[2017] KEHC 2481 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

ELECTION PETITION NO. 1 OF 2017

IN THE MATTER OF ARTICLES 35, 38, 48, 81, 86 AND 88 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE ELECTIONS ACT NO. 24 OF 2011 LAWS OF KENYA, THE ELECTIONS (GENERAL) REGULATIONS, 2012, THE ELECTIONS (TECHNOLOGY) REGULATIONS, 2017 AND THE ELECTIONS (PARLIAMENTARY

AND

IN THE MATTER OF THE ELECTION OFFENCES ACT NO. 37 OF 2016

AND

IN THE MATTER OF THE ACCESS TO INFORMATION ACT NO. 31 OF 2016

AND

IN THE MATTER OF THE ELECTORAL AND BOUNDARIES COMMISSION ACT NO.9 OF 2011

AND

IN THE MATTER OF THE MEMBER OF NATIONAL ASSEMBLY ELECTIONS FOR KIBWEZI EAST CONSTITUENCY HELD ON 8TH AUGUST 2017

BETWEEN

PHILIP KYALO KITUTI KALOKI………..PETITIONER/APPLICANT

-VERSUS-

THE INDEPENDENT ELECTORAL AND BOUNDARIES

COMMISSION RESPONDENT…………...........1ST RESPONDENT

THE RETURNING OFFICER,

KIBWEZI EAST CONSTITUENCY…………......2ND RESPONDENT

JESSICA NDUKU KIKO MBALU……………...3RD RESPONDENT

RULING

Introduction

1. On the 7th of September 2017, the Applicant herein filed a Petition before this Court alleging among other things widespread irregularities in the process of the election of Kibwezi East’s Member of the National Assembly. The alleged irregularities included but were not limited to voter bribery, collusion between the 3rd Respondent and the 1st Respondent through its agents on the various Polling stations and voter intimidation.

2. In the said Petition, it was also alleged that the Petitioner’s agents were denied access to the polling stations by the officials of the 1st Respondent and further that the agents of the Petitioner were denied the opportunity to sign Forms 35A and could not therefore verify the validity of the results.

3. The Petitioner prayed in prayers a, b and c for an Order For scrutiny and audit of all the returns of the election of the member of the National Assembly, an Order for scrutiny and recount of all votes cast in the election of the Member of National Assembly and an Order for scrutiny of the electronic technology used in the parliamentary election respectively.

4. Thereafter the petitioner, through a Notice of Motion application dated 17th October 2017, sought several prayers. The application was brought under Articles 35, 38, 48,81, 82, 86 and 88 of Constitution of Kenya, Sections 4,5,8,17,18 of the Access to Information Act No. 31 of 2016, Section 27 of the Independent Electoral & Boundaries Commission Act No. 9 of 2011, Sections 44, 44A, 80 of the Elections Act No. 24 of 2011, Rules 3,4,5,12 (9), 16, 28, 29, 36, 79 and 86 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, Regulations, 2017 Regulation 79 of the Elections (General) Regulations, 2012 and all other enabling provisions of the Law.

5. The motion seeks a plethora of orders but the petitioner reduced the prayers to 2 limbs namely access to information and scrutiny but court reduced prayers sought to three limbs namely;

i. The access to information and scrutiny within the 1st and 2nd respondents’ possession.

ii. The scrutiny thereof.

iii. Leave to file supplementary affidavits.

6. The matter came up for hearing of the application on 31st October 2017 and the following developments are noteworthy.

a. Prayer 1 was spent; prayers 2 settled and 4 f, g and h were abandoned.

b. Prayer for scrutiny was deferred.

c. Prayers 3 (1) (a), (b) and 4 (a), (d) & (e) were conceded.

7. Therefore, the contested items are prayers 3 (ii), 4 (b), (c), 5, 6, 7 and 8

CONTESTED ITEMS

8. Prayer 3(ii) seeks;

i. That the 1st and 2nd respondents be compelled to supply the Court and the petitioner/applicant, for scrutiny, the following information in their exclusive possession,

ii.Concurrent Elections Results Declaration forms for Kibwezi East Constituency (for comparative analysis)

a. Certified copy of the original form 34 B

b. Certified copy of the original form 36 B

c. Certified copy of the original form 37 B

d. Certified copy of the original form 38 B

e. Certified copy of the original forms 39 B’s for Kibwezi East Constituency.

