[2022] KEHC 14843 (KLR)

Zuma & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition E002 of 2022) [2022] KEHC 14843 (KLR) (1 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14843 (KLR)

Republic of Kenya

In the High Court at Mombasa

Election Petition E002 of 2022

F Gikonyo, J

November 1, 2022

Between

Dziwe Pala Zuma

1st Applicant

Suleiman Ali Mwanguku

2nd Applicant

and

Independent Electoral and Boundaries Commission

1st Respondent

Kwale County Returning Officer

2nd Respondent

Achani Fatuma Mohamed

3rd Respondent

Ruling

Leave to file a supplementary affidavit 1. On October 14, 2022 during the pre-trial conference, the petitioners made an oral application for leave to file a supplementary affidavit. The court issued directions on the manner the petitioner was to express the alleged new issues they wish to respond to. The petitioners have presented a list setting out the paragraphs and issues they intend to respond to. I do note, however, that the petitioners have not annexed a draft of the proposed supplementary affidavit.

2. The petitioners filed a list dated October 17, 2022 of issues for which they seek leave to respond through a supplementary affidavit on October 18, 2022.

3. The 3rd respondent filed submissions dated October 19, 2022 on the petitioner’s application for leave to file a supplementary affidavit on the same day.

4. The 1st and 2nd respondents uploaded their submissions on October 28, 2022 but the said document was not readable. A readable copy was uploaded on October 31, 2022. The submissions are dated November 28, 2022- which should be a typing error.

Alleged new issues or matters 5. According to the list filed by the petitioners, the following are the new matters or issues they wish to respond to: -i.The use of technology in the transmission of election results.ii.The use of the alternative complementary system as an alternative to the use of the KIEMSkit.iii.Assisted voters.iv.Failure of the KIEMS kit and the failure to use complementary voter identification mechanism/manual register.v.The use of public resources and/ or public officials during the campaign period.vi.Failure to join Hon. Josphat Chirema Kombo the Deputy Governor of Kwale County as respondent.vii.Failure to file and/ or serve the 3rd respondent with annextures BSMI, WDO1 and BM1 annexed to the affidavits of Bijuma Saphati Mwondotoh, Willis David Odheche, and Buga Mohamed respectively.viii.Eligibility of the 3rd respondent to contest for the governor of Kwale county.

Submissions 6. The 3rd respondent vide written submissions dated October 19, 2022 opposed the petitioners’ application for leave to file a further affidavit on the ground that election petitions are time bound. To them, allowing such an application will be tantamount to allowing a new petition after the expiry of the 28 days after the declaration of the election. The 3rd respondent cited Article 87 of the Constitution of Kenya 2010, and Section 76 of the Election Act. They stated that the petitioners are attempting to use the said supplementary affidavit as a back door means to reargue the petition and to cover key aspects that the petition has not addressed or to cure the defects in their petition.

7. The Respondents argued that they only dealt with issues raised in the petition and therefore there is a joinder of issues. They took the view that the respondents never raised any new issues in their responses.

8. The 1st and 2nd respondents submitted that although the petitioners are shielded from the provisions of Rule 15(2) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, it is not clear what form and facts the supplementary affidavit will take and the effect the new facts will have on the matter at this stage of the proceedings. No basis has been set out by the honourable court or the respondents as to why a supplementary affidavit would be necessary. The absence of a draft which would have informed the court and the respondents of the particulars of the supplementary affidavit leads the respondents to be reasonably apprehensive as they were that the petitioners are seeking leave to introduce new disputes and new evidence.

9. The 1st and 2nd respondents submitted that in the absence of a formal application, the respondents will be prejudiced because the supplementary affidavit could materially alter the petition before this court and the issues for determination.

10. The 1st and 2nd respondents urged this court to be persuaded by the reasoning in Benjamin Ogunyo AndamavBenjamin Andola Andayi & 2others [2013] eKLR and decline the petitioners’ request for leave to file a supplementary affidavit.

11. The 3rd respondent submitted that the leave application to file a supplementary affidavit sought by the petitioners should be dismissed.

ANALYSIS AND DETERMINATION Issue for determination 12. Having carefully considered the pleadings and submissions by the parties, I find only one issue falling for determination: -

i. Whether the respondents’ responses raise new issues which of necessity and law must be responded to by the petitioners by way of a supplementary affidavit? Filing of Supplementary Affidavit 13. Under Rule 12(9) of the Election Rules, ‘’the election court may, on its own motion or on the application by any party to the petition, direct a party or witness to file a supplementary affidavit.’’

