[2017] KEHC 2314 (KLR)

IN THE HIGH COURT OF KENYA AT KISUMU

KAKAMEGA ELECTION PETITION NO. 14 OF 2017

ELECTION FOR THE MEMBER OF SENATE KAKAMEGA COUNTY

BETWEEN

SETH AMBUSINI PANYAKO……….……………………......……….……………….PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION……...1ST RESPONDENT

THE RETURNING OFFICER KAKAMEGA COUNTY……...............……........2ND RESPONDENT

CLEOPHAS WAKHUNGU MALALAH……………………....................……3RD RESPONDENT

RULING

1. By a Notice of Motion dated 7. 9.17, brought under Articles 35(a) and (b); 47 (1) and 50 (k) of the Constitution; the petitioner, SETH AMBUSINI PANYAKO seeks the following orders:

1. That this application be certified urgent

2. The Honourable Court be pleased to make an order compelling the1st respondent to immediately, before hearing of this petition, avail for scrutiny and audit of the system and technology used by the 1st respondent in election of the member of the Senate for Kakamega County, that is to say; KIEMS Kits, the servers, website/portal

3. The Honourable Court be pleased to make an order compelling the 1st respondent to immediately, before hearing of this petition, avail for scrutiny, recounting and verification, Forms 38 A, 38B and 38C used by the 1st respondent in election of the member of the Senate for Kakamega County

4. The Honourable Court be pleased to make an order compelling the1st respondent to immediately, before hearing of this petition, avail for recounting and verification all the ballots obtaining pursuant to the voting in the election of the member of the Senate for Kakamega County

5. The Honourable Court be pleased to make an order compelling the1st respondent to immediately, before hearing of this petition, avail for safe custody all the ballots/ballot boxes obtaining pursuant to the voting of the member of the Senate for Kakamega County

6. The Honourable Court be pleased to make an order compelling the1st respondent to immediately, before hearing of this petition, avail for scrutiny, all the materials including electronic documents and devices and equipment used by the1st respondent in election of the member of the Senate for Kakamega County

7. The Honourable Court be pleased to make an order compelling the1st respondent to immediately, before hearing of this petition, avail and allow access for purposes of inspection of all the logs of any and all servers hosted by and/or on behalf of the 1st respondent in respect of election of the member of the Senate for Kakamega County

8. The Honourable Court be pleased to make an order compelling the1st respondent to immediately, before hearing of this petition, avail all the votes, valid, spoilt and rejected, for scrutiny and recounting

2. The application is based on the grounds among others:-

i. That the materials sought form the concrete and bulk of evidence that the petition is relying on

ii. That the impugned elections for the Senate for Kakamega County were conducted through attendant intimidation of the petitioner’s agents, acts of threats of shooting and killing, and lacked efficiency, transparency, and accuracy

iii. That the votes cast were not announced promptly and openly by the 2nd respondent

iv. That the petitioner’s chief agent and agents were denied an opportunity to see, verify and confirm the votes brought in at the Constituency tallying centres from the polling stations

v. That the petitioner’s chief agent was denied an opportunity to see, and confirm the votes cast, the forms 38A, 38B and 38 C at Kakamega Boys High School Tallying Centre

vi. That votes were cast at non-gazetted polling stations

vii. That the petitioner’s votes were changed in favor of the 3rd respondent

3. The application is also supported by petitioner’s affidavit sworn on 7. 9.17 in which he reiterates the grounds on the face of the application and gives further details in respect thereof. The application is opposed on the basis of a replying affidavit sworn by Grace Chepchirchir Ronoh on 12. 10. 17 and filed on 13. 10. 17 in which she avers that she was the County Returning Officer for the election of the Member of Senate of Kakamega County in which she avers that the election was largely manual except for registration and identification of voters and transmission of provisional results. She further avers that the results for each polling station are shown of Form 38A and that she used Form 38Bs submitted by Constituency Returning Officers to tally the final results on Form 38C

Petitioner’s submissions

4. In his submissions, Mr. Jaoko for the petitioner took the court through the applications and the pleadings submitted for the petitioner and submitted that the orders sought would assist the court to resolve the inconsistencies raised by the petitioner. He further submitted that the cases cited by the respondents were made in 2013 and 2014 are not good law since they relied on laws that have been amended. It was further submitted for the petitioner that he would need to have access the information sought because he had a right under Article 35 (1) (b) of the Constitution.

1st and 2nd respondents’ submissions

5. In opposing the application; Mr. Kania, advocate for the 1st and 2nd respondents relied on their submissions filed on 3. 10. 17. It was submitted for the 1st and 2nd respondents that the petitioner had not met the threshold for recount and scrutiny in terms of Rule 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 and the guiding principles laid down in Gatirau Peter Munya v. Dickson Mwenda Kithinji& 2 Others & 2 Others [2014] eKLRand Harun Meitamei Lempaka v Lemanken Aramat vs. Lempaka& 2 Others [2014] eKLR.

