[2017] KEHC 1999 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAMIRA

ELECTION PETITION NO. 1 OF 2017

IN THE MATTER OF: THE ELECTIONS ACT 2012

AND

IN THE MATTER OF: THE ELECTIONS (GENERAL) REGULATIONS, 2016

AND

IN THE MATTER OF: THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITIONS RULES, 2016)

AND

IN THE MATTER OF: THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ACT, 2011

AND

IN THE MATTER OF: THE ELECTION OF GOVERNOR NYAMIRA COUNTY

BETWEEN

WALTER ENOCK NYAMBATI OSEBE .………........................PETITIONER

AND

1. THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION …………………….…..1ST RESPONDENT

2. DAVID KIPRONO TOWETT ….………….....……... 2ND RESPONDENT

3. JOHN OBIERO NYAGARAMA ..................................3RD RESPONDENT

RULING:

1. The Petitioner WALTER ENOCK NYAMBATI OSEMBE through a Notice of Motion dated 2nd September, 2017 and filed on 3rd October, 2017, brought pursuant to Section 80(4)(a), 82 of the Elections Act, 2011, Rules 30 and 31 of The Elections (Parliamentary and County Elections) Petitions Rules 2017 and Article 81, 86 and 159 of the Constitution of Kenya 2010, sought the following orders:-

1. The Motion herein be heard and disposed of as a preliminary matter in the Petition herein.

2. The Honourable Court makes an order to preserve all the election materials used in the August 8th 2017, elections and are, or should have been in custody of the 1st and, or 2nd Respondents in relations to the election office of Governor Nyamira County from the date of this application until the final determination of the last appeal in this matter, if any.

3. That the Honourable Court be pleased to make an order for scrutiny, and if found appropriate, recount of the votes cast for the office of Governor, Nyamira County on the 8th August 2017 in the following stations:-

A.POLLING STATIONS WITH A HIGHER VOTER TURNOUT THAN REGISTERED VOTERS

POLLING STATION CODE POLLING STATION NAME REGISTERED VOTERS DECLARED VALID VOTES CAST- IEBC REJECTEDVOTES VARIANCE

1. 04627200102 Tombe Pri. Sch 418 715 02 297

2. 04627200201 Iteresi Pri. Sch 596 972 05 376

3. 04627200301 Nyagokiani Pri Sch 697 1084 00 387

4. 04627200401 Chaina Pri. Sch 436 700 03 264

5. 04627200501 Nyamauro Pri. Sch 453 691 03 238

6. 04627200502 Nyamauro Pri. Sch. 453 681 00 228

7. 04627200601 Nyasio Pri. Sch. 493 815 04 322

8. 04627200701 Omokirondo Pri. Sch. 376 645 00 269

9. 04627200801 Kiangombe Pri. Sch. 401 640 04 239

10. 04627200901 Matiero Pri. Sch. 322 538 00 216

11. 04627201002 Kebabe Pri. Sch. 361 564 03 203

12. 04627201002 Kebabe Pri. Sch. 361 670 06 309

13. 04627201101 Nyamwanchani Pri. Sch. 564 866 06 302

14. 04627201102 Nyamwanchani 565 859 00 294

Pri. Sch. 565 957 08 294

15. 04627201201 Enkinda Pri. Sch. 604 957 08 353

16. 04627201202 Enkinda Pri. Sch. 605 954 00 349

17. 04627201301 Getengereire Pr. Sch. 441 690 00 249

18. 04627201302 Getengereire Pr. Sch. 441 734 00 293

19. 04627201401 Getangwa Pr. Sch. 594 735 00 141

20. 04627201502 628 Kenyoro Pri. Sch. 628 971 06 343

21. 04627201501 Kenyoro Pri. Sch. 628 971 06 343

22. 04627201602 Ekerubo Pri. Sch. 555 899 03 344

23. 04627201602 Ekerubo Pri. Sch. 555 867 03 312

24. 04627202902 Nyaututu Pri. Sch. 574 904 10 330

25. 04627203001 Matongo Pri. Sch. 700 1131 13 431

26. 04627203001 Matongo Pri. Sch. 700 1109 10 409

27. 04627203101 Sakwa Pri. Sch. 373 616 00 243

28. 04627203202 Sakwa Pri. Sch. 374 622 02 248

29. 04627203201 Orwaki Pri. Sch. 398 661 03 263

30. 04627203202 Orwaki Pri. Sch. 399 638 02 239

31. 04627203301 Nyamonge Pri. Sch. 626 1027 03 401

32. 04627203302 Nyamonge Pri. Sch. 626 1003 06 377

33. 04627203401 Gesura Pri. Sch. 492 829 00 337

34. 04627203402 Gesura Pri. Sch. 492 844 00 352

35. 04627203501 Omobiro Pri. Sch. 505 772 02 267

36. 04627203602 Kiomanga Pri. Sch. 373 570 04 197

37. 04627203701 Gekonge Pri. Sch. 699 1009 00 310

38. 04627203801 Giosoya Pri. Sch. 450 738 04 288

39. 04627203901 Nyaobe Pri. Sch. 654 1094 03 440

40. 04627204001 Nyabione Pri. Sch. 407 648 00 241

41. 04627203401 Nyabione Pri. Sch. 407 642 03 235

42. 04627204102 Egetonto Pri. Sch. 416 675 04 252

43. 04627204102 Egetonto Pri. Sch. 416 675 04 259

44. 04627204202 Kiabora Pri. Sch. 159 255 00 96

45. 04627204302 Nyamusi Pri. Sch. 455 716 01 261

46. 04627204401 Riomooria Pri. Sch. 494 989 10 295

TOTAL

22,936 36,389 139 13,488

B.Table 2: POLLING STATIONS WITH LESS DECLARED VOTES THAN THE ACTUAL TURNOUT

S/

NO POLLING STATION CODE POLLING STATION NAME REGISTERED VOTERS DECLARED VALID VOTES CAST-IEBC TALLY REJECTED VOTES OUR TALLY VARIANCE

