[2017] KEHC 2023 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

ELECTION PETITION NO.6 OF 2017

PETER GATIRAU MUNYA……………..PETITIONER/APPLICANT

Versus

INDEPENDENT ELECTORAL

AND BOUNDARIES COMMISSION…............1ST RESPONDENT

MERU COUNTY RETURNING OFFICER…..2ND RESPONDENT

KIRAITU MURUNGI………………..……….....3RD RESPONDENT

RULING

[1] Before me are two applications dated 6th and 8th September 2017 and which I shall refer to as 1st and 2nd application respectively. This decision relates to both applications.

The 1st application

[2] The 1st Application is a Notice of Motion Application dated 6th September 2017. It is expressed to be brought pursuant to Articles 19, 20, 22, 23 (3), 35, 81, 86 and 258 of the Constitution, Section 39 of the Elections Act, Section 27 of the Independent Electoral and Boundaries Commission Act, No.9 of 2011, Access to Information Act and all other enabling provisions of the Law, Section 17 of Elections (Parliamentary and County Election Petition Rules, 2017, in the said application, the following orders have been sought:

a) ……………………………………….spent

b) ………………………………………spent

c) This Honourable be pleased to order the 1st Respondent to give access to the Applicants/Petitioner to the following:

(i) Full and unfettered physical and remote access to each biometric electronic appliance used at each polling station location used to verify voters identification against the list of registered voters and for the appliances to be forensically imaged to capture, inter alia, metadata such as data files, creation times and dates, devices IDs MAC address IP.

(ii) Electronic devices used to capture Form 37As and Form 37Bs into the KIEMS system and transmitted to the Constituency Tallying Centers and the National Tallying Center.

(iii) Full and unfettered access to any form of scanning device which saved images onto access local servers for onward transmission to the Constituency and National Tallying Centre.

d. The Honourable Court be pleased to Order the 1st Respondent to give access to all the parties, for purposes of scrutiny, and supply to the court and to the parties original Form 37As, 37Bs and 37C prepared at and obtained from the polling stations by presiding officers and used to generate the final tally of the Governor’s election, and pursuant to such production leave be granted for the use of an aid or reading device in distinguishing the fake forms from the genuine ones.

e. The 1st Respondent be compelled to give the Petitioner access to the original form 37As, 37Bs and 37Cs.

f. The honourable court be pleased to grant the Petitioner leave to put any other and/or further Affidavits to or in reply to any responses filed by the Respondents.

g. The honourable court be pleased to grant any other reliefs that it may deem just and fit to grant in the interests of justice.

[3] The Application is premised upon the grounds set out in the application, supporting affidavit and submissions in support thereof. Amongst other grounds, it has been argued that inRAILA AMOLLO ODINGA AND ANOTHER vs. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND OTHERS, SUPREME COURT PETITION NO.1 OF 2017, the Supreme Court found and held that there were irregularities and that some declaration Forms used to tally results from Meru County had anomalies and inconsistencies including but not limited to lack of security features. The Applicant contended that pursuant to that finding, the Petitioner had noted similar and extensive anomalies in the Forms that were used to declare the gubernatorial results for Meru County, which anomalies and inconsistencies go to the very root of the integrity, accountability and verifiability of the elections conducted in Meru County.

[4] The Petitioner further contended that the 1st Respondent had issued to him form 37As and 37Bs which had various anomalies. The Petitioner was therefore apprehensive that the rights of the people of Meru County as enshrined under Article 38 of the Constitution had been and shall continue to be prejudiced and trampled upon should the court not intervene by granting the orders sought in the present Application.

[5] The 1st and 2nd Respondents opposed the application through a Replying Affidavit filed in court on 18th September 2017, sworn by Gichihi Macharia Samuel who deposed that they were ready and willing to lodge with the court all the original result Forms 37As, 37Bs and 37C which declared the results of the Election for Governor of Meru County. Grounds of Opposition were also filed by the 3rd Respondent on 27th September 2017.

Submissions by the Petitioner

[6] The Petitioner in his submissions reiterated the grounds in the body of the Application. He submitted inter alia that the basis for the Application for access and scrutiny relate to anomalies in forms 37A and 37B and that the impugned election was declared without the 2nd Respondent having received all the forms 37A from all the polling station in the County. For that reason, the Applicant claimed that he was entitled to an order for scrutiny as he had laid a basis for it. The Applicant further contended that a significant number of the Forms 37A and 37B were fraught with anomalies and irregularities and required scrutiny to establish their validity and the validity of the results declared therein. The Applicant was of the view that he need not apply for scrutiny as under section 82 (1) of the Elections Act, the court on its own motion may order scrutiny of votes.

