Abdirahman Adan Abdikadir & Adow Mohamed Abikar v Independent Electoral & Boundaries Commission, County Returning Officer & Abdullahi Ibrahim Ali [2017] KEHC 2488 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT NAIROBI

CORAM: R. MWONGO, PJ

ELECTION PETITIONS NOS. 13 & 16 OF 2017 (AS CONSOLIDATED)

IN THE MATTER OF ARTICLE 105 OF THE CONSTITUTION, 2010

AND

IN THE MATTER OF THE ELECTIONS ACT, 2011

AND IN THE MATTER OF THE SENATORIAL ELECTION FOR WAJIR  COUNTY

BETWEEN

ABDIRAHMAN ADAN ABDIKADIR..............................1ST PETITIONER

ADOW MOHAMED ABIKAR........................................2ND PETITIONER

VERSUS

INDEPENDENT ELECTORAL &

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

COUNTY RETURNING OFFICER...............................2ND RESPONDENT

ABDULLAHI IBRAHIM ALI........................................3RD RESPONDENT

RULING ON APPLICATION NO. 1

Background

1. Two petitions were filed in respect of the Wajir County Senatorial election held on 8th August, 2017: Election Petition No. 13 of 2017, AbdirahmanAdanAbdikadir v Independent Electoral & Boundaries Commission & 2 Othersand Election Petition No. 16 of 2017, Adow Mohamed Abikar v Abdullahi Ibrahim Ali & 2 Others.

2. At the pre-trial conference held on 12th October, 2017, and pursuant to Rule 17 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017, the two petitions were consolidated. The lead file is Election Petition No. 13 of 2017. Further,applications Nos. 2 and 3 were allowed by consent with no order as to costs, and directions were issued to parties wishing to pursue other applications. Thus, this application No. 1, and Application No. 4 were canvassed and their determinations are in separate rulings.

3. The 1st Petitioner filed the present application as an amended notice of motion on 16th October, 2017, seeking preservation of election materials. The application is stated to be under Articles 81(e)&(iv)and (v)&86 of the Constitution, and Section 82 (1)of the Elections Actand Rules 16(1)(2) &(4) and 29 of the Elections Parliamentary and County Petition Rules, 2017.

4. The application, being so broad and far-reaching, it is apt that I set out the prayers sought, which are as follows:

“1. ...spent...

2.  THAT the 1st Respondent be directed to secure all the election materials used in the Wajir County Senatorial elections including all the ballot boxes, data stored in the KIEMS kits and results declaration forms.

3.  THAT the Respondents by themselves, and or by their agents, employees, servants and any other person acting under their authority be restrained from dealing and or in any manner interfering with the ballot boxes, data stored in the KIEMS kits and results declaration forms pending hearing of the petition herein.

4.  THAT the Honourable Court be pleased to issue an Order directing the 1st and 2nd Respondents to avail to the Court all the election materials including all returns from all polling stations; electronic documents, devices, KIEMS KITS and equipment used in conducting the Senator Elections for Wajir County

5.  THAT the Honourable Court be pleased to issue an Order directing the 1st and 2nd Respondents to supply to the Court and to the Petitioner certified photocopies of all originals Forms 38A, B & C, Poll Day Diaries and/or Books and all the Affidavits/ Forms and declarations for all Assisted Voters from all polling stations and all the returns used to declare the final results of the Senator Election for Wajir County.

6.  THAT the Honourable Court be pleased to issue an Order directing the 1st and 2nd Respondents to give to the Court and to the Petitioner all original Forms 38A, B & C, Poll Diaries and/or Books and all the Affidavits/Forms and declarations for all Assisted Voters from all polling stations in Wajir County.

7.  THAT the Honourable Court be pleased to issue an Order for scrutiny and audit of all the returns of the Senator Election for Wajir County including but not limited to Forms 38A, B & C, Poll Day Diaries and/or Books all the Affidavits/Forms and declarations for all Assisted Voters from all polling stations in Wajir County.

8.  THAT the Honourable Court be pleased to issue an Order directing the 1st and 2nd Respondents to give access to the Court and to the Petitioner all scanned and transmitted copies of Forms 38A, B & C from all polling stations in Wajir County.

9.  THAT the Honourable Court be pleased to issue an Order directing the 1st Respondent to avail, produce, and allow access by the Petitioner and his agents and to the Court for purposes of scrutiny, audit and/or inspection of all the logs, servers hosted by or on behalf of the 1st and 2nd Respondents in respect of the Senator Election for Wajir County.

