[2017] KEHC 3205 (KLR)
The court found that while the applicant's apprehension regarding the security of the ballot boxes was understandable, there was no tangible evidence presented to show an immediate risk of tampering if the application was served on the respondents. The constitutional and statutory mandate of the 1st and 2nd...
Source-derived case information.
- Citation
- [2017] KEHC 3205 (KLR)
- Parties
- Applicant: Silas Muriuki Ruteere; Respondent: Independent Electoral & Boundaries Commission; Respondent: Abdi Shiekh Mohamed/Returning Officer for Imenti Constituency; Respondent: Abdul Rahim Dawood
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Election Petition 1 of 2017
- Procedural Posture
- Election Petition / Interlocutory Application (ex Parte Motion)
- Outcome
- Application for ex-parte orders declined; matter to proceed inter partes.
- Judges
- A Mabeya
- Legal Topics
- Preservation of Election Materials, Ex Parte Orders, Ballot Box Security, Recount Procedures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Muriuki Ruteere
Applicant
Independent Electoral & Boundaries Commission
Respondent
Abdi Shiekh Mohamed/Returning Officer for Imenti Constituency
Respondent
Abdul Rahim Dawood
Respondent
Procedural Posture
Election Petition / Interlocutory Application (ex Parte Motion)
Legal Issues
- 1 Whether the applicant should be granted an ex-parte order to put additional seals on all ballot boxes for North Imenti Constituency.
- 2 Whether there is sufficient risk of tampering with ballot boxes to justify ex-parte relief.
Ratio Decidendi
The court found that while the applicant's apprehension regarding the security of the ballot boxes was understandable, there was no tangible evidence presented to show an immediate risk of tampering if the application was served on the respondents. The constitutional and statutory mandate of the 1st and 2nd respondents to preserve election materials was noted. The court held that, absent evidence of imminent risk, it would not be appropriate to grant the order ex-parte. The application was therefore to be served on the respondents for inter partes hearing.
Court Disposition
Application for ex-parte orders declined; matter to proceed inter partes.
Orders
- Application to be served upon the 1st and 2nd Respondents forthwith.
- Hearing inter partes scheduled for 6th September, 2017 at 10:30 a.m.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ELECTION PETITION NO 1 OF 2017
IN THE MATTER OF ARTICLE 1, 86 AND 87 OF THE CONTITUTION OF KENYA 2010
AND
IN THE MATTER OF REGULATIONS 74, 75, 76, 77 & 78, 81, 82, 83, 84, 85, 86 AND 87 OF THE ELECTION (GENERAL) REGULATIONS, 2012
AND
IN THE MATTER OF SECTIONS 80 (4) OF THE ELECTIONS ACT NO. 24 OF 2011
AND
IN THE MATTER OF RULES 28 OF THE ELCTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017
AND
IN THE MATTER OF THE GENERAL ELECTIONS HELD ON 8TH DAY OF AUGUST, 2017
AND
THE ELECTION FOR THE MEMBER OF THE NATIONAL ASSEMBLY FOR NORTH IMENTI CONSTITUTENCY CODE NO. 056, MERU COUNTRY
BETWEEN
SILAS MURIUKI RETEERE ………………...........PETITIONER/APPLICANT
AND
THE INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION ………………………..... 1ST RESPONDENT
ABDI SHIEKH MOHAMED/RETURNING OFFICER
FOR IMENTI CONSTITUENCY ………………….......…. 2ND RESPONDENT
ABDUL RAHIM DAWOOD ………………………...…… 3RD RESPONDENT
RULING
Before me is a Motion on notice by the Petitioner, Silas Muriuki Ruteere dated 4th September, 2017. He seeks four substantive prayers. I allowed the application to be argued during the current Court vacation for reasons on record. Mr. Mwanzia, Learned Counsel for the Petitioner who appeared before me urged the Court to grant prayer No. 3 ex-parte. That prayer seeks that the Petitioner be allowed by the 1st and 2nd Respondent to put additional seals forthwith on all the ballot boxes for all the 177 Polling Stations relating to the election of the Member of National Assembly for North Imenti Constituency held on 8th August, 2017.
It was contended that the Applicant is apprehensive that unless the order is granted, the said ballot boxes may be tampered with considering that he is seeking in the main Petition, the recount of the ballot papers. It was further contended that since the margin between the eventual winner and the Applicant was about 100 votes, there is need to preserve the integrity of the electoral materials.
The 1st and 2nd Respondent are constitutionally mandated to retain in their possession and preserve the election materials way after the election date.
The allegations about the state of the said ballot boxes remain mere allegations. However, although no tangible evidence has been produced about their risk of being tampered with, it may be a reality. Since however, there was no allegation that if the application is served upon the 1st and 2nd Respondent, there would be immediate tampering with the materials, this Court finds it difficult to allow the application ex-parte.
Accordingly, let the application be served upon the 1st and 2nd Respondents forthwith for hearing inter parties on 6th September, 2017 at 10. 30 a.m.
A. MABEYA
JUDGE
05/09/2017
Ruling delivered in the presence of Mr. Mwanzia in open Court.
A. MABEYA
JUDGE
05/09/2017