1st and 2nd Respondent’s submissions

[7] It was submitted for the 1st and 2nd Respondent that the case of GATIRAU PETER MUNYA V DICKSON MWENDA KITHINJI & 2 OTHERS PETITION NO. 2B OF 2014, sets out the guiding principles in respect of scrutiny inter alia that the right to scrutiny does not lie as a matter of course and that the party seeking the order must establish a basis for it to the satisfaction of the Judge; such basis may be established by way of pleadings and affidavits or by way of evidence adduced during hearing of the Petition.

[8] The Respondents further contended that the Petition herein was couched in generalities and no specific detail had been given as to warrant an order for scrutiny. According to the Respondents, scrutiny should be limited to the original statutory forms 37As, 37Bs and 37C, including the specific polling station ballot boxes where presiding officers may have locked in the Original Forms and provided carbonated ones to the Returning Officers. See paragraph 5 of the Replying Affidavit of Gichichi Macharia, the 2nd Respondent sworn on 18th September 2017.

[9] In respect of KIEMS Kit it was submitted that they are an integral electronic interface in the election process and the Respondents were ready and willing subject to the court’s decision to provide access to all the data stored in the SD memory cards as was deposed in the statutory declaration of James Muhati, the ICT Director of the 1st Respondent and comprising;

i. The Register of Voters

ii. Polling Station Biometric database.

iii. National Alphanumeric database.

iv. The count of valid votes cast in favour of each candidate keyed in or copied from the statutory form (A series

v. Images of the statutory forms, duly filed after tallying of the votes cast and

vi. Transaction logs

3rd Respondent’s submissions

[10] The 3rd Respondent submitted that the Applicant was asking for access to all appliances used at all the polling stations and that the Petitioner was generally aggrieved by the conduct of the elections without pointing out any particular polling stations. The Petitioner’s affidavit did not also cite specific polling stations and or incidences of wrong input of information, instances of unauthorized persons being allowed to vote or specific polling station with particular breaches of the law.

[11] With regard to prayer 3 which sought scrutiny of the electronic transmission gadgets, it was submitted that there was no requirement of law that results in a gubernatorial election be transmitted or delivered electronically. And that the Petitioner had not laid a basis upon which he seeks to examine the transmission gadgets or the legal effect the desired examination would have on the Petition.

[12] Finally, the 3rd Respondent submitted that the Application must fail for it was a fishing expedition intended to assist the Petitioner discover evidence with which to buttress his Petition to the prejudice of the 3rd Respondent. The Application was couched in general terms intended to give the Petitioner a wide leeway to lure the court into scrutinizing the entire elections in the whole of Meru County.

DETERMINATION OF 1ST APPLICATION

[13] The 1st application relates to access to and scrutiny of all electronic systems and Forms 37A, 37B and 37C used in the election for Governor of County of Meru held on 8th August 2017. Upon careful consideration of the 1st Application, the rival submissions and authorities relied upon by the parties, I take this view of the matter. There is no dearth of judicial decisions on the subject of scrutiny. As law has it, scrutiny is not granted as a matter of course. It is granted at the discretion of the court where sufficient basis has been laid through the pleadings or evidence or both. ‘Sufficient reason or basis’’ may not have been exactly defined or assigned a definite scope as it will depend on the facts of each case. However, I should think that it entails showing such irregularities or illegalities which are substantial, in the sense that they may affect the results and or the integrity of the election, and of a nature that cannot be reconciled otherwise than resorting to examination of the systems and material used in the election. Odunga, J in GIDEON MWANGANGI WAMBUA & ANOTHER V. IEBC & 2 OTHERS (Paragraph 26) said this same thing in different words as follows;

“The petitioner ought to set out his case with sufficient clarity and particularity and adduce sufficient evidence in support thereof in order to justify the court to feel that there is a need to verify not only the facts pleaded but the evidence adduced by the petitioner in support of his pleaded facts’’. [Underlining mine]