10.  THAT the Honourable Court be pleased to issue an Order for scrutiny and audit of the system and technology used by the 1st Respondent in the Wajir Senator Elections including but not limited to the specific GPRS locations of each KIEMS Kit used during the Senate Elections for Wajir County; Polling Station Allocation for each KIEMS Kit used during the election; electronic devices used to capture, transmit and store all Forms 38A and Bs from all Polling Stations; the Server(s) and Website/portal;

11. THAT costs of this Application be provided for.”

5. The application also sets out the grounds upon which it is premised and is supported by the affidavit ofthe 1st petitioner setting out indetail the reasons for the application.

6. The application is opposed by the respondents. GichohiGatuma Patrick, the 2nd Respondent herein, filed a Replying Affidavit on behalf of the 1st and 2nd Respondents. He avers that the 1st Respondent is under obligation to ensure safe keeping of election materials after final tallying and announcement of results pursuant to Regulation 83 of the Elections (General) Regulations, 2012. Further and under Regulation 93, election material should be retained for a period of three (3) years after the results of the election have been declared. It was also averred that under Regulation 16 of the Elections(Parliamentary and County Elections) Petitions Rules, 2017, the election court may give directions on storage, handling and safety of election materials.

7. The 3rd Respondent’s grounds of opposition are as follows:

“1. THAT, the Petitioner’s prayer that the 1st and 2nd Respondent be directed to avail to Court all election materials including all returns from all polling stations; electronic documents, devices, KIEMS Kits, Forms 38A’s, Forms 38B, declarations for all assisted voters and equipment used in conducting the Wajir County Senatorial elections is not specific to a particular polling station and cannot be granted as prayed.

2.  THAT, section 39 (1c) (a) of the Election Act and Regulation 5 of the Elections (General) Regulation 2012 do not provide for electronic transmission of results for the senate seat and therefore the 1st Petitioner’s prayer to be granted access to all scanned and electronically transmitted Forms 38A’s, Forms 38B’s and Form 38 C has no basis in law and is not grounded in evidence.

3.  THAT, this application as a whole is a fishing expedition for evidence and a calculated move to create an avenue for the 1st Petitioner to expand his case.

4.  THAT, the prayer for production of copies of electoral material by the 1st Petitioner is a blanket prayer covering all the polling stations in Wajir County and fails the requirement that such a prayer should be specific to a polling station in the constituency.

5.  THAT, the 1st Petitioner’s prayer for scrutiny and audit of the electronic system and technology including GPRS locations of each KIEMS kit and electronic devices used to capture and transmit all Forms 38As and Forms 38B’s from all polling station is couched in generalities and fails to acknowledge the role technology played in all the election for the Senate for Wajir County.

6.  THAT, the 1st Petitioner’s supporting affidavit to the application is riddled with generalised allegations not backed by any evidence and has failed to lay any basis for grant of the orders sought and the instant application ought to be dismissed with costs to the 3rd Respondent.

7.  THAT, the application for scrutiny and audit of all returns of the Wajir Senatorial election is premature as the 1st Petitioner has not laid any basis to warrant the grant of orders of scrutiny and inspection of all the logs in the 1st and 2nd Respondent servers.”

Parties’ Cases and Analysis

8. It is clear from the application that the petitioner seeks orders in the several categories which I have set out for ease of discussion as follows:

Item 1-  An order to secure Election Materials (i.e. All Ballot Boxes, Data stored in KIEMS Kit and Results declaration Forms) and to avail the same to courtand for IEBC to be restrained from interfering with the same – Prayers 2-4

Item 2-  An order for IEBC to supply to court and petitioner original and duly certified copies of all Forms 38A, B and C, Poll Day Diaries/Books and all Affidavits/ Declaration for all Assisted voters from all Polling Stations in Wajir County – Prayers 5-6,

Item 3-An order for scrutiny and audit of all returns of Senator elections for Wajir  but not limited to forms 38A, B and C, Poll Day Diaries and/or Books and all Declarations Affidavits for  Assisted voters – Prayer 7

Item 4-An order forIEBC to give Access to the court and the Petitioner for scrutiny, audit  and inspection  of all Logs and servers for Wajir County Senator elections, and all scanned and transmitted copies of Forms 38A, B and C – Prayer 8.

Item 5 -An order for IEBC to give Access to the court and the Petitioner for scrutiny, audit and inspection of all Logs and servers for Wajir County; including an order for scrutiny and audit of the system of technology used in Wajir Senator Elections not limited to GPRS locations for each KIEMS Kit, electronic devices used to capture, transmit and store Forms 38A, B and C, and the IEBC server(s) and Website/Portal – Prayers 9-10

9. I will, in my determination, shortly deal with each of the items highlighted above.

10. The petitioner/applicant asserts in his grounds in support of his application, that he has laid a basis for the application in paragraphs 27(a)-(f)), 35, 42 and 47 of his petition. It may be appropriate to assess the basis alleged to have been laid for the petition in each of its stated paragraphs.