1. 04627200101 Tombe Pri. Sch. 418 319 01 348 29

2. 04627202002 Kebabe Pri. Sch. 568 317 03

3. 04627202401 Enkinda 664 190 06 348 29

4. 04627202201 Enkinda Pri Sch. 556 413 01 417 100

5. 04627205401 Getengereirie Pri Sch. 484 304 00 490 300

6. 04627206502 Ekerubo Pri. Sch. 594 299 03 484 71

7. 04627206601 Nyaututu Pri. Sch. 594 402 00 366 62

8. 04627300402 Esanige Pri. Sch. 374 278 06 300 1

9. 04627305801 Getare Pri. Sch. 533 423 05 403 1

10. 04627005101 Moitunya Pri. Sch. 472 332 06 339 61

11. 04627004602 Kiendege D.E.B. 497 226 04 326 100

12. 04627006102 Nyamwange D.O.K. Pri. Sch. 458 359 02 431 72

13. 04627009701 Mosebeti D.O.K. Pri. Sch. 493 382 00 385 3

TOTAL 6,405 4,244 37 5,047 803

C.Table 3: DISCREPANCIES BETWEEN FORM 37A, 37B AND 37C FOR WALTER ENOCK NYAMBATI OSEBE

S/

NO POLLING STATION CODE POLLING STATION NAME FORM 37 A FORM 37B FORM 37C

1. 04627200101 Tombe Pri. Sch. Results not posted 24 63 63

2. 04627201002 Kebaabe Pri. Sch. 24 93 93

3. 04627201201 Ekinda Pri. Sch. 103 28 28

4. 04627201202 Ekinda Pri Sch. No result posted 0 0

5. 04627201302 Getengereirie Pri Sch. 56 18 18

6. 04627201601 Ekerubo Pri. Sch. 64 18 18

7. 04627202902 Nyaututu Pri. Sch. 75 No results posted No results posted

8. 04627204502 Esanige Pri. Sch. No results 03 03

9. 04627205001 Getare Pri. Sch. 65 59 59

10. 04627205401 Geturi Pri. Sch. 181 15 15

11. 0462726801 Nyairanga Pri. Sch. 60 19 19

12. 04627303703 Gesebei D.O.K. Pri. Sch. 128 122 122

13. 04627303703 Gesebei D.O.K. Pri. School 128 122 122

14 04627304101 Lietigo Pri. Sch. No results posted 61 61

15 0467000702 Nyanchonoria D.O.K. Pri. School 253 0 0

16 04627004001 Kerora Pri. School 91 11 11

17 04627004301 Kerongo 196 11 11

18 0462700280 Guja Pri. Sch. 107 3 3

19 04627005502 Riomoro D.O.K. Pri. Sch. 234 0 0

20 04627010101 Machururiati Pri. Sch 113 1 1

TOTAL

d. Polling Stations with duplication ………

Kebabe 2 0 131 29 32 50 62 5 6 93

Nyamwanchani 1 3 131 29 32 50 62 5 6 93

Getare 1 6 157 9 19 18 35 1 7 93

Getare 2 6 157 9 19 18 35 1 7 95

Nyachoka 1 10 175 29 14 28 23 2 9 84

Nyachoka 2 10 175 31 13 23 23 2 4 86

Nyakimincha 1 2 156 2 2 7 70 1 3 32

Nyakimincha 2 158 2 2 7 66 3 3 2 27

Kianungu 5 89 0 48 10 10 1 3 127

Kianungu 4 60 2 54 11 10 1 3 145

Nyagachi 1 2 160 8 24 7 12 2 6 146

Nyagachi 2 1 162 8 22 3 6 2 6 150

Sengera D.E.B. 1 22 92 8 51 13 20 0 8 171

Sengera D.E.B. 2 22 101 3 42 13 20 0 11 172

Riamoni 1 0 29 0 264 2 3 0 1 32

Riamoni 2 0 30 0 285 1 3 0 0 22

E.TABLE 6. POLLING STATIONS WITH HUGE INEXPLICABLE VARIANCES

Getengereire 1 4 155 13 18 23 33 3 12 58

Getengereire 2 56 16 0 173 41 6 1 3 18

Ekinda 1 6 25 103 154 45 3 17 85 28

Ekinda 2 10 149 30 25 53 80 2 12 0

Ekerubo 1 6 16 64 219 30 3 6 33 18

Ekerubo 2 9 220 8 15 27 32 1 7 75

Nyaututu 1 0 0 0 0 0 0 0 0 0

Nyaututu 2 11 150 15 31 33 84 6 7 82

Nyachonoria 1 22 78 3 82 18 21 1 5 263

Nyachonoria 2 1 1 1 0 248 0 2 239 0

Gucha Dok 95 50 7 129 3 9 1 8 122

Gucha Dok 37 18 1 334 7 2 41 0 3

Riomoro 1 21 140 8 64 13 28 1 6 211

Riomoro 2 13 52 48 303 13 6 4 0 0

Riomoro 3 10 125 6 61 11 18 1 5 242

Kerongo 1 43 127 15 10 52 31 26 1 11

Kerongo 2 34 115 4 38 48 20 3 13 223

Machuriati 1 9 21 8 136 1 2 0 113 1

Machuriati 2 13 22 7 148 4 2 1 3 102

4. That upon completion of the exercise, the Honourable Court make such orders and gives such directions as it deems fit.

5. That upon recount and confirmation of tallies, the Honourable Court declares the Petitioner duly elected Governor, Nyamira County.

6. In the alternative but without prejudice to the foregoing, the Court should find that the whole election was not free and fair, credible and accurate as required by the constitution and holds that the election aforesaid was held against the tenets of the law and constitution and is therefore as nullity.

7. The Honourable Court makes such orders and directions as it deems fit for the ends of a just disposal of the Petition herein.

2. The Application is supported by the grounds on the face of the application being as follows:-

I.The Petitioner, now Applicant, has made out case in the Petition and Supporting affidavit that the results for the election in dispute are substantially in doubt and/or wholly erroneous.

II.The Applicant and the declared winner have as thin margin of 6,000 votes.

III.The Application herein resolves and clarifies the core issue in the Petition, to wit, who was the winner in the election and it is therefore just and expeditious that it be granted.

IV.The First and Second Respondents have admitted errors in the management of results in their Response while making the weak protestation that the errors of omission and commission did not affect the results and this motion presents an opportunity for the Parties and the Court to settle the matter in a just and expeditious manner.

V.The affidavit of the Petitioner annexed to this motion and other grounds to be urged at the hearing hereof.

3. The application is further supported by an affidavit of the Petition/Applicant Walter Enock Nyambati Osebe dated 3rd September 2017 and filed on 3rd October 2017, urging that the elections for the office of Governor Nyamira County held on 8th August 2017, in which the 2nd Respondent declared the results, declaring the Petitioner as a runners up; that the elections were marred by massive irregularities, breaches of the law and the Constitution, that the 1st and the 2nd Respondents acted in breach of their statutory and legal duty, which substantially affected the management of the process, leading to producing results that were not verifiable in favour of the 3rd Respondent.

