[2017] KEHC 1416 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT LODWAR

ELECTION PETITION NO. 3 OF 2017

PATRICK LOSIKE LOKAIMOE:::::::::::::::::::::::::PETITIONER

VERSUS

DANIEL EPOGO NANOK::::::::::::::::::::::::1ST RESPONDENT

PATRICK WANYAMA WANYONYI:::::::::::2ND RESPONDENT

THE INDEPENDENT ELECTRAL &

BOUNDARIES COMMISSION:::::::::::::::::3RD RESPONDENT

RULING

The Petitioner herein Patrick Losike Lokaimoe has moved this court by way of notice of motion dated 18th October, 2017. The said application has upto 10 prayers. Some of the prayers have since been disposed of by consent of the parties. In summary, the prayers remaining for determination are: -

(i) An order for production to court all Kiems Kit devices, voter registers, polling station diaries, ballot boxes and ballot papers used in the elections of 8th august, 2017 for Turkana West Constituency.

(ii) Directions for storage of the said electoral material.

(iii) An order of audit of the same.

(iv) Scrutiny, recount and audit of votes cast in the named polling station (at least 35 stations.)

(v) Leave for petitioner to file a further affidavit and also for one of his witnesses, Ewoi Sylvester Nangolia.

(vi) Leave to file Affidavits of named agents (upto 9 of them) or that the annexed affidavits be admitted and deemed as properly filed and served.

This application was strenuously opposed by the Respondents. The following arguments were put across by the parties.

Mr. Kinuthia for the applicant submitted that due to the responses filed and production of forms 35A’s, it had become necessary that the petitioner and the other agents file further affidavits. Counsel relied on Justus Mwangulu Omutiti -vs- Walter Nyambati & 2 others (2011) eKLR, in which the Hon. Justice Makhandia held that all issues must come under scrutiny and the court ought to deal without undue regard to technicalities. That the Affidavits were themselves contemplated in paragraph 28 o the petition and also paragraph 16.

Counsel urged for an order that the material in respect of the 17 extra polling station be produced, a total of 32 diaries and registers. And in respect of the Kiems Kit, counsel urged for the information on the same which is crucial in the determination of the issues herein. That this will help in determining which voters were not and which ones were assisted. He relied on the case of DTA -vs- Prime Minister & others (1996) 3 LRC, quoted in Mohamed Maahat Kuno -vs- Abdikadir Omar Ahmed & 2 others (2013) eKLR that no party should be denied access to information in custody of another.

On the issue of scrutiny, counsel urged that if the plea is premature, the petitioner be at liberty to revisit the issue after basis has been laid on the specific polling stations. He otherwise urged the court to consider why the number of voters for MP Turkana West, differs from the number of voters in other elective seats. He relied on Joho & 2 others -vs- Nyange & Another (2008) Vol. 3 KLR (E.P) in which the Hon. Maraga J, as he then was, allowed scrutiny by holding that scrutiny is ordered where there is ground for believing that there were irregularities or mistakes by election official and a basis had been established.

In reply, Mr. Katwa Kigen for the 1st Respondent, submitted that this application seeks new witnesses and new evidence, 20 new witnesses and 17 new polling station which are not in the Petition. That this has come up only after the Response of the Respondents (Paragraph 12).

On the issue that some of the agents had not been available, counsel submitted that since these were the petitioner’s own agents, they ought to have been readily available and it is not enough to simply say they were not available. In total, counsel submitted that this application seeks to amend the petition. On Section 26y(4) of the Election Act, submissions were made that a petition may be amended within 28 days same as filing and the court ought to decide if the effect is to amend, and that the 28 days of amendment ended on 3rd October, 2017. Commenting on the Wavinya Ndeti case, counsel submitted that it is not enough to say that the Respondent would have the chance to cross-examine the witnesses. And that the court held in Raila -vs- Uhuru (2013) that a party has a duty to comply with respective timelines and that if the new evidence is massive, the court ought to act with caution, adding that the petition only had 7 polling stations, and the petitioner now seeks 17 more.

Counsel relied on Philip Osore Ogutu -vs- Michael Onyura, that if the effect is to amend the petition, it should not be allowed. Also the case of Kidero -vs- Waititu.

On scrutiny, counsel submitted that Under Rule 30 and 31 the same shall be ordered on the polling stations which have disputes. That this application seeks scrutiny on new polling stations, not the ones in the petition. That scrutiny is not as a matter of right and one must justify it. He added that the issues raised herein can be dealt with through cross-examination and not scrutiny. Quoting from a scholarly and article by the Hon. Maraga Chief Justice, counsel went on that an application for scrutiny not grounded on any prayer on the petition would be tantamount to amending the same.

And relying on Philip Mokule Wasike -vs- James Lusweti (Bungoma Petition No. 5 of 2013), he maintained that scrutiny should not be used in a fishing expedition or to enlarge the scope of the pleadings. And Peter Gichuki Kingara -vs- Mary Wambui; that scrutiny and recount is not a gambling exercise, and that the malpractice must be laid down or established prior to an order of scrutiny.