Therefore, scrutiny will not issue; (1) where the court can make an informed opinion on alleged malpractices or irregularities on the basis of the material before the court; or (2) where only venial or pardonable errors, or errors which can easily be explained through or reconciled from the material before the court, say, affidavits, documents or oral evidence, are established. Hence, the school of thought which posit that the particular allegations founding scrutiny must be specifically and clearly stated in the pleadings and evidence in support thereto be readily available from the pleadings or affidavits or evidence adduced. See eminent scholarly paper byMaraga JA (as he then was), Scrutinyin Electoral Disputes, A Kenyan Judicial perspective that:

The party seeking scrutiny must therefore ensure that its petition and affidavit in support “contain concise statements of materials facts” upon which the prayers is grounded.

[14] In addition, scrutiny is also scope-specific to the particular polling stations where the results are disputed, and which must be so stated. The rationale for insisting on specificity is not only because it is a strict requirement under rule 33(4) of the Election Petition Rules, but because the process of scrutiny is laborious exercise which consumes previous Court time and brings about unnecessary costs.Accordingly, as it has been said before, scrutiny is not a fishing expedition or a game of lottery in the manner described by Ringera J (as he then was) in PYARALAL MHAND BHERU RAJPUT vs. BARCLAYS BANK AND OTHERS Civil Case No. 38 of 2004;-

…a wide net cast over a large body of water, and out of all the lake or sea, creatures caught in it, there will be one or two edible crabs or fish.

[15] The foregoing analysis is drawn from the innumerable judicial authorities as well as eminent literary works on the subject of scrutiny in section 82(1) of the Election Act and Rule 29 of the Elections Rules made thereunder. I do not wish to multiply the authorities except at the risk of monotony and dull repetition, I am content to cite some few. See the case of GATIRAU PETER MUNYA V DICKSON MWENDA KITHINJI & 2 OTHERSPETITION NO.2B OF 2014; [2014] eKLR as follows:-

“From the foregoing, review of the emerging jurisprudence in our courts, on the right to scrutiny and recount of votes in an election petition, we would propose certain guiding principles, as follows:-

a) The right of scrutiny and recount of votes in an election petition is anchored in Section 82(1) of the Elections Act and Rule 33 of the Elections (Parliamentary and County Elections) Petition rules, 2013. Consequently, any party to an election petition is entitled to make a request for a recount and/or scrutiny of votes, at any stage after the filing of petition, and before the determination of the petition.

b) The trial Court is vested with discretion under Section 82(1) of the Elections Act to make an order on its own motion for a recount or scrutiny of votes as it may specify, if it considers that such scrutiny or recount is necessary to enable it to arrive at a just and fair determination of the petition. In exercising this discretion, the Court is to have sufficient reasons in the context of the pleadings or the evidence or both. It is appropriate that he court should record the reasons for the order for scrutiny or recount.

c) The right to scrutiny and recount does not lie as a matter of course. The party seeking a recount or 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 by way of pleadings and affidavits, or by way of evidence adduced during the hearing of the petition.

d) Where a party makes a request for scrutiny or recount of votes, such scrutiny or recount if granted, is to be conducted in specific polling stations in respect of which the results are disputed, or where the validity of the votes is called into question in the terms of Rule 33 (4) of the Election (Parliamentary and County Elections) Petition Rules.”

[16] See also the case of NICHOLAS KIPTOO ARAP KORIR SALAT vs. IEBC & 7 OTHERS [2015] eKLR where the Court of Appeal held as follows:-

“The Supreme Court’s approach to Orders of scrutiny in election dispute-resolution, thus, is by no means precipitate: It follows a clear pattern that is rational, familiar, and judicious. Testimony to this effect is found in our earlier decision in the Munga case, in which we cited with approval the decision of Odunga, J in Gideon Mwangangi Wambua & Another v. IEBC & 2 Others (Paragraph 26)

“The aim of conducting scrutiny and recount is not to enable the Court [to] unearth new evidence on the basis of which the petition could be sustained. Its aim is to assist the court to verify the allegations made by the parties to the petition which allegations themselves must be hinged on pleadings. In other words a party should not expect the Court to make an order for scrutiny simply because he has sought such an order in the petition. The petitioner ought to set out his case with sufficient clarity and particularity and adduce sufficient evidence in support thereof in order to justify the court to feel that there is a need to verify not only the facts pleaded but the evidence adduced by the petitioner in support of his pleaded facts. Where a party does not sufficiently plead his facts with the necessary particulars but hinges his case merely on the documents filed pursuant to Rule 21 of the Rules, the Court would be justified in forming the view that the petitioner is engaging in a fishing expedition or seeking to expand his petition outside the four corners of the petition” [emphasis supplied]”