4. The Petitioner, further deponed, that the 1st and the 2nd Respondents breached the law by employing and deploying a number of Presiding Officers working for County Government of Nyamira, who are subordinate to the 3rd Respondent and who owe allegiance to the 3rd Respondent, that they allowed unregistered voters to vote or tallied inexistent votes in 47 of 553 polling centres in Nyamira County, producing an excess of 13,488 votes that are illegal and inexplicable and which are higher than the registered voters in the said centers, that the Respondent added the figure of 13,488 votes from the 47 of the 553 polling centers to the overall tally of valid votes for candidates in the election to the office of the governor, Nyamira County and which addition changed the overall results, considering the difference of declared votes for the 3rd Respondent and the Petitioner of 6517 votes declared in the official Forms 37B and 37C, that the results produced were deliberate and intended to favour the 3rd Respondent and were a flawed outcome, against the regulations, laws and expectation of the constitution to the detriment of the Petitioner. The Petitioner further deponed the 1st and the 2nd Respondents understated and declared lower tallies of valid votes cast in 13 of the 553 polling centers and failed to account for 803 valid cast votes, urging further the results of 13 polling station are not ascertainable and are otherwise manipulated and should be nullified and expunged from the record that forms part of the tally for the elections for the office of governor, Nyamira County.

5. The Petitioner has further deponed, that the 1st and the 2nd Respondent, overstated and declared higher tallying of valid votes cast in 15 of 553 polling centers, in Nyamira County thereby adding tally by 366 votes which are not accountable for in respect of any of the candidates, he urged further the 2nd Respondent at the end of the purported counting and tallying exercise produced and relied on primary and secondary documents, Form 37A, Form 37B and 37C, that had open discrepancies, unexplained anomalies and alterations, unsigned unauthenticated forms covering 57 of 553 polling centers, the results of 13 of 553 polling centers in Nyamira County had duplications of each other in centers located at the same place and had suspicious trends that could not be explained by the random exercise of voters making a choice in as population with uniform demographic characteristics and patterns consistent with manufactured results.

6. The 1st and the 2nd Respondents opposed the application for scrutiny or recount and relied on a Replying affidavit dated 13th November 2017, by the 2nd Respondent David Kiprono Towett, the County Returning Officer who urged that he was swearing the affidavit on his own behalf as County Returning Officer and for the 1st Respondent. He deponed the application is irregular as it was made before the petition came into the existence, that the application is supported by an affidavit raising facts concerning Likuyani constituency as per paragraph 20 of the instructive affidavit, that voting in 553 Polling Stations in Nyamira County proceeded peacefully without any incident at all, and all registered voters who presented themselves to vote were duly offered the opportunity to vote, that the election was conducted by secret ballot, in a transparent, accurate, accountable and verifiable manner and the results therefrom was accurate and not designed to favour the 3rd Respondent or any other candidate, that at all polling stations, the presiding officers counted, tallied and entered the votes cast per candidate in Form 37A, openly in the presence of agents who were given the form to verify and sign, that according to the law the results declared at the polling station constitute the final results and which should be the aggregate of all 553 polling stations.

7. He further depones, that in transposing the results from Form 37A to 37B and 37C, that it is possible that some errors occurred in which results could have been mis-posted, and for one to have most accurate position on the election results reference to Form 37A for each and every polling station, as the Primary source of results is imperative and he relied on all Forms 37As annexed to his affidavit sworn on 20th September 2017 for Kitutu Masaba Constituency, marked DKT-1 A, West Mugirango constituency - marked DKT I-B, North Mugirango constituency – marked DKT – 1 C and Borabu Constituency – marked DKT – I D. He attached charts in response to what the Petitioner characterises as follows:-

(a) Polling stations with higher voters turnout than Registered voters

(b) Polling stations with less declared votes than the actual turnout.

(c) Discrepancies between Forms 37A, 37B and 37 C for Walter Enock Nyambati Osebe.

(d) Polling Stations with duplication.

(e ) Polling Stations with huge inexplicable variances.

8. The 3rd Respondent, John Obiero Nyagarama, is opposed to the Petitioner’s application and in doing so he filed a Replying affidavit dated 13th November 2017 in which he urges as follows:-, that the Petitioner has not disputed the entries in Form 37As, which are Primary documents, which show the votes garnered by the respective candidates, that the Petitioner has not tendered nor exhibited evidence or reasons that can necessitate a recount or scrutiny, that the Petitioner in his evidence failed to justify the rationale behind his request for scrutiny or recount, that the application before Court is fatally defective in as much as, it seeks Court’s Orders for scrutiny and recount at the same time, that the allegation that there were higher voter turnout than the registered voters is not supported by Form 37As but is an arithmetic error of summation in Form 37B and 37C during the transposition process, that the petitioner in his evidence failed to prove the allegation, that there were higher voter turnout compared to the registered voters, as the entry in Form 37As showed, that there was no evidence of distribution of the alleged votes amongst any of the candidates and specifically none of those alleged votes were included in the 3rd Respondent’s total tally.

9. It is further contended, in the 3rd Respondent’s affidavit that where the Petitioner/Applicant alleges that, there were Polling Stations with less declared votes than the actual turnout, the computed total votes garnered by each candidate in Form 37A were not less than the actual turnout, that on the allegation that there were discrepancies between Form 37A, Form 37B and Form 37C, the 3rd Respondent contends that the scores from Form 37A were transposed to Form 37B and 37C, and where there were errors they were on the total but did not affect candidates individual tallies, that in the evidence it was proved the errors were not deliberate and systematic but were human error, that on allegation of duplication it is contended the Petitioner/Applicant, failed to tender tangible evidence and further that there is no evidence to support an allegation of inexplicable variances and that the Petitioner seeks scrutiny and recount in respect of constituents of a constituency not situated in Nyamira County and allowing the request is a disservice to the good constituent of Nyamira County hence the application should be rejected.

10. At the hearing of the application Mr. Nyaencha, learned Advocate, appearing for the Petitioner/Applicant urged prayer No. 3 of the application as the other prayers had been disposed of at the time of pre-trial conference. Mr. Nyaencha, learned Advocate, for the Petitioner/Applicant contends that through the Petition, affidavit in support of the Petition, affidavit in support of this application, the affidavits of the Petitioner’s witnesses and the Petitioner’s, evidence and that of his witnesses, the Petitioner has established there were mistakes, errors and omissions which were sufficient to make the outcome of this election unfair, not credible, and not verifiable, urging the only way to get the answers at this stage is by way of an order of scrutiny and/or recount, if the Court deems it necessary, so that it can go to the root source of the votes, thus the ballot box. He urged through the Petitioner’s evidence and his witnesses’ evidence, the Petitioner has demonstrated fairly large errors on the face of the IEBC record and urged that though in some instances, there are minor errors, it is important for the court to go below those troding iceberg and in doing so, he urged that won’t be tantamount to fishing expedition since the petitioner has established largely a number of mistakes or errors and the answer to this is to establish the truth which will set all free. He urged the third category of errors is more intrusive on the record where the petitioner alleges duplication and huge inexplicable difference in sister stations, which he suggested can be re-tallied only by way of looking at the ultimate source of votes, which is the ballot box, pointing out the truth cannot be gotten from the primary document thus Form 37A, as Form 37B, and 37C which are secondary documents and used to announce winner has serious errors. He specifically pointed out that Form 37C has errors regarding the number of valid votes, of who voted, as compared to those on Form 37A. He urged that is a serious error which according to him can be resolved by opening the ballot boxes in respect of Table 1 in the Petition or 3 (a) in the application in support of his proposition. He thereafter referred to three authorities, which I propose to consider later in this ruling. He urged the Court to order scrutiny and recount as per the Petitioner’s application.