6. It was further submitted that the voting, counting, tallying and transmission of results for the election of the member of senate for Kakamega County was mainly manual and that since there is no dispute regarding identification of voters which was done electronically, the logs and servers will serve no purpose. In this regard, the 1st and 2nd respondents relied on Section 39 of the Elections Act. On forms 38As, 38Bs and 38 Cs, the 1st and 2nd respondent submitted that the same cannot be counted but can only be scrutinized to determine whether the tallying of votes was done properly but that the prayer is not available to the petitioner since it is not the only prayer in the petition and further that no evidence to justify the same had been tendered. In this regard, the 1st and 2nd respondents relied on Jacob Mwirigi Muthuri v John Mbaabu Muriithi & 2 Others (2013) eKLR.It was additional submitted that the ballots that the petitioner seeks to scrutinize are by virtue of Section 1 of the Election Act papers and not votes and that their scrutiny will add no value to the petitioner’s case. In support thereof, the 1st and 2nd respondents relied on Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 others (2013) eKLR where a ballot paper marked and inserted into the ballot box was defined to mean a valid vote or a rejected vote.

7. Finally, the 1st and 2nd respondents submitted that the petitioner had failed to establish that 1st respondent had failed to keep election documents in safe custody as mandated by Article 86 of the Constitution and Regulations 93 (1) of the Election (General) Regulations, 2012.

3rd respondent’s submissions

8. In opposing the application; Mr. Mugoye, advocate for the 3rd respondent relied on the grounds of opposition filed on 6. 10. 17 and written submissions filed on 13. 10. 17. Mr. Magoye citedRule 31(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 and stated that the petition does not contain sufficient material for scrutiny and recount of votes. He cited Hassan Mohamed Hassan & Another v IEBC& 2 Others [2013] eKLR.He also reiterated the holding in Jacob Mwirigi Muthuri v John Mbaabu Muriithi & 2 Others (2013) eKLRthat scrutiny and recount cannot be granted at the pre-trial stage unless it is the only prayer in the petition. The 3rd respondent further submitted that the petitioner’s prayer for scrutiny ought to be specific to polling stations in which the results are disputed in terms of Rule 31(4) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 and the holding in Gatirau Peter Munya v. Dickson Mwenda Kithinji& 2 Others & 2 Others (Supra) and Rishad Hamid Ahmed Amana v Independent Electoral and Boundaries Commission & 2 Others (Malindi EP No. 6 of 2013.

9. The 3rd respondent urged the court to reject the application on the basis that the petitioner is engaged on a fishing expedition. To this end; he cited Philip MungeNdoro v Omar Mwinyi Shimbwa and 2 others Mombasa HC Election Petition NO. 1 of 2013and Michael Onyura Aringo v Philip Osore Ogutu& 2 others [2017] eKLRwhere the court held that courts should guard against a party using the exercise of scrutiny and recount as a “fishing” expedition as a means to uncover new or fresh evidence.

10. On scrutiny, verification and recount of votes, the 3rd respondent submitted that the petitioner has not met the threshold of specificity in Section 82(2) of the Elections Act since he has not pleaded any irregularities or the polling stations where they occurred. To this end; he cited Benjamin Ogunyo Andama v Benjamin Andola Andayi& 2 others [2013] eKLR.

11. In addition, it was submitted for the 3rd respondent that the petitioner had not met the threshold for recount and scrutiny of votes in terms of Rule 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 and the guiding principles laid down in Gatirau Peter Munya v. Dickson Mwenda Kithinji& 2 Others & 2 Others [2014] eKLRand Harun Meitamei Lempaka v LemankenAramat vs. Lempaka& 2 Others [2014] eKLR.

12. I have considered the notice of motion in the light of the supporting affidavit and the written and oral submission on behalf of the parties.

Issues for determination

13. The issues for determination arise from the prayers sought in the application. In deciding this application, I will combine prayers while 3 and 5 will be considered separately while prayers 2, 6 and 7, and, prayers 4 and 8will be considered jointly as follows.

1. Scrutiny and audit of the all the materials including electronic documents and devices and equipment that is to say; KIEMS Kits, logs of any and all servers, website/portal used by the 1st respondent in election of the member of the Senate for Kakamega County

14. Section 44 of the Elections Act provides for establishment of anintegratedelectronicelectoral systemthatenablesbiometricvoterregistration,electronicvoteridentificationand electronic transmission of results.

15. In the relevant parts, Section 44 of the Elections Act provides:-

(1) Subject to this section, there is established an integrated electronic electoral system that enables biometric voter registration, electronic voter identification and electronic transmission results.

