[2017] KEHC 2529 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ELECTIONPETITION NO.8 OF 2017

IN THE MATTER OF THE ELECTION ACT, NO.24 OF 2011 LAWS OF KENYA AND THE ELECTIONS (GENERAL) REGULATIONS, 2012 AND ELECTIONS (PARLIAMENTARY AND COUNTY) PETITION RULES, 2017

IN THE MATTER OF PARLIAMENTARY ELECTIONS FOR BOMACHOGE BORABU CONSTITUENCY, NO.263, HELD ON 8TH AUGUST, 2017

BETWEEN

THOMAS MATWETWE NYAMACHE …………......…..……….. PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION (IEBC) …..…………….…. 1ST RESPONDENT

RETURNING OFFICER

BOMACHOGE BORABU CONSTITUENCY ……...…..… 2ND RESPONDENT

OGUTU ZADOC ABEL ……………………….……..…… 3RD RESPONDENT

RULING

1. By a notice of motion dated 18th October 2017 and supported by the affidavit sworn by THOMAS MATWETWE NYAMACHE (who is the petitioner), the court is urged to direct the 1st and 2nd respondents to deliver to the Deputy Registrar at High Court of Kenya in Kisii, the following election materials used in the elections for member of National Assembly (MP) Bomachoge Borabu Constituency on 8th August 2017.

2. Print out of results transmissions, through the KIEMS Kits, Polling day diaries, and ballot boxes from the following stations:-

a) Mosensema Primary School polling station 1

b) Kenyenya Primary School polling station 1

c) Ichuni Primary School polling station 2

d) Rianyangita Primary School polling station 1

e) Nyakorere Primary School polling station 2

f) Magena Primary School polling station 1

g) Itongo Primary School polling station 1

3. The petitioner also prays for an order for scrutiny of the aforementioned materials to ascertain the valid votes cast for each candidate, the serial numbers of ballot papers, ballot paper counter foils and unused packets of ballot papers contained in the ballot boxes.

4. Upon scrutiny, the Registrar of this court do submit a report to the court with copies to respective parties. The petitioner prays that the costs of the application do abide the outcome of the petition.

5. The basis for the prayer is that the material sought to be produced and scrutinized were all used in the impugned elections, culminating in the declaration of the 3rd respondent as the validly elected Member of Parliament for BOMACHOGE BORABU Constituency.

6. It is the Petitioner’s contention as deposed in the supporting affidavit that there are irregularities as concerns NYAKORERE PRIMARY SCHOOL Polling Station II Code 050 in MAGENCHE ward where he says there was an inflation of votes in favour of the 3rd Respondent. Further that the Presiding Officer conducted himself with laxity as though he was sickly or had been induced to favour a particular candidate and did not sign Form 35B as is required under the elections Act. This is said to have compromised the results of the election and made it impossible to tell how the voters expressed their will and choice. In the summary contained in his affidavit the petitioner also alludes to pre-marked ballot papers found around the polling station along what was referred to as Kenyenya – Nyagancha road which is near the polling stations.

7. As concerns MOSENSEMA PRIMARY school polling station I Code 018 the petitioner faulted activities there saying the Presiding Officer keyed in number in FORM 35A which did not tally with the final results such as entering 436 as the number of valid votes cast while at the Constituency Tallying Centre Form 35B recorded the valid votes cast as 336. He also states that there was fraud and misconduct as there were voters caught with more than one polling paper for the candidates.

8. In these two stations the petitioner requested the court to refer to the details of his grievance as stated in paragraphs contained in his petition. For the other stations the set out a table showing the polling stations and the alleged malpractices as follows:-

Polling station Name of witnesses Malpractices experienced

Mosensema primary school station - 1 Evans Obiri Omwamba Voter caught with extra ballot papers

Voter and clerk arrested by Criminal Investigation Officers and taken for questioning.

Magena primary school polling station – 2 Kennedy Nyabuto Omuro Presiding Officer gave agents a break-in between the counting of votes contrary to the provisions of Regulation 75 (3) of the Elections (General) regulations 2012

Nyakorere primary school polling station - 2 Jeff Yobes Okemwa Presiding Officer of Nyakorere Primary School was assaulted outside Magena Boys High School by a gang of youths while on his way of present the results from Nyakorere Primary School.

Pre-marked ballot papers found around the polling station.

Ichuni primary school polling station – 2 Dorothy Bota Was given blank results forms to sign.

Rianyangita primary school polling station - 1 Mary Nyabonyi Asuga Presiding Officer assisted voters; Form 32 was not filled as required.

