[2017] KEHC 1805 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

ELECTION PETITION NO. 1 OF 2017

IN THE MATTER OF: THE ELECTIONS ACT, 2011 OF THE LAWS OF KENYA

AND

IN THE MATTER OF: THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017

AND

IN THE MATTER OF: THE ELECTION OF THE GOVERNOR TRANS NZOIA COUNTY

BETWEEN

ROBINSON SIMIYU MWANGA

ALPHA KITAZI CHORE...................................................PETITIONERS

VERSUS

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION.................................1st RESPONDENT

BILHA KIPTUGEN....................................................2nd RESPONDENT

KHAEMBA PATRICK SIMIYU..................................3rd RESPONDENT

RULING NO. 4

Introduction: -

1. The application under consideration in this ruling was filed by the Petitioners at the close of the full hearing of the petition and seeks the following orders: -

1. THAT this application be certified urgent and directions on its hearing be given forthwith.

2. THAT there be an order directing the 1st Respondent and 2nd Respondent to present to Court all the original copies of the following statutory election declaration forms with respect to Trans Nzoia County: -

a) Forms 37A

b) Forms 37B

c) Forms 37C

d) Poll Diaries

e) Logs from KIEMS KITS

f) Ballot Papers

g) Counterfoils of ballot papers

h) Number of voters who voted

3. THAT there be an order directing the scrutiny of all election materials used specifically all the original Forms 37A, 37B, 37C and all the ballot boxes used for the Gubernatorial elections of Trans Nzoia County.

4. THAT there be an order directing the opening of ballot boxes, scrutiny of ballot papers and all election materials and specifically all the original Forms 37A, 37B, 37C and all the ballot boxes and ballot papers used for the Gubernatorial elections of Trans Nzoia.

5. THAT the Court directs that such exercise be supervised by the Deputy Registrar of the High Court of Kenya at Kitale and such place for the conducting of the exercise.

6. THAT costs of this application be reserved.”

3. The application was variously and strenuously opposed by the Respondents.

Background: -

3. The application is hinged on the eight grounds appearing on its body and is supported by the Supporting Affidavit sworn by the First Petitioner herein, Robinson Simiyu Mwanga,on 03/11/2017.

4. In opposing the application, the first and second Respondent filed a Replying Affidavit sworn by the second Respondent, Bilha Kiptugen on 10/11/2017. The third Respondent filed Grounds of Opposition dated 06/11/2017 and a Replying Affidavit sworn by the third Respondent, Patrick Simiyu Khaemba on 09/11/2017.

5. The application was heard by way of written submissions. All Counsels filed their respective submissions and highlighted on the same accordingly.

The Petitioners’/Applicants’ submissions: -

6. Mr. S. Gitonga, Counsel for the Petitioners/Applicants relied on the application, the grounds thereon, the written submissions and the oral highlights in prosecuting the application. Counsel briefly submitted that the basis of the application were the grounds on the body of that application. Those grounds are that the documents supplied by both the Petitioners and the third Respondent revealed glaring irregularities and discrepancies, that several Form 37As from polling stations were missing among those provided by the parties whereas there were purported results in Form 37Bs allegedly from those polling stations, that some documents missing in the bundle filed by the first and second Respondents were contained in the bundle filed by the third Respondent and as such there was need to interrogate such status, that there were several transposition errors of the results from Form 37As into Form 37Bs and Form 37C, that the explanations given by the first and second Respondents on the irregularities and anomalies were inconclusive, that no prejudice would be caused to any party, that the orders sought will assist the Court in its judgment and finally that the scrutiny would settle the petition conclusively.

7. Counsel further submitted that the application is competent and meritorious and that the law allowed such an application to be filed at any time before the determination of the petition. He relied on the Supreme Court decision in the case of Nicholas Kiptoo arap Korir Salat vs. Independent Electoral and Boundaries Commission & 2 Others (2015)eKLR (hereinafter referred to as ‘the Nick Salat case’) in buttressing that submission and was of the view that Rule 15 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017(hereinafter to as ‘the Rules’) cannot be a basis of implying that the application is improperly on record.

8. The legal basis of the application was submitted as Sections 80, 81 and 82 of the Elections Act No. 24 of 2011(hereinafter to as ‘the Act’) and Rules 28 and 29 of the Rules. Counsel referred to several decisions on the importance of scrutiny and recount in election matters. The decisions are that of RichardKalembe Ndile & Another vs. Patrick Musimba Mweu & 2 others,Gatirau Peter Munya vs. Dickson Mwenda Githinji & 2 others (2013) eKLR,Gideon Mwangangi Wambua & Another vs. IEBC & 2 others,Philip Mukwe Wasike vs. James Lusweti Mukwe & 2 others (2013) eKLRand that of Ochoki Andrew Mingate vs. IEBC & 2 others (2017) eKLR.

9. The Counsel for the Petitioners then expounded on the grounds in support of the application. On the ground of irregularities, it was submitted that the record was full of glaring irregularities and anomalies. Reference was made to various instances including, that Form 37A for St. Joseph’s Primary School in Matisi Ward was used in Saboti Primary School in Saboti-Kinyoro Ward, the transposition error in Form 37B for Kwanza Constituency, wrong tallying of the results in all the constituencies, missing Form 37As, presence of fake and forged election materials, agents of the 1st Runners up not allowed access into polling stations, agents being chased away from polling stations and the evidence of complaints made by the 1st Runners up on the massive irregularities. Counsel urged this Court to note that Article 86 of the Constitution and Regulation 93 of the Elections (General) Regulations, 2012(hereinafter to as ‘the Regulations’) make the first Respondent the only custodian of the election materials and not the third Respondent and wondered why the third Respondent was instead the one supplying most of the statutory forms and further why the application which seeks to assist the Court in a just determination of the petition was being resisted with such potency.

10. There was also the ground of the basis of the application in the petition. It was submitted that the application had its firm basis in the petition and that the reference to presidential election in the petition was a pure typographical error which did not go to the root of the petition since all parties and witnesses in the petition understood that the dispute was on the gubernatorial election and not on the presidential election. Counsel further wondered why the Respondents had spent so much time on that simple issue from their responses all through to this application whereas the issue was a clear technical one which should not hinder the meritorious determination of the petition. The persuasive decision in the Indian case of Bhanumati etc etc vs. State of Uttar Pradesh through its Principal Secretary and others (Civil Appeal Nos. 4135 – 4152 of 2010) (hereinafter to as ‘the Indian case’) was referred to in support of that submission.

11. As to the extent of the scrutiny, it was submitted that this was a case of an almost full-scale scrutiny as opposed to a purely partial one since the irregularities cut across the whole County. Counsel submitted that there was no law that barred the making of such an order and urged this Court to grant the same and follow suit as the High Court in Homa Bay Election Petition No. 1 of 2017 Joseph Oyugi Magwanga & Another vs. IEBC & 3 others (unreported).

12. Reacting to the Grounds of opposition by the third Respondent, Counsel submitted that the issue of missing particulars in the petition cannot be a valid basis for not granting the prayers sought and that the Indian case had settled the issue.