“The determination of sufficiency is a talk reserved to the discretion of the election Court. Muchelule J. in a Ruling delivered on 10th July, 2013, remarked that the purpose of scrutiny was not to identify votes cast by persons who were eligible or ineligible to vote, but to identify votes that were void, on account of being not properly marked, unmarked, or bearing a wrong serial number. Such an impression was drawn from a reading of Section 82(2) of the Elections Act, 2011, which indicates the votes to be excluded when scrutiny is done. The learned Judge, quite aptly, thus held:

“Pursuant to Rule 33(4) the Petitioner should specify the polling stations in respect of which he seeks scrutiny, and the materials and documents that he wishes the Court to scrutinize. Reasons have to be given why the stations should be subject to scrutiny. Similarly, reasons should be given why the materials and documents in question should be scrutinized.”

[17] In Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others (supra) the Supreme Court stated:

“…From the eminent rational of these decisions, it is clear to us that an order for a recount or scrutiny must be grounded on sufficient reasons. The words of Wedo J, in Ledama Ole Kina v. Samuel Kuntai Tunai & 10 Others (cited above) are, in this respect, instructive:

“An application for scrutiny of all of Narok South Constituency lacks specificity, and is a blanket prayer that, in my view, cannot be granted. The applicant needed to be specific on which polling stations he wanted a scrutiny done in. If he wanted scrutiny in all the polling stations, then a basis should have been laid for each polling station. The rationale is clear: the process of scrutiny is laborious, time-consuming, and the applicants cannot be left at liberty to seek ambiguous prayers and waste previous Court time and incur unnecessary costs. They must be specific. For the above reason, the Court cannot give a blanket order for scrutiny in Narok South Constituency, because such order will be prejudicial to the respondent, now that the evidence of witnesses has already been taken. The respondent would not have an opportunity to respond to any new issues that may be unraveled during scrutiny.”

[18] Eminent scholarly paper byMaraga J (as he then was), Scrutinyin Electoral Disputes, A Kenyan Judicial perspective, at page 260 - 262underpara 5. 3on pleadings for scrutiny;has given such splendid and clear exposition on scrutiny. Of specific importance is this passage:

…scrutiny must be specifically pleaded in the petition, the courts have also held that pleas for scrutiny must be precise. Scrutiny is not to be granted on ambiguous pleadings intended to enable a petitioner to engage in a fishing expedition and perhaps enlarge his case beyond the scope of his pleadings or on pleadings couched in general terms Courts have held that it “would be an abuse of process to look upon scrutiny “as a lottery” and “to allow a party to use (it) … for purposes of chancing on new evidence.”

Scrutiny can also never be granted on a blanket prayer. As is deducible from Rule 33(4) of the Election Petition Rules, specificity is crucial. The prayer for scrutiny must specify the polling station(s) in which the results are disputed and the documents which should be scrutinized. The party seeking scrutiny must therefore ensure that its petition and affidavit in support “contain concise statements of materials facts” upon which the prayers is grounded.

[19] Applying the above test to the facts of this case, the prayer for scrutiny on this Application has been couched in very general terms. For instance, at page 31 paragraph 94 (i) (c), the Petitioner avers;

“In a large number of the said polling stations, results from these polling stations were posted to their respective Forms 37B without the supporting Form 38A as is required by law…”

The alleged polling stations have not been specified by the Petitioner. Again, at paragraph (ii) thereof, the Petitioner stated;

“A large number of declaration forms 37A not signed by the Petitioner’s or his party’s agents contrary to Section 79 (2A) (b) of the Elections (General Regulations 2012 and subsequent failure of the presiding officer to record the reasons thereof contrary to Section 79 (4) of the said Regulations..”

Similarly, the Petitioner has not stated the exact number of the Forms 37A or the particular Form 37A which are not compliant with the law.