Form 35A filled by Presiding Officer does not tally with the polling station.

Itongo primary school polling station - 1 Vincent Maina Nyachio Presiding Officer did not comply with Regulation 69 of the Elections (General) Regulations 2012.

9. In response the 1st and 2nd respondents in a replying affidavit sworn by ODUOL BERNARD ARGWINGS who was the Returning Officer for BOMACHOGE BORABU Constituency stated that the KIEMS Kits for all polling stations were recalled and had already been re-configured in preparation for the Elections slated for 26th October 2017 – so the order is not capable of being granted. The prayer is termed a fishing expedition as the applicant has not established sufficient reason to warrant the issuance.

10. As regards MOSENSEMA PRIMARYit is deposed that there was no inflation of votes in favour of any candidate. The Returning Officer explains that the figure referred to was a clear mathematical error in recording the total valid votes cast, and none of the candidates was affected by that error. He points out that the Jubilee agent (in whose favour the petition wants the petition to be determined) infact signed the form 35A and there would be no reason for scrutiny of materials from the said polling station.

11. With regard to the alleged issuance of more than one ballot paper, it is deposed that the alleged voter was apprehended with the said ballot papers in the casting area. Apparently the voter actually had in his possession ballot papers for different elective seats, and the matter was not prosecuted for lack of evidence. The 1st and 2nd respondent state there isn’t sufficient reason given why the 1st and 2nd respondents should produce the ballot boxes, polling day diary or any other material in relation to MOSENSEMA PRIMARY SCHOOLpolling station I.

12. The respondents further point out that the claims about the Presiding Officer issuing extra ballot papers at KENYENYA polling station has no basis since such a claim was not reported to police, and in any event the agent who alleged such an occurrence is the same one who appended his signature on the Form 35A to confirm that the results were genuine.

13. The 1st and 2nd respondents’ reply to claims that the JUBILEE Agent at INCHUNI Primary School Stream II one DOROTHY BOTA, was given a blank Form 35A to sign, there would still be no basis for scrutiny and recount as the said DOROTHY testified in court and confirmed that her candidate got 86 votes, and the respondent got 131 votes, which is what is reflected in the form 35A.

14. In any event the claims about agents being given blank forms to sign were refuted by PAUL ONCHIEKU NYABAYO (the respondent’s witness who was the Presiding Officer at the station).

15. The 1st and 2nd respondents also point out that the petitioner has not indicated anything in his petition nor have his witnesses pointed out any malpractice that would warrant scrutiny and recount at RIANYANGITAPolling Station Stream I. It is contended that the allegations that the Presiding Officer marked ballot papers for voters who needed assistance in favour of one candidate; and that the Jubilee Agent was thrown out of the polling room has no supporting evidence as the Presiding Officer explained that for assisted voter, he would call the agents to witness the exercise.

16. It is also explained that the issue of Form 35A indicating stream II instead of I was corrected and the same relayed to the Returning Officer, with the consequence being that the results entered in Form 35B were accurately recorded and none of the candidates had their results altered.

17. The 1st and 2nd respondents insist that there is no specific allegation made regarding NYAKORERE polling station stream II either in the petition or in the affidavits in support of the petition. Further, that it has not been established since there is no evidence that the recovered ballot papers belonged to that polling stream. It is also deposed that the alleged assault on the Presiding Officer ONCHIEKU PAUL NYABAYO was refuted by the self same purported victim.

18. The petitioner is accused of misleading the court with regard to MAGENA polling station stream II as the individual the petitioner had listed as his witness, namely KENNEDY NYABUTO OMUROnever testified in support of any of the allegations made against the conduct of the officers at the said polling station. In addition the petitioner in his petition raised different allegations which have not been substantiated.

19. The 1st and 2nd respondent also depose that the issues raised in the petition concerning ITONGO Primary School polling station I are totally different from the claims made by VINCENT MAINA NYACHI in which claimed he did not see the Presiding Officer filling Form 32A for voters who were identified by means of scanning the national identity cards. This is termed a fishing expedition which should not be entertained.

20. The 3rd respondent’s counsel had filed grounds of opposition which he inadvertently gave the title “WRITTEN SUBMISSIONS” but upon explanation regarding the error, the court accepted the same as grounds of opposition. The 3rd respondent contends that the application does not meet the legal threshold for scrutiny of election materials and infact this petition ought to be dismissed as it does not comply with the prescribed mandatory requirements.