14. Also, under rule 15(1)(h) of the Election Rules, the court shall “…give directions as to the filing and serving of any further affidavits or the giving of additional evidence’’

15. But care should be taken in granting leave to file further affidavits or additional evidence, that, such affidavit or evidence; i) can be filed or adduced without causing undue prejudice to the other party, and ii) it is not a scheme to so alter the cause of action as to make it a completely different action or as to impair the ability of the other party to respond (Raila Odinga and 5 Others vs. I.E.B.C. and 3 Others [2013] eKLR,)

16. In the Raila Odinga and 5otherscase (ibid), the Supreme Court expressed itself on the filing of further affidavits and reception of additional evidence albeit in the context of the Presidential election as follows: -“The other issue the Court must consider when exercising its discretion to allow a further affidavit, is the nature, context, and extent of the new material intended to be produced and relied upon. If it is small and limited so that the other Party is able to respond to it, then the Court ought to be considerate, taking into account all aspects of the matter. However, if the evidence is such as to make it difficult or impossible for the other Party to respond effectively the Court must act with abundant caution and care. In the exercise of its discretion to grant leave for the filing of further affidavits and/or admission of additional evidence….”

17. I am also impressed to cite Munyao J in Johana Kipkemei Too v Hellen Tum [2014] eKLR, in which, although in a land case, succinctly stated that;“This, however, is not to say, that the court can never under any circumstances, permit a party to adduce additional evidence, that was not furnished to the other party as provided under the rules. The court as a shrine of justice has a mandate to do justice to all parties and not to be too strictly bound by procedural technicalities. This flows from the provisions of Article 159 (2) (d) of the Constitution. Where such evidence can be adduced, without causing undue prejudice to the other party, the court ought to allow the application, so as to allow such party, the opportunity to present his case in full. The court may consider various factors including, but not restricted to, the earlier availability of the witness, the discovery of a new document, and the stage of the proceedings at which the additional evidence is sought to be introduced. If for example, the trial has not started, little prejudice may be caused to either party if one is permitted to introduce additional evidence. The prejudice to the other party no doubt increases as the trial progresses. But it is up to each court to weigh the surrounding circumstances of each case, and determine whether it will be in the interests of justice, to allow such evidence to be tendered, though outside the time frame provided by the rules.”

Exercise of right of reply 18. Nevertheless, I do note, that the petitioners have anchored their request to file a supplementary affidavit on the right of reply rather than a quest to adduce additional evidence. Right of reply is limited in scope and extent. Any direct averments in response to the petition may not be a basis for filing of further or supplementary affidavit unless it is shown that; i) the averments introduce completely new and substantial matter or matters; ii) the matters are of a nature that cannot otherwise be dealt with in the trial except by a formal response in an affidavit, and iii) the new matters so introduced will cause prejudice to the respondent unless responded to through an affidavit.

19. I will apply this test.

i. Of the use of technology in the transmission of election results. 20. The petitioner stated that paragraph 21 of the 1st and 2nd respondents’ response raises a new issue.

21. The 3rd respondent submitted that paragraph 21 of the 1st and 2nd respondents’ response was a response to paragraph 67 of the petition.

22. In Paragraph 67 of the petition, the petitioners have alleged that the 1st respondent refused failed, or neglected to employ appropriate mechanisms to ensure prompt transmission of the polling station results to the tallying Centre particularly Mazola primary school polling station which is 4km from tallying Centre but the results were transported 2 days after the announcement of the results.

23. Paragraph 21 of the 1st and 2nd respondents’ response was in response to paragraph 67. The 1st and 2nd respondents stated that they employed the use of technology in transmission which was prompt as it relayed the results from the polling station and tallying Centre as soon as counting was complete. For Mazola primary school polling station, the 1st and 2nd respondents stated that the results were transmitted on August 10, 2022 as soon as counting was complete.

24. Paragraph 21 of the response merely stated their position on the allegation made in paragraph 67 of the petition, and it does not raise any new issues which would require a reply through a supplementary affidavit. This is their allegation which should be proved in the trial and should be tested and interrogated by the petitioners through cross-examination.

ii. The use of an alternative complementary system as an alternative to the use of the KIEMS kit. 25. The petitioners stated that a new issue was raised in relation to the use of an alternative complementary system as an alternative to the use of the KIEMS kit as averred in paragraph 32 of the 1st and 2nd respondents’ response to the petition.