11. Mr. Mamboleo, learned Advocate, and Mr. Nyamweya, learned Advocate, appearing jointly for the 1st and the 2nd Respondents opposed the application. Mr. Mamboleo, learned Advocate, on his part contended that the application can be classified as a fishing expedition in shallow waters, urging the place to find the will of the people is in Form 37A, as it presents the direct communication with the voter, submitting that if a petition is to succeed the primary document must be shown bears a problem and if scrutinised it will change the result of the election. He contended that from the proceedings before Court, the Petitioner did not show any problem with From 37A, urging the petitioner is asking the Court to confirm the votes he garnered on 8. 8.2017 and that is not the role of the Court. He Contended that the affidavit in support of the application dated 4. 9.2017 and the application dated 2. 9.2017 are defective and urged on that point alone the application must fail. He further urged as per Petitioner’s affidavit in support of the application under paragraph No. 2 and 20, dated 2. 9.2017the same talks of Parliamentary election and constituents of Likuyani and not Nyamira County and that causes confusion in this petition. He urged that the Petitioner was able to point out some errors of posting and transposition but urged that the Petitioner has no problem with the Primary document and as such, submitted that the Petitioner should ask the Court for re-tally of all votes garnered in the whole County. He urged the application has gone beyond the prayers which are on the petition referring to the prayer (a) in the petition and urged the application be dismissed.

13. Mr. Nyamweya, learned Advocate, in his response contended that in respect of the Tables 3 (a), 3(b), 3(c), 3(d) and 3(e ) in the Notice of Motion, which the Petitioner relied upon, he urged the 1st and the 2nd Respondents gave explanation and in the cross-examination of the Petitioner the truth come out. He urged in table 1 thus 3 (a) in the application, the Petitioner was unable to show how voters were more than the registered voters, urging 13,488 votes arising out of the Petitioner’s calculation in Table 1 or Table 3 (a) never affected results of any individual candidate. On Table No. 2 or Table 3 (b), Table 3 (or Table 4 in the petition), Table 3 (c) (or Table 5 in the petition) Table 4 or Table 3 (d), he urged the Petitioner failed to demonstrate his allegations and the Respondents gave explanation on how mis-posting occurred from Form 37A to Form 37C and urged that do not affect the results as declared in Form 37A. On Table 6 or Table 3 (e) he urged, the Petitioner’s complaint do not impugn the results in Form 37A, as the Petitioner admitted during cross-examination, that Form 37As were not affected. He submitted the Petitioner is seeking the opening of the ballot boxes so as to find new evidence to support and justify his petition. He urged the applicant should not be allowed scrutiny as he is seeking to strengthen his case as he has failed to lay basis from his evidence, and the pleadings. He however, contended that the Court may order a recount to the Form 37As where the results are not complete such as at Tombe 1of 1, Esanige 1of 2 and Enkinde 1 of 2. In support of his proposition, Mr. Nyamweya, relied on one authority which this Court shall consider later in its ruling in this matter.

14. Mr. Orina, learned Advocate, and Mr. Nyanchiro, learned Advocate, appearing jointly for the 3rd Respondent, opposed the application and urged the Court to dismiss the same. Mr. Orina, learned Advocate, started by stating, the law relating to the scrutiny and recount is found in Section 82 of the Elections Act and Rules 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules, 2011, which sets out the parameters upon which an order for scrutiny and recount can be provided for. He urged Section 82 of the Elections Act provides that scrutiny can be ordered for a specified Polling Station, for the purposes of checking valid votes cast. He urged from the Petitioner’s evidence and that of his witnesses, none of the witnesses alluded to any invalid votes having been casted as his problem was on votes cast in Form 37B and 37C. He urged no issue was raised on whether there were irregularities at the counting of votes at the Polling Station and questioned the purpose of scrutiny. He urged the petition do not support all the prayers in application as prayer (a) seeks scrutiny of only Table 1 or Table 3 (a) and Table 5 or Table 3 (d) of the application, urging the number of the Stations has been increased than what is contained in prayer (a) of the petition, which would amount to amending the petition through an application. In support of that proposition he relied on the case of Raila Amollo Odinga and another Vs. IEBC and 2 Others (2017) eKLR at page 16 paragraph 51. Pointing out that no particular were pleaded in in respect of the counting of the votes. On recount Mr. Orina, Learned Advocate, contended that re-count is basically granted when the issue in controversy is on the number of votes each candidate got and is not concerned with the quality of the process. He referred to the case of Justus Gesito Mugali M’mbaya Vs. IEBC and 2 Others. HC EP No. 6 of 2013 (Kakamega) [2015] eKLR at paragraph 26 pointing out a party cannot pray for both scrutiny and/or re-count of votes at the same time. He further relied on the case of Peter Gatirau Munya Vs. Dickson Mwende Kithinji, Supreme Court of Kenya Petition No. 2B of 2014 (2014) eKLR urging the Petitioner/Applicant has not satisfied the conditions for granting the orders of scrutiny.

15. Mr. Nyanchiro, learned Advocate, appearing jointly with Mr. Orina, Learned Advocate, in his response contended that a request for scrutiny and recounting is not a matter of right, referring to case of Justus Gesito Mugali M’mbaya Vs. IEBC and 20 Others HC EP No. 6 of 2013 [2013] eKLR under paragraph 26, in which he urged, it is not proper for Petitioner to seek for scrutiny and recount at the same time because the two are different and their objections are different. He also relied on the case of Gatirau Peter Munya Vs. Dickson Mwende Kithinji and 2 Others (supra)at paragraph 140, urging the Petitioner’s evidence do not meet the threshold for scrutiny and recount. On higher voter turnout, he urged that the petitioner did not dispute the votes garnered by each candidate in respect of table 1 (in the petition) or Table 3 (a) in the application, save for the position of declared valid votes, which is not supported by cummulative tally of all candidates in all Polling stations. That though that is an error of addition, he urged the same does not affect the result of each candidate. He urged the same can be cured by the correction of the errors but not by a recount sought. He urged it can cured by a re-look at Form 37A and not ballot boxes, pointing out that there is no evidence on the alleged 13,488 votes. On polling stations with no entries for the Petitioner and other candidates, he urged it is open for the Court to order those polling stations to have the votes counted. He further urged the Petitioner has not laid down, evidence for use of KIEMS Kits.