That is not all. At page 32 of the Petition specifically at paragraph (a) the Petitioner states as follows:

“In over 100 polling stations across the Meru County, none of the candidates or their agents signed the declaration of results at the polling station. (Forms 37A) pursuant to Regulation 79 (2A) (b) of the Election (General) Regulations 2012 and the presiding officer did not record the fact of their absence in accordance with Relugation 79 (5) thereof.”

The alleged over 100 polling stations have not been specified. On the same page at paragraph (e) the Petitioner again makes complains without giving specific details. The same is repeated on page 33 at paragraphs (a), (iv) (a) and (v) (a). The same allegations are repeated at page 36 of the Petition but no specific details are given. This generalized rendition is repeated in many other instances but I need not reproduce herein.

[20] Amongst other grounds argued is that inRAILA AMOLLO ODINGA AND ANOTHER vs. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION AND OTHERS, SUPREME COURT PETITION NO.1 OF 2017, the Supreme Court found and held that there were irregularities and that some declaration Forms used to tally results from Meru County had anomalies and inconsistencies including but not limited to lack of security features. The Applicant contended that pursuant to that finding, the Petitioner had noted similar and extensive anomalies in the Forms that were used to declare the gubernatorial results for Meru County, which anomalies and inconsistencies go to the very root of the integrity, accountability and verifiability of the elections conducted in Meru County. A caution; the Supreme Court dealt with presidential election which has its own specific requirements in law. Forms filled are 34A, 34B and 34C and anomalies found in those forms do not relate to any other election. I refuse the impression being created here that because anomalies and inconsistences were found in the presidential election forms used in the tallying of results thereof, it follows that there are similar anomalies and inconsistencies in the gubernatorial election for the County of Meru. The petitioner must identify the specific anomalies or inconsistences that relate to the gubernatorial election. So far, nothing reveals such. The Petitioner left no vivid impression or picture in the mind of the court on the real purport of the request for access to and scrutiny of all materials, documents, systems and devices used in the election in dispute. Again, a generalized request for scrutiny and access to all material used in the election only succeeds in creating a feeling of gauntness and dreariness in the court.

[21] Having come to the above conclusion, I am of the considered view that the Petitioner in this Application has not met the requirements for the grant of orders of scrutiny. His application is cast in general and wide terms without giving details of the particular polling stations with dispute and which he wishes scrutiny to be carried out. At this stage, he has not disclosed a basis for scrutiny of the systems and documents used in the gubernatorial election for the County of Meru held on 6th August 2017. Accordingly, the Petitioner’s Application dated 6th September, 2017 is without merit and is hereby dismissed. The costs of the Application shall abide the outcome of the Petition. It is so ordered.

The 2nd Application

[22] The 2nd Application is by way of a Chamber Summons. It is dated 8th September 2017 and is expressed to be brought under the Judicature Act Chapter 8 of the Laws of Kenya, the High Court (Practice and Procedure Rules (Part 1 rule3), Section 76 (4) of the Elections Act Rules 12 (8), (9) and 15 (1) (h) of the Election (Parliamentary and County Elections) Petitions Rules. In it, the Petitioner is seeking for the following orders;

a. ……………………………………………..spent

b. ……………………………………………..spent

c. THAT this honourable Court be pleased to grant the Applicant leave to file a witness supplementary affidavit and exhibits thereof containing additional, crucial, sensitive and confidential evidence in a sealed envelope to be deposited with the Deputy Registrar.

d. THAT this honourableeCourt be pleased to direct that the said Supplementary Affidavit and exhibits thereof in the sealed envelope deposited with the Deputy Registrar shall not be opened by any person whatsoever other than the Election Court when the said witness shall take the stand to give evidence in camera at the hearing of the Election Petition herein.

e. THAT cost of this Application be provided for.

[23] The gist of the 2nd Application is that a witness- whose identity has not been disclosed- is in possession of additional crucial, sensitive and confidential evidence which should be placed before court. The Applicant further contended that the witness was apprehensive of his/her life and would be exposed to great risk and peril if the said affidavit was not filed in a sealed envelope not to be opened by any other person other than the Election Court when the witness shall be giving evidence.