26. The 3rd respondent submitted that the issue was in response to paragraphs 80 and 81 of the petition hence the same is not a new issue.

27. The petitioners in paragraphs 80 and 81 of their petition stated that the 1st respondent failed to provide a complementary voter identification system where the KIEMS kit failed. Further that where it was provided, it was too late in the day.

28. Paragraph 32 of the 1st and 2nd respondents’ response states that any reported issues of the KIEMS kit experienced by the returning officer were resolved by ICTofficers but where it failed completely the 1st respondent authorized the use of an alternative complementary system.

29. These are matters in response to the petition and in any event, are matters of statutory obligation on the part of IEBC and are governed by the Maina Kiai case; which should be evaluated during trial. Such cannot constitute new issues for which a supplementary affidavit may be required to address. Therefore, I find that no new issues have been raised in paragraph 32 to warrant a response by the petitioners.

iii. Assisted voters. 30. The petitioners stated that paragraphs 26 and 27 of the 1st and 2nd respondents’ response on assisted voters raise a new issue.

31. The 3rd respondent submitted that the 1st and 2nd respondents were responding to the issues as raised in paragraphs 73,74,75,76,77,78 and 79 of the petition. The response was a denial of the allegations claimed by the petitioners hence no new issue was raised.

32. In Paragraphs 73-79 of the petition under the heading of irregular and unsupervised assisted voting, the petitioners stated that during the voting process, the ODM agents were barred from witnessing the assistance of voters who could not read or write. Also, the presiding officers single-handedly assisted voters and influenced them in favour of the 3rd respondent.

33. Paragraph 26 and 27 of the 1st and 2nd respondents’ response states that voters who needed assistance appeared with their chosen representatives who could not be agents of the contesting candidates where the presiding officer’s assistance was required, the voter was assisted in the presence and witnessed by agents without compromising the secrecy of voter’s ballot. Further that it is impractical to have an elaborate scheme on the numbers of assisted voters and those who turned out and those not accompanied by assistants of their choice.

34. Again, these are matters alleged by the respondent in reply to the petition which shall be evaluated during trial and do not require a reply through a supplementary affidavit as new issues.

35. I find no new issue was raised in paragraphs 26 and 27 of the 1st and 2nd respondents’ response which requires a reply from the petitioners through a supplementary affidavit.

iv. Failure of the KIEMS kit and the failure to use complementary voter identification mechanism/manual register 36. This issue is similar to issue (ii) above except it has been listed separately and relates to the reply by the 3rd respondent.

37. The petitioner alleged that the failure of the KIEMS kit and the failure to use complementary voter identification mechanisms/manual register as responded to in paragraph 11 of the 3rd respondent’s response to the petition raises a new issue.

38. The 3rd respondent submitted that she was responding to paragraphs 80 and 81 of the petition.

39. The petitioners in paragraphs 80 and 81 of their petition stated that the 1st respondent failed to provide a complementary voter identification system where the KIEMS kit failed. Further that where it was provided, it was too late in the day.

40. Paragraph 11 of the 3rd respondent’s response states that the 3rd respondent is unaware of the allegations of failure of the KIEMS kit and usage of complementary voter identification mechanism/manual register.

41. A reading of paragraph 11 of the 3rd respondent’s response does not reveal any new issues it was simply a denial.

v. The use of public resources and/ or public officials during the campaign period. 42. The petitioner stated that the use of public resources and/or public officials during the campaign period was denied in paragraph 16 of the 3rd response to the petition. They see this as a new issue.

43. The 3rd respondent submitted that she was responding to paragraph 97 of the petition.

44. Paragraph 97 of the petition stated that several county officials actively campaigned for the 3rd respondent through public rallies and social media accounts.

45. In paragraph 16 of the 3rd respondent’s response, the 3rd respondent denied the use of public resources and/ or public officials in her campaigns.

46. I find no new issues were raised in this denial. This constitutes a joinder of issues for determination in the trial.

vi. Failure to join Hon. Josphat Chirema Kombo the Deputy Governor of Kwale County as respondent. 47. The petitioners stated that failure to join Hon. Josphat Chirema Kombo the deputy governor of Kwale County as a respondent in the petition herein as raised in paragraph 20 of the 3rd respondent’s response raises new issues.