21. He takes up issue with the form and content of the petition saying it offends the Election Petition Rules which go to the root and substance of issues and matters presented, so it is incurably ill and must be dismissed together with the prayer for scrutiny. He has cited several past decisions to support this position, among them being M’NKIMA PETKAY SHEN MIRITI –VS- RAGWA SAMUEL and 2 OTHERS (MERU) HIGH Court Petition No.4 of 2013, and AMINA HASSAN AHMED –VS- RETURNING OFFICER MANDERA COUNTY & 2 OTHERS (NAIROBI)High Court Petition No.4 of 2013.

22. As regards the prayer for scrutiny this court is urged to be guided by the Supreme Court of Kenya decision in GITARU PETER MUNYA –VS- DICKSON MWENDA KITHINJI & 2 OTHERS (Petition No.2B of 2014which stated that:-

“… the right to scrutiny and recount do not lie as a matter of course. The party seeking a recount or scrutiny of votes in an election petition is to establish a basis for such a request, to the satisfaction of the trial judge or magistrate …”

23. It is contended that the petitioner has failed to set out with precision grounds to warrant scrutiny.

24. Counsel all filed written submissions and highlighted the same. The petitioner’s counsel submitted that the evidence which emerged set a basis for scrutiny of the specified materials so as to help the court determine the validity of the election. Counsel submitted that most of the witnesses’ explanation regarding the issues raised over the said polling stations did not flow. He emphasized that the electoral materials recovered on the roadside raised the question as to whether perhaps there were pre-marked ballot materials in favour of the 3rd respondent. Further, since one party says the papers are fake and the other side mentions they are genuine, then the only way to clear the air is by opening the ballot boxes for Nyakorere polling station.

25. MR. BEGI in his oral address in court while highlighting the submissions pointed out that both IEBC and the 3rd respondent were quiet as regards the recovered papers and although the police kept the papers and therefore denied the Presiding Officer and Returning Officer a chance to clarify, the only solution is to scrutinize what is in the ballot box. He contends that Article 35 of the Constitution of Kenya gives every Kenyan the right to access information held by a State Institution. He also refers to the case of ZEBEDEO JOHN OPORE –VS- IEBC where there was mis-posting of results and after scrutiny the court pronounced the petitioner as the winner.

26. Counsel submitted that the purpose of scrutiny is to understand the vital details of the electoral process by carrying out an inquiry and urged this court the decision in PHILLIP OSORE OGUTU –VS-MICHEAL ONYUKA ARINGO and 2 OTHERS [2013] e KLR which he says set the standards on scrutiny.

27. Since the respondents were united in opposing the application, I will merge the arguments presented by respective counsel. Their united position is that the petitioner has not laid sufficient grounds to warrant an order for scrutiny being issued and is simply engaging on a fishing expedition to collect evidence which has not been specifically pleaded. The format of the application is faulted as failing to comply with the Elections (Technology) Regulations 2017, Regulation 15 (2) which provides that:-

“15 (2) An application to access information shall be in writing in English or Kiswahili and shall be made in the Form set out in the Second Schedule providing details and sufficient particulars for the public officer or any other official to understand what information is requested.”

28. It is argued that there is already a mechanism as well as a presented format in place to enable the petitioner access the information sought. The petitioner is faulted for failing to exhaust the procedure provided under the cited Regulations, and this alone ought to deal a fatal blow to the application.

29. It is also argued that since this application seeks information held by IEBC then the petitioner ought to have pursued the same under Section 8 of the Access to Information Act which sets out how such application should be made.

30. It is also submitted that the KIEMS Kits have already been re-configured for use in the forthcoming fresh Presidential Election set for 26th October 2017 and it is impractical to execute the prayer. In any event the petitioner has not discharged the burden to sustain the prayer.

31. The argument here is that whatever information the petitioner requires is contained in the online portal and is easily verifiable via the information relayed in the Forms 35A which have been provided by the 1st and 2nd respondents in their response to the petition. Counsel contends that there is indication whatsoever that there were variations in the votes cast for each candidate as indicated in the forms 35B. He refers to amendment to Section 39 of the Elections Act which states that:-

“39 (1) The Commission shall determine, declare and publishthe results of an election immediately after close of polling.

(1A) The Commission shall appoint constituency returningofficers to be responsible for –

i. tallying, announcement and declaration, in the prescribed form, of the final results from each polling station in a constituency for the election of a member of the National Assembly and members of the county assembly;

ii. collating and announcing the results from each polling station in the constituency for the election of the President, county Governor, Senator and county women representative to the National Assembly; and

iii. submitting, in the prescribed form, the collated results for the election of the President to the national tallying centre and the collated results for the election of the county Governor, Senator and county women representative to the National Assembly to the respective county returning officer.