9. Prayer 4(a) and (c) seeks; THAT the 1st and 2nd respondents be compelled to supply the Court and the petitioner/applicant, for scrutiny, all the following materials distributed to the presiding officers at all the polling stations for Kibwezi East Constituency:-

(b) The printed copy of the Registers of voters used during the elections

(c) The marked copy registers.

10. Prayer 5 seeks; THAT the 1st and 2nd respondents be compelled to grant the Court and the petitioner/ applicant access to the Kenya Integrated Elections Management System (KIEMS) devices logs detailing the identification number of voters and the transmitted results, at all the polling stations for Kibwezi East Constituency.

11. Prayer 6 seeks; THAT the 1st and 2nd respondents be compelled to grant the Court and the petitioner/ applicant with comprehensive documentation of all the incidences (if any) when as a result of identification failure by the KIEMS gadgets, manual identification had to be done at all the polling stations for Kibwezi East Constituency.

12. Prayer 7 seeks; THATthe Court grants leave to the petitioner/applicant to file supplementary affidavits as necessary arising from the findings/discoveries upon access to the information sought herein.

13. Prayer 8 seeks; THATthis Court do grant leave to the petitioner/applicant to file supplementary affidavits for three of his witnesses annexed herewith and the same be deemed as duly filed and served.

14. The applicant supported his application by grounds on the face of the motion and his affidavit sworn on 17th Oct 2017. Respondent 1 and 2 replied via affidavit of Francis Waita sworn on 30th Oct 2017 and 3rd respondent replied via her affidavit sworn on 27th October 2017.

15. Parties agreed to canvass application via their written submissions which they filed exchanged and highlighted.

PETITIONER SUBMISSIONS

16. The petitioner submits that, he seeks to access information in the custody of the 1st and 2nd respondents. The information is not only of great public importance but also extremely crucial for the court and the other parties herein to be able to fully address and adjudicate on all matters in issue herein.

17. He submits that there are a myriad of laws supporting the petitioner’s application with the apex being our very Constitution. The 1st and 2nd respondents ought to have brought all this information sought before the court from the very beginning unless they have something to hide.

18. This is because the 1st and 2nd respondents are obligated videArticles 35, 38(2), 81(e), 82(2)(b), 86(a) and 88(5) of the Constitution to grant access to information and to conduct and administer free, fair, transparent, impartial, neutral, efficient, simple, accurate, verifiable, secure, accountable and regular elections. Moreover,rule 5 of the Elections (Parliamentary and County Election) Petition Rules, 2017, places a duty on both the parties and their counsels herein to assist this court.

19. The Access to Information Act No. 31 of 2016 was enacted pursuant to Article 35 of the Constitution. He particularly relies on sections 4, 8 and 18 thereof. It is stated inter alia that every citizen’s right to access information is not affected by any reason the person gives for seeking access or the public entities belief as to what are the person’s reasons for seeking access.

20. The information ought to have been made public and easily accessible to any member of the public. The right to access information is guaranteed to every citizen.

To date, the court and the petitioner have been denied access to information as basic as the certified copies of all declaration forms 35A and S 35B.

21. On supplementary affidavits it is the petitioner’s prayer for an opportunity to all the parties herein to file supplementary affidavits arising from the findings/discoveries upon access and/or scrutiny of the information sought.

22. This is buttressed under rule 12(9) of the Elections (Parliamentary and County Election) Petition Rules, 2017, which provides that this 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. It is submitted that this is also purely in the interest of justice, fairness and in good faith to have all matters in controversy placed before court for hearing and determination on merits.

23. Lastly and similar to the contents of the foregoing paragraph is the petitioner’s prayer to file supplementary affidavits of three (3) of his witnesses as per the annexed copies and the same to be deemed as duly filed and served.

24. This is provided for under the aforesaidrule 12(9) of the Elections (Parliamentary and County Election) Petition Rules, 2017, which, for avoidance of doubt, provides that this 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.

25. It is submitted that the respondents are merely attacking the averments and annextures in the said supplementary affidavits .It is contended that such an attack can only be done at the hearing in cross examination of the deponents thereof and/or by the respondents filing supplementary affidavits in answer thereto.

RESPONDENTS NO 1 AND 2 SUBMISSIONS

26. The respondents 1 and 2 submit that, from the outset that the Petitioner is praying for scrutiny of forms 35A, 35B, 34B, 37B, 38B and 39B’s, in ALL the Polling stations in the entire Constituency.