11. Paragraph 27 of the petition:

This paragraph alleges that the electoral process contravened Articles 10, 81 and 86 of the constitution; that the 1st and 2nd respondents intimidated the petitioner’s agents and declined to allow them to sign Forms 38A, B and C; that voting, counting, tabulation, collation and declaration of results was breached the principles of fairness, transparency and credibility; that the 1st and 2nd Respondents breached the applicants right to access information under Article 35 of the constitution; that the 1st and 2nd respondents did not transmit the election results in the manner prescribed by law and that generally there were numerous election illegalities in the entire electoral process.

In my view, these are non-specific generalised allegations, devoid of names of alleged agents and polling stations.

12. Paragraph 35 of the petition:

This paragraph alleges opaqueness of the electoral process by virtue of the 1st and 2nd respondents’ exclusion of the applicant’s agents “from most polling stations in Wajir County”. In particular, the applicant mentions information received from his Chief agent, Mohamed Jelle concerning complaints from agents at Millisadet Primary School in Korondille Ward, Elbow 1 DO Water Point in Bute Ward and Andaraka Primary School in Danaba Ward. He also mentions information received from his Chief Agent that imposters and strangers signed returns; that presiding officers were marking ballot papers; denial of forms 38A where he had agents; and information from his Chief Agent that polling was suspended at Habaswein Primary School Stream 2 for the better part of the day.

I note that no names of alleged agents excluded are indicated; no names of presiding officers engaged in marking of ballots, or of polling stations implicated are indicated; no details of polling stations – within the polling centres stated – are indicated.

13. Paragraph 42 of the petition:

This paragraph sets out a litany of alleged illegalities and irregularities such as: Unstamped Forms 38A in at least 60 polling stations; Altered Forms 38A; absence of security features in many forms; results forms unsigned by presiding officers; unsigned results forms by agents in at least 70 polling stations; inaccuracy in entering results resulting in inexplicable variances between those in the IEBC portal and the forms; and large differences in numbers of voters for the distinct elections of president, county and member of parliament elections. Reliance on statistical analysis is placed on Dr Noah AkalaOduwo’stabulations in his affidavit.

It is noted that over 140 polling stations are implicated in the allegations of illegality and irregularity, but they are not named.

14. Paragraph 47 of the petition:

This paragraph details alleged breaches of section 44 of the Elections Act on the modus of transmission of the results via the KIEMS system resulting in the statistical variances alleged earlier, and rendering the electoral process not to be simple, accurate, verifiable, secure, accountable, transparent open and prompt thus affecting the qualitative requirements of a free and fair election under the constitution.

I note that the effect of the alleged variances on the results of the election, or on the determination of the question whether the will of the voters was thereby thwarted, is not indicated.

15. I now deal with each of the items in the categories in respect of which orders are sought in the application.

Item 1- securing election materials and restraining IEBC from interfering

16. A proper basis for a direction securing into, or by, the court of election materialswould, for example, be that the IEBC, which has the statutory mandate of safe custody of election materials, has tampered with or otherwise interfered with the materials. A proper basis for ordering returns to be availed to a party for scrutinywould, for example, be a complaint on evidence that there were discrepancies in specific returns or at specific polling stations.

17. There is placed upon the IEBC a statutory responsibility for safe custody of election materials. Regulation 86 of theElection (General) Regulations 2012 makes provision for the safe keeping of election materials. It provides that:

“(1) After the final tallying and announcement of results, the returning officer shall keep in safe custody the following documents­­­­-

(a) copies of all election result declaration forms;

(b) copies of the register of voters sealed and labelled; and

(c) the Electronic Voter Identification Device.

(2) The returning officer shall-

(a) put the polling station diaries in a separate ballot box, seal and label the box; and

(b) keep the sealed ballot boxes and all material relating to the election in safe custody for such period as may be required under these Regulations and the Act.”

18. Election materials are defined under Section 2of theElections Act, 2011 as follows:

“‘election material’ means ballot boxes, ballot papers, counterfoils, envelopes, packets statements and other documents used in connection with voting in an election and includes information technology equipment for voting, the voting compartments, instruments, seals and other materials and things required for the purpose of conducting an election.”

19. Further, and with regard to storage of ballot boxes and other election materials, Rule 16 of the Election Petition Rules provides that:

“(1).On conclusion of the pre-trial conference under rule 15, the election court may give directions on-

a)the storage of the election materials including ballot boxes and documents relating to the petition;

b)the handling and safety of the election materials; or

c)the time for furnishing the election materials to the election court.

2. In giving directions under sub-rule (1), the election court shall-

a)consider the prudent, efficient and economic use of storage and transport facilities;

b)consider the maintenance of the integrity of the election materials; and

c)ensure that the election materials are not interfered with.

