[2008] KEHC 2251 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (MILIMANI LAW COURTS)

Misc. Civ. Appli. 13 of 2008

REPUBLIC..........................................................................APPLICANT

AND

THE RETURNING OFFICER KAMUKUNJI.......1ST RESPONDENT

THE ELECTORAL COMMISSIONOF KENYA...2ND RESPONDENT

EX-PARTE

SIMON NG’ANG’A MBUGUA

JUDGMENT

The applicant herein Mr Simon Nganga Mbugua, was a parliamentary candidate for Kamukunji Constituency in Nairobi during the General ElectionS held on 27th December, 2007. The application dated 17th January 2008 seeks judicial review orders as follows:-

1. An order of mandamus to compel the first respondent (who was the returning officer) to discharge her statutory duty under Regulations 40 and 41 of the National Assembly and Presidential Elections Regulations made under section 34 of the National Assembly and Presidential Elections Act (Cap 7) and specifically to tally the results from the polling stations for each candidate and publicly declare the candidate who won the parliamentary election for Kamukunji constituency held on 27th December, 2007 compile forms 17 and 17A in respect thereof, and deliver or forward to the second respondent (the ECK) the original form 16A together with forms 17 and 17A.

2. An order of mandamus to compel the second respondent to discharge its statutory duty under Regulation 40 of the National Assembly and Presidential Elections Regulations specifically to publish a notice in the Gazette showing the name of the person elected as member of Parliament for Kamukunji Constituency during the elections held on 27th December, 2007.

3. An order of certiorari to bring to this Honourable Court for purposes of being quashed the decision/order/directive of the second respondent carried at KICC on 29th December, 2007 canceling/nullifying the Parliamentary elections for Kamukunji Constituency held on 27th December, 2007.

4. An order of prohibition to restrain the second Respondent from directing or ordering repeat of Parliamentary elections in Kamukunji Constituency unless and until the first respondent has discharged her statutory duty under Regulations 40 and 41 of the National Assembly and Presidential Elections Regulations.

5. An order of prohibition to restrain the first and second respondent from holding, directing and supporting repeat Parliamentary elections for Kamukunji Constituency pursuant to the decision/directive/order of the second respondent cancelling or nullifying the Parliamentary election for Kamukunji Constituency held on 27th December, 2007.

6. The costs of the application be borne by the respondents.

The application is opposed by the respondents and other interested parties. The applicant, the respondents and interested parties have filed affidavits including written submissions.

The applicant contends that the election in respect of the Kamukunji Constituency was duly held in tranquil conditions in all polling stations and that subsequently all the votes were counted, results were publicly announced and requisite declarations of results prepared in Form 16A in all the polling stations. The applicant further contends upon the announcement by Presiding Officers (P.O’s) in all the polling stations were done and the declaration Forms 16A were forwarded to the Returning Officer based at Shauri Moyo Social Hall for tallying of Constituency results. The applicant states that the tallying exercise occurred mainly on 28th December, 2007. On the evening of same day the Returning Officer announced what she called provisional results which showed the applicant as the winner. A cutting of the Standard Newspaper for Saturday 29th December, 2007 reported the applicant had won with 9,524 votes. It is claimed by the applicant that a couple of hours later, as the results from the last polling stations were being tallied, agents of the losing candidates disrupted the exercise forcing the police to intervene by throwing teargas thereby emptying the Tallying Hall. The applicant claims that the Returning Officer (RO) did not resume the tallying exercise when calm returned and that instead the RO went underground forcing the Electoral Commission of Kenya (ECK) at KICC to declare on 29th January 2007 in apparent misapprehension of facts that the elections in Kamukunji Constituency would be repeated. The tallying has not resumed to-date despite demands to do so from the applicant addressed to the respondents. The applicant claims that the heat of the moment decision/directive/order of the ECK is illegal, unreasonable and unjustified for various reasons including:-

(a) That the ECK has no power either express or implied to cancel or nullify results as only the High Court can do so.