[24] The Petitioner submitted that the evidence to be adduced by the said witness imputes criminal culpability on the part of the 3rd Respondent and others. The offences that the witness will disclose and prove are election offences under the Elections Offences Act. The Petitioner also stated that the witness whose affidavit was the subject of this Application, verily feared for his/her life and it was imperative that the court grants the witness adequate protection at every stage to guard his/her identity and ensure his/her safety to enable him/her give evidence in court

[25] The 1st and 2nd Respondents argued that no adequate or reasonable basis had been laid to warrant evidence to be held in a sealed envelope and the witness to be heard in camera. Consequently, the Respondents submitted that the allegations made by the proposed witness, whose identity was by initials was incapable of verification yet they are meant to constitute election offences under the Elections Act, 2016. Additionally, it was submitted that the standard of proof of offences is beyond reasonable doubt with dire consequences upon the person against whom they are proved. Therefore, the Respondents were of the view that it would be grossly unfair to deny the person against whom the allegations are made an opportunity to prepare in advance and respond to the alleged further evidence before the hearing of the petition. Lastly, it was submitted that irreparable prejudice would be visited upon the Respondents if the full extent and particulars of the further desired evidence was not disclosed to the Respondents in full to enable them adequate time and a reasonable opportunity to seek instructions from their clients to file evidence in rebuttal and fully prepare for hearing of the Petition.

[26] The 3rd Respondent also submitted that the provisions of the law under which the application had been brought did not allow concealment of a identity of witness and/or evidence from the court and/or the Respondent. According to him, Article 50 (1) of the Constitution required every dispute that can be resolved by application of the law to be tried in an open court. He concluded that there was no basis laid for the granting of the orders being sought. To him, the supporting affidavit was sketchy, scanty, vague and lacking in material details.

DETERMINATION OF 2ND APPLICATION

[27] This is essentially an application for leave to file a supplementary affidavit of a witness. Except it is a special application for it seeks to produce crucial, sensitive and confidential evidence in a sealed envelope to be deposited with the Deputy Registrar of this court; not to be opened by any other person other than the election court and only when the witness shall be testifying in camera. The reason given for the application is that the witness is apprehensive for his or her life if the affidavit is filed and served as required in law; such move would expose the witness to great risk and peril. What does the law say?

[28]This application seems to hark back in time. The old regime of election laws and rules, to wit, the National Assembly Elections (Election Petition) Rules, 1993, required witness affidavits to be filed no less than 48 hours before the time fixed for trial. Rule 18 of those rules provided that each affidavit be filed in a sealed envelope and only to be opened by the election court when the witness who has sworn the affidavit is called to give evidence. Thecase of SIMON NYAUDI OGARI & ANOTHER vs. JOEL OMAGWA ONYANCHA & 2 OTHERS (2008) eKLRwhich was cited by the Petitioner was decided within the old order. But, with the promulgation of the Constitution of KAENYA, 2010 a new scheme of adjudication of cases was ushered in. In particular, the Constitution provides for right to fair hearing under article 50(1) in these etrms:

50. Fair hearing

(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

This constitutional desire for fair and public hearing in resolution of disputes saw the discarding of the old obscure procedure in election disputes. The nature of election proceedings requires that they be heard in public. Therefore, unless in special cases provided in law, election petitions should not be heard in camera. However, I will determine whether there are special reasons to take evidence of the proposed witness in camera.

[29] On the request to receive affidavit in sealed envelope until the time the witness will be testifying, I say this. Rule 12 of the Election Rules requires that affidavits by witnesses shall be filed together with the Petition. And that such affidavits form part of record. The affidavit evidence becomes the deposing witnesses’ respective evidence for purposes of examination-in-chief. The affidavits are also to be served accordingly within the time prescribed in law. The centrality of affidavit evidence in the whole electoral dispute resolution cannot be over-emphasized. On this, see the cases of GATIRAU PETER MUNYA vs. DICKSON MWENDA KITHINJI & 2 OTHERS, SUPREME COURT PETITION NO. 2B OF 2014;and FERDINAND NDUNG’U WAITITU vs. INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 8 OTHERS, ELECTION PETITION (NAIROBI) NO. 1 OF 2013.

[30] Further or supplementary affidavit may also be filed with the leave of the court. See Rule 12(9) of the Election Petition Rules which provides;

12(9) The election court may, on its own motion or on the application by any party to the petition, direct a party or witness to file a supplementary affidavit.”