The first and second Respondents’ submissions: -

13. Mr. Yego, Counsel appearing for the first and second Respondents opposed the application on ten grounds. After laying the legal basis for applications of this nature and pointing out that such applications are not granted as a matter of course but on settled and sound legal principles, Counsel made submissions on each of the grounds in opposition to the application. On the ground that the application lacked particularity and specificity, Counsel submitted that the application was couched in very general terms without reference to any polling station where the results are disputed thereby lacking precision. Citing Section 29(4) of the Act Counsel submitted that scrutiny was only restricted to the polling stations where the results thereof are disputed and that in this case there was no single polling station whose results were disputed. Further, that all the Forms 37As were duly signed by the agents and that no single agent disputed the said results. Counsel emphasized that none of the contestants in the impugned election have any problem with the results of any station but the two voters and re-emphasized that an application for scrutiny can only be entertained when the results are disputed. It was further submitted that the lack of the particulars of the polling stations infringed Rule 8(4) of the Rules and compromised the contention of disputed results. The decisions in Nick Salat case(supra) and Gatirau Peter Munya (supra) were referred to in support of the submission.

14. Closely linked to the foregone was the submission that the application was a fishing expedition to beef up the petition. That the Petitioners failed to give particulars both in the petition and the affidavits and now want to use the scrutiny in an attempt to unearth further and new evidence. The Court was urged to stand guided by the words of the Supreme Court in the Gatirau Peter Munya’scase (supra) while quoting the case of GideonMwangangi Wambua(supra).

15. There was also the submission that the application contravenes Section 82(1) of the Act and Rule 29(1) of the Rulesas it seeks the scrutiny of ballot papers and ballot boxes and not scrutiny of the votes; a phenomenon unknown in law and that such an order is of no relevance as the ballot papers and ballot boxes do not confer any electoral advantage to any candidate and cannot therefore be a basis of impugning an election. Counsel referred to the Supreme Court decision in Raila Amolo Odinga & 5 others vs. Independent Electoral and Boundaries Commission & 2 Others (2013) eKLR (hereinafter referred to as ‘the Raila 2013 case’) where the distinction between a ballot paper and a vote was made. Counsel further submitted that even if the ballot papers and ballot boxes are to be construed as votes (which is legally wrong) still all the irregularities were sufficiently explained by the second Respondent and her witnesses.

16. As to the basis of the application in the petition, Counsel firmly submitted that the application is not anchored in the petition since the order of scrutiny and recount in the petition refers to the presidential election instead. That, despite raising the issue severally the petition was not amended and as such the error cannot be treated as a typographical one.

17. On irregularities, it was submitted that the Petitioners had failed to prove any such single allegation and that all the minor irregularities were clearly and sufficiently explained. Counsel also submitted that the application is an afterthought as it was filed at the tail-end of the proceedings contrary to Rule 15(2)of the Ruleswhich require all applications to be filed before the pre-trial conference. The decision in the Nick Salat case(supra) was distinguished in that the application for scrutiny in that case was filed before the pre-trial conference but directed by the Court to be heard thereafter. On the extent of the scrutiny, it was submitted that a full scrutiny will take a lot of time and that will be contrary to the dictates of the Constitution and the Actwhich requires timely resolution of electoral disputes.

18. The winning margin between the third Respondent and the 1st Runners up was also argued in opposition to the application. It was submitted that the margin of 42,764 votes was such a huge margin and that the Petitioner failed to satisfy the Court why scrutiny ought to be ordered. The Court of Appeal decision in the case of Hassan Joho vs. Nyange & Another (2008) eKLR (EP) 500was referred to.

19. Based on the foregone this Court was urged to disallow the application with costs to the Respondents since no sound basis has been laid.

The third Respondent’s submissions: -

20. Counsel for the third Respondent Mr. Peter Wanyama opened his submissions in opposition to the application by conceding that, according to case law, an application for scrutiny can be made at any time before the final determination of the petition. He however stressed that of essence is whether such an application is merited. Relying on the Grounds of opposition and the Replying Affidavit, Counsel took the Court through Section 82 of the Act and Rule 29 of the Rules as the legal basis for such applications. On judicial pronouncements the decision in Gatirau Peter Munya’scase (supra) was quoted alongside the Judiciary’s Bench Book on Electoral Disputes Resolution (2016). Counsel also stated that there is a difference between scrutiny and recount as recount is a quantitative approach whereas scrutiny is both a quantitative and a qualitative approach. Either way, a firm legal basis must be laid in such applications and that the orders sought are not granted as a matter of course.

21. It was strenuously submitted by Counsel that the Petitioners had failed to satisfy the conditions precedent to the grant of the orders sought. Counsel firmly submitted against the ground of irregularities as he approached it from several fronts.First, that Rule 29 of the Ruleswas couched in mandatory terms that scrutiny can only be allowed on specific polling stations upon laying sufficient basis thereof. Second, that the petition and the supporting affidavits as drafted lacked any particulars of the alleged irregularities including the names of the polling stations which goes to the core of the application for scrutiny. He reiterated that he deliberately raised the issue of lack of particulars from the Response to the Petition and on every other instance and that the deficiency was not cured. He submitted that lack of such particulars renders the application incompetent. Counsel referred to the Court of Appeal decision in IEBC vs. Maina Kiai, Khelef Khalifa & 3 others (2017) eKLR (hereinafter referred to as ‘the Maina Kiai case’) on the centrality of a polling station in an election such that if no such station is disclosed then any challenge to the validity of an election is rendered futile. Basing on Rule 29 of the Rules, Counsel submitted that this Court has no jurisdiction to order scrutiny and recount where no specific polling stations with any alleged disputes and/or irregularities are named. Third, that the closest the Petitioners came to demonstrate the alleged irregularities was through an affidavit of one of the witnesses in annexing the raw data of each polling station as contained on Forms 37A but failed to challenge any of their results.

22. On a fourth point, Counsel challenged the issue of irregularities in submitting that whereas the Petitioners were just voters they alleged that they were also agents (Chief agents or Roving agents) but again failed to satisfy the Court that indeed they were duly accredited agents as required in law. The failure to produce letters of appointment and the oaths of secrecy was cited as fatal to those allegations. That being so, it was submitted that the Petitioners having failed to adduce any evidence by any accredited agent, could not competently attest to what happened inside the polling stations more so on the allegations of some agents being chased away from the polling stations while others were denied access into the polling stations or on alleged refusal by agents to sign the statutory forms while inside the polling stations or the tallying centers. Fifth, that the Petitioners were dishonest in alleging that some statutory forms were missing whereas all the forms were variously contained in the bundles of documents filed by the parties and that all the parties duly explained how they came into possession of the various documents and further that none of the documents on record were disowned by IEBC. Sixth, that all the alleged irregularities were sufficiently explained by the second Respondent and her witnesses including the issue of transposition of the results in a polling station from Form 37A into 37B although the issue was not pleaded in the petition. Counsel referred to the case of Richard Kalembe Ndile(supra) where it was held that an order for scrutiny and recount shall be made in cases where there are several unexplained errors, alterations and/or omissions on the statutory forms but submitted that the position is not so in this case. Seventh, that scrutiny can only be allowed where there are disputed results or impugned electoral processes otherwise the grant of an order for scrutiny will amount to abuse of discretion on the part of the Court. Lastly on the issue of the irregularities it was submitted that not every irregularity, if any, can be a basis of scrutiny. Reference on the submission was made to the decision in Gatirau Peter Munya’s case (supra).