(b) That the authority to hold elections vests in the Returning Officer who indeed held the elections and votes were counted and publicly announced. The tallying exercise that was disrupted can and should be completed.

(c) The Returning Officer is duty bound to reconvene at Shauri Moyo Social Hall to complete the tallying exercise and that this is what the ECK should have directed her to do.

The principal contenders of interested parties (IP) represented by the learned Counsel Mr Mwaura Waihiga who was also a Parliamentary candidate and who also held brief for the counsel acting for him in this matter during the hearing claim:-

(i) That Regulations 25 and 25A gives the 1st respondent statutory authority to postpone or adjourn the proceedings at poling station if they are interrupted by among others, riot, open violence etc or other administrative difficulties or other cause.

(ii) That where a Returning Officer postpones proceedings, the Regulation requires that he or she, starts or restarts at earliest practicable moment.

(iii) That there is ample evidence on record that there were riots, open violence, administrative difficulties and other reasons which entitled the RO to postpone the elections and the IPs have specified the averments in various affidavits filed in respect of this application which confirm the issue of disruption.

(iv) In addition Regulations 25 and 25A gives the ECK statutory power to postpone elections where there is reason to believe that a serious breach of peace is likely to occur if the election is held on any date or it is impossible to conduct the elections as a result of natural disorders or other emergencies and that the ECK could in such event appoint another date for the holding of postponed elections.

(v) The IP further states that the disruption persisted until the afternoon of 29th December, 2007 when the Chairman of ECK announced that Kamukunji elections would be repeated and that after this date it is common knowledge that the whole country was in turmoil until March when a political Accord was signed and it is only after March that the ECK has organized repeat elections in some constituencies.

(vi) That prayers 1,2,3,4,5 and 6 of the application cannot be granted in view of the provisions of s 44(1) of the Constitution as read together with the National Assembly and Presidential Elections Act Cap 7. In particular the I.P. relied on the following cases:

(a)THE SPEAKER OF THE NATIONAL ASSEMBLY v HON NJENGA KARUME C.A. NAI 92 OF 1992.

(b)KIMANI WANYOIKE v THE ECK & ANOR CA NAI 92 OF 1995.

(c)KIPKALYA KONES v REPUBLIC C.A. 94 OF 2005 (C.A.).

That in the light of these cases the prayers sought cannot be granted by way of judicial review and that the applicants should await the repeat elections and file a petition. The I.P. further argues that while judicial review is available in law against the ECK the remedies sought under the National Assembly and Presidential Elections Act Cap 7 and the Constitution should not be granted.

(vii) That the application is premature and was brought to court under panic.

INTERESTED PARTY’S SUBMISSIONS IBRAHIM AHMED a Candidate in the elections

(1) He contends that there is no decision to quash before the Court.

(2) That what transpired on 29th December, 2007 was an announcement to inform the general public that the election in Kamukunji had been postponed.

(3) That the decision by the second respondent to countermand and postpone the elections is anchored in law in that s 42A gives power to the ECK to direct and supervise the Presidential National Assembly and Local Government Elections and further it is the function of the ECK to promote free and fair elections.

(4) That under s 17A of the National Assembly and Presidential Elections Act Cap 7 (LOK) provides that the ECK shall have the overall conduct of elections under the Act and is entitled to give general directions and exercise supervision and control.

(5) Section 34(1)(i) gives power to the ECK to make regulations for the above purposes and under this provision the ECK may postpone elections.

(6) That Regulation 25(1) and 25A empowers the ECK to do what it did - namely postpone, annul, start and restart elections.

(7) That because of the disruption of the elections, tallying documents, ballot papers and other documents were torn, destroyed and went missing and that the applicant has not denied this and this constitutes common ground in all the affidavits. In particular that the 1st respondent states that the tallying process was interrupted by chaos in the tallying hall which made the environment un-conducive to enable her to complete the process.

(8) That results for 22 polling stations were missing.