27. It is their submission that the Petitioner/Applicant has not created sufficient basis for the issuance of orders of scrutiny, has not specified the polling stations that he wants scrutiny to be conducted in and is but out on a fishing expedition to help him salvage his Petition. Consequently, this application ought to be dismissed with costs.

28. From the foregoing, it is instructive to note that the Court of Law can only allow an application for scrutiny of electoral materials if the Applicant has given it sufficient reasons and/or established a basis for grant of security from the pleadings, affidavits and/or evidence during the hearing; and has specified the Polling stations in which the results are disputed.

29. It is the 1st and 2nd Respondents’ submission that the Applicant/Petitioner has miserably failed to satisfy these principles. A reading of the entire petition shows that the petition is wanting in so far as specificity is concerned. While the Petitioner has prayed for scrutiny for ALL the polling stations, the Petitioner has not stated the electoral malpractices with respect to each polling station in Kibwezi East Constituency. Consequently this application ought to be dismissed with costs.

30. The Applicant from the face it is clearly intent on using this application for scrutiny as a fishing expedition and the court ought to dismiss this application with costs.

RESPONDENTS NO 3 SUBMISSIONS

31. The 3rd respondent submits that, in determining on whether to grant orders for access of information and scrutiny court has to apply law on its jurisdiction. It has to see whether the scope lays necessary basis. She submits that it has not been laid. It is incorrect to argue that access to information principle did not exist in 2013.

32. It is in article 35 constitution of 2010. She relies on the case ofNAIROBI LAW MONTHLY –vs- KENGEN LIMITEDwhere court held that, an order for access to information cannot be granted unless same is sought in writing and prayer is set out in petition.

33. The petition has only 9 casual statements vide paragraph 9K about ballot not having been sealed in two (2) polling stations. But no evidence of loss of votes. Affidavit in support of petition paragraph 15, there is reference to 6 polling stations where tallying to form 35A and 35B variations is shown though very small amount. The access of the 35A and 35B is adequate. There is a principle not to litigate in statement.

34. It is contended that access to information Act does not apply to election Act. There is a schedule which shows where it applies. Parliament was clear on access to information.

35. It was submitted that Elections Act has enough provisions on access to information. The information is ordinarily available to agent and displayed in all polling stations. On scrutiny the respondent no 3 via Mr Mutula Kilonzo JNR contends that, Petitioner seeks scrutiny of form not vote. According to Rule 16 only materials relating to a petition may be accessed.

36. The register of voter (manual) was not used. There is no allegation any voter was denied right to vote. No allegations KIEMS kits failed. It is an academic exercise therefore to seek access to the same. There is no allegation of use of complementary mode of identification of voters. See WAVINYA NDETI case.

37. On the issue of further affidavits it has been contended that there is no provision for writing a complaint such as the attachment shown thereof. There is prescribed form for lodging complaints. There was complaint to the police vide the intended affidavit by NDAMBUKI which was recorded in October 27 this year. Court should ask itself why same was made after lodging of the instant petition.

ISSUES FOR DETERMINATION

38. After going material before me, I find, the following are the issues that are pertinent to the comprehensive determination of the Application before this Honorable Court:

a. Whether the court should grant orders for access to information sought?

b. Whether this Court should grant the Applicant an Order for the filing of the Supplementary Affidavits?

c. Whether the Applicant should be allowed to defer the application for orders on scrutiny?

ANALYSIS AND DETERMINATION

39. According to the petitioner, the information he is seeking to access is in the custody of the 1st and 2nd respondents and is of great public importance and extremely crucial for the Court and the other parties to be able to fully address and adjudicate on all the matters in issue herein.

40. With regard to prayer 5, the 1st and 2nd respondents submitted that, the petitioner may with the directions of the Court be allowed to read only and copy the data in the KIEMS before the deputy registrar.

41. Article 35 of the Constitution guarantees every citizen the right to access to information held by the state. This constitutional provision is reiterated in section 4of the Access to Information Act, No. 31 of 2016 which expressly provides for the right to access to information held by a public body for purposes exercising or protecting any right or fundamental freedom.Section 4(3) of this Act is categorical that access to information held by a public entity or a private body must be provided expeditiously at a reasonable cost.