16. Mr. Nyaencha, in rejoinder to the submissions made by the Counsel for the Respondents, contended that Rule 29(1) and (2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, the Court can order scrutiny or recount of votes. He urged a party can opt to go for a recount, if he has an issue with the numbers. That if the issue is on the process and numbers, he urged the Court can grant both but each order must be separate, pointing out in the instant application, the Petitioner is seeking scrutiny under Table 1 (in the petition) or 3 (a) , in the application and Table 6 (in the petition) or 3 (e) in the application. He urged on the prayers in the Petition, as to whether scrutiny and recount can be sought in the same prayer, he urged the answer is provided under Rule 29 (1) and (2) which he contends allows both orders to be sought. He pointed out that under prayer (a) of the Petition, he seeks recount of votes recorded as cast in the election for the office of the governor. He further pointed out the authorities relied upon by the Respondents, none of them speaks of mistakes in Form 37A or that mistakes must be specifically proved in Form 37A, for scrutiny or recount to be undertaken. That the mistakes referred to by the Petitioner are in Form 37B and 37C which are documents used to announce a winner. He urged there is no dispute that the entries made in Form 37B and 37C were not made by the 1st Respondent’s, Officers, thus the returning officers. He urged in the affidavit of the 2nd Respondent, it is agreed that there were mistakes and recount can be ordered, however it is urged the mistakes could have been caused by reposting. The Petitioner however thinks the best way is to have a recount.

17. On the dating of the affidavit dated 4. 9.2017, Mr. Nyaencha, learned Advocate, and on the application dated 2. 9.2014, he urged both of them having been filed on 3rd October 2017, after the petition having been filed on 6th September 2017, the important date is 3rd October 2017, as the Petition had been filed on 5. 9.2017. On issue raised in regard to paragraph 2 and 20 of the affidavit in support of the application which alluded to Parliamentary Election and a certain constituency on paragraph 20 of the affidavit, he urged those are cosmetic minor issues as paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 are clearly talking of gubernatorial Election of Nyamira County.

18. The Petitioner/Applicant, in his Notice of Motion dated 2nd September 2017, seeks an Order for scrutiny and goes further to state, if found appropriate, recount of the votes cast for office of Governor Nyamira County on 8th August 2017 may be ordered in the listed tables marked 3 (a), 3 (b), 3 (c), 3 (d) and 3 (e ) in the Notice of motion. The Petitioner in his petition dated 4th September 2017 seeks under prayer (a), (b) and (c) the following orders amongst others:

a.There be a scrutiny of the votes recorded as cast in the election for office of Governor, Nyamira County, on 8th August 2017, particularly the polling centres itemized in Table 1, Paragraph 14 of this Petition, and Table 6, Paragraph 21 of the Petition.

b.There be a recount of the votes recorded as cast in the election for office of Governor, Nyamira County on 8th August 2017.

c.There be a scrutiny and examination of all forms 37A, form 37C, and all accountable documents used in the election for the office of Governor, Nyamira County, on 8th August 2017.

19. In the instant application, it has been urged that, by Mr. Mamboleo, learned Advocate, that the Petitioner’s application is what he classified as a fishing expedition in shallow waters, pointing out that the notice of motion is dated 2. 9.2017 and the affidavit is dated 3rd September 2017, a fact that is confirmed by Perusal of the aforesaid documents.

He urged it is the petition that breaths life to such an application and the same having been drawn before the filing of the Petition he urged the same is defective and urged the application must fail.

20. Rule 4(1) and (4)(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, sets out the objective of those Rules, and provides as follows:

“4. (1) The objective of these Rules is to facilitate the just,Expeditious, proportionate and affordable resolution ofElections petitions.

(2) An election court shall, in the exercise of its powersUnder Constitution and the Act, or in the interpretation of any of the provisions in these Rules, seek to give effect to the objective specified in sub-rule (1),”

21. Rule 5(1) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 Provides:-

“5. (1) The effect of any failure to comply with these Rules shall be determined at the Court’s discretion in accordance with the provision of Article 159 (2) (d) of the Constitution. “

22. Article 159 (2) (d) of the Constitution 2010 referred to under Rule 5 of the Elections (Parliamentary and Count Elections) Petitions Rules, 2017 provides:-

“159 (2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles-

(d) justice shall be administered without undue regard to procedural technicalities; and ……….”

24. In the instant case, there is no dispute, that the Notice of Motion was drawn before the filing of the petition and affidavit sworn before then but was not filed till after the petition had been filed. The drawing of the Notice of Motion is not more important than when it was filed. The operative date is the date of filing of the Notice of Motion as by the time of filing the same, the Petition had been filed and it could breathe life to the application. Secondly, the issue raised is purely technical and do not go to substantive issue as regards the application. I therefore find and hold the Notice of motion before this court is properly on record and should be canvassed and its fate be determined on merits rather than on technicalities.

25. On the issue raised regarding the Petitioner’s affidavit in support of the Notice of Motion under paragraph 2 and 20 of the Petitioner’s affidavit dated 3. 9.2017 by Mr. Mamboleo, Learned Advocate, it is indeed correct that under paragraph 2 of the aforesaid affidavit, the Petitioner talks of the election of 8. 8.2017, conducted by the 1st Respondent and supervising of the general election that included the Parliamentary Election, whereas under Paragraph 20, of the same affidavit the Petitioner talks of the Constituents of Likuyani in this petition. That whereas the two above-mentioned paragraphs may be incorrect, irrelevant and annoying to the Parties, in this petition by virtue of other contents of the Petitioner’s affidavit, and more specifically paragraphs, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17, I find the election referred to in the application is well indicated as that of gubernatorial election for the county of Nyamira. I therefore find the Respondents were not ambushed or confused as to the correct election and the County referred to and have not been unable to respond to the issues raised in the supportive affidavit. I have examined the respective Replying affidavits by the Respondents dated 13th September 2017, and I find that the Respondents have not been confused by the contents of paragraphs 2 and 20 as to the matters in issue and the relevant election.