(9) That results can only be announced after the poll for all polling stations in the Constituency as per Reg.40(1)(a) and it is not possible in the circumstances. The orders sought cannot therefore issue.

(10) That the decision of the second respondent was ministerial.

(11) That the annexture “SNM1” of the applicant showing that he won the Election is highly inaccurate and is strongly in dispute and the Court should not even look at it and further should not look at the 1st respondent tally report “PAM1” because this Court is not an Election Court as it has held in its past decisions in this matter.

(12) That the recount sought in the submissions of the respondent is not allowed in law as per Regulation 37(1).

The 1st and 2nd Respondent have opposed the application on the following principal grounds:

(1) There is no exhibited decision capable of being quashed by certiorari.

(2) No illegality has been shown on the part of the respondents.

(3) That there were results from 22 polling stations still to be tallied by the time the fracas erupted and documents for 3 ballot boxes were destroyed all these making it impossible to complete the tally.

(4) That the 1st respondent has exhibited a tally sheet and her report indicating why she did not announce the results.

(5) The 1st respondent complied with Regulation 40 because results from all the polling stations were not available to enable her to announce.

(6) That regulation 25A gives the 2nd respondent power to cancel the elections because of serious breach of peace so as to appoint another date for holding the postponed election.

(7) Section 17 gives the 2nd respondent powers to give general directions and to exercise supervision and control thereof and take necessary measures to ensure elections are free and fair and in exercise of such powers the 2nd respondent was entitled to postpone the election.

(8) That this Court can only be moved under s 123(8) of the Constitution by an Originating motion and not by way of judicial review in view of the ECK’s independence under section 41(9) of the Constitution. The Court should not have been invited to direct the Commission in the exercise of its mandate.

(9) In the alternative there should be an order for a recount in respect of the results of the 22 polling stations.

The Court has considered the above arguments by the parties and has also taken into account the written submissions filed including the list of authorities filed and relied on by all the parties.

WHETHER ABSENCE OF A FORMAL DECISION IN COURT IS FATAL TO THE APPLICATION.

The respondents and all interested parties have contended that the Court has no decision before it, which is capable of being quashed because it is non existent and has not been exhibited. But what is the law on the point?

In our view, Order 53 rule 7 of the Civil Procedure Rules is only confined to the production of the formal orders specified therein either at the stage of leave or at the hearing stage and it does not apply to all other situations where it is clear that a decision has been made that on the ground that some decision has been acted on, yet it has no formal existence. On the facts of the case it is common ground that parties have been expecting a repeat election because the ECK had announced so. The inaction and the resulting uncertainty could not have come about without a decision in existence. There is no serious dispute concerning this at all and all parties acknowledge that some announcement was made by the 2nd respondent concerning the Kamukunji Constituency Elections. Yet it is seriously claimed that this court would have no power to issue a quashing order or certiorari against any such decision or act unless it is placed before it.

In our view there cannot be any proper justification for a judicial review court to clip its wings and decline to intervene yet it is clear to the Court that the inaction uncertainty, and confusion, concerning the elections in the Kamukunji Constituency has resulted in a paralysis over a period of slightly over six months and the Constituency has no Member of Parliament as provided in the Constitution. Judicial review is perhaps the most powerful invention for the enforcement of the rule of law. It need not succumb to such technicalities especially taking into account that, parties to a judicial review are partners of the court and have, a duty of disclosure to the Court of all material facts. In this case the respondents have clearly admitted that they did make the challenged decision and for this reason we find and hold that the absence of a final exhibited formal decision is not fatal to this application. In any event if an applicant as in this case has not exhibited a decision, the Respondents owe a duty to the court to attach it or to fully explain what happened in order to meet the challenge.

In addition, this Court agrees with the reasoning of John Donaldson M.R in the case of R v LANCASHIRE COUNTRY COUNCIL ex-parte HUDDLES [1986] 2 ALL ER 94 at page 95where he observed:-

“Judicial review is a process which falls to be conducted with all the cards face upwards on the table and where the vast majority of the cards will start in the public authority’s hands ... the defendant should set out fully what they did and why, so far as necessary fully, fairly to meet the challenge.”

