by the petitioner.

3. Application dated 21st October 2022, is hereby dismissed.

4. Costs in the cause.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KAKAMEGA THIS 15TH DAY OF DECEMBER, 2022. ………………………………RACHEL NGETICHJUDGEIn the Presence of:Merciline – Court AssistantMr. Chisengo and Malenya for the PetitionerMr. Anzala for 3rd RespondentMs. Odek for 1st and 2nd Respondent