23. Further opposition to the application was on the ground that the application was a fishing expedition intended to avail new and further evidence in aid of the petition, which factual basis was not pleaded, and evidence tendered. Counsel submitted that a similar attempt to introduce such evidence was through the Notice of Motion application dated 06/10/2017 which application was dismissed on 23/10/2017. That the same further evidence that was contained in the said application, and which was declined, is now contained in the current application. It was further submitted that the Petitioners having failed to formally adduce the further evidence made several attempts to venture into the same arena by way of cross-examination of the Respondents’ witnesses. What was solicited through the cross-examination included the allegation of wrong tallying and re-tallying where hypothetical statements, without any basis in the pleadings, were suggested, allegation of polling station with more voters than the registered ones, fake election materials, introduction of complaint letters allegedly authored by the 1st Runners up among many other such allegations. That, it was submitted was a wrong approach as it was a clear attempt to adduce further and new evidence. Counsel referred to an academic article by Hon. Justice (Prof.) Otieno-Odek – Judge of Appeal and the Director, Kenya Judiciary Training Institute entitled ‘Election Technology Law and the concept of ‘Did the irregularity affect the result of the elections?’ where the act of introducing new and further evidence through cross-examination was discussed. This Court was also reminded to note that what is sought in the application is a scrutiny of the ballot boxes instead of the votes whose sanctity, integrity and secrecy must always be legally protected.

24. It was also submitted that the application was not based on the petition. Counsel argued that an application for scrutiny must have a basis in the petition; that is the petition must contain a prayer for scrutiny and recount for an application for like orders to be entertained. To that end Counsel further argued that the Petitioners did not pray for such scrutiny and recount in the gubernatorial election in the petition but instead prayed for a scrutiny and recount in the presidential election in the petition as well as in the affidavits and as such the application lacks any basis and is for rejection. Counsel further reminded Court that despite repeating the scenario and prompting the Petitioners to act accordingly nothing was done thereby clearly confirming that the Petitioners meant what they pleaded. By aid of case law, (Peter Gichuki King’ara vs. IEBC & 2 others, Election Petition (Nyeri) No. 3 of 2013,Hellen Wangari Wangechi vs. Carumera Muthoni Gathua (2015) eKLR and Rishad Hamid Ahmed Amana vs. IEBC & 2 others (2013) eKLR), it was stressed that a party is always bound by its pleadings and anything done in legal proceedings must be imbedded in the pleadings.

25. The margin of victory was also raised in opposition to the application. The submission was that the margin of over 40,000 votes was too huge to order a scrutiny. Referring to an article by the Hon. Chief Justice of the Republic of Kenya, Hon. Justice David K. Maraga entitled ‘Scrutiny in Electoral Disputes: A Kenyan Judicial Perspective’ Counsel submitted that the issue of the vote margin was conclusively discussed and settled. The decisions in the cases of Hassan Joho (supra) and Philip Osore Ogutu vs. Michael Onyura Aringo & 2 others (2013) eKLRwere referred to in buttressing the submission.

26. There was also the submission that scrutiny will affect the timely determination of the petition as the exercise is time consuming and so laborious such that, and in view of the magnitude of the scrutiny sought which is a full scale on all the 643 polling stations and all the other election material, a minimum period of 58 days and nights will be consumed in the exercise and that will impact negatively in the matter and the decision in the case of Philip Munge Ndolo vs. Omar Mwinyi Shimbwa & 2 others (2013) eKLR was cited in emphasis.

27. Counsel for the third Respondent called for the dismissal of the application with costs.

The Petitioners’/Applicants’ submissions in response: -

28. Counsel made it clear that the application was very clear as it only sought for scrutiny and not recount. To Counsel, he remained alive that an order for recount could not be issued for the entire election as that will be time consuming and unrealistic but that it was possible for an order for full scrutiny to issue as the whole exercise will not take more than 5 days. It was also clarified that the wording of the application on the scrutiny of the ballot papers and other specific election material was very deliberate as copies of the statutory forms were usually placed inside the ballot boxes hence the need to open the boxes.

29. In a rejoinder to the submission that the application was a fishing expedition for new and further evidence, it was stated that the outcome of the scrutiny will not form part of the evidence in this petition but would be information on record to just assist the Court and that is why a Court can even order for scrutiny suo moto. On the vote margin, it was submitted that regardless of such, the outcome of a scrutiny can effectively determine a petition since scrutiny deals with both the quantitative and qualitative aspects of an election.

30. Counsel re-emphasized that the different irreconcilable sets of results, the different tallies thereof, the errors of transposition and the missing forms are issues which will be squarely settled by way of scrutiny. This Court was urged to allow the application.

Analysis and Determination: -

31. I have carefully considered the application alongside the parties’ affidavits and grounds of opposition coupled with the elaborate submissions and all the decisions referred to. I have clearly understood their purport. As a starting point, it is paramount that the contextual meaning of the terms ‘scrutiny’ and ‘recount’ is well understood.

What is recount and scrutiny?

32. The Constitution, the Act as well as the Regulations have not defined what scrutiny and recount is. The ordinary English dictionary (The Concise Oxford English Dictionary, (2011) 12th Edition, (OUP) defines ‘scrutiny’ as ‘the close and thorough examination, observation or study.’ ‘Recount’ is simply ‘to count something again’. Whereas the term ‘recount’ is easily understandable on one hand, the term ‘scrutiny’ on the other hand is a term with complex layers of meaning. That being so, the term ‘scrutiny’ has been variously defined and/or explained. In this conversation however, I will limit myself to the court-supervised scrutiny and recount. In legal jurisprudence for instance, The Halsbury Laws of England, (1990) 4th Edition, 12; 454 defines ‘scrutiny’ as ‘a court supervised forensic investigation into the validity of the votes cast in an election’.

33. Whereas the two terms are conceptually different, they are often used together and interchangeably. In an attempt to distinguish them, the Judiciary Bench Book on Electoral Disputes Resolution, 2017 at page 78 has the following: -

“4. 6.5. 1. .……Although the terms ‘scrutiny' and 'recount' are often used together and interchangeably, and petitioners often pray for 'scrutiny and recount' of the votes cast at an election, the two remedies are conceptually different. A recount is limited to establishing number of votes garnered by the candidates and the tallying of such votes (Justus Gesito Mugali v Independent Electoral & Boundaries Commission & 2 Others, Election petition (Kakamega) No. 6 of 2013).Scrutiny, on the other hand, goes beyond the simple question of the number of votes garnered by the candidates and extends to the question of the validity of such votes (Justus Gesito Mugali v Independent Electoral & Boundaries Commission & 2 Others, Election petition (Kakamega) No. 6 of 2013).There is no room for examination of electoral misconduct in a recount (Justus gesito Mugali v Independent Electoral & Boundaries Commission & 2 Others, Election petition (Kakamega) No. 6 of 2013). Although scrutiny and recount are conceptually different, the conduct of a scrutiny inevitably entails the conduct of a recount. The converse, however is not true.”