Again in the case of R v LONDON BOROUGH OF LAMBELL ex-parte CAMBEL 26 HLR 618at page 622 Law J observed:-

“the Council had given the Court very little assistance towards the performance of its task of deciding whether there are here good grounds for judicial review. This is lamentable, since it is the duty of a local authority to place before the court the reasons for its decision under challenge so as to enable the court to ascertain whether there is a Wednesbury error.”

Finally on this point we agree with the holding of Sedley J in the case of R v SECRETARY OF STATE FOR TRANSPORT ex-parte LONDON BOROUGH OF RICHMOND UPON THAMES (No.3) [1995] ALL ER 409where the judge held:-

“the want of an identifiable decision is not fatal to an application for judicial revision.”

In the case before us the decision is fairly identifiable and it has not been denied that the challenged decision was made. The respondents have a duty to the Court to clearly state what decision was made and for what reason. The moment a judicial review application is filed the respondents have a responsibility of placing all their cards on the table.

We therefore find that the absence of a formal decision is not fatal to this application.

MISSING RESULTS

It is sufficient that the 1st and 2nd respondents have not offered any explanation as to why the results went missing at the tallying stage after being received from the P.Os in all the polling stations. According to the rules binding on the Respondents, they must have received results from all the polling stations otherwise they had no business going to the tallying centre. The applicant has averred (and it has not been disputed or controverted) that all the results had been received from the polling stations (Presiding Officers) and the necessary forms signed by candidates and/or agents and the applicant has demonstrated this by filing the forms completed at the polling stations.

In our view the onus is on the respondents as the custodians of the documents to explain the alleged loss to an Election Court if and when a challenge is made. At the moment no explanation has been offered. In addition the exhibited returns from the polling stations by the Applicant have not been seriously challenged at all by the respondents.

POWER TO POSTPONE, CANCEL OR NULLIFY ELECTIONS

The Regulations and provisions relied on by the respondents namely, Regulations 25, 25A and s 34 of the Act, do not in our view empower the respondents to cancel elections which have taken place. It only empowers them to postpone those which have not started for the reasons spelt out in the Regulations.

We find that in purporting to postpone, nullify or cancel the election for the Kamukunji Constituency, the respondents and in particular the ECK, exercised a power not vested in it by the law and we find that the challenged announcement, cancellation or nullification is an illegality and a nullity as well. The decision, order/directive to annul, cancel or postpone the Elections is also a clear abuse of power. We find that the powers which the ECK purported to exercise are clearly vested in an Election Court. The exercise of non-existent powers had resulted in confusion, uncertainty and inaction concerning the Parliamentary Election which took place in Kamukunji on 27th December, 2007. All aggrieved parties have been in a state of limbo in that as the winner has not been announced the constitutional provisions for challenge, on whether or not a candidate was validly elected under s 44 of the Constitution cannot be invoked by the candidates or any other aggrieved person. We are sure that one of the objectives of the Electoral Law is to do justice to all parties. And in this regard, it is unacceptable to the Court that, because some results which ought to have been in the possession of the 1st and 2nd Respondents and which had been signed for as per the relevant Regulations, by candidates and or agents at each polling station, should prevent the announcement of the overall results. Indeed in a subsequent Report and tally sheet “PAM1” the 1st respondent has admitted, firstly that the missing results can be retrieved from the secured ballot boxes and secondly the missing results would not have made any difference to the overall results, and thirdly that the 1st respondent had at the tallying stage announced the applicant as the winner. Surely, reason demands that any defects, omissions, commissions, or lapses in the electoral process have to be the subject matter of an Election Petition, yet the applicant cannot possibly do anything nor can his challengers mount any challenges against the prevailing state of affairs. Instead they have improperly purported to challenge the applicant, in these proceedings through sideshows in the course of these proceedings, and we have rightly in our view in this ruling, said that the sideshows should be the subject matter of an Election Petition. The issue of the missing ballot boxes and the retrieval of ballot boxes and their impact on the overall results is a matter for an Election Court. In our view asking the applicant to wait for a repeat election, would be unjust and a serious miscarriage of electoral justice in that he would have to forget about the Election of 27th December 2007 and focus on a new repeat elections ordered by the ECK without his grievances having been addressed. This is literally telling him that there is a gap in the enforcement of the rule of law and the Constitution. With respect, it could not have been the purpose of the Constitution and the rule of law to have a period even for a day where an aggrieved party cannot seek and obtain a remedy of a statutory breach. We find that the enforcement of the rule of law and the Constitution cannot take leave of absence.