(1B) The Commission shall appoint county returning officers tobe responsible for tallying, announcement and declaration, in the prescribed form, of final results from constituencies in the county for purposes of the election of the county Governor, Senator and county women representative to the National Assembly.”

32. Further, most of the party agents signed the Form 35A’s whose results were used to declare the winner of the Bomachoge Borabu Parliamentary seat.

33. The respondents wonder what there is to scrutinize in the polling day diaries saying the Presiding Officer gave a succinct account of what transpired in all the polling stations.

34. With regard to Mosensema it is confirmed that the incident referred to was in relation to only one voter. It is submitted that the petitioner has not established the mischief scrutiny will cure.

35. Counsel cites various decisions, resting with a pronouncement in the case of RASHID HAMID AHMED AMANA –VS- IEBC and OTHERS – Malindi Election Petition No.6 of 2013 which stated that:-

“What the cases establish is that although scrutiny is within the court’s discretion, the applicant must establish sufficient basis for the court to order scrutiny. Further, the petitioner must not be permitted to launch a fishing expedition under the guise of an application for scrutiny in order to discover new evidence upon which to foist his or her case to invalidate the election.”

36. To this MR. NYAKUNDI added that there is no valid petition as the petitioner failed to state the date when the results were declared and how they were declared. He pointed out that the petitioner merely states that the election was held on 8th August 2017 then lists the persons who were candidates for the seat of the Member of the National Assembly but it does not present the names and also fails to declare the date of the declaration of results. This he submits renders the petition unauthentic and incurable. He urged the court to strictly adhere to the provisions in the rules drawing from the decision by Lesiit J. in M’NKIMA PETKAY SHEN MIRITI (supra) where Lesiit (J) observed that the rules are not mere technical requirements laying down procedural form and content of intended election petition, and every rule is intended to achieve a required result geared towards resolution of electoral disputes.

37. Counsel further pointed out that this court is bound by the Court of Appeal decision in JOHN MICHEAL NJENGA MUTUTHO –VS- JANE NJERI KIHARA & 2 OTHERS NAKURU Civil Appeal No.102 of 2006 where the court stated that the law had set out what a petition should contain and if any matter supposed to be included was omitted then that would render the petition incurably defective. In this case the omission was to set out in the petition the results of the election.

38. It is argued that scrutiny is not a gambling exercise which sets the court to rummage through the ballot boxes to see whether any scintilla of evidence of electoral malpractice or irregularity can be found. Drawing from the decision in PETER GICHUKI KINGARA –VS- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 2 OTHERS [EP NO.2 OF 2013 (NYERI)], Mr. Nyakundi submitted that the petitioner must have pleaded the malpractice or irregularity alleged so as to establish a basis for scrutiny or recount – which is not the case here.

39. Mr. Nyakundi pointed out that although there was an allegation of inflation of votes in favour of the respondent, no evidence was presented to support that and the issue of the discovering of ballot papers by three mutual friends on an unusual route at a public place at 9. 30 a.m. left more questions than answers – especially why those papers were being connected to NYAKORERE and not any other polling station. He contends that in any event, since the ballot papers were alleged to have gotten lost AFTER the counting of results and COMPLETION of Form 35A at the polling station, then that loss would not have possibly affected the results. In any event the issue surrounding the recovered ballot papers remains unresolved and is still pending investigations by police.

40. With regard to RIANYANGITA polling station, counsel submitted that there was no evidence to support the claim that the Presiding Officer marked ballot papers for voters against their will. Counsel also pointed out that the claims of a JUBILEE agent HENRY NYABUTO ONDITIbeing ejected from the polling hall by the Presiding Officer had nothing to do with what was pleaded. In any event such an incident was not reported to any IEBC Senior Official, and scrutiny would not resolve the issues raised.

41. The allegations concerning ITONGO Primary School Polling Station are termed as largely meaningless because even if scrutiny was to be ordered it would not disclose that some “assisted voters were influenced to mark the ballot papers in favour of the 3rd respondent.”

42. On matters concerning MONSENSEMA primary school polling station, Mr. Nyakundi submitted that what was raised was a simple arithmetical error which got a cogent explanation – and being a clerical error it did not benefit anyone nor did it take away anything from anyone of the candidates, and is much ado about nothing.