34. From the foregone, whereas a ‘recount’ only deals with the number of votes garnered and the retallying of those votes, ‘scrutiny’ is a more detailed exercise where votes and the other election materials are carefully and thoroughly observed and examined with a view to ascertain if such votes are valid in the first instance and the process, to an extent, was flawless. Scrutiny is therefore an intensive exercise which gives room for examination of inter alia electoral irregularities, malpractices, misconduct and even a re-examination of the tally. The rationale behind scrutiny is two-fold: that it is only the valid votes that confer an electoral advantage to a candidate in an election hence the need to establish the validity and the number of the valid votes a candidate garnered (the quantitative aspect) and that an election can be impugned based on electoral irregularities, malpractices, misconduct and non-compliance with the law (the qualitative aspect).

35. The purpose of scrutiny has also not been without judicial analysis. In one such instance it was revisited by Kariuki, J (as he then was) in William Maina Kamanda vs. Margaret Wanjiru Kariuki, Nairobi Election Petition No. 5 of 2008 as follows: -

‘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”.

36. In the case of Harun Meitamei Lempaka vs. Lemanken Arama & 2 others (2013) eKLR the Court added its voice on the purpose of scrutiny as ‘entailing the process of determining the validity of a vote. The object of scrutiny is to ascertain by striking out votes or adding votes which are found the candidate garnered.’

The Legal basis of recount and scrutiny: -

37. The law on scrutiny and recount is clearly set out in Sections 80(4)(a) and 82of the Act as read with Rules 28 and 29 of the Rules. The said sections of the Act are carefully tailored as under: -

‘80(4) An election court may by order direct the Commission to issues a certificate of election to a President, a member of Parliament or a member of a county assembly if-

(a) upon recount of the ballots cast, the winner is apparent.

82(1) An election court may, on its 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.

(2) Where the votes at the trial of an election petition are scrutinized, only the following votes shall be struck off-

(a) the vote of a person whose name was not on the register or list of voters assigned to the polling station at which the vote was recorded or who had not been authorized to vote at that station;

(b) the vote of a person whose vote was procured by bribery, treating or undue influence;

(c) the vote of a person who committed or procured the commission of personation at the election;

(d) the vote of a person proved to have voted in more than one constituency;

(e)the vote of a person, who by reason of conviction for an election offence or by reason of the report of the election court, was disqualified from voting at the election; or

(f) the vote cast for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification or when the facts causing it wee notorious.

(3) The vote of a voter shall not, except in the case specified in subsection (1) (e), be struck off under subsection (1) by reason only of the voter not having been or not being qualified to have the voter's name entered on the register of voters.

38. The Rules as well provide as follows: -

‘28. A petitioner may apply to an elections court for an order to

(a) recount the votes: or

(b) examine the tallying, if the only issue for determination in the petition is the count or tallying of votes received by the candidates.

29(1). The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.

(2). 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.

(3). The scrutiny or recount of votes ordered under sub-rule (2) shall be carried out under the direct supervision of the Registrar or magistrate and shall be subject to the directions the election court gives.

(4). The scrutiny or recount of votes in accordance with sub-rule (2) shall be confined to the polling stations in which the results are disputed and may include the examination of -

(a) the written statements made by the returning officers under the Act;

(b) the printed copy of the Register of voters used during the elections sealed in a tamper proof envelope;

(c) the copies of the results of each polling station in which the results of the election are in dispute;

(d)the written complaints of the candidates and their representatives;

(e)the packets of spoilt ballots;

(f) the marked copy register

(g)the packets of counterfoils of used ballot papers

(h)the packets of counted ballot papers;

(I)the packets of rejected ballot paper;

(j)the polling day diary; and

(k)the statements showing the number of rejected ballot papers

(5) For purposes of sub-rule (4) (b), every returning officer shall upon declaration of the results, seal the printed copy of the Register of Voters used at that election in a tamper proof envelope and such envelop shall be stored by the Commission subject to the elections court directions under rule 16. ”

39. A reading of the foregone provisions reveals several salient issues. I will point out only three of them. One, that whereas an election Court may order for scrutiny of the votes on its own motion (Section 82(1)) or on application by a party (Section 82(1) and Rule 29), such a Court cannot order a recount of the votes or an examination of the tallying on its own motion (Rule 28). Be that as it may and as discussed above, the nature of a scrutiny naturally entails a recount but not the converse. Two, in an application for recount or scrutiny the court must be satisfied that there is sufficient reason for the grant of the order. Such an application is not granted a as matter of course. Three, it is the election court to determine the manner in which the scrutiny or recount will be done.

40. There has also been elaborate judicial jurisprudence on the subject where several guiding principles in such applications have been developed. In terms of precedence, the decision of the Supreme Court in the case of Gatirau Peter Munya (supra) remains the locus classicus on the subject. In that case my Lordships and Ladyships revisited the then emerging jurisprudence in the High Court and the Court of Appeal and had the following to say in paragraphs 152 and 153 of the judgment: -

‘[152] We have considered the wording of section 82(1) of the Elections Act and Rule 33 of the Petition Rules. Taking into account the intention of Parliament (which in this instance is “to provide legislative mechanisms for the timely resolution of electoral dispute”), and the judicial thought-process as expressed by the election Courts, we are of the view that:

(i)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 petition and before the determination of the said petition.

(ii)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 be defeat the objectives of Article 87 (1) of the Constitution and the Elections Act.

[153] 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 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 filling 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 are 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.

(c)The right to scrutiny and recount does not lied 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 vote is called into question in the terms of Rule 33(4) of the Election (Parliamentary and County Elections) Petition Rules.”

41. On whether scrutiny or recount can be ordered in all polling stations in a disputed election, and in breaking ranks with the Court of Appeal, my Lordships were of the holding that: -

[159] We are unable to agree with the view of the learned Judges of Appeal. The view that scrutiny and recount in a constituency “means scrutiny and recount in all polling stations in the constituency”, is not borne out by emerging jurisprudence from the most relevant for a of adjudication, namely, the election Courts. On the contrary, judicial opinion distinctly favors 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 a party lays a clear basis for scrutiny in each and all the polling stations within a constituency, then the order ought to be granted…...’

42. The foregone principles were also re-emphasized by the differently constituted Supreme Court in the ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR (hereinafter referred to as ‘the 2017 Raila ruling’). Given the volume of the principles as continually generated by election courts and in light of the parties’ submissions, I will revisit some of them in consideration of the instant application.

Whether the instant application should be allowed: -

43. I will deal with the above issue in the following sub-headings: -

i. The Petition and the application – Are they in synergy?

44. It is by now a well settled principle that an application for scrutiny or recount must find its basis in the petition. This principle was recently re-affirmed by the Supreme Court in the 2017 Raila ruling.

45. I have carefully read and understood the contents of the petition and the accompanying affidavits. The petition pleaded four grounds in challenging the election in issue. The grounds are that the election violated the principles of a free and fair election (paragraph C1), on the relay and transmission of results (paragraph C2), the lack and failure of operational transparency (paragraph C3) and on the voting, counting and tabulation of the results (paragraph C4). The Petitioners made several allegations based on those grounds and finally prayed for the following orders (relevant to the application): -

A. There be a scrutiny of the votes cast and recorded as having been cast in the said election in Trans Nzoia County.

B. An order for scrutiny and audit of all the returns of the Presidential Election including but not limited to Forms 37A, 37B and 37C.

C. …...................

D. There be an inspection of the ballot boxes.

E. There be a recount of the ballot papers cast at the said election and the re-tallying of the totals of votes cast in all the polling stations in the said election.