3. An election court may direct that the Commission maintains the custody of all election materials in relation to a petition.

4. Only the material relating to a particular petition may be furnished to an election court.

5. The election court may order that additional seals be placed on the ballot boxes related to the election for which a petition has been lodged.”

20. With regard to storage of electronic data, Regulation 17 of the Elections (Technology) Regulations, 2017 provides as follows:

“All electronic data relating to an election shall be retained in safe custody by the Commission for a period of three years after the results of the elections have been declared, and shall, unless the Commission or the court otherwise directs, be archived in accordance with procedures prescribed by the Commission subject to the Public Archives and Documentation Service Act (Cap. 19) and the Kenya Information and Communications Act, 1998. ”

21. The 1st Petitioner seeks orders that all election materials be secured. Further, that the 1st Respondent’s agents be restrained from dealing and/or interfering with election materials. In this regard, the 1st Petitioner seeks that all election materials be availed to the court.  The 1st Petitioner also seeks orders for the 1st Respondent to avail specific GPRS locations of each KIEMS Kit used during the Senate Elections for Wajir County; Polling Station Allocation for each KIEMS Kit used during the election; electronic devices used to capture, transmit and store all Forms 38A and Bs from all Polling Stations; the Server(s) and Website/portal.

22. As set out above, the 1st Respondent is by law required to safeguard all election materials. Upon filing a petition and under Rule 16 of the Election Petition Rules, 2017, an election court may give directions on the storage of the election materials including ballot boxes and documents relating to the petition; the handling and safety of the election materials; or the time for furnishing the election materials to the election court.

23. The order seeking the securing of election materials and restraining IEBC from interfering with them is therefore superfluous, to the extent that security of materials is their mandate. There is no basis shown for the court to interfere with the statutory obligation of the IEBC to secure elections materials. In my view, such a basis has to be clear, specific and pressing enough to justify the court’s intervention in taking up the statutory mandate vested in the IEBC to secure elections materials.

Item 2-An order for IEBC to supply to court and the petitioner original and duly certified copies of Forms 38A, B and C, Poll Day Diaries/Books and All Affidavits/ Declaration for all Assisted voters from all Polling Stations in Wajir County

24. On the above, the court has noted that the IEBC has already filed copies of the documents sought in the above item, save for the affidavits and declaration for all assisted voters. The applicant seeks the originals and duly certified copies, for the purpose of scrutiny and audit. The aspect of scrutiny and audit is dealt with separately. However, the court hereby reserves to itself the right to call for the originals of any forms at any time for good cause shown, upon hearing the evidence. At that time, the IEBC shall be required to provide the same at short notice.

Item 3- An order for scrutiny and audit of all returns of Senator Elections for Wajirbut not limited to forms 38A, B and C, Poll Day Diaries and/or Books and all Declarations Affidavits for Assisted voters in Wajir County

35. The decision of the Supreme Court in RailaAmoloOdinga& Another vs. Independent Electoral & Boundaries Commission & 2 Others [2017] e KLR was cited in arguments by counsel. In that case,the Supreme Court cited with approval the case of Philip OsoreOguta vs. Michael OnyuraAringo& 2 Others [2013] e KLR, where it was held that:

‘...It would be expected that the party filing an Election Petition is, from the outset, seized of the grounds, facts and evidence for questioning the validity of an election...it would be an abuse of process to allow a party to use scrutiny for purposes of chancing on new evidence. Scrutiny should not be looked upon as a lottery.’

Counsel for the 1st and 2nd respondents however stated that they are amenable to the 1st Petitioner scrutinising the forms and polling station diaries produced.

26. To the extent that the 1st and 2nd respondent has provided Forms 38 A, B and C and Polling Station Diaries and books, there appears to be no objection to their being scrutinized. As the court has already pointed out, should there be need to call for the originals, the same can be called for and these should be availed at short notice. At the hearing, the original Forms 34 certainly ought to be available for verification.

27. With regard to the request for affidavits and declarations for all assisted voters at all polling stations, I am not satisfied that any basis at all has been laid by the applicant. Regulation 62 of The Elections (General) Regulations, 2012provides that parties’ agents, amongst others, are allowed into a polling station. The role of agents is to observe the processes and events at the polling and tallying stations and to raise issues of concern to their principals as and when they arise. Thus, agents would naturally be able to speak to the issue of assisted voters.Regulation 62provides as follows:

“62. Admission to polling station

(1) The presiding officer shall regulate the number of voters to be admitted to the pollingstation at the same time, and may exclude all other persons except—

(a) a candidate;

(b) a person nominated as a deputy to the candidate, where applicable;

(c) authorised agents;

(d) members of the Commission and election officers on duty;

(e) police officers on duty;

(f) persons necessarily assisting or supporting voters with special needs orassisted voter; and

(g) observers and representatives of the print and electronic media accreditedby the Commission.