In one of the cases cited to show that all the challenges must be by way of an Election Petition, namely KIPKALYA KIPRONO KONES v R AND THE ECK CA 94/2005 the Court of Appeal at pages 36-37 observed:-

“The framers of the Constitution must have had these considerations in mind when dealing with the issue of election petitions and came to the conclusion that it would be far much better to have even a defective election than no election at all and that after the members have all joined the National Assembly those whose elections are subsequently found to have been defective can be weeded out through election petitions and fresh elections held for the particular areas.”

We could not agree more with the Court of Appeal and their judgment is grounded on the need to do justice and avoid the omissions, uncertainty and confusion as is prevailing in the matter before us. Thus, if any of the described lapses constitute election offences including the alleged issue of missing results all these are the responsibility of an Election Court. However, unlike the KONES case which dealt with the process of nomination, the facts of the case before us are unique in that all aggrieved parties cannot file election petitions due to ECK’s failure to perform its statutory duties. This case is clearly distinguishable from the KONES case because this is a case of a breakdown in the decision making process based on a misapprehension of the law.

WEDNESBURY UNREASONABLENESS

In the face of the admission by the 1st Respondent that at some point in the tallying exercise, she had announced a winner and in the face of the subsequent Report to the ECK marked “PAM 1”, we find that the decision to postpone, nullify or cancel the Election of 27th December, 2007 for the Kamukunji Constituency is Wednesbury unreasonable in that no reasonable body would have in the circumstances arrived at any such decision. Apart from being illegal for lack of any statutory backing, the decision is manifestly unreasonable and as is quite manifest from “PAM 1”, it was not based on the correct factual situation on the ground at the time.

Allowing or giving in to the then forces of anarchy and chaos to disrupt the tallying and disappearing from the earmarked tallying centre is not a call to integrity, or proper management of the elections and instructions from ECK to the Respondent to complete the process as stipulated in Regulations 40 and 41 was the reasonable option in the circumstances. Thereafter an Election Court would have taken charge. Instead the 1st Respondent disappeared. After the Report PAM(1) was compiled after calm had returned to our beloved country, nothing stopped the Respondents from applying to the Court to lift the stay to enable them to complete the tallying process as per the report. They cannot therefore blame the Court for the delay and that has inevitably resulted.

It would be unfair and contrary to the policy of the law to allow the ECK to be a judge in its own cause. It was the custodian of all electoral documents and results and it has a responsibility to explain this to an Election Court after complying with its own regulations to complete the tallying process even as imperfect as it has been described. The ECK and the RO cannot rightly say that all results had not been received since the so called missing results were in their hands. They cannot therefore reasonably use it as an excuse not to comply with Regs 40 and 41.

We find that it has a responsibility to tally and announce the results as per its own Report and/or in the best way they know how and leave any future challenges to an Election Court.

THE STATUTORY DUTY OF THE RESPONDENTS

Regulation 35 A (4) states:

“The presiding officer, the candidates or their agents shall then sign the declaration set out in Form 16A which shall state

(a)the name of the polling station;

(b)The total number of registered electors for the polling station;

(c)The total number of valid votes cast;

(d)The number of votes cast in favour of each candidate;

(e)The number of votes that were rejected; and

(f)The number of disputed votes.