26. Mr. Orina, learned Advocate, and Mr. Nyonchiro, learned Advocate, urged that the orders of scrutiny and/or recount cannot be sought and granted at the time. They referred to the case of Justus Gesito Mugali M’mbaya Vs. IEBC and 2 Others (supra) paragraph 26 in which Hon. Justice E. K. O. Ogola stated:-

“[26] Thus can a Petitioner ask this Court for an order of recount and/or scrutiny of votes at the same time “I think not. As stated above the outcomes of these two processes are different and in my view, it would be illogical to conduct these two processes in one petition. One cannot have it both was. It is either an issue of miscounted numbers or validity of votes. More over, a Petitioner cannot on the one hand loathe an election process for being flawed and perform a recount or tally of the same process with the aim of being declared the winner if he/she emerges victorious pursuant to Section 80(4)(a) of the Elections Act.”

27. Can an election Court dealing with an application seeking both scrutiny and recount grant the twin claims in the same petition? The election Courts have since 2013 been issuing various orders in regards to applications for both scrutiny and recount. The basis of orders issued has usually been based on satisfaction of the laid down parameters for granting scrutiny or recount. The election Courts have in certain instances granted either scrutiny or recount, whereas in other occasions the Courts have granted both scrutiny and recount inrespect of the same petition and even same polling stations.

In Clement Kungu Waibara Vs. Annie Wanjiku Kibeh and Another[2017] eKLR, Hon. Justice Ngugi – J. While dealing with an issue of scrutiny and recount in granting both orders for scrutiny and

“V. A limited order of scrutiny restricted to only ten polling stations which the Court will name after due consultations with the advocates for the parties is hereby granted. The limited scrutiny will be carried out in accordance with the following parameters:

a. The limited scrutiny will be conducted by and under the supervision of the Deputy Registrar of this Court;

b. The limited scrutiny in the ten (10) selected polling stations shall involve:

i. The recount and ascertainment of the number of votes each candidate obtained in all the streams in each of the ten selected polling stations;

ii. The ascertainment of the authenticity of the ballot papers used as well as the validity of the votes cast for each candidate in all the streams in each of the ten selected polling stations.”

In Bashir Haji Abdullahi V. Adan Mohammed Noor and 3 Others[2013] eKLR, Onyancha – J., as he then was, granted both orders of scrutiny and recount and stated as follows:-

“The court hereby directs that scrutiny and recount shall in respect of the six polling stations be carried out in accordance with Rule 33 Sub Rules 3 and 4 (a-j). It is so ordered subject to the orders of court as to the time and place”

In Philip Mukwe Wasike V. James Lusweti Mukwe & 2 Others [2013] eKLR, Omondi – J. in granting both orders for scrutiny and recount held as follows:-

“In my view, despite the winning margin between the 1st respondent and the petitioner being slightly over 1000, in view of the glaring irregularities and/or omissions in statutory forms in the polling stations listed in category (c) of the Court's own audit of the statutory form provided by the 2nd respondent, an order for scrutiny is necessary to clear the doubt over the results contained in those statutory forms.

The upshot of the foregoing is that petitioner's application is allowed to the extent contemplated in this ruling that is to say there shall be partial scrutiny and recount in the following polling stations”

28. I note in the instant case, the situation is different in that the Petitioner is seeking scrutiny under different stations on one hand and on the other, he is seeking a recount from different polling stations to which the Respondents have indicated a recount can be ordered especially in respect of Forms 37As in which the results were in incomplete or entire results mis-posted or where determination of correct number of votes obtained by all candidates is required or where results were interchanged in posting. The recount and scrutiny are two different processes which serve different purposes in a petition. That where a party in specified polling station is raising issues of miscounted votes or where votes garnered are omitted in Form 37A, for example or not indicated or interchanged in transposing or where the process is challenged in different polling stations, the Court in the interest of doing substantive justice, in my view can grant the orders of recount in the relevant polling stations and for scrutiny where sufficient reasons are given in the same polling stations. In such a situation a party should not be denied justice merely on as technicality as that would be contrary to Article 159 (2) (d) of the Constitution of Kenya 2010, which requires Justice be administered without due regard to procedural technicalities

28. The Supreme Court of Kenya in Gatirau Peter Munya Vs. IEBC and 2 Others (Supra) in dealing with scrutiny the court stated as follows:-

“[134] However, Courts have allowed a recount of votes where substantive justice would be better served if an order for a recount of votes cast in all the polling stations in the entire Constituency, as opposed to a partial recount, is made.Majanja – J, in Richard Kalembe Ndile v. Patrick Musimba Mweu, Election Petition No. 7 of 2013, ordered a recount of all polling stations other than the ones pleaded in the petition and state thus:

“All that is necessary is for the petitioner to establish sufficient basis for the court to be satisfied that it must engage time and resources to ascertain the validity of the vote through scrutiny. The scrutiny exercise is part of the forensic process available for the court to do justice in the case“

“[135]Githua - J. also allowed, as sought, for a broad-based order of recount covering the whole of Lamu County in Hassan Abdalla Albeity v. Abu Mohamed Abu Chiaba & Another, Malindi High Court Election Petition No. 9 of 2013. The Judge took into account all the evidence adduced by the parties, and noted:

“In finding that the circumstances of this case merit a blanket order of recount covering the whole county, I have been guided by the principles of electoral system and process enunciated in Article 81 of the Constitution and the realization that recount as prayed would assist the court in making a proper and fair enquiry whether the 1st Respondent was validly elected as the senator for Lamu County.”

“This however should not be construed to mean that a recount would relieve the petitioner of his burden of proof. The petitioner still bears the burden of proof to establish all the allegations pleaded in his petition to the required standard.”

“[138]InPhilip Mukwewasike v. James Lusweti Mukwe, High Court at Bungoma, Petition No. 5 of 2013,the Petitioner sought scrutiny and recount of all polling stations in Kabuchai Constituency. Omondi – J, noted, while adopting the decision by Kariuki - J (as he then was) inWilliam Maina Kamanda v. Margaret Wanjiru Kariuki Nairobi Election Petition No. 5 of 2008,that the purpose of scrutiny is to:-

“1. Assist the court to investigate if the allegations of irregularities and breaches of the law complained of are valid.

F. Assist the court in determining the valid votes cast in favour of each candidate.

G. Assist the Court to better understand the vital details of the electoral process and gain impressions on the integrity of the electoral process and gain impressions on the integrity of the electoral process.”

29. M’mbaya Vs. IEBC and 2 Others (Supra)Court stated as follows:

“[27] In praying for an order a scrutiny Rule (2) of the Election Rules sets a condition to be met before such order can be granted. The provision of sub-rule 2 is such that the Court has to be satisfied that there is sufficient reason to warrant an order for scrutiny. It is noteworthy that the Court, on its own motion, can order a scrutiny exercise to be conducted. Section 82 (1) of the Election Act gives discretionary powers to the Court to direct such an exercise. The important point to note is that there has to be sufficient reasons advanced to the satisfaction of the Court to issue such order. The argument put forth by the 3rd Respondent that the Petitioner has to demonstrate that he requested for a recheck or recount of the votes at the polling station, as provided under Regulation 80 of the Election Regulation, and such request was denied in order for such petitioner to successfully ask for scrutiny is, in my view, incorrect.”