(2) Notwithstanding sub-regulation (1), the presiding officer shall admit to the pollingstation not more than one agent for each candidate or political party.

(3) The absence of agents shall not invalidate the proceedings at a polling station.

(4) Every agent appointed by an independent candidate or political party for thepurposes of these Regulations shall at all times during the performance of the dutiesauthorized by the independent candidate or political party display the official badge supplied

by the Commission.

(5) No person shall be admitted to vote at any polling station other than that allotted tothat person under regulation 59(4).

(6) No person shall be admitted into a polling station if that person is wearing a badgeor has any dressing, signifying symbols or other indication of support for any political party,a candidate in the election or a referendum committee.” (emphasis supplied)

28. As to assistance accorded to voters at a polling station, Regulation 72Elections (Gen) Regulations provides for an elaborate mode of assistance. All such assistance will occur in the presence of agents. The Regulation provides as follows:

“72. Assisted voters

(1) On the application of a voter who is, by reason of a disability or being unable to reador write, and therefore unable to vote in the manner prescribed in these Regulations, thepresiding officer shall permit the voter to be assisted or supported by a person of the voter’sown free choice, and who shall not be a candidate or an agent.

(2) Where the person who applies to be assisted is not accompanied by a person whois qualified to assist him or her, the presiding officer shall assist such voter, in the presenceof the agents.

(3) The presiding officer may make such necessary and respectful inquiry in order toestablish that the voter and the person the voter has chosen to assist him or her satisfiesthe provisions of this regulation.

(4) The person chosen by the voter is not required to be qualified to vote but is requiredto have attained the age of eighteen years.

(5) The following shall apply with respect to a person who assists a voter under thisregulation—

(a) the person shall, before assisting or supporting the voter, make a declarationof secrecy before the presiding officer in Form 32 set out in the Schedule;

(b) a person who breaches his or her declaration commits an offence under theAct;

(c) the person shall assist or support only one voter at that election and have amark as proof of assisting or supporting a voter.

(6) Where a presiding officer grants the request of a voter under this regulation, thepresiding officer shall record in the polling station register against the name of the voter thefact that the voter was assisted and the reason for the assistance.

(7) No person other than a person acting under this regulation shall be present in acompartment of a polling station while a voter is in the compartment for the purpose ofmarking his or her ballot paper and any person who contravenes this sub-regulation commitsan offence.” (emphasis supplied).

29. Given that the applicant has not specified in which stations his agents were missing, and has not identified which these agents were, and in which stations assisted voters were assisted, it is clear that what the applicant has made are merely broad generalized allegations. It is on the basis of these assertions that the applicant now seeks to access the assistance declaration forms for all stations in Wajir for scrutiny. This is not allowable under the principle that an application for“scrutiny …. must be couched in specific terms, and clothed with particularity, as to which polling stations within a constituency are to attract such scrutiny” laid by the Supreme Court inGatirau Peter Munya v Dickson MwendaKithinji& 2 others [2014] eKLR.Accordingly, until a proper basis is laid granting such scrutiny in this case may end up being too broad, unfocused and time wasting.

Item 4 – An order for IEBC to give access to court and the Petitioner for scrutiny audit and inspection of all logs and servers for Wajir Senator Election and all scanned and transmitted copies of  Forms 38A, B and C

30. Section 82 of the Elections Act, 2011 provides as followson the issue of scrutiny:

“(1)An election court may, on its own motion or on application by 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.”

31. Rules 28 and 29of the Elections Petitions (Parliamentary and County Elections) Petitions Rules, 2017 make provision for scrutiny and recount. Rule 28 provides that:

“A petitioner may apply to an election court for an order to-

(a)recount the votes; or

(b)examine the tallying, if the only issue for determination in the petition is the count or tallying of votes received by the candidates.”

And Rule 29 provides that:

“1. The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.

2.  On an application under sub-rule (1), an election court may, if it is satisfied that there is sufficient reason, order for scrutiny or recount of the votes.

3….

4.   The scrutiny and recount of votes in accordance with sub-rule (2)shall be confined to the polling stations in which the results are disputedand may include the examination of-

(a)the written statements made by the returning offices under the Act;

(b)the printed copy of the Register of voters used during the elections sealed in a tamper proof envelope;

(c)the copies of the results of each polling station in which the results of the election are in dispute;

(d)the written complaints of the candidates and their representatives;

(e)the packets of spoilt ballots;

(f)the marked copy register;

(g)the packets of counterfoils of used ballot papers;

(h)the packets of counted ballot papers;

(i)the packets of rejected ballot papers;

(j)the polling day diary; and

(k)the statements showing the number of rejected ballot papers.