46. Similar reliefs were contained in the affidavits of Robinson Simiyu Mwanga (paragraph 11) and Alpha Kitazi Chore (paragraph 13).

47. There was however a very heated argument that the application is not based on the petition since the prayer for scrutiny and recount in the petition related to the presidential election and not the gubernatorial election. Whereas that position is true, it is only prayer (b) in the petition which referred to the scrutiny and audit of the presidential election. The rest of the prayers (a), (d) and (e), relevant to this application, did not expressly state so. Indeed, apart from the prayer (b) of the petition the rest of the petition does not expressly refer to the presidential election.

48. Whereas I firmly believe that parties, more so in an adversarial contest such as this one, are squarely bound by their pleadings and that none is to be allowed to depart from them and that evidence which tends not to support the pleadings is inadmissible, I find that the petition, especially prayers (a), (d) and (e), are relevant to the application and form the nexus between the petition and the application. Preliminarily therefore, the application has roots in the petition. (See also the decisions in Peter Gichuki King’ara (supra), Hellen Wangari Wangechi(supra),Rishad Hamid Ahmed Amana(supra) among others).

ii. Whether the application is couched in general terms and lacks specificity and particularity: -

49. This issue is closely linked to the foregone issue. It is again a well settled principle that apart from the application having its basis in the pleadings, both the pleadings and the application must also be very clear and specific in terms of the areas of dispute which call for scrutiny or recount. The starting point is the pleading which must signal all the areas of dispute and if for instance there is any dispute relating to a polling station then that polling station must be named, and the nature of the dispute revealed. Further, the basis for the scrutiny or recount in such a polling station must be laid by way of evidence so that a Court can exercise its discretion on whether to allow such a scrutiny or recount in that polling station. I find a good reason for this requirement being that there will be no need of ordering a scrutiny or recount in an instance where there is no averment of any dispute in the pleadings or the averment turns out to be pure hearsay or the dispute is otherwise sufficiently explained by way of evidence. Precise pleadings mark a terrain for a legitimate electoral duel.

50. A party must set its path of the contest clear from the word go. It must plead with clarity and tender evidence in support of those allegations. Blanket and general averments must be discouraged as they paint a scenario of either a party having no case against the adversaries or that such a party lacks any evidence in support of its allegations and hopes to unearth some evidence during the proceedings or through applications. If, for instance and I reiterate for emphasis, a party has a dispute or a problem with a certain polling station, then that polling station must be named, and the nature of the dispute clearly stated. That requirement applies across all the grounds a party relies on in an election petition. All the parties must enter the battle field with such clarity on the magnitude of the contest to avoid ambushing the other side and thereby causing prejudice. That is the essence of Rule 29(4) of the Rules unless a party has set into motion since inception of the petition that it seeks a full scrutiny or recount.

51. That was the rationale behind the well-articulated decision in the Maina Kiai’s case (supra) by the Court of Appeal which position was recently affirmed by the Supreme Court in the 2017 Raila ruling. The Supreme Court had earlier on in the cases of Nick Salat (supra) and Gatirau Peter Munya’scase (supra) also voiced similar positions in law.

52. In this case, the Petitioners are seeking an almost full-scale scrutiny. As so held in the Gatirau Peter Munya’scase (supra) ‘if a party 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.’ This legal finding answers the third Respondent’s submission that this Court lacks the jurisdiction to entertain an application for scrutiny which does not disclose the names of the polling stations. Suffice to add that it all depends on the basis laid for the grant of the orders. The burden is therefore on the Petitioners to lay a basis for an almost full-scale scrutiny of the election materials in the gubernatorial election.

53. The petition is largely tailored without the advantage of much disclosure. Most of the averments touching on polling stations fall short of naming the stations and instead use general terms like ‘in several polling stations’, ‘in a substantial number of polling stations’, ‘in most polling stations’, ‘in a significant number of polling stations’ or ‘a substantial number of the Forms 37A’ among others. The affidavits of the Petitioners, Robinson Simiyu Mwangaand Alpha Kitazi Chore, in support of the petition likewise suffers similar deficiencies. The affidavit of Robert Gachora Otsyula also followed suit but at least named four polling stations where it was alleged that other than the agents of the third Respondent all the other agents were not allowed to witness the counting and tallying of the votes. The affidavit also named six other polling stations where it was alleged that ‘the votes of the other candidates were not being counted. They would be lumped up and thrown into the ballot box and the 1st Respondent would just announce unsubstantiated figures’.

54. The affidavit of Daniel Khisa Wanjala was also styled in the same manner. Without disclosing the sources, he reiterated the averment like that of Robert Gachora Otsyula that in four polling stations other than the agents of the third Respondent all the others were not allowed to witness the counting and tallying of the votes. The trend followed suit in the twin affidavits of Kwambai David and Richmond Nabibia Wekhuyi but at least they named three and six polling stations respectively on various allegations.

55. In total the Petitioners named 19 out of 643 polling stations in the Trans Nzoia County on various irregularities. I will deal with the nature and how the evidence unfolded on those irregularities later in this ruling.

iii. The nature and extent of the scrutiny sought: -

56. Counsel for the Petitioners, Mr. Gitonga, submitted that the application was carefully drafted to and only seek scrutiny and not recount. He further clarified that the scrutiny sought does not include the ballot papers cast but only the other election materials which exercise would take a maximum of 5 days but emphasized that they also seek an order to open the ballot boxes because some statutory forms are usually sealed therein.

57. Mr. Yego, Counsel for the first and second Respondents in opposition thereto submitted that the prayers sought are not known in law as there can be no scrutiny other than that of the votes cast which confer the electoral advantage on a candidate and that any other exercise will be in futility. Mr. Peter Wanyama for the third Respondent in concurring with Counsel for the first and second Respondents submitted that any scrutiny is always of the vote since a ballot paper, as legally defined, does not count in an election.

58. That there is a difference between a ballot paper and a vote is not in doubt. Section2 of the Actdefines a ballot paper as follows: -

“a paper used to record the choice made by a voter and shall include an electronic version of a ballot paper or its equivalent for purposes of electronic voting.”

59. Whereas the Act does not define a ‘vote’, the Supreme Court in the Raila 2013 case’ had an occasion to distinguish between a ‘vote’ and a ‘ballot paper’ under the rubric ‘(viii) The Question of Rejected Votes’ (paragraphs 258 to 283) of its judgment. The Court had the following to say in paragraphs 281 and 282: -

“[281] ……..that a ballot paper marked and inserted into the ballot box, has consistently been perceived as a vote; thus, the ballot paper marked and inserted into the ballot box will be a valid vote or a rejected vote, depending on the elector’s compliance with the applicable standards.

[282] Since, in principle, the compliant ballot paper, or the vote, counts in favour of the intended candidate, this is the valid vote; but the non-compliant ballot paper, or vote, will not in the tally of any candidate; it is not only rejected, but is invalid, and confers no electoral advantage upon any candidate.”

60. While taking the position that they are not interested with the scrutiny of the votes cast per se, the Petitioners have instead sought for the scrutiny of Forms 37A, 37B, 37C, Poll Diaries, Logs from KIEMS KITS, Ballot papers, counterfoils of ballot papers, number of voters who voted and all the election materials used. Section 2 of the Act defines ‘election material’ as: -

“means ballot boxes, ballot papers, counterfoils, envelopes, packets statements and other documents used in connection with the voting in an election and includes information technology equipment for voting, the voting compartments, instruments, seals, and other materials and things required for the purposes of conducting an election.”