Counsel also submitted that scrutiny is time consuming, labourers, and ardous exercise which is also costly (Page 32, of benchbook) and should not be needlessly undertaken. And where the margin is significant, the court should be reluctant. That in this case, petitioner had 8,660 votes compared to 9,540 of the 1st Respondent, a margin of 875 votes (Onyura case). He urged that the application be dismissed.

Mr. Onyinkwa for the 2nd and 3rd Respondents also objected to the application.On the issue of the Kiems Kit, he submitted that the kits have been reconfigured for the presidential election and so are not available. He otherwise conceded to production of the polling station diaries and voters registers for the undisputed stations.

It was submitted that the primary document herein is the petition, which talks of bribery, violence and late opening, whereas in this case, the application is a shift, talking of discrepancies allegedly from documents filed. That the discrepancies mentioned are differences between the votes for the women Representative and for the Member of Parliament. That the petition was supported by 5 Affidavits and they now seek 9 more Affidavits. That the Affidavits would fundamentally alter the nature of the petition and asked that this application be dismissed. He added that they have already supplied 15 diaries whereas the petitioner seeks 17 more, not mentioned in the petition. And that Rule 31(4) demands that scrutiny can only be ordered in polling station where the results are disputed.

In his short reply, Kinuthia for the Petitioner, submitted that they only seek to add 9 witnesses and since 2 cannot be traced, only 7.

I have considered the submissions of the 3 learned counsel. I have also perused the application, the Affidavit in support of the same and also the responses to the same. In my view, 3 main issues have come up for determination in this application: -

(i) Production of the Kiems Kits, voters registers and polling station diaries for the 17 more polling station listed at Paragraph 4 of the application.

(ii) Admission of further Affidavits.

(iii) The issue of recount and scrutiny.

I beg to start with the 2nd issue on admission of further Affidavits. It was pleaded by the petitioner that the petitioner needs to file a further Affidavits together with those of his agents who were not available to do the same. The 2nd limb refers to Affidavits of new witnesses. I have perused the drafts of the said Affidavits. I am convinced that they relate to the declarations sought in the petition. Whereas the petitioner himself seeks to file a further Affidavit, it is worth noting that several of the other intended Affidavits had been attached to the petition, only that they had not been signed by the witnesses who could not be available to do the same.

Rule 12(9) of the Elections (parliamentary and County Elections) petitions Rules, 2017, states;

“The election court may on its own motion or on application by any party to the petition direct a party or a witness to file a supplementary Affidavit.”

To me, this provision grants the court jurisdiction to allow for the filing of additional Affidavits if good cause is shown. The only bar that the law seems to place on this is if the effect would be to amend the petition (S.76 (4) of the Act). In this case, these intended affidavits do not seek to amend the petition as filed. And it is for this reason that the 28 day rule envisaged under S.76(4) of the Act would not apply.

The supreme court has on a number of occasions ruled on this and these decisions are binding on this court. The 2 prominent decisions on this are Evans Odhiambo Kidero & 4 others -vs- Ferdinand Ndungu Waititu & 4 others, Supreme Court Petition No. 18 of 2014 and Raila Odinga -vs- Indipendent Electoral & Boundaries Commission & 3 others, Petition No. 5 of 2013.

This court is also similarly alive to the provisions of Article 22 (3)(d) that courts, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities. In our instant case, one of the affidavits sought to be admitted is of the petitioner himself. Some others were also filed during the filing of the petition. And the rest, all relate to the petition. I do not see any prejudice that the Respondents would be subjected to should leave be granted to have these Affidavits filed and admitted as such. I accordingly therefore find merit i these prayers and i allow prayers 7, 8 and 9 of the Petitioners Application dated 18th October, 2017. Same to be filed and served within 3 days from today’s date.

On the 2nd issue of production of the Kiems Kits, voeter’s registers and polling station diaries for the 17 more polling station, I have considered the response by the Respondents. Regarding the Kiems kits, it was submitted that the kits had been taken away to be reconfigured for purposes of the fresh presidential election and so can not be produced. This is a technical issue as the court has notice that the fresh presidential elections were scheduled and held on 26th October, 2017. If the Kiems Kits had been reconfigured for this purpose, this court would be acting in vain to order that the same be produced in their original forms (for the elections of 8th August, 2017, for Turkana West constituency) it is for this reason that i decline to grant the orders sought regarding the Kiems Kits.