5. For purposes of sub-rule (4) (b), every returning officer shall upon declaration of the results, seal the printed copy of the Register of Voters used at the election in a tamper proof envelop and such envelop shall be stored by the Commission subject to the elections court directions under rule 16. ” (Emphasis supplied).

32. It is clear from the above provisions that the principle requirement for scrutiny, whether of votes or other election material, is that the court must be satisfied that there is sufficient reason to direct it, and that it relates to specified polling stations or items which are, or where, results are disputed.

33. In the case of Gatirau Peter Munya vs. Dickson MwendaKithinji& 2 others (Supra)the Supreme Court set out the guiding principles with regard to scrutiny. It held that:

“[153] 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 to 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 a recount or scrutiny of votes as it may specify, if it considers that such scrutiny or recount is necessary to enable it to arrive at a just and fair determination of the petition. In exercising this discretion, the Court is to have sufficient reasons in the context of the pleadings or the evidence or both.  It is appropriate that the Court should record the reasons for the order for scrutiny or recount.

c.The right to scrutiny and recount does not lie as a matter of 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 the trial Judge or Magistrate. Such a basis may be established by way of pleadings and affidavits, or by way of evidence adduced during the hearing of the petition.

d.Where a party makes a request for scrutiny or recount of votes, such scrutiny or recount if granted, is to be conducted in specific polling stations in respect of which the results are disputed, or where the validity of the vote is called into question in the terms of Rule 33(4) of the Election (Parliamentary and County Elections) Petition Rules.(Emphasis supplied)

34. Further, the Supreme Court held that;

“[159] …judicial opinion distinctly favours a view that commends itself to us:  that, an application for scrutiny and recount, must be couched in specific terms, and clothed with particularity, as to which polling stations within a constituency are to attract such scrutiny.If a party lays a clear basis for scrutiny in each and all the polling stations within a constituency, then the order ought to be granted. Otherwise, a prayer pointing to a constituency but lacking in specificity is not to be entertained.  We find clear merits in the dictum of Odunga J, in Gideon MwangangiWambua& Another v. IEBC & 2 Others, Mombasa Election Petition No. 4 of 2013 [quoted above].  So with the dictum by Kimaru J, in Rishad Hamid Ahmed Amana & Others,Malindi Election Petition No. 6 of 2013, in which the learned Judge states: “It will not do for the petitioner to aver in the petition that he desires scrutiny and recount to be undertaken in respect of all polling stations in the electoral area that is subject to the dispute. The petitioner must plead in sufficient detail why he requires the Court’s intervention to order scrutiny. In that regard, the petitioner is required to state the specific polling stations [in which] he alleges there were irregularities and, therefore, should be scrutinized”(Emphasis supplied)

Item 5 - An order for IEBC to give access to court and the Petitioner for scrutiny audit and inspection of all Logs, servers for Wajir; including an order for scrutiny and Audit of the system of Technology used in Wajir Senator Elections not limited to GPRS locations for each KIEMS Kit, electronic devices used to capture, transmit and store Forms 38A, B and C; the server(s) and Website/Portal

35. As with item 4, above, this order seeks scrutiny, audit and inspection. It relates essentially to the technology used in the KIEMS technology and transmission system and the complementary equipment, devices, facilities and platform that aid and enable the system. It is an extremely broad request. In this aspect, and for clarity, it may have been helpful for the applicant to identify the correlation between what allegedly went wrong in the Wajir Countyelections during the application of section 44 of the Elections Act, vis-a-vis the requirements of section 39 of the same Act. This latter section seems to clearly indicate the extent to which the use of technology for transmission of results was mandatory, if at all, to the senatorial election.

36. Further, it is not entirely clear what the applicant means when he requests the scrutiny, audit and inspection of the technology system. The applicant he has not indicated the experts that will be required to conduct the exercise and in what fields and areas of expertise. Nor is there indication as to which specific polling stations the said scrutiny, audit and inspection is sought. As such, the request, if acceded to by the court, would leave the exercise ratheropen-ended and unfocused. Where such request may result in an open-ended and unfocused situation, as here, it is not amenable to an order for scrutiny.

37. My understanding is that the Constitution demands a system that is simple, accurate, verifiable, secure, accountable and transparent electoral system (Article 86 Constitution). To that end, Section 44 of the Elections Act demands the establishment of an integrated electronic electoral system (popularly known as the Kenya Integrated Electoral Management System(KIEMS)) that enables biometric voter registration, electronic voter identification,and electronic transmission of results. On its part, section 39 (1C)Elections Act obligates electronic transmission of results from a polling station to a constituency tallying centre and to the national tallying centreonly for the presidential election.