42. According to Regulation 14(1) of the Elections (technology) Regulations, 2017 the 1st respondent is under duty to put in place mechanisms to ensure data availability, its accuracy, integrity and confidentiality. Regulation 17 of those regulations requires the Commission to retain the electronic data in its custody for a period of three years after the results of the elections have been declared but may be dealt with in any other manner if the court so directs.

43. The 1st respondent being a state organ has a constitutional and statutory obligation to provide access to information it holds to any citizen more so when such information is necessary in order to protect the citizen’s constitutional rights.

The petitioner, like other citizens, is entitled to among other rights, the political rights under Article 38 of the Constitution. These rights include the right to free, fair and regular elections based on universal suffrage and free expression of the will of the electorate.

44. With regard to prayer 5 therefore, I am of the view that petitioner should be allowed a read only access to data extracted to KIEMS kits in relation to Kibwezi East parliamentary elections held on 8th August, 2017 in the polling stations listed in paragraph 15 of the Petitioners supporting affidavit to the motion sworn on 17th October 2017. The 1st respondent should make arrangements for such access and reading which should be made in the presence of all the parties and/or their agents.

45. The 1st respondent has a Constitutional duty to preserve election materials for a period of 3 years. Therefore, with regard to prayer 3(ii) I am of the view that it is merited for the same reasons given in prayer 5. Thus no prejudice is to be occasioned by supply to court and 3rd respondent (Concurrent Elections Results Declaration forms for Kibwezi East Constituency (for comparative analysis) Certified copies of the original forms 34 B, 36B, 37B, 38B AND 39B

LEAVE TO FILE SUPPLEMENTARY AFFIDAVITS

46. The petitioner seeks leave to file supplementary affidavits as necessary arising from the findings/discoveries upon access to the information sought.

47. Article 87 (2) of the Constitution allows a petitioner a period of 28 days after the declaration of results to prepare and file his petition. The strict timelines within which pleadings have to be filed are in line and consonance with the strict timelines within which electoral disputes should be heard and determined.

48. Rule 15 (1) (h) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 grants an election court the discretion to allow the filing of further affidavits and admit new or additional evidence, however, I am of the view that the said application for adduction of new and additional evidence should be made within 28 days of the declaration of results of the election.

49. Indeed, the Election Disputes Resolution Bench Book write up on further affidavits frowns upon a petitioner who seeks to file a further affidavit or adduce further evidence after the expiry of 28 days. See page 8 para 4. 6.3. 2.

50. To my mind, the risk of allowing such affidavits is that new evidence might be adduced out of time thus prejudicing the respondent who has already filed her response to the petition.

51. The law on adduction of new or additional evidence was discussed and settled by the Supreme Court case of Raila Odinga Vs Independent and Electoral and Boundaries Commission and 3 others, Supreme (RAILA 1)application Court Petition No. 5 of 2013 wherein it was held that an election court will not grant an order for the adduction of new or additional evidence where the grant of such an application will prejudice other parties to the dispute or undermine the constitutional imperative of timely determination of election petitions.

52. With regard to prayer 6, the use of the words “if any” in prayer 6 of the motion only leads to the conclusion that the petitioner is not aware of incidences where the KIEMS gadgets failed. Indeed, no materials were placed before the Court to suggest otherwise. The burden of proof has not been discharged.

53. Paragraph 5 of the replying affidavit of Francis Waita states that “there were no instances where identification by the KIEMS gadgets failed. The petitioner does not rebut the aforesaid averment.

54. With regard toPrayer 7, the petitioner has embarked on a fishing expedition. In my view the petitioner is simply seeking for evidence upon which he can mount his petition should such evidence spring up. As stated herein above, the door to fresh evidence being introduced was slammed shut at the expiry of 28 days after the declaration of the results.

55. Any prayer in the application that would seem to be an expansion of the case for the Petitioners or which would in effect be a fishing exercise to procure fresh evidence not already contained in the Petition would and must be rejected.See RAILA 2

56. As for prayer 8, the supplementary affidavits are clearly out of time. Further, the petitioner has not adduced sufficient reasons as to why they were not filed together with the petition. I have however gone through them and I am of the view that the veracity of their contents can be tested during cross examination. The drafts annexed appear to respond to some of the petitioner’s witnesses averments. I will thus make directions on the same later.

SCRUTINY & RECOUNT

57. The petitioner elected to suspend this second limb of his motion however the court will express its view as respondents submitted on the same at length on the threshold of grant of the orders sought.