Regarding the other election material including the voter registers, polling station diaries, ballot boxes and ballot papers, this court notes that a consent was already signed with regard to the polling stations mentioned on the petition. What is sought is in regard to 17 additional polling stations. The Respondents have argued that this would be widening the scope of the petition. However, I ask myself if there is a party who will suffer any prejudice should these documents be produced or availed in court. They are in custody of the Independent Electoral & Boundaries Commission and i do not see how their production would prejudice any party herein and or in any way alter the substratum of the petition. I accordingly therefore allow prayer 1 of the application and I order the 2nd and 3rd Respondents to avail in court, file and serve, the relevant voter registers, and polling station diaries as prayed. With regard to the ballot boxes and ballot papers, the court notes that a consent order was already recorded securing the same. The said material to be availed and filed within 3 days.

Lastly, a plea was made by the petitioner for recount, scrutiny and audit of the ballots case in the 17 additional polling stations (Paragraph 4). I have considered this plea side by side the petition. In the petition, there is no prayer for recount. Seeking a recount by way of this application is therefore an attempt at widening the scope of the petition with the effect of amending the same. This, to me would be improper in view of the cardinal principle in litigation that a party is bound by his pleadings. In any case, this application has not sought for amendment of the petition and so the order sought of recount would not based on any plea made on the petition. I decline to grant the same.

Regarding the issue of scrutiny, again, i have considered the petition as filed. On the reliefs sought, the petitioner prays for scrutiny and audit of all the returns and forms of the Turkana West Parliamentary Election including but not limited to forms 35A. There is no plea for scrutiny of the votes case as prayed for in this application. This plea for scrutiny (prayer 4) is therefore not hinged on any prayer sought in the petition.

The issue of scrutiny has handled by superior courts in detail in past judgements and rulings. Among the salient consideration, for an order of scrutiny are the following: -

(i) S. 82(1) of the Elections Act grants leave to court order for scrutiny of votes on its own motion or on application by any party.

(ii) Rule 29(2) of the Elections (Parliamentary and County Elections) petition Rules, 2017 dictates that the court must first be satisfied that there is sufficient reason, to order for scrutiny and recount of votes.

Several divisions of the superior courts have also come up on the issue of scrutiny. Just to mention but a few;

(iii) That it is not the purpose of an order of scrutiny or recount to unearth new evidence or unpleaded matters upon which an election could possibly be nullified (Gideon Mwangangi Wambua & Another-vs- Independent Electoral & Boundaries Commission & 2 others, Mombasa Petition No. 4 of 2013, Peter Gichuki Kingara -vs- Independent Electoral & Boundaries Commission & 2 others, Nyeri Petition No. 3 of 2013 in which the court noted;

“The law on scrutiny and recount that I have addressed herein before suggests that scrutiny and recount in a petition is not a gambling exercise that sets the court to rummaging through the ballot boxes to see whether any scintilla of evidence of electoral malpractice or irregularity may be found. ............. the malpractice must be pleaded and evidence must be laid out and the court must be satisfied that on the basis of the evidence before it, it is necessary to call for scrutiny and recount............”.

(iv) In Charles Ongondo Were -vs- Joseph Oyugi Magwanga, Homa Bay Petition No. 1 of 2013, the court held that the narrower the margin of victory or loss, the higher the likelihood that a court could order scrutiny or recount without requiring the petitioner to first establish a basis for such an order.

(v) Rules 30 and 31, dictates that scrutiny and recount be confined to the polling station in which results are disputed.

(vi) Philip Mukwe Wasike -vs- James Lusweti, Bungoma Petition No. 5 of 2013, that scrutiny should not be used as a fishing expedition or to enlarge the scope of the pleadings. (Also Tuiyot J, in Philip Osore Ogutu -vs- Michael Onyura.

(vii) That scrutiny is time consuming labourous and ardous exercise which is also costly and should not be needlessly undertaken.

In effect therefore, a duty is placed on the applicant to establish the circumstances as to justify the order of scrutiny.In our case, the scrutiny prayed for in the petition does not include scrutiny of votes. No basis was laid on which polling stations would require scrutiny. In fact, by his confession, the applicant is making this plea only after considering the responses as filed by the Independent Electoral & Boundaries Commission.

I am not convinced that the applicant laid the expected basis as to warrant an order of scrutiny (as stated above). This plea came rather too early. I decline to grant the same. However, in view of the jurisdiction conferred on the court by Section 82(1) of the Elections Act, to order for scrutiny or recount, on its own motion, or on application by a party during the hearing of the election petition, I order and allow the applicant and indeed any party to renew this application should sufficient basis be established.

On the issue of costs, I am convinced that the Respondents having been dragged into these applications and succeeded in part, are entitled to costs for the same. I award the Respondents costs of this application. Orders accordingly.

Dated, signed and delivered at Lodwar High Court this 15th day of November, 2017.

D.O. OGEMBO

JUDGE

Ruling read out in open court in presence of :

1. Mr. Kinuthia and Bosire for the Petitioner,

2. Ms. Lokatei for 1st Respondent and

3. Mr. Onyinkwa for 2nd and 3rd Respondents.

D.O. OGEMBO

JUDGE

15th November, 2017