[2013] KEHC 3162 (KLR)
The court held that scrutiny and recount in election petitions should not be ordered at the outset unless it is the sole issue in the petition. In this case, since there are multiple issues including bribery and other electoral offences, scrutiny and recount should be raised at the end of the petitioner's case after...
Source-derived case information.
- Citation
- [2013] KEHC 3162 (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; Directions on Scrutiny and Pre Trial
- Outcome
- Directions issued; scrutiny and recount to be raised after petitioner's case; parties to clarify issues; hearing dates set.
- Legal Topics
- Scrutiny and Recount, Service of Process, Pre Trial Procedure, Electoral Offences, 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; Directions on Scrutiny and Pre Trial
Legal Issues
- 1 Whether scrutiny and recount should be ordered before hearing evidence in the election petition.
- 2 Whether the application for scrutiny and recount is premature or properly timed.
- 3 Whether further evidence can be introduced without inter-partes hearing and if prejudice would result.
Ratio Decidendi
The court held that scrutiny and recount in election petitions should not be ordered at the outset unless it is the sole issue in the petition. In this case, since there are multiple issues including bribery and other electoral offences, scrutiny and recount should be raised at the end of the petitioner's case after evidence and cross-examination. The court also directed parties to clarify whether scrutiny and recount are sought for all or only some polling stations, and to address whether prejudice would result from introducing further evidence without inter-partes hearing. Procedural lapses in service were acknowledged but deemed non-prejudicial at this stage. The court set timelines...
Court Disposition
Directions issued; scrutiny and recount to be raised after petitioner's case; parties to clarify issues; hearing dates set.
Orders
- 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 are sought for all or some polling stations.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Petition 5 of 2013 [if gte mso 9]><![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
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