Regulation 35A(5) states:-

The presiding officer shall:-

(a)immediately announce the results of the voting at the polling station before communicating them to the returning officer;

(b)request each of the candidates and in the absence of a candidate, such of his agents then present to append his signature or write down reasons for the refusal to sign the declaration of the results of the count of the votes at the polling station;

(c)provide each candidate or agent with a copy of the declaration of the results; and

(d)affix a copy of the declaration of the results at the public entrance to the polling station or at any other place convenient and accessible to the public at the polling station

The issue of the alleged missing results should be viewed with the requirements of Reg 35A(4) and (5) in mind, and since the Presiding Officers had done their job, namely the counting except the issue of tallying and the 1st Respondent does not deny having received the declarations as per form 16A from the presiding officers (which forms are also in possession of the candidates/agents as per the Regulations,) she cannot reasonably state that she could not complete the process. The issue of the damaged ballots or destroyed ballot boxes said to be (3) cannot also prevent completion of the process since the counting had been completed in all the polling stations and declarations made in form 16A and given to the candidates and/or agents as per the regulations set out above. Regulation 40 provides:-

(1)“Immediately after the results of the poll for all polling stations in a constituency have been received by the returning officer, he shall, in the presence of candidates or their agents present:

(a)tally the results from the polling stations for each candidate without recounting the ballots that were not in dispute and where the returning officer finds the total valid votes in a polling station exceeds the number of registered voters in that polling station, he shall disregard the results of the count of that polling station in the announcement of the election results and make a statement to that effect.

(b)examine the ballot papers marked “rejected” “objected to” and “disputed” and confirm or vary the decisions of the presiding officers with regard to the validity of these ballot papers;

(c)publicly announce to the persons present the total number of valid votes cast for each candidate in case of an election for the president;

(d)publicly announce to the persons present the total number of valid votes cast for each candidate in case of a parliamentary election;

(e)publicly declare to the persons present the candidate who has been elected in the parliamentary election for the constituency;

(f)Complete Form 17A set out in the First Schedule in which he shall declare the:-

(i)name of the Constituency;

(ii)total number of registered voters;

(iii)votes cast for each candidate in each station;

(iv)number of rejected votes for each candidate in each polling station;

(v)aggregate number of rejected votes; and

(g)sign and date the form and

i.give to any candidate or candidate’s agents

present a copy of the form and

ii.deliver to the Electoral Commission the original of form 16 A together with Form 17A and form 18.

(2)The Returning Officer shall allow the following persons to be at the tallying centre -

(a) the presiding officers and other election

officials on duty.

(b) A police officers on duty

(c) A candidate

(d) An agent

(e) Duly accredited media persons and

(f) A member of the Electoral Commission

(3)Notwithstanding the provisions of this regulation, the returning officer shall not be obliged to admit more than one agent of any candidate to the tallying venue.

(4)The result of the presidential election in a Constituency shown in form 16A shall be subject to confirmation by the Electrol Commission after a tally of all the votes cast in the election

(5) The decisions of the returning officer on the validity or otherwise of a ballot paper or a vote under the Regulation shall be final except in an election petition.

Under Regulation 41 the Returning Officer is required as pertaining to the Parliamentary election to issue a certificate in Form 17 showing the name of the candidate who won. Upon receipt of the said Form 17, the ECK is required to publish a notice in the Gazette showing the name of the person elected.

In the case of a tie, the Regulation states the ECK shall notify the Speaker accordingly and the Speaker shall issue the appropriate notice or writ for a fresh election at which the only candidate shall be the candidates who tied.

Where a dispute arises over the counting or tally of votes a candidate may within twenty four hours petition the ECK which shall have the power to order and supervise a count and or tally as is appropriate provided that the decision of the ECK shall be made within forty eight (48) hours of such a petition.