48. The 3rd respondent submitted that paragraph 20 of the response by the 3rd respondent does not raise the issue of failure to join the deputy governor in the petition. However, the issue was raised in the 3rd respondent’s preliminary objection dated September 20, 2022. That this court gave directions on October 14, 2022 during the pre-trial conference that the preliminary objection shall be disposed of by way of written submissions with the main petition.

49. The 3rd respondent at paragraph 20 of her response raised the issue that the petitioners have not joined Josphat Chirema Kombo, the duly elected deputy county governor of Kwale County as a respondent to the petition alongside the 3rd respondent within 28 days of the date of declaration of results. The 3rd respondent indicated that she will raise a preliminary objection on a point of law at the hearing of the petition.

50. The 3rd respondent raised this issue in paragraph 1 of the 3rd respondent preliminary objection dated September 20, 2022.

51. The directions of this court on October 14, 2022 provide how the issue will be dealt with during the trial. As such, it is not a new issue to require canvassing through a supplementary affidavit.

vii. Failure to file and/ or serve the 3rd respondent with annextures BSMI, WDO1 and BM1 annexed to the affidavits of Bijuma Saphati Mwondotoh, Willis David Odheche, and Buga Mohamed respectively. 52. The petitioners stated that the alleged failure to file and /or serve the 3rd respondent with annexture BSM1 in the affidavit of Bijuma Saphati Mwondotoh annexture WDO1 in the affidavit of Willis David Odheche and annexure BM1 in the affidavit of Buga Mohammed as raised in the 3rd respondent response to petition raises a new issue.

53. The 3rd respondent submitted that the issue was not raised in paragraph 21 of the response to the petition. The issue was however raised by 3rd respondent on notice of motion dated September 29, 2022. This court issued directions that the same be disposed of with the main petition by way of submissions.

54. The 3rd respondent stated that the petitioners have not filed and served the 3rd respondent with annextures (purported videos) to the supporting affidavit of Bijuma Saphati Mwandotoh, Willis David Odheche, and Bujura Mohammed within 28 days from August 12, 2022. The 3rd respondent indicated that they will raise a preliminary objection on a point of law at the hearing of the petition.

55. The 3rd respondent raised a preliminary objection on this issue vide the notice of preliminary objection dated September 20, 2022 in paragraph 2.

56. The directions of the court on disposal of thePO remove it from any or further canvassing through a supplementary affidavit. The issues shall be so dealt with in the trial as part of the admissibility of evidence. I find that no new issues arise in paragraph 21 of the 3rd respondent’s response to the petition which requires a supplementary affidavit.

viii. Eligibility of the 3rd respondent to contest for the governor of Kwale county. 57. The petitioners stated that the eligibility of the 3rd respondent to contest for the governor of Kwale county is pleaded. But, they claimed, that lack of a petition at the IEBC dispute resolution committee, the political parties tribunal, and/or high court as maintained in paragraph 24 of the 3rd respondent replying affidavit is a new issue.

58. The 3rdrespondent submitted that 3rd respondent was responding to paragraphs 93,94,95,96,97 and 98 of the petition.

59. Paragraphs 93-98 of the petition fall under the heading ineligibility of the 3rd respondent to contest in the August 9, 2022 election. It is stated that she was an outgoing deputy governor of Kwale County.

60. The issue of eligibility is substantively before the court for determination and is not new in the sense of requiring a response through a supplementary affidavit. Resolution of such pre-election disputes is a legal question which is guided by the directions of the Supreme Court in the Waity case. I find that no new issue was raised in paragraph 24 of the 3rd respondent’s response.

Conclusions and orders 61. Having carefully considered the application by the petitioners for leave to file a supplementary affidavit, and the submissions by the respondents, it is my considered view that the petitioners merely intend to reiterate what is in the petition. There are no new issues that arise from the specific averments identified by the petitioners. Some are in denial of the petitioners’ allegations in the petition. Others state the respondents’ standpoint on the allegations in the petition. Whilst others re-state the statutory obligations and functions of IEBC in the conduct of the election. There is no new issue that requires rebuttal through an affidavit by the petitioner. These are matters which should be properly tested and interrogated during the trial through cross-examination.

62. In the upshot, I find no merit in the application to file a supplementary affidavit. It is dismissed. Costs will be in the cause.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 1ST DAY OF NOVEMBER, 2022. F. GIKONYO M.JUDGEIn the presence of:1. Ms. Pamela – CA2. Mikwa for Petitioners also holding brief for Mr. Gitonga3. Simiyu for 3rd Respondent4. Wetangula for 1st and 2ndRespondent - absent