43. As regards the incident said to have taken place at Magena primary school polling station, counsel submitted that the JUBILEE agents who were said to have been chased away and intimidated into not signing form 35A did not swear any affidavit to support this – hence no evidence was led in that regard.

44. Counsel also pointed out that the issues raised in the petition regarding ICHUNIprimary school polling station stream 2 related to claims on inflation of votes, Form 35A not signed nor comments given yet when the witness DOROTHY GESARE BOTA was called, she did not touch on these allegations and came up with her own generalized stories – and contrary to what was pleaded, she actually signed Form 35A.

45. MR. NYAKUNDIalso drew to this court’s attention that the matters raised in evidence concerning KENYENYA Primary school polling station were not pleaded at all in the entire petition. It is on account of the aforegoing that the respondents urge the court to dismiss the application for scrutiny.

46. MR. BEGI in response on behalf of the petitioner submitted that the issue being raised regarding material particulars not contained in the petition does not show that the petition fails to disclose a cause of action under Section 79 (a) of the Elections Act No.24 of 2016. He urged the court to dismiss this issue citing Article 159 (2) (d)of the Constitutionwhich places a duty on courts to administer justice without undue regard to procedural technicalities.

47. Counsel further argued that to uphold the objection being raised about the format of the petition would defeat the objective of the Elections (Parliamentary and County Elections) Petitions Rules 2017 which is to facilitate the just expeditious proportionate and affordable resolution of election petitions.

48. He alludes to the decision in WILLIAM KINYANYI ONYANGO –VS- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 2 OTHERS [2013] e KLRwhere the court held that the rules remain subservient to theElections Act 2011and theConstitution,andSection 80 (1) (a)of theElections Actenjoins the courts to determine all matters without undue regard to technicalities.

49. It is contended that the date when the results were declared is not in issue, does not go to the root of the dispute and will not even be the fulcrum upon which the court will be spinning when determining the position.

50. He argues that what is being touted as a fatal defect to the petition is actually a simple procedural lapse.

51. Since the validity of the petition has been raised on grounds that it is incurably defective for want of procedural form, then it is important to address this concern first. There is no dispute that the petition does not state the date when the results were declared and how they were declared. Under Rule 8of the Rule 8 of the Elections (Parliamentary and County Elections) Petition Rules 2017 every election petition must state:-

a) The name and address of the petitioner;

b) The date when the election in dispute was conducted;

c) The results of the election, if any, and however declared;

d) The date of the declaration of the results of the election;

e) The grounds on which the petition is presented; and

f) The name and address of the advocate if any, for the petitioner which shall be the address for service.

52. The most important aspect, I think is under Rule 8 (3) that the petition must conclude with a prayer requesting the court to grant appropriate relief.

53. Many issues arose from what has been raised here – is this a preliminary objection as contemplated in the MUKISA BISCUITS –VS- WESTEND DISTRIBUTORScase? Should it have been raised after the witnesses had testified or should it have been the first preliminary point to pick up? My immediate reaction is that as a preliminary issue – from the Basic English meaning of the word (meaning preceding or done before or in preparation of a matter/event [see concise Oxford English Dictionary [Soanes C and Stevensm A ‘eds: 11th Ed: 1132], then clearly this was a matter which counsel ought to have raised before the matter proceeded to hearing. This would then fit in with what Sir Charles Newbold in the Mukisa case(supra) referred to as a demurrer which would then mark the conclusion of the matter.

54. Secondly it actually invokes the appearance of an application for dismissal of the petition for want of form – which ought to have been brought by way of a formal application. In that case it would be offending the trial rules on case management which set out at Rule 15 (2) that:-

“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.”

55. Could this application for dismissal have been brought much earlier? certainly yes – the 3rd respondent had the pleadings all along and should have detected that omission and made the application before trial commenced.

56. Be that as it may, what about the argument presented by MR. NYAKUNDI that this is a question of law which can be raised at any time by parties or the court ex debisto justatiae?

57. As pointed out, certainly the petitioner did not include the date the results were declared, as is contemplated by Rule 8 (1)of the Elections (Parliamentary and County Elections) Rules, 2017.