58. Scrutiny is provided for underSection 82 of the Elections Act No. 24 of 2011 as read together with rule 29 of the Elections (Parliamentary and County Elections) Petition Rules, 2017.

Section 82 provides;

An election Court may on it’s own motion or on application by any party to the petition, during the hearing of an election petition order for a scrutiny of votes to be carried out in such manner as the election Court may determine.

Rule 29 provides;

The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast

On an application under sub rule (1), an election Court may, if it is satisfied that there is sufficient reason, order for scrutiny or recount of the votes.

59. With regard to recount, rule 28 provides as follows

“A petitioner may apply to an elections Court for an order to;

Recount the votes; or

Examine the tallying, if the only issue for determination in the petition is the count or tallying of votes received by the candidates.

60. From the affidavit in support of the motion, the petitioner is seeking an order for both scrutiny and recount.

61. The 3rd respondent submitted that an order for recount and scrutiny are not the same thing. Recount or the examination of the process of tallying proceeds on the premise that the elections were conducted in accordance with the law and the person(s) challenging the outcome are only dissatisfied with the tallying of the votes.

62. On the other hand, scrutiny seeks to assess the process of voting including the tallies once it has been established on the basis of evidence that a petitioner has shown sufficient cause for the granting of such an order by the Court. I am in agreement with this position.

63. The 3rd respondent referred the Court to the case of Justus Gesito Mugali M’mbaya –vs- Independent Electoral & Boundaries Commission & 2 others (2013) Eklr.I find the case relevant in bringing out the difference between scrutiny and recount. The judge expressed himself as follows;

“From the foregoing provisions of the Election rules, it is discernible that there is a distinction between recount of votes and scrutiny of votes. The difference lies in the outcome from conducting the processes. A recount in my view, determines the number of votes a candidate received in an election. Rule 32 is to the effect that if the issue in the petition is purely on numbers, that is, the counting or tallying process was erroneous, and then a recount of the votes or examination of the tallying process will resolve the dispute. In such a case, the petitioner is required to categorically state as such in his/her petition. The effect of electing rule 32 is that there shall be no determination of allegations, if any, of election misconduct. Scrutiny of votes on the other hand determines the validity of the votes cast in an election. Rule 33(2) requires that a petitioner must lay sufficient basis for scrutiny. Herein, allegations of election misconduct will be considered by the Court in determining whether a petitioner has given sufficient reason to warrant scrutiny. Thus, can a petitioner ask this Court for an order of recount and/or scrutiny of votes at the same time? I think not. As stated above, the outcomes of these two processes are different and in my view, it would be illogical to conduct these two processes in one petition.(Emphasis supplied). One cannot have it both ways. It is either an issue of miscounted numbers or validity of votes. Moreover, a petitioner cannot on the one hand loathe an election process for being flawed and perform a recount or tally of the same process with the aim of being declared the winner if he/she emerges victorious pursuant to Section 80(a) of the Elections Act.”

64. The issue of scrutiny and recount was discussed at length in the case of Gatiratu Peter Munya –vs- Dickson Mwenda Kitinji & 2 others.It is noteworthy that in this case, the Court makes reference to ‘scrutiny or recount’ not ‘scrutiny and recount’ At paragraph 152 thereof, the Court expressed itself as follows;

“Taking into account the intention of Parliament (which in this instance is “to provide legislative mechanisms for the timely resolution of electoral disputes”), and the judicial thought-process as expressed by the election Courts, we are of the view that:

There is no fundamental inconsistency between Rule 33 (1) of the Petition Rules and Section 82 (1) of the Elections Act. It is our position that an order for a recount or scrutiny of the vote may be made at any stage after filing of an election petition or during the hearing of an election petitionand before the determination of the said petition.There is no inconsistency between Rule 33(2) of the Petition Rules and Section 82 (1) of the Elections Act, as regards the exercise of discretion as to whether to order for scrutiny and recount or not. Contrary to dicta in some of the High Court decisions, the discretion vested in an election court by Section 82(1) of the Act, is not unfettered. Such discretion must be exercised reasonably, so as not to defeat the objectives of Article 87 (1) of the Constitution and the Elections Act.”

65. The Court at paragraph 153 proceeded to propose the following guiding principles;

“The right to 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. 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 the Court should record the reasons for the order for scrutiny or recount.

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.