38. On the other hand, for senatorial and other elections, section 39(1A) (ii)&(iii)read together withSection (1B) of the Elections Act makes it obligatory for tallying, announcement and declaration of results to be “in the prescribed form”for thefinal results from the constituencies.

39. To give effect to section 44Elections Act on technology, the IEBC is required to establish a technical committee under section 44(8) of the Act. That committee is designated under theElections (Technology) Regulations, 2017 as the Elections and Technology Advisory Committee, as defined in Regulation 2 of those Regulations and established under Regulation 31 of the said Regulations. That Committee is entitled, pursuant to Regulation 34 of theElections (Technology) Regulations, 2017 to appoint experts and consultants. The reason is not given in the statute, but it can be safely assumed that the necessity arises out of the complexity involved in information technology matters and the expertise thus required for operating and managing such technology system.

40. I have taken the liberty tocarefully peruse the Elections (Technology) Regulations, 2017 from which I imagine the applicant obtained the terminology of audit of technologywhich it employed in the application. Regulation 2 defines the following terms:

"‘election technology’means a system that includes a biometric voter registration system, a biometric voter identification system, a system that enables the nomination and registration of candidates and electronic results transmission system; and

"‘systems audit’means an examination of all controls within  information technology systems and infrastructure including networks, applications, databases and processes.” (Emphasis supplied)

41. Regulations 11-13 of the said Regulations provide for the conduct of election technology system audits as follows:

“11. Audit of technology

The Commission shall conduct annual audits of the election technology, or as may be  required, to—

(a) guarantee data integrity;

(b) ensure that the technology functions effectively as specified; and

(c) ensure that the internal controls of the technology are effective.

12. Firm to conduct audit

(1) The Commission shall engage a professional reputable firm to conduct a systems audit of the election technology annually.

(2) The Commission shall conduct the systems audit to evaluate the confidentiality, integrity and availability of the election technology by assessing—

(a) the security access to the system;

(b) the vulnerability of the system configurations;

(c) the accuracy and the completeness of the data; and

(d) any other mechanisms that may be determined by the Commission.

(3) Where the Commission engages a professional reputable firm under sub regulation (I), the firm shall present its audit findings to the Commission, which findings shall beincorporated into a report as set out in regulation 13.

42. As seen in sub-regulation (3)once a systems audit is concluded, the outcome should be constituted into a report as provided for under Regulation 13, which states:

13. Audit report

The Commission shall prepare an audit report which shall include—

(a) a statement on the principles set out in regulation 12 (2); and

(b) recommendations to reduce or eliminate any risks that could affect the functioning of the election technology.”

43. In light of the foregoing provisions, it is not clear to this court whether the technology systems audit which the applicant wishes the court to order would be along the same lines as that required to be conducted annually by the IEBC under Regulation 11 aforesaid. This has not been clearly expressed in the request nor is there an indication of which experts would be required to undertake the proposed exercise, nor what their proposed terms of reference would be.

44. Information technology data is required to be preserved by the IEBC under Part V of the Technology RegulationsonInformation Security and Data Storage. The relevant regulations are Regulation 14- 16 which provide as follows:

“14. Information security

(1) The Commission shall put in place mechanisms to ensure data availability, accuracy, integrity, and confidentiality as set out in the First Schedule.

(2) For the purpose of sub regulation (1), the Commission shall adopt tools to detect, prevent and protect against attacks and compromise of the election technology.

15. Data storage and access to information

(1) The Commission shall store and classify data in accordance with the principles set out in the Access to Information Act, 2016 (No. 31 of 2016).

(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 being

requested.

(3) Where an applicant is unable to make a written request for access to information in accordance with sub-regulation (2), because of illiteracy or disability, the information officer shall take the necessary steps to ensure that the applicant makes a request in the manner that meets their needs.

(4) The information officer shall reduce to writing, the request made under sub-regulation (3) in the Form set out in the Second Schedule and the information officer shall then furnish the applicant with a copy of the written request.

16. Request for information

A person may request for information from the Commission, in accordance with section 27 of the Independent Elections and Boundaries Commission Act, 2011 (No. 9 of 2011).”

45. From the above provisions it is clear that such information and data can be availed to a party. In the present case, however, the court must be satisfied that if it gives the order requested, the information will be specific to particular polling stations in respect of which there is disputed information. In such a case, it wouldtherefore be relevant to and in furtherance of the resolution of the kernel issues in dispute in the petition. I am not satisfied that the applicant has demonstrated this at this stage.

46. Further, during the pre-trial conference the court issued Court Directions. In respect of expert evidence, the direction was as follows at paragraph 11(a) thereof:

“i. The Petitioner expects to call an expert in Information Technology(IT)

ii. This request in the 1st Petitioner’s application shall also incorporate the terms of reference for such expert

iii. The Court and Parties reserve their right to call their expert witnesses” (Emphasis supplied).