58. I take note of many past decisions where courts have often struck out or dismissed election petitions that do not conform to the rules relating to the contents of an election petition on the grounds that the rules are not mere technical requirements limited to procedural form [M’NKIRIA PETKAY SHEN infra];I am also alive to the view held by various courts that the invocation ofArticle 159 (2) (d)of theConstitutionmay not necessary salvage an election petition which fails to comply with the requirements set out inRule 8. [John Mututho –vs- Jayne Kihara (infra)]also decision inAmina Hassan Ahmed –vs- Returning Officer Mandera County and 2 others (infra) which did not state date of results. Yet I pose to ask myself – what is the purpose of requiring those details in a petition? Certainly the purpose is intended to ensure the other party gets a fair notice of what the case is about, and ensure that at trial a party is barred from fishing out matters not pleaded. It also helps to mark out with clarity what is in contest.

59. What is the effect of the non-compliance? With Rule 8 (1) (c). From a perusal of the petition and the responses, and even witnesses statements, it is apparent all involved are aware there was a declaration of results of the 8th August elections for Bomachoge Borabu Constituency namely the 3rd Respondent as a winner. That is why there is a response – what were they responding to if the non-disclosure of the date is so fatal?

60. I respect the views held by the courts which have stated that non-compliance with the rules is a mandatory requirement whose effect must deal a fatal blow to the petition. However my mind honestly refuses to reconcile this with the provisions of Article 159 (2) (d) of the Constitutionwhich the grund norm. It refuses to accept that position in the light of the observation made about what constitutes the phrase procedural technicalities in the case of JAMES MANGELI MUSOO –VS- EZEETEC LTD [2014] e KLR that:

“A technicality, to me is a provision of law or procedure that inhibits or limits the direction of pleadings, proceedings and even decisions in court matters. Undue regard to technicalities therefore means that the court should deal and direct itself without undue consideration of any laws, rules and procedures that are technical and or procedural in nature.”

61. The date of declaration is not in contest, indeed it is not even suggested that there was more than one declaration of results. I think this provision existed when there was an unclear path as to what constituted a declaration – before the amendment to the Elections Act. At that time it was fatal not to state the date of declaration of results because it could mean either the announcement by the Returning Officer of the results or the publication thereof. That uncertainty thankfully was resolved by the Supreme Court in the Hassan Ali Joho case – Supreme Court Petition No.10 of 2013 and the subsequent amendment to the Elections Act Section 76.

62. Subsequent to that, the issue is now a technical one which if it were to be upheld, would take us back to the bleak days when election petitions would fail to see the light of day on account of procedural technicalities. I take note that all the decision cited were made in 2013/2014, prior to the amendment of the Elections Act. Indeed the spirit of Article 159 (2) (d) is echoed by Section 80of the Elections Act.

63. Secondly I am persuaded that election petition rules are intended to be handmaidens of justice and not tyrannical mistresses, prancing about unreasonably even when what is being contested is clear to all parties involved. [See WILLIAM KINYANYI ONYANGO –VS- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION and 2 OTHERS [2013] eKLR.

64. I share the views held by Majanja J in CAROLINE MWELU MWANDIKu –VS- PATRICK MWEU MUSIMBA and 2 OTHERS [2013] eKLR concerning the rules that:-

“The guiding principle in consideration of this matter is the overriding objective of the Rules which stipulated under Rule 4 (1) of the Rules as to “facilitating the Just (emphasis mine) expeditious,proportionate (again my emphasis) and affordable resolution of elections under the Constitution and the Act.” This objective is best realized by the Election court having regard to the purpose and mischief that the rule seeks to cure and the prejudice that would be occasioned by insistence on the strict compliance with forms.”

65. Indeed Rule 5 gives latitude to the court to exercise its discretion in a manner that would achieve the just determination of the election petition as provided by both the constitution and the Act.

66. I can only echo Majanja J that “Rules 4 and 5 are a testament of the provisions of Article 159 (2) (d) of the Constitutionwhich obliges every court to dispense justice without undue regard to technicalities. The fact that elections are special disputes governed by special rules does not exonerate the court from this prime obligation to do SUBSTATIVE justice.

67. I borrow a leaf from the views expressed by Ouko JA, Kiage JA and Mohamed JA in NICHOLAS KIPTOO arap SALAT –VS- INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 6 OTHERS [2013] E KLR that:-

“…. All courts must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination, fair, just, certain and even handed ….”

However as Ouko J in the majority judgment stated:-

“Deviations from and lapses in form and procedures which do not go to the jurisdiction of the court or which do not occasion prejudice or miscarriage of justice to the opposite party ought not to be elevated to the level of a criminal offence attracting such heavy punishment of the offending party …. Where procedural infractions causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provision of procedural law which at times create hardship and unfairness … That is why the Constitution …. premises substantive justice …”

68. In making these observations the judge clarified that this was one intended to belittle the role of procedural rules which are tools designed to facilitate adjudication of dispute and ordinary management of cases.