30. On scrutiny the Supreme Court of Kenya had this to say in Nathif Jama Adam Vs. Abdikhaim Osman Mohamed and 3 Others (2014) eKLR

“It emerges that, the primary consideration in determining whether to grant scrutiny, are where there are polling stations with a dispute as to the election results; whether such a state of affairs has been pleaded in the petition; and whether a sufficient scrutiny.

We agree with the Court of Appeal, that the learned trial Judge was in error in holding that an order for scrutiny cannot be granted where it is not pleaded. But it is crucial that the polling stations which are the subject of a possible scrutiny, would have been already signaled in the pleadings, as having contested results. This is the import of the wording of Rule 33(1) of the Elections Petition Rules, that an application for scrutiny can be applied or at any stage. A foreshadowing of such application should have been embodied in the main lines of pleading, which mark out the terrain of any legitimate electoral contest.”

31. The supreme Court finally settled the law regarding the principles to apply in scrutiny in elections Petitions in Gatirau Peter Munya Vs. Dickson Mwenda Kithinji and 2 Others (Supra) by stating as follows:-

“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 of 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 filing 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 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 order for scrutiny or recount.

c)The right to scrutiny and recount does not lie as a matter 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 evidence adduced during the hearing of the petition.

d)Where a party makes a request of 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 votes is called into question in the terms of Rule 33 (4) of the Election (Parliamentary and County Elections) Petition Rules.”

32. In Raila Amollo Odinga and Another VS. IEBC and 2 Others [2017] the Supreme Court stated:-

“[51] In the case of Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari & Anr, Civil Appeal Nos.5710-5711 of 2012; [2014] 2 S.C.R. the Supreme Court of India held that [paragraph 8]”

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

(i)The court must be satisfied that a prima facie case is established;

(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)An opportunity should be given to file objection; and

(v)Secrecy of the ballot should be guarded.

33. In Nicholas Salat Vs. Wilfred Rotich Lesan and 2 Others Civil Appeal No. 228 of 2013 (2013) eKLR, (Kiage Gatembu & M’Inoti, JJA), the Court of Appeal buttressed the significance of guarding against turning scrutiny into a fishing expedition:-

“Rule 33(2) requires the Court to be satisfied that there is sufficient reason and manner in which the scrutiny is to be carried out is set out in detail. An order for scrutiny is therefore not automatic; sufficient reason has to be shown before the Court orders scrutiny and recount ….. The first part of appellant’s prayer sought an order for recount throughout the entire Bomet Count: The appellant laid no basis whosever to justify that request …. It seemed that the appellant was on a fishing expedition. “The alternative prayer for recount was restrict to some polling stations in three constituencies, namely Chepalungu, Bomet East Constituency and Sotik Constituency. Each of constituencies had numerous polling stations with respect to which the appellant made no complaints.”

34. From the several authorities quoted herein above, it is clearly stated that an order for scrutiny or recount is at the discretion of the trial Court and it does not lie as a matter of cause, that a Party seeking a recount or scrutiny of votes in an election Petition has to establish the basis for such a request, which basis may be established by way of pleadings and affidavits or by way of evidence adduced during the hearing of the petition, that the application for scrutiny or recount can be made at any stage of trial, that sufficient basis must be established before an order for scrutiny or recount is made, that there must have been specific polling stations, where results are disputed and that scrutiny should not be sought to bolster a petition or be used as a fishing expedition or create or impress it for the purposes of gathering new evidence, the primary purpose of the scrutiny should be to assist the Court to investigate if the allegations of irregularities and breaches of the law complained of are valid to assist Court in determining the valid votes cast in favour of each candidate and lastly to assist the Court to better understand the vital details of the electoral process and gain impression on the integrity of the electoral process as well as enable Court to arrive at a fair, just, expeditious, proportionate and affordable resolution of elections Petitions.

35. In the instant application the petition has sought scrutiny under Table 1 and Table 6, of the petition, otherwise referred to in the application as Table 3 (a) and Table 3 (e). He is also seeking recount under Tables 2, 4 and 5 otherwise referred to in the application as Table 3 (b), 3 (c), and 3 (d). The Polling Station set out in the application under prayer 3 (a), 3 (b), 3 (c), 3 (d) and 3 (e) of the Notice of motion are 129 in total. Both in the Petition, the application and the Petitioner’s evidence, the Petitioner disputed the results declared and in his Petition has made numerous allegations of irregularities and illegalities in the impugned polling stations, some of these allegations are as follows:-

(a) there were polling stations allegedly with higher voter turnout than registered voters which the petitioner set at 46.

(b) There were polling stations allegedly with less declared votes than actual turnout which the Petitioner alleges were 13.

( c) There were Polling Stations allegedly with discrepancies between Form 37A, 37B and 37C for Walter Enock Nyambati Osebe which he set at 15 after he stated he had no problem with Nos. 16 to 20.

(d) There were polling stations allegedly with duplication which the petitioner set at 16.

(e ) There were polling station allegedly with huge inexplicable variances which the Petitioner set at 19.

(f) The Petitioner questioned the authenticity of the results in various Polling Stations as set out in Table 1 to Table 6 of the Petition and referred to in the application as 3 (a) to 3 (e) and contended the election was not conducted in accordance with the constitution and the law and as a result whereof his votes were interfered with to his detriment as his votes were reduced whereas those of the 3rd Respondent inflated.

36. I heard the evidence of the Petitioner and his witnesses and have had the opportunity to listen to cross-examination of the Petitioner and his witnesses as well as perusing forms 37A, 37B and 37C put forward to the Petitioner and his witnesses. Some of the documents have errors or Omissions or mistakes as pointed out in the 1st and the 2nd Respondents’ Replying affidavit dated 13th September 2017, under Paragraph 18, 19, 20, 21 and 22, which paragraphs covers all the polling stations in dispute. The Respondents approach is that there should be no scrutiny in all the polling stations in dispute as the mistakes and errors can be cured by correcting the mistakes or any errors arising out of transposition of the results from Form 37A to 37B and 37C and posting the correct votes for each respective candidate as the data were properly entered in Form 37A as well as correcting where votes for respective candidates in 37A were interchanged. That where an error arose due to non-transposing of votes from form 37A to 37B and 37C the error can be corrected by transposing the un-counted votes. On duplication the Respondents urged on forms 37C that duplication arose out of wrong capturing of data from Form 37A to 37B and 37C and duplicating results of certain stations to the wrong polling stations. The Respondents herein has no problem with a recount in respect of incomplete, blank and uncounted votes in Forms 37A. When the Petitioner and his witnesses testified, they were able to point out some discrepancies, errors and mistakes in some of Form 37A and wrong entries in Form 37C. The issue here is howelse can one vouch for the integrity of the results that are returned vide such documents without scrutinizing the impugned documents. Upon considering the responses by the Respondents, I am not satisfied that the respondents adequately answered on the issue of the irregularities especially the ones raised under Tables 1 to Table 5. in the Petition. On the other hand I am not satisfied that the Petitioner has shown sufficient reasons through his Petition, affidavit in support and his witnesses affidavits, his evidence and his witnesses, that there is need to scrutinize the electoral materials used by the 1st and the 2nd Respondents as regards Table 6 or otherwise table 3 (e ) in the application, in which he alleges, there were polling stations with huge inexplicable variances.