The supplementary affidavit shall also be served promptly. Moreover, supplementary affidavit may not introduce new evidence and/or grounds which go beyond those pleaded in the petition. Attempts to file supplementary affidavits which changes the tenor of the petition has been resisted by courts and were struck out on the basis that such move would be tantamount to introducing new evidence through the back door. See the case of BENJAMIN OGUNYO ANDAMA V BENJAMIN ANDOLA ANDAYI & 2 OTHERS, ELECTION PETITION (KAKAMEGA) NO. 8 OF 2013. On filing of further affidavits and adduction of additional evidence, the Supreme Court stated in the case of RAILA ODINGA vs. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 3 OTHERS, SUPREME COURT PETITION NO. 5 OF 2013 laid down the following guidelines:

a. The admission of additional evidence is not an automatic right. Instead, the election court has discretion on whether or not to admit the evidence;

b. Further affidavits must not seek to introduce massive evidence which would, in effect, change the nature of the petition or affect the respondent’s ability to respond to the said evidence;

c. The parties to an election petition should strive to adhere to the strict timelines set out in EDR laws; and

d. Admission of new evidence must not unfairly disadvantage the other parties to an election petition.

[31] The above recapitulation of case law and rules on the filing and service of affidavits brings me to one thing; that the object of those rules is to avoid ambush of the other party; enable the parties to adequately prepare their respective cases; and to facilitate expeditious and timely resolution of electoral disputes, in light of the strict statutory timelines provided for in law. In this case, the Petitioner seeks:

(a) To adduce new evidence through an affidavit;

(b) The identity of the deponent to be concealed from the Respondent until such time as the proposed witness will be testifying in camera

In electoral dispute especially election petition, keeping information in an affidavit concealed from the Respondent, or the identity of the deponent thereto anonymous hurts the right to fair hearing. In ordinary circumstances, the Respondent should know the allegations made against him and the person making the allegations. And any restriction of such type should be sufficiently justified in law. I note that the exact nature of the threat that the witness will allegedly face has not been stated. Another startling thing is that the evidence to be received in a sealed envelope is said to disclose criminal culpability on the part of the 3rd Respondent and other unnamed persons, yet the court has not been told that the 3rd Respondent is the source of the purported threats to the life of the witness in question or that the alleged offences were reported to the police. In an orderly society which is governed by the rule of law as is Kenya, electoral offences are taken to be very serious matters that undermine democracy; free, fair and credible elections. We have seen violence resulting from crimes committed in electoral process. Therefore, it would be expected that the Petitioner or the proposed witness ought to have told the court that appropriate reports on the allegations were made to the relevant authorities for investigation and prosecution. Is there not any impetus in law or the Constitution or moral fabric that such serious allegations should be reported to the relevant investigation authorities? It bears repeating that the Petitioner is categorical in his submissions that the evidence to be adduced by the witness imputes criminal culpability on part of the 3rd Respondent and others. Had a report been made, perhaps the provisions of the Witness Protection Act would have come in handy to offering the necessary protection to the proposed witness. And, on that basis, despite there being no specific provision in our election laws, I am of the view that no court would blow up such protection; any court including election court may be persuaded to permit such redaction of information in the affidavit which might disclose the identity of the witness who is under protection of the Agency. Probably, there is need for innovative legislative intervention to allow filing of affidavits in pseudo names in election petitions in limited cases sat where a witness is already under witness protection scheme. Such the affidavit will however be filed with the Petition and served accordingly so that the whole case and the essential core of the allegations made is disclosed to the Respondent in advance, yet, protecting the identity of a witness under the protection of the agency. In such case, further measures of protecting the witness will be undertaken, including taking his evidence in camera in the presence of parties and their counsels only. Otherwise, as it was stated in DTA vs. PRIME MINISTER & OTHERS [1996] 3 LRC (Hannah J):-

“…It is [obviously] in the interests of justice that an election application, and for that matter any litigation, should be conducted in an open manner….”

[32] I am saying these things because allegation of commission of election offences are serious matters and are referred to as electoral malpractices of a criminal nature. Section 87 of the Election Act recognizes the gravity of such matters as have been alleged by the Petitioner. Consider the consequences where electoral malpractices of a criminal nature under section 87 have been proved. First, the election of the Respondent may be invalidated on that basis. See the Supreme Court case of MOSES MASIKA WETANGULA vs. IEBC & 2 OTHERS [2014] eKLR. Second, the election court may make a report to the DPP and on receipt of the Report, DPP is commanded to direct a criminal investigation to be conducted thereto. And, based on the result of the investigation, a criminal prosecution may ensue. Therefore, these are serious matters which should not be treated as a trifle in the manner the Petitioner has done. See section 87 of the Elections Act which provides that:-

87. Report of court on electoral malpractices

(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.