69. I hold the view that the omission to state the date of declaration was a procedural lapse and the fact that the date of declaration is not the fulcrum, upon which this petition rests, then it constitutes a procedural technicality which does not go to the root of this particular petition and I decline to dismiss it.

70. As regards scrutiny Section 82 of the Election Actprovides the legal basis for an application for scrutiny. Sub section (2)suggests that scrutiny would be carried out to unearth that:-

a) 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 not been authorized to vote at that station.

b) Voting was procured by bribing, or undue influence.

c) There was impersonation.

d) A person voted in more than one constituency.

e) The voter had been disqualified from voting due to conviction of an election offence.

f) Votes were cast for a disqualified candidate.

71. Scrutiny goes beyond the simple question of the number of votes a candidate has garnered – it extends to the issues surrounding validity of votes cast. The case of GATIRAU PETER MUNYA(supra) set out some guiding principles to be followed when an application for scrutiny has been made to include inter alia that the party seeking scrutiny must establish a basis for it by way of pleadings and affidavits or by way of evidence adduced during the hearing of the petition. The party making the request must specify the polling stations where the exercise is impugned.

72. Of course this position is amplified by the position stated by the Supreme Court of India on the question of recount of votes (note that scrutiny does not mean recount – as it is wider and involves examination of electoral materials but may include recount) in the case of ARIKALA NARASA –VS- VENKATA RAM REDDY REDDYGARY & ANOTHER Civil Appeals Nos.5710-5711 of 2012 which held that the process is not a roving exercise and the court must be satisfied that:-

A prima facie case has been established;

The material facts and full particulars have been pleaded stating the irregularities.

73. I recognize that scrutiny is intended to assist the court in investigating allegations of irregularities and breaches of the law. It also assists the court in determining the valid votes cast in favour of each candidate and helps the court to understand the details of the electoral process and gain impressions on the integrity thereof. [Refer PHILLIP MUKWE WASIKE –VS- JAMES LUSWETI MUKUWE & OTHERS (Bungoma) Election Petition No.5 of 2013 where there were several errors, alterations and/or omissions on the Forms 35A and 35B – and which errors/omissions or alteration cannot be explained then scrutiny will be desirable.

74. Rule 29 of the Election Petition Rulessets out the broad criteria upon which an order for scrutiny can be made and Rule 29 (4) sets out what material can be scrutinized to:-

The written statements made by the returning officers.

Printed copy of Register of voters used during the election sealed in a tamper proof envelope.

Copies of the results of each polling station in which the results of the election are in dispute.

Written complaints of the candidates and their representatives.

The packets of spoilt votes.

The marked copy register.

The packets of counterfoils of used ballot papers.

The packets of counted ballot papers.

The packets of rejected ballot papers.

The polling day diary.

The statements showing the number of rejected ballots.

75. To be fair to the petitioner, he has not engaged purely on a fishing expedition of the kind alluded to by Wendho J. in Narok Petition of LEDAMA ole KINA –VS- SAMUEL ole TUNAI and OTHERS where the petitioner had applied for scrutiny of ALL of Narok South Constituency polling stations. In this case the applicant has been specific. Again to avoid belabouring the issue of procedural technicalities – whether the application is made by way of notice of motion or in the format referred to under Regulation 15 (2) of the Elections (Technology) Regulations 2017 – I think what the petitioner desires is clearly communicated. Moreover he has limited his request to 6 specified polling stations for constituency which had 105 polling stations.

76. The issue for determination is whether the petitioner has set out a prima facie case to warrant scrutiny of the listed electoral material in those polling stations. The 1st and 2nd respondents contend that the Keims Kit has already been reconfigured in preparation for the fresh Presidential elections set for 26th October 2017.

77. What is a KIEMS KIT? This is the Kenya Integrated Election Management System – which is a form of laptop tablet with an electronically generated system through which a voter is automatically identified in an automated poll book known as the Electronic Voter Identification. It has attached to it a finger reader and a hand held device with in built finger print reader. The system identifies the voters biometrically so as to curb impersonation during the voting exercise and ensures that only those that have been registered are allowed to cast their votes. This is because it has the biometric voter registration.

78. The system also enables the Presiding Officers to present and transmit results to the tallying centres. It also simultaneously transmits the tallied results to the constituency, county and national final tallying centres. This is information obtained at a training for judicial officers on electoral preparation and take judicial notice.