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 vote is called into question in the terms of Rule 33(4) of the Election (Parliamentary and County Elections) Petition Rules”

66. In the case of RAILA ODINGA AND ANOTHER VS IEBC AND 2 OTHERS E P no 1 OF 2017 (RAILA 2) the SCOK held that;

“The decision to grant scrutiny or recount is clearly, not only discretionary but is also judicious. That is to say that the court’s reason to grant such order must be good, must be logical and must be necessary for the purpose of arriving at an expeditious, fair, just, proportionate and affordable resolution of the issues raised in the Petition.”

67. The SCOK in the aforesaid decision cited various decisions with approval on the same subjects of scrutiny and recount.

68. In the case of Philip Mukwe Wasike v. James Lusweti Mukwe & 2 Others, Bungoma High Court Petition. No. 5 of 2013; [2013] e KLR, the learned Judge (Omondi J) observed that:

“The purpose of scrutiny is:-

(1) To assist the court to investigate if the allegations of irregularities and breaches of the law complained of are valid.

(2) Assist the court in determining the valid votes cast in favour of each candidate.

(3) Assist the court to better understand the vital details of the electoral process and gain impressions on the integrity of the electoral process.”

Further elaboration on the issue of scrutiny was provided in the case ofPhilip Osore Ogutu v. Michael Aringo & 2 Others, Busia High Court Petition No. 1 of 2013 wherein the Petitioner had sought scrutiny of votes in 15 polling stations during the pre-trial conference. Upon making a formal application, Tuiyott J after setting out the law regarding scrutiny, observed that as pertaining to the timing of the application, it would be upon the party seeking scrutiny to choose when to approach the Court. He thus observed [paragraph 18]:

“…It all depends, I think, on the ability of the Applicant to marshal sufficient evidence to persuade the Court that scrutiny is deserved. And there is no reason why this cannot be made prior to the hearing given that the Election Petition Rules require that the substance of the evidence to be relied on by the parties be set out in the Affidavits accompanying the Petition or the responses.”

69. The learned Judge further observed [paragraph 20]:

“There would be several reasons why scrutiny should not be ordered as a usual course. First, there is a need to guard against an abuse of the process. I would agree with Mr. K’opot that aparty must not be allowed to use scrutiny as a fishing expedition to discover new or fresh evidence. It would be expected that a party filing an Election Petition is, from the outset, seized of the grounds, facts and evidence for questioning the validity of an election. And where the evidence is unclear then a party can, on application to Court, seek and obtain better particulars of that evidence from its adversary. But it would be an abuse of process to allow a party to use scrutiny for purposes of chancing on new evidence. Scrutiny should not be looked upon as a lottery.”

70. The SCOK also noted that in the case of Jacob Mwirigi Muthuri v. John Mbaabu Murithi & 2 Others, High Court at Meru, Petition No. 2 of 2013; [2013] eKLR, the Court (Lesiit J) held that:

“… Unless an order for scrutiny and recount is the only prayer sought in the Petition, it cannot be ordered at the pre-trial stage. This is because the prayer should not be granted on the basis of untested evidence, which would be the case if the prayer is simply granted at the pretrial stage on the basis of the allegations in the Petition and the witness affidavits of the Petitioner.

It is clear from the foregoing that where an application for scrutiny is made, the court must be satisfied that an order for scrutiny and recount has been justified by the party applying and secondly, that the order is necessary for the just resolution of the election Petition. Scrutiny is one of the tools that the court uses to investigate whether an election was conducted in accordance with constitutional principles and to establish that indeed the result as declared was a reflection of the will of the electorate that took part in that election. The only way the court can test whether an order for scrutiny and recount is deserved and justified is first by considering the Petition and the Affidavit in support to find out whether they disclose the

Petitioner’s cause of action and whether they contain concise statements of the material facts relied upon in support of the allegations of impropriety or illegality and secondly by calling of evidence and testing of that evidence through cross examination and re-examination process to test the veracity of the same. There can be no need to call evidence for examination through the trial process if none has been advanced in the Petition and the Petitioner’s pleadings and in particular the affidavits of potential witnesses.”

71. [41] Similar sentiments as above were expressed by Kimaru J in the case of Rishad H. A. Amana v IEBC & 2 Others, High Court at Malindi Petition No. 6 of 2013; [2013] e KLRwhere he emphasized that:

“…the recent trend is that scrutiny can only be ordered where a Petitioner lays sufficient basis. Such basis can only be laid after the Petitioner has adduced evidence during the actual hearing of the petition. The Petitioner cannot therefore demand that there be scrutiny and recount of the votes before the commencement of the trial. The Petitioner may do so after his or her witnesses have testified. The ideal situation, however, is that such an application for scrutiny should be considered by the court after all the witnesses of the Petitioner and the Respondents have testified. At that stage of the proceedings, the court will be in a position to properly assess the veracity of the allegations made by the Petitioner that there is need for scrutiny.”