(2) Where the election court determines that an electoral malpractice of a criminal nature may have occurred, the court shall direct that the order be transmitted to the Director of Public Prosecutions.

(3) Upon receipt of the order under subsection (2), the Director of Public Prosecutions shall —

(a) direct an investigation to be carried out by such State agency as it considers appropriate; and

(b) based on the outcome of the investigations, commence prosecution or close the matter

[33] In addition, the higher standard of proof for allegations of quasi criminal nature attest to the seriousness the law places on such allegation. I have seen commentaries that, previously, the courts required petitioners seeking to nullify an election on the ground of election offences to prove the offences beyond reasonable doubt. And that, following recent amendments to section 87 of the Elections Act, 2017, it is not clear whether the case law that required petitioners to prove allegations of election offences beyond all reasonable doubt still holds. The amendment followed observation in the case of MOSES MASIKA WETANGULA(supra). And the Election Laws (Amendment) Act, 2017 came to clarify the clutter that was in previous section 87; it purported to clothe election court with power to make a finding of guilty of an election offence yet it is not a criminal trial court. Now, election court is only required to determine whether an electoral malpractice of a criminal nature may have occurred. And based on such finding nullify the election, and may also make a report thereto to DPP for appropriate action. Any conviction on any election offence established to the required standard of proof will now be made by a criminal trial court and shall be a basis for any subsequent or attendant process provided on law or the Constitution. Perfect. Another matter for discussion; it has been argued by other commentators that the phrase “may have occurred” as used in section 87 (1) of the Elections Act, suggests that courts should use the civil standard of proof in determining whether such malpractices have affected the validity of an election. My quarrel with that inference is on the basis that the phrase “may have occurred’’in section 87 of the Elections Act does not necessarily refer to the standard of proof or a lowered standard of proof required for malpractices of criminal nature in an election petition. In any case, according to the decision by the Supreme Court in Raila Odinga case 2013 (supra), the general standard of proof in election petitions must be higher than the ordinary standard of balance of probability required in ordinary civil cases, yet not as high as beyond reasonable doubt required in criminal cases is relevant. If that is the general standard of proof in election petitions, I do not see any legal justification for the argument that allegations of quasi criminal nature- which are far more serious- in election petition shall now be proved on the ordinary standard of balance of probability required in ordinary civil cases. Notably, although the term ‘’electoral malpractices of criminal nature’’ is yet to be given any specific meaning and scope, I do not think it refers to trivial matters or venial omissions and commissions; for an election may be invalidated on the basis of a finding by the election court that electoral malpractices of a criminal nature have occurred. For instance, see the case of Moses Wetangula (supra) where the court held that a single incident of bribery by the candidate is enough to invalidate an election. In my view, therefore, electoral malpractices of a criminal nature are grave matters of infringement of law and for which a report will be made to the DPP and an investigation conducted thereon. And depending on the result of investigation thereto, the person may be prosecuted. I suggest that judicial decisions on standard of proof of electoral malpractices of a criminal nature which were decided based on the previous section 87 of the Elections Act are still valid and good law. But, as this matter does not fall for determination in this application, I will not close the debate.

[34] Taking into account the serious nature of the allegations made- are of criminal nature- and the fact that the Respondents should be given an opportunity to rebut them from the inception of the Petition, allowing this Application will circumvent the Respondent’s right to fair hearing under article 50(1) of the Constitution. The Respondents will be greatly prejudiced as they will have no opportunity to adequately prepare for their case and this, in my view, will amount to ambush or enlargement of the Petitioner’s case beyond its current bounds. Accordingly, the Petitioner’s Application dated 8th September 2017 is hereby dismissed, Costs shall abide by the outcome of the Petition. It is so ordered.

Dated, signed and delivered in open court at Meru this 4thth day of December, 2017

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F. GIKONYO

JUDGE

In the presence of:

Mr. Gitonga Advocate for Petitioner

Mr. Kibanga advocate for 3rd Respondent

Mr. Kibanga advocate for Ms. Kambuni advocate for 1st and 2nd Respondent.

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F. GIKONYO

JUDGE