It is significant to the Court, that the ECK failed to handle the situation as per Regulation 41(6) and instead purported to order a repeat election instead, a power it clearly did not have and with the full knowledge that the 1st Respondent had announced a winner. Under the Regulations there cannot be a provisional winner and the process must be fully completed since a repeat election can only arise from an Election Petition.

Under Section 44 of the Constitution and sections 19-20 of the Act any person aggrieved by election results would have the right to lodge an election petition but he cannot clearly do so before the Respondents have complied within Regulations 40 and 41.

Section 19(1) provides:

(1)An application to the High Court under the Constitution to hear and determine a question whether:

(a)A person has been validly elected as president; or

(b)A person has been validly elected as a member of the National Assembly; or

(c) The seat in the National Assembly of a member therefore has become vacant shall be made by way of a petition.

We must make it abundantly clear as we have done in the previous two rulings Kamukunji 1 and 2, that we are not an Election Court nor are we required or called upon in this judicial review application to determine the question set out in s 19(1)(b) as regards the Kamukunji Constituency. Instead we have been asked to consider whether the respondents have failed to discharge their statutory duty under Regulation 40 and 41 and for the reasons set out in this judgment we have found that they have failed to do so. It is therefore incumbent upon the Court to order the respondent to comply with Regulation 40 and 41 and also prohibit them from exercising a power they do not have, namely to order cancellation, postponement or nullification of election results which is the sole function of an Election Court.

The election laws and regulations were designed to ensure the maintenance of electoral justice and in the circumstances there cannot be such thing as unfettered discretion when the two regulations are so clear.

It is the responsibility of this Court to ensure that executive action is exercised responsibly and as Parliament intended. The High Court has a responsibility for the maintenance of the rule of law and there cannot be a gap in the application of the rule of law and the Court must at all times embrace a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

We hold that failure to comply with regulations 40 and 41 by the respondent is a clear denial of electoral justice. The decision to order a repeat has no legal basis and is an illegality and a nullity. The decision is also Wednesbury unreasonable. The decision is perhaps a manifestation of the Respondents failure to comply with Regulation 41(2) which only allows special persons to attend the tallying exercise. Had the Respondents enforced this regulation the alleged disruption could have been avoided. The above reasons invites this Court to give judicial review relief in order to pave way for the articulation of any electoral grievances which might arise after the announcement of the results, by an Election Court as per the Constitution.

We agree with the arguments of the Applicant’s Counsel that the Parliamentary election for the Kamukunji Constituency stalled at the tallying stage which for all practical purposes is primarily a mathematical exercise of adding up the results submitted by presiding officers in forms 16A. The 1st Respondent has for example not given any explanation why the results of some stations are missing or why the results cannot be obtained from the presiding officers from the affected polling stations or that she has had made any effort to do so or to extract them from the public notification at each polling station as per the Regulations. Similarly the absence of three ballot boxes after all the results had been announced by the Presiding Officer cannot make it impossible for a tally to take place. The critical steps in any election are the casting of votes and counting of the same which admittedly took place at the polling stations under the supervision of the presiding officers and in the presence of candidates and/or their agents. It is evident from the affidavit that there is no dispute touching on the critical stages as outlined. In the circumstances it is the duty of the Court to order the exercise to be completed as required by the law. Indeed after the filing of the application for judicial review there is evidence availed to the Court that the ECK did ask for a Report from the Returning Officer see PAM (1) entitled a tallying Report. In the Report the returning Officer has compiled a tally, taking into account the prevailing circumstances and which clearly analyses the options open to her. This Court cannot make a decision for the returning Officer or the ECK but, the report could form the basis for compliance with regulations 40 and 41 in the event that total compliance cannot be effected in the circumstances. The Report does in our view constitute substantial compliance and should the Returning Officer and the ECK rely on it, it will be upon any aggrieved party to thereafter file a Petition wherein any imperfections, grievances, or omissions shall be fully addressed and appropriate remedies given to the aggrieved parties. The aggrieved parties have mounted their claims on the wings of this application and we have rejected them as sideshows because their remedies if any lie in an Election Petition. The current state of inaction, limbo or uncertainty as prevailing now, is a slap on the rule of law and a monumental injustice to all the parties and in particular the Applicant and the Court cannot accept that the intended repeat elections will provide a just relief to the parties who have a cause of action or causes of action now, arising from the conduct of the 2007 Elections. A future Election will be accompanied by fresh causes of action open to the participants to pursue but it cannot provide a lawful consolation to those aggrieved by the 2007 Parliamentary Elections in Kamukunji Constituency. Our Constitution including section 44 of the Constitution and s 19-20 of the National Assembly and Presidential Elections Act, have justice as their principal objective and it is illogical, unreasonable and a betrayal of the concept of justice and democratic ideals, to ask aggrieved parties who took part in a substantially completed election to await justice in a future election.