(3) The Commission shall ensure that the technology in use under subsection (1) is simple, accurate, verifiable, secure, accountable, and transparent.

16. Section 39 of the Elections Act provides

(1C)For purposes of a presidential election the Commission shall —

(a) electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre;

(b) tally and verify the results received at the national tallying centre; and publish the polling result forms on an online public portal maintained by the commission.

17. From the foregoing; there is no doubt that it is only presidential election results that must be transmitted electronically. Except for voter registration and voter identification; voting, counting, tallying and transmission of results for the election of the other elective posts including that of the member of senate for Kakamega County are mainly manual.

18. This petition does not raise any query regarding registration and identification of voters and I therefore agree with the respondents that the KIEMS Kit, the logs, servers, and website/portal will serve no useful purpose in this petition.

2. Recounting and verification of all the votes, valid, spoilt and rejected, obtaining pursuant to the voting in the election of the member of the Senate for Kakamega County

19. Section 1 of the Elections Act defines “ballot paper” to means 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. This was reiterated in Raila Amolo Odinga& Another v Independent Electoral and Boundaries Commission & 2 Others (Supra), where the Supreme Court held that a ballot paper marked and inserted into the ballot box means a valid vote or a rejected vote. In the present application, the petitioner seeks recounting and verification of all the votes, valid, spoilt and rejected, obtaining pursuant to the voting in the election of the member of the Senate for Kakamega County. My understanding is that the petitioner seeks recounting and verification all the votes.

20. In Gatirau Peter Munya v. Dickson Mwenda Kithinji& 2 Others & 2 Others [2014] eKLR,the Supreme Court gave the following guiding principles (at para 153) on applications for scrutiny and recount:

i. any party to an election petition is entitled to make a request for a recount and/or scrutiny of votes, at any stage after the filing of petition, and before the determination of the petition.

ii. the trial Court is vested with discretion under Section82(1) of the Elections Act to make an order on its own motion for a recount or scrutiny of votes as it may specify, if it considers that such scrutiny or recount is necessary to enable it to arrive at a just and fair determination of the petition. In exercising this discretion, the Court is to have sufficient reasons in the context of the pleadings or the evidence or both. It is appropriate that the Court should record the reasons for the order for scrutiny or recount.

iii. The right to scrutiny and recount does not lie as a matter of course. The party seeking are count 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.

iv. Where a party makes are quest 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, 2013 [now Rule 29(4) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017]

21. Contrary to the submission by the respondents, it is apparent from the foregoing that the petitioner can seek scrutiny and recount at any stage after filing the petition.

22. Indeed Maraga J. (as he then was)in the case of Hassan Ali Joho v Hotham Nyange & Another [2006] eKLR, rendered himself on the questions of an order of scrutiny as follows:-

“I have read authorities cited by counsel for both parties, the common thread that runs through them is that there is no rule that a Petitioner must first call evidence and lay a basis before scrutiny is ordered……………………….”

23. Scrutiny and recount enables the court to arrive at a just and fair determination of the petition. In exercising this discretion, sufficient basis must be laid before the court in the context of the pleadings or the evidence or both.

23. In Harun Meitamei Lempaka v Lemanken Aramat vs. Lempaka& 2 Others [2014] eKLR,Gatembu J, held inter alia:

“When considering an application for an order to recount votes or to examine the tallying under rule 32 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 the election court must be satisfied, that a basis has been laid for seeking those orders. It is not enough for an applicant to say to the election court “I am asking for a recount under rule 32. For that reason alone, I am entitled to it. Give it to me.” In other words, it is not automatic. The applicant must go beyond that. An application for recount of votes or examination of tallying is premised on a “dispute” regarding results. It means the person seeking a recount or examination of the tallying is questioning the results as announced or declared. Grounds for questioning must be established so as to warrant or justify an order for recount of votes or examination of the tallying under rule 32 of the Elections (Parliamentary and County Elections) Petition Rules, 2013. ”

24. In the same case, Musinga J while addressing the issue of scrutiny and recount held:

“I am persuaded that in an election petition where the only issue is the count or tallying of the votes and the petitioner accepts the validity of the election, including the validity of the votes cast, except for contention that the counting or tallying of the votes was not proper and as a result a candidate who had not garnered the highest votes had been declared the winner, unless there are very good reasons for rejecting the application, for example, where it is found to be grossly incompetent, and order for a recount ought to be made. To deny such a petitioner the right of recount is to negate the jurisprudential gain brought about by Section 80 (4) of the Elections Act. Such a petition, being premised on the petitioner’s acknowledgement that the election was otherwise lawfully conducted, requires summary disposal. In the event that the recount reveals that the petitioner was not the winner that would be the end of the petition.”

25. The petitioner does not accept the validity of the election and is therefore under an obligation to lay a basis for recount and scrutiny.