61. Rule 29(4) of the Rulesgives a list of documents and items that may be examined during the scrutiny exercise. The list is not however exhaustive and for ease of reference it includes: -

(a)the written statements made by the returning officers under the Act;

(b)the printed copy of the Register of voters used during the elections sealed in a tamper proof envelope;

(c)the copies of the results of each polling station in which the results of the election are in dispute;

(d)the written complaints of the candidates and their representatives;

(e)the packets of spoilt ballots;

(f)the marked copy register

(g)the packets of counterfoils of used ballot papers

(h)the packets of counted ballot papers;

(I)the packets of rejected ballot paper;

(j)the polling day diary; and

(k)the statements showing the number of rejected ballot papers

62. Section 82(2) and (3) of the Act deals with the votes that may be struck off during the scrutiny exercise. I wish to clarify that it is the ballot paper that gives rise to either a valid vote or a rejected vote. When the ballot box is eventually opened the cast ballot papers are scrutinized and valid votes ascertained accordingly. That is one form of non-judicial scrutiny. Since scrutiny can take so several ways or aspects touching on the election, the wording of the application and arguments put forth thereto remain of great essence. A Court can even order a scrutiny of some of the election material even without an order to open the ballot boxes.

63. In this case the Petitioners have, with certainty, stated that they are not interested in the scrutiny of the cast ballot papers but would want the ballot boxes to be opened so that they can assess some forms which are usually placed inside the boxes. Counsel emphasized that the application is as such carefully tailored.

64. A party who applies for scrutiny or recount bears the burden of laying sufficient basis for the orders sought. In this case therefore the Petitioners must lay a sound basis why the documents and items they have listed in their application ought to be scrutinized.

65. Having said so and from the wording of Section 82of theActandRule 29ofthe Rules, a scrutiny can be limited and may not necessarily require the opening of the ballot boxes. That means a party may be able to demonstrate, upon scrutiny of the materials other than the cast ballot papers, that an election was flawed. It is all about evidence. That approach leans on the qualitative aspect whereas the counting and retallying of the votes deals with the quantitative aspect. The Petitioners are therefore within their rights to seek a scrutiny which does not include the cast ballot papers.

66. One very important question that now emerges is whether there can be a scrutiny of a ballot box. A ballot box is one of the election materials defined by law. Section 2 of the Act describes a ballot box as ‘a transparent container with a slot on the top sufficient to accept a ballot paper in an election or in a referendum but which prevents access to the votes cast until the closing of the voting period.’ That being so and from the definition of scrutiny, (that is, ‘the close and thorough examination, observation or study) and given that scrutiny which does not involve the cast ballot papers deals majorly with the qualitative aspect of an election, I cannot fault a party seeking to scrutinize a ballot box even without an order to open the same. Such examination will be restricted to the external features or the observation of its contents but from outside since the box is transparent. It may as well deal with aspects like the physical state of the box or the seals on the ballot box among other issues.

67. Turning to the documents and items sought to be scrutinized, it is clear beyond any peradventure that Forms 37A are the primary documents in a gubernatorial election. That, their contents are transposed to Forms 37B and the contents of Forms 37B then further transposed to Form 37C. Poll diaries contain the record of the events in a polling station. Logs from the Kiems Kits contain the electronic data on voter registration and voter identification for purposes of voting. A ballot paper is the paper that does not find its way into the ballot box and may include a spoilt ballot paper. Counterfoils of ballot papers is a record of all ballot papers issued whether they turned out to be valid votes or otherwise. A ballot box is the transparent container used in casting votes.

68. What now needs to be considered is the effect of ordering scrutiny of the said documents and items vis-à-vis the contention that the Petitioners are using the application as a fishing expedition for new and further evidence. That then leads me to the next issue of consideration.

iv. Whether the application is a roving expedition for new and further evidence:

69. Pleadings are the bedrock on which the rest of the case is built upon. They are akin to a foundation of a house; the stronger the foundation the stronger the house and vice-versa. Any evidence in a case must find its basis in the pleadings. The evidence adduced, whether by affidavits or viva-voce, must be founded on the pleadings and must tend to support the pleadings. Any evidence which is at variance with or is not founded on the pleadings is for rejection.

70. The Supreme Court shared a similar position on pleadings. While referring to an Indian case of Arikala Narasa Reddy vs. Venkata Ram Reddy Reddygari & Another with approval in ‘the 2017 Raila ruling’the Court captured the following excerpt in paragraphs 51, 52 and 53 of the ruling: -

‘[51] In the case of Arikala Narasa Reddy v. Venkata Ram Ressy Reddgari & Anr, Civil Appeal Nos. 5710-5711 (tel:5710-5711) of 2012: [2014] 2 S.C.R. the Supreme Court of India held that [paragraph8]:

‘Before the Court permits the recounting, the following conditions must be satisfied: -

(i) ……….

(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;

(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes;

(iv) …..

(v) ……..

[52] Further, the Court went on and observed that: -

‘In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The Court cannot exercise discretion of ordering recounting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the petitioner sets out his case with precision supported by averments of material facts.”

[53] Although the above case relates to the issue of record of votes, we find the principles highlighted therein relevant in determining the basis under which a court can order scrutiny. Indeed, comparative jurisprudence from the already reviewed Kenya cases, aligns with the said holding.'

71. My Lordships and Ladyships went ahead to state in paragraph 62 that: -

“Having addressed our minds to the above issues, it is our view that first, we note that as correctly argued by Counsel for the 3rd Respondent, a party must be bound by its pleadings and secondly, any scrutiny of either the Forms or the technology must be made for a sufficient reason. A 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.”

72. The Court of Appeal as well shares that position. The Court in Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) VS. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -

“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……

…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

73. The Court of Appeal, differently constituted, likewise held so in the case of Dakianga Distributors (K) Ltd vs. Kenya Seed Company Limited (2015) eKLR.

74. It follows that what the application for scrutiny seeks to reveal must have been pleaded in the pleadings. By juxtaposing that position with the documents and items sought to be scrutinized, several issues come to the fore. That, the dispute in the entries in Forms 37A, Forms 37B and Form 37C has its basis in the pleadings; that there were no averments on the poll diaries in the petition and the affidavits in support and that the logs from the Kiems Kits were neither sought for nor tested in evidence. That although the ballot papers, the counterfoils of the ballot papers and the ballot boxes were not also expressly mentioned in the petition, there are some averments in some witness’ affidavits on some occurrences in certain polling stations which may have a bearing on those items. For instance, paragraph 15 of the Affidavit of Robert Gachora Otsyula points out six polling stations where it was alleged that ‘the votes of the other candidates were not being counted. They would be lumped up and thrown into the ballot box and the 1st Respondent would just announce unsubstantiated figures’.