72. On appeal to the Supreme Court in the case ofGatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others Petition No. 2B of 2014; [2014] eKLRthe Supreme Court held;

“………judicial opinion distinctly favours a view that commends itself to us: that, an application for scrutiny and recount, must be couched in specific terms, and clothed with particularity, as to which polling stations within a constituency are to attract such scrutiny. If aparty lays a clear basis for scrutiny in each and all the polling stations within a constituency, then the order ought to be granted. Otherwise, a prayer pointing to a constituency but lacking in specificity is not to be entertained.”

73. The court further citing the case of HASSAN MOHAMED HASSAN & ANOTHER V. IEBC & 2 OTHERS PETITION 6 OF 2013 2013] e KLR, stated that;

“whether the application for scrutiny or recount is made before, during or at the end of the trial of a petition, the court must be satisfied generally, that there are sufficient grounds to order a scrutiny or recount on the basis that such scrutiny or recount will be in the interest of fairness and justice in settling the issues raised in the petition”

74. From the foregoing, it is my considered view that the petitioner’s choice of electing to suspend the second limb of his motion is sanctioned by the law. However, at the opportune time, the petitioner should make up his mind as to what he wants.

75. The court thus makes the following orders;

a) ALL ELECTION MATERIALS USED IN THE KIBWEZI EAST CONSTITUENCY MEMBER OF NATIONAL ASSEMBLY ELECTION BE SECURED AT THE RESPONDENTS CUSTODY SUBJECT TO PARTIES AND COURTS SAFEGUARDS BY WAY OF PUTTING SEALS.

b) CERTIFIED COPIES OF ORIGINAL FORMS 35As (for all polling stations) AND 34B, 35B, 36B, 37B, 38B AND 39B (FILLED IN constituency tallying Centre) OF KIBWEZI EAST CONSTITUENCY BE SUPPLIED TO PETITIONER COURT AND 3RD RESPONDENT BY RESPONDENT NO. 1 AND 2.

c) THE INVENTORY OF THE MEMBER OF NATIONAL ASSEMBLY RESULT DECLARATION FORMS (WITH SERIALIZATION) TOGETHER BE SUPPLIED TO PETITIONER COURT AND 3RD RESPONDENT.

d) THE COPIES OF POLLING DAY DIARIES OF THE KIBWEZI EAST CONSTITUENCY BE SUPPLIED TO PETITIONER COURT AND 3RD RESPONDENT.

e) THE INVENTORY OF ALL THE BALLOT BOXES SERIAL NUMBERS AND BALLOT BOX SEALS SERIAL NUMBERS BE SUPPLIED TO PETITIONER COURT AND 3RD RESPONDENT.

f) THE RESPONDENTS 1 AND 2 TO ALLOW ACCESS OF INFORMATION IN (KIEMS) DETAILING THE IDENTIFICATION Of NUMBERS OF VOTERS AND THE TRANSMITTED RESULTS AT THE POLLING STATIONS LISTED IN PARAGRAPH 15 OF THE APPLICANT’S SUPPORTING AFFIDAVIT TO THE MOTION SWORN ON 17TH OCTOBER 2017 TO THE APPLICANT, THE DEPUTY REGISTRAR OF THE COURT AND THE RESPONDENT NO. 3 AND THE REPORT BE FILED IN COURT.

g) THE APPLICANT IS GRANTED LEAVE TO FILE AND SERVE SUPPLEMENTARY AFFIDAVITS OF THE THREE (3) STATED WITNESSES WITHIN SEVEN (7) DAYS AND THE CONTENT TO BE LIMITED TO THE REPLY TO THE STATED RESPONDENTS WITNESS AVERMENT ON THE ISSUES DEPONED TO.

h) THE ORDERS ABOVE TO BE IMPLEMENTED WITHIN TWENTY ONE (21) DAYS FROM THE DATE HEREIN.

i) COSTS IN THE MAIN CAUSE.

SIGNED, DATED and DELIVERED this 10th DAY of November 2017

C. KARIUKI

JUDGE

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