26. Section 82 (2) of the Election Act provides the power of the Election Court during scrutiny to strike out:-

(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 authorised 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)thevotecastforadisqualifiedcandidatebyavoterknowingthatthecandidatewasdisqualifiedorthefactscausingthedisqualification,or after sufficient public notice of the disqualification or when the facts causing it were notorious.

27. On the other hand, Section 31of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 provides that:

(4) Scrutiny shall be confined to the polling stations in which the results are disputed……………………….

28. The petitioner is therefore under an obligation to demonstrate that there exist any of the instances stated in Section 82 (2) of the Election Act and further specify the polling stations in respect of which the results are disputed, or where the validity of the vote is called into question.

28. That the petitioner must lay a sound basis for scrutiny and recount was considered in the case of Philip Ogutu Osore vs. Michael Oringo & 2 Others(Supra),where the court rendered itself as follows:

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

29. A look at the application and the petition herein, demonstrates that the petitioner seeks recounting and verification of all the votes, valid, spoilt and rejected. It appears to me that the petitioner is not seized of grounds, facts and evidence for questioning the validity of this election. Instead of requesting for scrutiny and recount of all votes, the petitioner should have asked for particulars if the evidence is unclear. The petitioner appears to be on a mission to use scrutiny for purposes of obtaining new evidence. He has not specified the polling stations in which the results are disputed. This court declines an invitation to sanction such a massive exploit since it amounts to an abuse of the court process.

3. Scrutiny, recounting and verification, Forms 38 A, 38B and 38C used by the 1st respondent in election of the member of the Senate for Kakamega County

30. This prayer is based on the grounds that the petitioner’s chief agent Mr. Samwel Moses Kweyu was denied an opportunity to see and confirm the votes cast in forms 38A, 38B and 38 C at Kakamega Boys High School Tallying Centre.

31. Section 79 (1)of the Elections (General)Regulations, 2017 requires the presiding officer, the candidates or agents to sign the declaration in respect of the elections. Subsection 2 provides as follows:-

For purposes of sub regulation (1),the declaration for—

(b) National Assembly, County women representatives, Senator, Governor and county assemblyelectionsshallbeinForms35A,36A, 37A, 38A, and 39Asetoutin the Schedule

32. The relevant form in the impugned election is Form 38A. Attached to an affidavit sworn on 12. 10. 17 by Grace Chepchirchir Ronoh in support of the 1st and 2nd respondent’s response to the petition are annexed copies of Forms 38As, 38Bs and 38Cs used by the1st respondent in election of the member of the Senate for Kakamega County. I notice that the affidavit was filed on 20. 9.17 long after this application was filed. The petitioner, I believe, has been served with the said forms and has had a chance to interrogate them. I however notice that the contents in the said forms are in small fonts. For good measure therefore, I find that it would be in the interest of justice that the petitioner be served with legible Forms 38As, 38Bs and 38Cs.

vi. Safe custody all the ballots/ballot boxes obtaining pursuant to the voting of the member of the Senate for Kakamega County

33. Article 86 (4) of The Constitution mandates the Independent Electoral and Boundaries Commission to put in place:-

(d) appropriate structures and mechanisms to eliminate electoral malpractice, including the safekeeping of election materials.

34. On the other hand, Regulations 93 (1) of the Election (General) Regulations, 2012 also mandates the Independent Electoral and Boundaries Commission to retain in safe custody, of the returning officer for a period of 3 years, all documents relating to an election. There is no evidence that the 1st respondent has abdicated its legal mandate of safekeeping election materials. Court orders are not made in vain and this court therefore need not compel the 1st respondent to comply with its legal obligations.

ORDERS

53. In the end and for the reasons given on the assessment above, this court makes the following orders on the Notice of Motion dated 7. 9.17:-

1. Prayers 2, 4, 5, 6, 7 and 8 are unmerited and they are disallowed

2. Prayers 3 succeeds to the extent that the 1st respondent is directed to avail to the petitioner Forms 38As, 38Bs and 38Cs obtaining pursuant to the voting of the member of the Senate for Kakamega County so that he may photocopy them, at his cost, in a font that is more legible.

3. The 1st and 2nd respondents are ordered to avail original Forms 38As, 38Bs and 38Cs to court not later than two days from the date hereof

4. Further to the foregoing; the fact that this application for recount and scrutiny of votes has been made and dismissed does not preclude the petitioner from seeking the same prayers during the hearing, or after the conclusion of the trial, if he will be of the view that the evidence submitted will have established sufficient cause for the court to order recount and/or scrutiny of votes cast in order to ascertain their validity

5. Costs of this application shall abide the costs of the petition

DATED AND DELIVERED THIS14thDAY OFNovember2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Petitioner - N/A

1st and 2nd Respondent - Bukania

3rd respondent - N/A