[2013] KEHC 3456 (KLR)
The court held that scrutiny and recount are not automatic in election petitions and should only be ordered after parties have laid a proper basis through evidence and cross-examination. The court emphasized that scrutiny at the outset is only appropriate if it is the sole issue in the petition and its resolution...
Source-derived case information.
- Citation
- [2013] KEHC 3456 (KLR)
- Parties
- Applicant: Philip Mukwe Wasike; Respondent: James Lusweti Muke; Respondent: IEBC; Respondent: Silas Rotich
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Petition 5 of 2013
- Procedural Posture
- Election Petition / Interlocutory Application Ruling
- Outcome
- Application for scrutiny and recount deferred; directions issued for clarification and further hearing.
- Judges
- DO Ohungo
- Legal Topics
- Scrutiny and Recount, Service of Process, Pre Trial Procedure, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Mukwe Wasike
Applicant
James Lusweti Muke
Respondent
IEBC
Respondent
Silas Rotich
Respondent
Procedural Posture
Election Petition / Interlocutory Application Ruling
Legal Issues
- 1 Whether the application for scrutiny and recount should be granted at this stage of the proceedings.
- 2 Whether there was proper service of pre-trial information to all parties.
- 3 Whether further evidence can be introduced without inter-partes hearing.
Ratio Decidendi
The court held that scrutiny and recount are not automatic in election petitions and should only be ordered after parties have laid a proper basis through evidence and cross-examination. The court emphasized that scrutiny at the outset is only appropriate if it is the sole issue in the petition and its resolution would dispose of the matter. Since the present application raised multiple issues, including bribery and witchcraft, the court directed that the issue of scrutiny and recount be raised at the end of the petitioner’s case. The court also directed parties to clarify the scope of scrutiny and recount sought and to address potential prejudice from the introduction of further evidence...
Court Disposition
Application for scrutiny and recount deferred; directions issued for clarification and further hearing.
Orders
- Issue of scrutiny and recount to be raised at the end of the petitioner’s case, preferably on 22nd May 2013.
- Parties to clarify whether scrutiny and recount is sought for all or some polling stations.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Petition 5 of 2013 [if gte mso 9]><xml>
14. 00
</xml><![endif]
PHILIP MUKWE WASIKE...........................................PETITIONER
AND
JAMES LUSWETI MUKE...............................1ST RESPONDENT
IEBC..................................................................2ND RESPONDENT
SILAS ROTICH................................................3RD RESPONDENT
RULING
I have considered submissions
1)I think the issue of service was overlooked with regard to the pre-trial information initially intended for 9th May 2013 by virtue of the fact that Mr. Wanyonyi was present in court when the date was given. However that is now water under the bridge as the pre-trial did not proceed thus the court apologies for the omission.
2)I think the notice of motion filed is not misplaced, the rules do not restrict what it urges is for parties to find ways of resolving the same.
3)With regard to scrutiny, it would be prudent to first hear the evidence and cross-examination before parties apply for the same – this would then allow parties to lay a basis for such order because scrutiny and recount are not automatic – there must be a basis for doing so. I would also urge counsel to refer to the case of Maina Kamanda V Margaret Wanjiru Election Petition No.5 of 2008 which offers a useful guide on scrutiny.
4)The only other instance where scrutiny would take place ab initio, is if it is the only issue in the Election Petition and that once done it would conclude the matter. I have perused the application – there seems to be several other issues including bribery and witchcraft and such other related electoral offences – so I direct that the issue of scrutiny and recount be raised at the end of the petitioner’s case preferably on 22nd May 2013.
5)I direct that parties explore ways of resolving some of the issues raised in the application for instance:
a)Does the applicant seek scrutiny and recount in all polling stations or only some stations? This needs clarification.
b)Is there any prejudice likely to be caused if the further evidence sought to be introduced is allowed without inter-partes hearing. Mr. Makokha says there will be prejudice caused.
c)In the event of parties not agreeing then hearing proceeds on 14/05/2013 at 12. 00 p.m. The same be served on 2nd and 3rd respondents.
H.A. OMONDI
JUDGE
13/05/2013
Mr. Wanyonyi
I have seen the issues as framed by the court, we have no problem with them, we are agreeable. We intend to call 10 witnesses. I ask court to give us 15/05/2013. I need to serve 2nd and 3rd respondent.
H.A. OMONDI
JUDGE
13/05/2013