37. The Petitioner in his evidence alleged under Table 5 or otherwise 3 (d), sixteen (16) polling stations results were duplicated or had similar or near similar figures for the candidates, in sister polling stations. He urged the results were cooked or were nothing but pure manipulation, which was intended to achieve a predetermined results. He urged it was impossible for a candidate to get same results in two different polling stations within a sister polling stations. He urged the trend was suspicious and cannot be explained by random examination of voters making a choice in a population with uniform demographic characteristics and patterns, urging the outcome was consistent with manufactured results. He did not however, state the total votes affected by the alleged duplication. The 1st and the 2nd Respondents denied there was duplication stating, that the results of some of the sister polling stations were erroneously duplicated from Form 37A through an error and gave the particulars of the stations from which duplication was made otherwise, the respondents stated the respective Polling stations results were properly recorded in From 37A.

38. I have carefully considered the respective rival submission from both sides, and I find due to the alleged similarities or near similarities and the response given by the 1st and the 2nd Respondents, that it would be proper to issue order of that would enable Court get the truth of the matter.

39. In Ahmed Abdullahi Mohamad and Another Vs. Hon. Mohamed Abdi Mohamed & 2 Others HC EP No. 14 of 2017,Hon. Justice A Mabeya, faced with an application for scrutiny arising out of alleged 51 specified polling stations said to have duplication held as follows:-

“Due to the alleged similarity and the inadequate response by the 2nd and 3rd respondents, it is imperative that there not only be scrutiny on the declaration Forms 37A’s and other statutory Forms from the polling stations but there also be as recount of votes …………”

40. Section 82 (1) of the Elections Act, provides as follows:

“82. (1) An elections court may, on its own motion or on applicationby 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 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) the vote cast for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification, or after sufficient public notice of the disqualification or when the facts causing it were 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.”

41. That upon consideration of the Petitioner’s application for scrutiny and upon exercising of the discretion conferred under Section 82 of the Elections Act, I find that this is an appropriate case for exercising the Court’s discretion conferred under Section 82 of the Elections Actinrespect of polling station as alleged to have had duplication of the results. I accordingly order that there shall be scrutiny in the polling stations alleged to have had duplication in their results.

42. I have further considered and evaluated the Petitioner’s Petition, the affidavit in support of the Petition, the affidavit in support of the Notice of Motion, the Petitioner’s and his seven witnesses evidence and I find that the parameters set for granting an order of scrutiny or recount have sufficiently been shown. I am satisfied that there are sufficient reasons or justification to order scrutiny of the polling stations which were part of the station, from which the 1st and the 2nd Respondents considered votes to declare the results of gubernatorial position for Nyamira county save for polling stations under Table 6 for which the Petitioner failed to show sufficient reasons and which this court took as a fishing expedition with a view to get new evidence in support of the Petition.

43. In view of the above the Petitioner’s Notice of Motion dated 2nd September 2017 is allowed in the following terms:-

(a) Application for scrutiny under prayer 3(a) or Table 1 (in the petition) where it is alleged the listed 46 polling stations had higher voter Turnout than the registered voters is granted.

(b) Application for scrutiny under prayer 3 (e) or Table 6 C in the petition) where it is alleged 19 polling stations had huge inexplicable variances is refused.

(c) Application for recount under prayer 3(b) or Table 2 (in the petition) where it is alleged 13 Polling stations had less declared votes than actual turnout is granted.

(d) Application for scrutiny under prayer 3 (c) or Tables 4 (in the petition) where it alleged 15 polling stations (No’s 1-15) had discrepancies between Form 37A, 37B and 37C for Walter Enock Nyambati Osebe is granted.

(e) Application for scrutiny and recount Under Prayer 3(d) or Table 5 (in the petition) where it is alleged 16 Polling stations had duplication of results is granted.

(f) Prayers 4, 5, 6 and 7 were not urged and I find them misplaced and reject to make any order as regards the said prayers.

(g) I direct the 1st and the 2nd Respondents who have safety and custody of the ballot boxes in respect of the specified 90 polling stations in Tables 1, Table 2, Table 4 and Table 5 to deliver the same to a premises and venue to be identified by the 2nd “Respondent with the approval of the Deputy Registrar of this Court for the purposes of undertaking scrutiny and recount as ordered.

(h) The ballot boxes from the specified polling stations as listed in Tables 1, 2, 4 and 5 in the Applicant’s/Petition upon being delivered at the Court and received by the Deputy Registrar, during the scrutiny or recount exercise each Party is at liberty to have a maximum of two (2) agents present (if need be). No supporters or members of Public or Party member or admirers will be admitted. The Advocates for the Parties may also witness the scrutiny or recount:-

(i) In order to facilitate the scrutiny and/or recount the Deputy Registrar is at liberty to nominate the Executive Officers, Court Clerks or researchers, to assist in the exercise as she may deem necessary.

(j) The OCS, Nyamira Police Station, to give adequate security for the purposes of the exercise.

(k) A report of the scrutiny and/or recount exercise shall be filed and served by Wednesday 13th December, 2017. The Report will form part of the Court record and parties will be at liberty to submit on the same at the end of the hearing.

(l) Costs of the application will be in the cause.

DATED AND SIGNED AT NYAMIRA THIS 4TH OF DECEMBER, 2017

HON. J.A. MAKAU

JUDGE

DELIVERED IN THE OPEN COURT

IN THE PRESENCE OF:

COURT ASSISTANTS:

1. Karlbean Mobisa

2. Mourine Akinyi

Mr. Nyaencha

Jointly with

Mr. Eboso for the Petitioner

Nyamweya:

Jointly with Mr. Mamboleo for the 1st and 2nd Respondents

Mr. Nyanchiro jointly with Mr. Orina, Mr. Rioba and

Mr. Ligunya for the 2nd Respondent.

HON. J.A. MAKAU

JUDGE