75. A scrutiny of the poll diaries and the logs from the Kiems Kits will no doubt venture into evidence of not only issues not pleaded but also issues not tested in evidence. The ideal approach would have been to seek the poll diaries and the logs from the Kiems Kits in advance and probably before the hearing of the matter so that their contents are used and tested in evidence. The inevitable question that now begs an answer is what would be the position in law if the poll diaries and the logs from the Kiems Kits or any of the other documents and items reveal some discrepancies but which the first and second Respondents could have given very satisfactory, believable and reasonable explanations. Will that not prejudice the Respondents?

76. The Petitioners also sought to scrutinize the number of the voters who voted. Although the Petitioners did not come out clearly to state how they intended to achieve that, ascertaining the number of those who voted involves scrutiny of among others the electronic data in the Kiems Kits since the equipment was used in voter identification. As said, such will be an attempt to venture into the arena of new and/or further evidence.

77. But what if the issues although not pleaded came up during the cross-examination of the witnesses and are therefore part of the record? The answer is found in the above decisions of the Supreme Court and the Court of Appeal. Such evidence goes to no issue. That seems to be position taken by the Scholar Hon. Justice (Prof.) Otieno-Odek in his article aforesaid where he stated that ‘A party cannot be allowed to introduce, through cross-examination contests which were previously not specifically raised in the pleadings…’

78. I therefore find that to a large extent the application is an attempt to unearth new and further evidence which is not grounded in the petition and the accompanying affidavits but was attempted to be brought out, although irregularly, during the cross-examination of the Respondents’ witnesses.

(v) The irregularities and discrepancies: -

79. A scrutiny will be readily ordered in the face of glaring and irreconcilable irregularities or discrepancies or where the evidence tends to bring out the dispute more clearly. However, not all irregularities or discrepancies call for scrutiny. An irregularity or discrepancy, whether minor or otherwise, which is sufficiently explained may not call for a further analysis by way of scrutiny. One such instance is as put by Majanja, J in Wavinya Ndeti vs. Independent Electoral and Boundaries Commission & 4 Others (2014) eKLRwhen the Learned Judge stated that: -

“An election is a human endeavor and is not carried out by programmed machines. Perfection is an inspiration, but allowance must be made for human error.”

80. There are several irregularities that were variously brought out in this matter. I will revisit them. One, the issue of the missing Forms 37A. As a starting point, the polling stations allegedly affected were not disclosed in the petition and the affidavits. The issue came up during the hearing and despite the late entry, it came out that all the Forms 37A, except one, were on the record either in the bundle of documents filed by the Petitioners or that filed by the first and second Respondents or that filed by the third Respondent. Both the Petitioners and the third Respondent explained how they obtained the forms, positions that were readily agreed to by the first and second Respondents. The second Respondent explained the absence of the one Form 37A and stated that at the time she was declaring the final results at the County Tallying Centre she had all the original Forms 37A (except one) and Forms 37B which she thereafter transmitted to the IEBC headquarters in Nairobi. She also stated that if there was any such form missing in the bundles before Court then it must have been an oversight arising from photocopying the voluminous forms and not otherwise. Counsel for the third Respondent also demonstrated to this Court that some of the Forms allegedly missing were part of those filed by the Petitioners and that some were contained in the other bundles before Court.

81. Two, the issue of transposition. There was one such instance which was brought to the fore albeit late in the day; during the hearing. It related to the results of Kwanza Primary School Polling Station 1 of 3 which appear in Form 37B under Kwanza Primary School Polling Station 3 of 3 and vice versa. The Respondents’ witnesses in their response thereto attributed that to sheer human error resulting from prolonged fatigue and that the error did not affect the results since there were no differences in the actual number of votes garnered by each of the candidates in the two polling stations. I have carefully examined the Forms 37A from the two polling stations and the results as transposed in Form 37B. I note that there is no allegation that the number of votes in Form 37B for any candidate were either increased or reduced save the issue of the entry thereof. I therefore find the explanation as reasonable and believable such that to me scrutiny will serve no purpose on this issue. Since that was the only issue of transposition, any other such allegation would clearly amount to fresh allegation or evidence not tested in law.

82. Three, that Form 37A for St. Joseph’s Primary School in Matisi Ward was used in Saboti Primary School in Saboti-Kinyoro Ward. Although the issue also arose during cross-examination, the second Respondent explained that a Form 37A meant for a polling station could be used in another polling station if the two polling stations are in the same ward. That is however not the position here. St. Joseph’s Primary School polling station is in a different ward from Saboti Primary School. Whereas the explanation given does not suffice, the time in which the issue came to the fore remain a paramount consideration. Four, on the wrong entries in the forms and tallying, despite the general way the issue was handled without the advantage of an exact complaint as to wrong entries or tallies in a polling station or a tallying centre, the second Respondent confirmed that she verified the entries and the tallies in all the statutory forms accordingly before declaration of the results of the election. She expressed no fear of any further verification.

83. Five, the presence of fake and forged election materials. This issue was raised by one Robert Gachora Otsyula (PW1)in his affidavit. PW1 however did not adduce any evidence to confirm those averments and indeed confirmed the lack of such evidence during cross-examination. Six, the allegations that agents of the 1st Runners up were not allowed access into polling stations and that some agents were chased away from polling stations and tallying centers. These issues were variously deponed to by PW1, Daniel Khisa Wanjala(PW2), Kwambai David(PW3) and Richmond Nabibia Wekhuyi (PW4) in their respective affidavits and as said before touched on some 19 polling stations. Despite so stating in their affidavits, it turned out in cross-examination that none of the said witnesses witnessed any of the alleged acts as deponed to in their respective affidavits but instead each of them appears to have received information from some agents who allegedly worked under them. None of those agents testified in support of any of the allegations. These issues were denied by the Respondents through their pleadings and evidence. The Petitioners herein presented the petition as voters. The issue as to whether the Petitioners were duly accredited agents and had agents working under them were hotly contested and are pending determination in the main petition.

84. Seven, there was the allegation of the evidence of complaints made by the 1st Runners up on the massive irregularities. The issue was deponed to by some of the Petitioners’ witnesses and referred to some letters written by the 1st Runners up. The letters were however not annexed in those affidavits and during cross-examination the witnesses explained that they were yet to be allowed by the 1st Runners up to use them in Court. That evidence was therefore not adduced. In the instant application the Petitioners have now annexed copies of the alleged letters in support of the allegation that the 1st Runners up indeed complained of massive irregularities. Counsel for the Petitioners submitted that the letters were not part of the evidence but were just meant to show that there were irregularities in the conduct of the impugned elections. With tremendous respect to Counsel, I find it rather hard to agree with that submission. I say so because the letters have a direct bearing on what transpired during cross-examination. The witnesses were tasked to explain the whereabouts of those letters and the result was that the letters were not available to the Court. If I am now to be guided by the contents of those letters and find that indeed the 1st Runners up (who never contested the results of the election) made those complaints, will I not be locking out the Respondents from testing the contents and authorship of the letters and probably from examining their maker on the contents? I think I will and that is why I decline such an invitation.

85. Eight, the issue of two Forms 37B for Kwanza Constituency with different serial numbers being GV026136-2 and GV026136-6. Again, the second Respondent explained that the forms were the same in terms of contents and meaning and that the last digit indicated the number of the copy of the document. She pointed out that the contents of both forms were not at variance and neither was there any such allegation. To me the explanation is both reasonable and acceptable and an order for scrutiny will not add any value to these proceedings on this issue.