47. The object of an expert was to enable the court to appreciate the areas of technology in which it has itself no expertise and to enable the other parties to engage similar experts on the same footing. Thus the need for terms of reference. The applicant did not give the terms of reference or the name of a proposed expert in respect of the intended expert evidence. Thus the court would be left rather exposed without anyone to advise it on the expert information on technology. The court therefore considers that the request is premature and unfocused.

Refusal of Access to Information under Article 35 of the Constitution.

48. The applicant has also premised his application on the fact that the 1st respondent has denied him his right under Article 35 of the Constitution to access critical information.  If that be true, it would constitute a blatant unconstitutional breach on the part of IEBC, which would be an indictment marring its integrity.

49. Paragraphs 26 and 40 of the petition are specific to this allegation on access to information. In particular, paragraph 40 of the petition asserts that on 1st September, 2017, the applicant’s advocates requested the 1stRespondent to supply copies of Forms 38A,B and C, which request was declined, in violation of the constitution.

50. No evidence of the alleged request of 1st September, 2017, is shown in documents in support of the petition. However, in his affidavit in support of his application, the petitioner attached a letter from his counsel, addressed to the Chief Executive Officer of IEBC. It states, inter alia, that:

“Pursuant to Article 35(1)(a) & (b) of the Constitution, our client hereby demands certified copies of all Forms 38A,B and C used in the election of Senator, Wajir County. Our client further demads that the Commission supplies the required information within the next 24 hours. Should you not comply with the demands above within the next twenty four hours from today’s date we have firm and mandatory instructions to institute proceedings against each one of you…”.

51. My understanding is that Article 35 of the Constitution does not grant a personthe unfettered right to instant public information upon demand. Indeed, the Access to Information Act, No 31 of 2016, which commenced on 21st September, 2016, was enacted specifically to give effect to Article 35 of the Constitution (See section 3 –objects and purposes).

52. Section 7of theAccess toInformation Act, 2016designates a Chuief Executive Officer as an information access officer for purposes of the Act.Section 8 of that Act requires that an application for access be made in writing and must contain details and sufficient particulars to enable the public officer to understand what information is being requested. The applicant appears to have complied with that aspect.

53. Further Section 9 of the Access to Information Act providesthat an information access officer, when requested for information, must make a decision on the application within twentyone days. The provision states:

“(1) Subject to section 10 (on transfer of an application) a public officer shall make a decision on an application as soon as possible, but in any event within twenty one days of receipt of the application.

(Emphasis supplied)

Only in cases where the information sought “concerns the life or liberty of a person”need the information officer “provide the information within forty-eight hours of the receipt of the application”(Section 9(2) Access to Information Act).

54. Under Section 9(4), once an information officer has made the decision as to whether to provide access, he is required to communicate the decision to the requester. Section 9(6) then provides that :

“Where the applicant does not receive a response to an application within the period stated in subsection (1), the application shall be deemed to have been rejected.”

Clearly, denial of an information request can only be said to have occurred after the lapse of twenty one days in this case.

55. Accordingly, the Applicant’s allegation of denial of access under Article 35 of the constitution is unfounded and misplaced. It is noted that the applicant’s petition was filed on 5th September, 2017,only one day after they issued their written request for the information. In any event, the 1st and 2nd respondent’s response to the petition now contains copies of the forms requested by the applicant, and no prejudice befalls the petitioner thereby.

Disposition

56. In light of all the foregoing, I am prepared to order only that the IEBC do produce the original Forms 38A, B and C no later than two days before the date fixed for hearingof this petition.

57. With regard to the request for KIEMS kit, SD Cards containing the KIEMS information shall be availed to the Registrar within 24 hours upon the making of an order of the court when evidence is adduced in court, respectively in relation to any specific polling station necessitating the reading, audit or access to the SD Card(s) for purposes of obtaining information on the Register of Voters; the Biometric voter registration; Electronic voter identification; polling station information that is contained in the SD Cards and for such other purpose that the court may specify during the proceedings.

58. All the other orders sought are declined for want of requisite particulars as indicated in this ruling.

59. The Court retains the right and discretion at any time during the adduction of evidence to call for any election materials which would aid the court in reaching a just decision in this matter.

60. The costs of the application will be in the cause.

61. Orders accordingly.

Dated and Delivered at Nairobi this 9th  Day of November, 2017

_________________________

RICHARD MWONGO

PRINCIPAL JUDGE

Delivered in the presence of:

1. ……….……for the 1st  Petitioner

2. ………………for the 2nd Petitioner

3. ….……... for the 1stand 2ndRespondents

4. …………………for the 3rd Respondent

Court Clerk……………