79. The use of the KIEMS KIT has been introduced in Kenya so as to enhance transparency through electronic transmission of results from the polling stations. The KIEMS KIT just like any other information management gadget has a memory card which stores information. Infact it is this information which the law requires the Independent Electoral and Boundaries Commission to keep in safe custody for three years.

80. Why have I gone into all these details about the KIEMS KIT? It is so as to dispel the aura which both litigants and lawyers have bestowed upon the KIEMS KIT elevating it to some supernatural level for no clear reasons. Of course it can be reconfigured for use in other exercises but the information remains in the memory card. That is why I think 1st and 2nd Respondents are not being entirely candid about its availability – although to be fair to them the prayer did not specify what aspect of the information they require to be scrutinized.

81. The other reason why I delved so much about the uses of the KIEMS KIT was to try and understand what information the petitioner wishes to have scrutinized. The evidence that was presented was that there were instances where the KIEMS KIT failed and a complimentary system was used to identify the voter. However there were also instances where both KIEMSand Complimentary System could not identify/recognize them then they were sent away.

82. Would the KIEMS KIT be able to show the voters it failed to recognize? That information was not made clear to the court. Would it be able to show that the Presiding Officer failed to comply with Regulation 69 of the Elections (General) Regulation? That too was not disclosed to court.

83. Would the KIEMS KIT show that a voter was alleged to be having extra ballot papers, or that agents were given a break in between the counting or that agents did not witness the assistance given to assisted voters? If it would then that has not been demonstrated to this court. To pray for the orders regarding the KIEMS KIT appears to be more of an exercise propelled by curiosity – let’s see what the KIEMS KIT is and what it contains and how it operates. I am afraid this court cannot indulge such curiosities.

84. Infact the claim that those who voted were not recorded by the KIEMS KIT is with regard to MAIGA PRIMARY school stream 1 which is not one of the stations the petitioner seeks to have materials scrutinized.

85. Consequently this prayer for KIEMS KIT has no leg on which to stand and is disallowed.

86. NYAKORERE PRIMARY SCHOOL PLLING STATION stream II – the complaint here is with regard to marked ballot papers found along the road near the polling station. It was not established that the ballot papers were from this polling station. Although investigation into the matter have not been concluded and police declined to give IEBC officials access to the papers for purposes of verifying certain details – there is no denying that the papers bore images and names of the candidates for the seat of Member of Parliament for Bomachoge Borabu, and their party symbols. The papers were all marked in favour of the 3rd respondent. Were they removed from the ballot box of Nyakorere? Would opening the ballot box and recounting the votes in Nyakorere confirm that those papers were pre-marked in favour of the 3rd respondent?

87. The Returning Officer ODUL BENARD ARGWINGS confirmed that the papers bore the marks for member of National Assembly although he could not verify whether they belonged to IEBC but they were similar to the ones which had been used, and he could only speculate where they come from because ballot papers generally do not have polling station numbers or name. He further explained that the difficulty in confirming where the ballot papers were from was because “after election I do not have the power to open the ballot boxes.The ballot papers fell within the series of papers that were issued to me. The series in question (if they are authentic falls within Nyakorere 2. ”

88. I have no doubt in my mind that in order to determine the validity of the votes cast, it is necessary to that the 1st and 2nd respondent delver to the Deputy Registrar Kisii High Court the ballot boxes for Member of Parliament for Nyakorere Primary School polling station 2 for purposes of scrutinizing the serial numbers of the ballot papers and whether those recovered by the roadside bear the similar features as the ones in the ballot boxes for Bomachoge Borabu.

89. The 1st and 2nd respondent must also produce ballot paper counter foils and unused packets of ballot papers in the ballot boxes.

90. The scrutiny will be geared at confirming how many ballot papers are contained in each packet and whether the used and unused papers tally with the number of votes cast – but also bearing in mind that there are instances where a voter may spoil their ballot paper and is entitled to re-issuance twice.

91. Of course scrutiny of documents would not establish whether the Presiding Officer of Nyakorere Primary School was assaulted – in any event the said Presiding Officer denied being assaulted. Further no evidence has been led to suggest that such an incident may have been recorded in the Polling Day Diary to warrant the said material being presented in court.

92. As regards the other polling stations, the petitioner has failed to establish a prima facie case to warrant the orders sought being issued. A detailed reasoning for rejection shall be set out in the final judgment of this court.

Delivered and dated this 8th day of November, 2017 at Kisii

H.A. OMONDI

JUDGE