86. Having revisited the various irregularities and discrepancies pointed out, I find that to a large extent some irregularities and discrepancies were sufficiently explained, and some were unproved. Some of them however call for further verification.

(vi) The margin of victory: -

87. The Court of Appeal in the case of Hassan Joho vs. Nyange & Another (2008) eKLR (EP) 500 rightly settled the above issue as follows: -

“Where the margin are narrow, the courts have ordered scrutiny without necessarily seeking that a foundation to be laid. The Judge did not say that where the margin is wide, then no scrutiny will be ordered. It only means that, the task of laying sufficient basis is made difficult the wider the margin…”

88. Out of the 339,621 registered voters in Trans Nzoia County a total of 248,391 voters cast their votes thereby representing a turnout of 73. 1377035%. The difference in votes between the third Respondent (who was declared the winner of the election) and the 1st Runners up was 42,764 votes. That represents 17. 216405% of the total votes cast. Whereas the margin is not a mean one, I reiterate what the Court of Appeal stated in the foregone case that the margin per se cannot be a basis of denying an application for scrutiny. That is however to be considered alongside the other factors.

(vii) Whether the application contravenes Rule 15(2) of the Rules: -

89. Rule 15 of the Rules provides for pre-trial conferencing and interlocutory applications. Sub-Rule 2 thereof provides as follows: -

“An election court shall not allow any interlocutory application to be made on conclusion of the pre-trial conference, if the interlocutory application could have, by its nature, been brought before the commencement of the hearing of the petition.”

90. It was contended by the Counsel for the first and second Respondents that the instant application was irregularly filed at the tail-end of the proceedings; that, it ought to have been filed before the pre-trial conference and directions would have been then given on when it ought to be heard during the pre-trial conferencing. It was submitted that was how it was in the Nick Salat case (supra). To that end, the application stands inadmissible and misconceived. Counsel for the third Respondent was of the contrary view. He observed that in view of the decisions on the issue it is settled that such an application can be filed at any time depending on whether there is adequate evidence to support such an application. That was as well the position by the Petitioners.

91. As rightly pointed out by Counsels for the Petitioners and the third Respondent, the issue as to when an application for scrutiny may be filed in election matters is now well settled. Such an application may be filed at any time before final determination of a petition. (See the case of Nick Salat (supra). I therefore respectfully disagree with the submission that the application must be filed before the pre-trial conference. It all depends on the availability of the evidence in support of the application. If the evidence is available before the pre-trial conference then there is no bar to filing such an application then, but there is no fast rule that the application must be filed before the conference.

92. I must however add that the timing of the application matters a lot. When the application is filed after the evidence is fully adduced, the Court must be careful and exercise extreme caution as a Petitioner may easily use such an application to fill in the gaps exposed during the trial. Such an application should not be used to cure an ailing pleading.

93. As the Supreme Court in the case of Nick Salat settled this aspect and indeed so well, I therefore find that the application was properly filed and is for due consideration on its merit.

(viii) Whether the application will compromise the timely resolution of thematter: -

94. As this matter is an election petition, Section 75(2) of the Act requires its determination within six months. That being so, all the proceedings must be geared towards the attainment of that statutory requirement. Whenever a Court forms an opinion that an application say for scrutiny is merited, that must be weighed against the said strict timelines. Such a Court must be so clear on the extent and nature of the scrutiny and how and within what timelines the exercise will be carried out. A Court should not hesitate to disallow an application if the grant thereof will prejudice the timely resolution of the matter.

Disposition: -

95. From the foregone analysis, the application must succeed but partly. The Petitioners have laid a sound basis to the effect that Forms 37A, Forms 37B and Form 37C should be scrutinized. Likewise, the scrutiny of those forms should include the tallying. I would have readily allowed the scrutiny of the poll diaries, logs from Kiems Kits and number of the voters who voted if those issues were specifically pleaded and basis laid in evidence. I am as well unable to order the scrutiny of the ballot papers, counterfoils of the ballot papers and the ballot boxes given that despite there being no averments in the pleadings no basis which may call for their scrutiny was laid in evidence. That is the position relating to the rest of the election materials used in the election.

96. As to the opening of the ballot boxes for purposes of accessing some forms sealed therein, I will allow that prayer, but such access will be limited to opening of the ballot boxes and retrieving Forms 37A therefrom.

Conclusion: -

97. The above discussion now leads this Court to make the following final orders: -

(a) The Notice of Motion dated 03/11/2017 partly succeeds;

(b) There shall be a scrutiny of all the Forms 37A, Forms 37B and Form 37C used in the gubernatorial election in Trans Nzoia County held on 08/08/2017;

(c) For purposes of enabling the scrutiny in (b) above: -

(i) the first and second Respondents herein shall avail to the Deputy Registrar of this Court all the original or duly certified copies of Forms 37A, Forms 37B and Form 37C;

(ii) the Deputy Registrar shall preside over the opening of all the ballot boxes used in the gubernatorial election in Trans Nzoia County held on 08/08/2017 and retrieve Forms 37A which will be inside those ballot boxes;

(iii) The Deputy Registrar shall then produce copies of the Forms 37A retrieved from the ballot boxes and thereafter return those Forms 37A into the ballot boxes and the ballot boxes shall be resealed accordingly;

(iv) The Deputy Registrar shall keep a record of the seals on the ballot boxes before and after the exercise.

(d) The Deputy Registrar shall thereafter inter alia carry out the scrutiny and as follows: -

(i) Confirm if the Forms 37A supplied in (c)(i) above are and have similar entries with those retrieved from the ballot boxes;

(ii) Tally the number of votes garnered by the candidates in Forms 37A;

(iii) Confirm if the entries in Forms 37B are the same as those in Forms 37A;

(iv) Tally the number of votes garnered by each candidate in Forms 37B;

(v) Confirm if the entries in Forms 37C are the same as those in Forms 37B;

(vi) Tally the number of votes garnered by each candidate in Forms 37C;

(e) Each party may avail not more than two Counsels, the parties themselves and not more than three other representatives to attend the opening of the ballot boxes, the retrieval of Forms 37A and the actual scrutiny exercise. For avoidance of doubt, the two Petitioners herein shall be jointly considered as one party as well as the first and second Respondents.

(f) All the parties in attendance shall be under the direction of and shall comply with any such orders or directions that the Deputy Registrar may issue from time to time.

(g) The Deputy Registrar shall then prepare and file a report on the exercise in any event on or before 19/12/2017. The report shall also be served upon all the Counsels in this matter.

(h) This matter shall then be fixed for a mention on 22/12/2017 at 10:00 am for purposes of confirming compliance and for further orders and directions.

(i) The Petitioners shall shoulder the cost of photocopying the Forms 37A retrieved from the ballot boxes and any party wishing to receive a copy or copies of those forms shall individually shoulder the cost thereof.

(j) Costs of the application shall abide the outcome of the petition.

Those are the orders of this Court.

DELIVERED, DATED and SIGNED at KITALE this 07th day of December 2017.

A. C. MRIMA

JUDGE

Ruling delivered in open Court and in the presence of: -

Mr. S. GitongaCounsel for the Applicants/original Petitioners.

Mr. YegoCounsel for the first and second Respondents.

Mr. Peter WanyamaCounsel for the third Respondent

Kirong– Court Assistant

Slyvia - Court Assistant