The now freely used phrase namely “free and fair elections” has a clear meaning in terms of a democratic audit. Thus, elections provide an important ingredient of popular election of Parliament. For this to be achieved the underlying rules concerning the conduct of an election must provide a level playing ground or better still a high standard of fairness as between parties, candidates and voters. No one ever suggested that democracy was a perfect system, but as Sir Winston Churchill, the wartime British Premier said in different words, it is the only one invented so far. So far it is the best expression of peoples’ will even with its imperfections. In the circumstances before the court, failure by the Returning Officer and the ECK to announce a completed election is in our view, an endevour to cover its back, and an attempt to escape the scrutiny of an Election Court by purporting to provide the remedy of a fresh or repeat election. It is both a subversion of the principle of free and fair elections and also a usurpation of the powers vested in an Election Court by the Constitution. It is clear to us the ECK does not have the power to nullify an election and this is the sole function of the Court. Elections constitute perhaps one of the most important pillars of the concept of democracy as we know it today. Democracy generally embraces the principles of popular control and political equality. The other pillars of democracy are the courts. For democracy to have some practical value there must be in existence independent courts of law which in turn must hold the responsibility for interpreting and applying the law laid down by Parliament in the interest of every individual.

Just as nature abhors a vacuum, even the enforcement of the rule of law abhors a vacuum or a gap in its enforcement and we refuse to accept jurisprudence which accepts or suggests that a gap exists in our law. On a light note, we cannot afford to create in this country, our own version of “Guantanamo Bay” (i.e. without the rule of law) because the rule of law is for all times, seasons and places. The rule of law is the lifeline of all civilized societies and is what food, water and air is, to living things. For this reason no good legislation, can afford to create gaps in its enforcement. Where the rule of law does not reign supreme, as happened six months ago in this Country anarchy fills the void and civilized living as we know it vanishes. The famous quote justice delayed is justice denied is for all time. Reliefs for one election cannot be postponed to the next election when held. The jurisprudence which we uphold, is the one that will help the Courts at all times to illuminate the dark spots and shadows in all circumstances, so that justice as a beacon of light and democratic ideals are practiced and hailed at all times over the hills, valleys, towns and homes in this beautiful land of Kenya. The mantle of justice and the rule of law must cover all corners of Kenya in all situations. Courts have a continuing obligation to be the foremost protectors of the rule of law. The ECK is therefore ordered to comply with the law and the regulations.

In the result, the 2nd Respondent decision/order/direction announced at KICC on 29th December is hereby immediately brought into this Court and forthwith quashed. In addition, orders of mandamus and prohibition shall immediately issue in terms of prayers 1, 2, 4 and 5 in the application dated 17th January, 2008. Costs of the application to be borne by the Respondent and all participating Interested Parties.

Orders to issue accordingly.

DATED and delivered at Nairobi this 29th day of July 2008.

J.G. NYAMU

JUDGE

R. WENDOH

JUDGE

ADVOCATES

Mr Kibe Muigai for the Applicant

Mr Owino for Interested Parties ....

Mr Waihiga for himself and other Interested Parties

Miss Kelli for the 1st and 2nd Respondent