Apungu Arthur Kibira v Independent Electoral & Boundaries Commison, Returning Officer Luanda Consituency, Sylvester Ouma Omollo & Omulele Christopher [2017] KEHC 2116 (KLR)

RPUBLIC OF KENYA

IN THE HIGH COURT AT KAKAMEGA

ELECTIONS PETITION NO. 06  OF 2017

APUNGU ARTHUR KIBIRA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

VERSUS

1. INDEPENDENT ELECTORAL & BOUNDARIES COMMISON ::::::::::1ST RESPONDENT

2. THE RETURNING OFFICER LUANDA , CONSITUENCY ,

SYLVESTER OUMA OMOLLO :::;:::::::::::::::::::::::::::::::::::::::::::::::2ND RESPOENDNT

3. OMULELE CHRISTOPHER :::::::::::::::::::::::::::::::::::::::::::::::::::::::::3RD     RESPONDENT

R U L I N G

1. By an  application dated the 29/9/2017 and supported by an  affidavit sworn on even date and filed on the 3/10/2017 , the petitioner sought orders for  scrutiny of ballot cast in respect of the general elections conducted on the 8/8/2017 in respect of the Member of National Assembly for  Luanda Constituency  in all the 99 stations  of the 62 centres.  He stated the 99  station .

2. In the alternative  he sought an order for  recount  and/or scrutiny of ballots cast in the stations whose errors have  been identified in the petition and respondents answer to the petition and errors identified during the trial and whose results of the election are disputed by the petitioner.

3. A further prayer No. (4) is coached in the following terms :-

“ That in the event the scrutiny and recount of the disputed polling stations reveal discrepancies  in collating , tabulating and  tallying of the votes , an order do issue for a recount of the entire votes in all the 99 polling stations for  Launda Constituency “

These are the main prayers in the application. Grounds in support are stated at the face of the application.

4. In opposition to the application, the respondents filed grounds of opposition and a replying affidavit sworn by the Luanda Constituency Returning officer Mr. Sylvester Ouma Omolo on the 5/10/2017  and filed on the 6/10/2017 .

In addition the 1st and 2nd Respondents filed their submissions which they highlighted by their Advocate, Mr. Musyoka.

5. In his  Petition field on the 6/9/2017 and supported by his affidavit sworn  on the 6/9/2017 and a supplementary affidavit filed on the 9/10/2017 the petitioner who garnered 11,304 votes against the 3rd Respondents 15,117 votes stated five (5) grounds thus :-

1. Voter bribery

2. Irregularities, malpractices and systematic negative campaigns ,

3. Ballot stuffing and fraudulent manipulation of the ballot papers .

4. Violence and

5. Flawed tallying .

6. According to the petitioner, the above malpractices against the Respondents had the effect that the Election was not administered by the 1st Respondent in an  impartial neutral and accountable  manner as required under Article 81(e) (v) of the constitution , and that the 1st Respondent declared the results without verification of the results  from the polling stations.

7. The Respondents responses in a nutshell are that the petitioner , by his pleadings affidavits and affidavit evidence including oral evidence adduced in court  has not laid  sufficient  basis  for either the audit of the systems of  technology including the KIEMs Kit , servers and website /portal used by the 1st  nor  for scrutiny and recount  of the ballots  cast in all the 99 polling stations as envisaged under Rule 29 of the Elections ( parliamentary and County Elections ) Petitions Rules  2017 nor have sufficient reasons for the request been sufficiently demonstrated in line with provisions of Section 82(1) of the Election Act 2011in the context of the pleadings, evidence or both.

8. I heard the parties arguments on the application after closure of  both the petitioners  and the Respondents cases , thus upon all evidence had been adduced.

Applicable  law and judicial precedent.

Section 82( 1) of the Election Act 2011andRule 29 of the Elections ( Parliamentary and county Elections ) petition Rules 2017 give an Election court discretion  to order  scrutiny and/or recount of votes  cast but only if the court  is satisfied that such  scrutiny/recount is necessary to enable  the court to arrive at a just and fair determination of the petition .

The guiding principles are now settled in a myriad of Judicial precedents. However, each petition and application  ought to be interrogated in accordance with its peculiar circumstances.

9. The Supreme Court in Gatirau Peter Munya Vs Dickson Mwenda Kithiji & 2 others (2014) eKLR, Raila Amolo Odinga & another Vs IEBC & 2 others (2017)eKLR,Gideon Nywanganji Wambua & another Vs IEBC & 2 others ( 2013) eKLR  and Philip Osore Ogutu  Vs Micahel Aringo & 2 Others (2013) eKLR (authorities cited by all parties ), among others are relevant to this application.

10. In the Gatirau Peter Munya  case ( supra) .

1. It is not automatic

2. Sufficient reason for the scrutiny and recount must be established to the satisfaction of the court.

3. Scrutiny shall be confirmed to the polling stations in which the results are disputed.

4. It is not made to be a fishing expendition for new or expanded  evidence.

11. In Philip Ogutu Vs Michael Aringo & 2 Others ( Supra) the court held that:-

“ It is not sufficient for a petitioner to ever in the petition that he desires scrutiny and recount in respect of all polling station in the electoral  area that is the subject of the dispute . The petitioner must plead  in sufficient detail why he requires the court intervention to order  scrutiny ………the petitioner is required to state the specific polling stations that he alleges there were irregularities and therefore should be scrutinized.”

12. In  Warinya  Ndeti Vs  IEBC & 4 others (2013) eKLR and Ledama Ole Kina Vs Samuel Kuritai Tunai & 10 others (2013) eKLR, Justice Majanja and Wendo Judgerespectfully on the issue of scrutiny in all polling stations in a constituency held thatMajanja J

“ ….. the petitioner must not be permitted to launch a fishing expendition under the guise  of an application for scrutiny in order to discover new  evidence upon which to foist his or her case to invalidate and election “

13. Wendo J rendered that

“  An application for scrutiny of all Narok  South Constituency lacks  specificity , is a blanket payer  that , in my view , cannot be granted.

The applicant needed to be specific on which polling stations he wanted a scrutiny ………….. if he wanted scrutiny in all the polling stations, then a basis should have been  laid for each polling station. The rationale is clear , the process of scrutiny is laborious , time consuming and the applicants cannot be let at liberty to seek  ambiguous prayers and waste precious courts time and incur unnecessary costs. They must be specific….”

14. The Supreme Court in the Gatirau  Munya case quoted the Musikari  Nazi Kombo Vs Moses Masika Wetangula ( 2014) eKLR, petition no. 26 of 2014.

Where  , Gikonyo J rendered that

“ There were no evidence before the court that all polling stations were affected by the irregularities and malpractices complained of by the petitioner……

It will not be supported in law to make a general  order for scrutiny or re- count of all votes cast  in the  election … that kind of extravagant exercise of discretion will be an  affront to the constitutional policy  that election petitions must be determined expeditiously … it  will also have unnecessary cost on the public.”

15. The thread running across the above decisions is that there is a requirement  for specificity of polling stations were there are disputes as it is possible , but not likely that there can be disputes  in all 99 polling stations.

See Mohammed Mahat Kurio Vs Abdikadir Omar Aden and two others(2013) eKLR.

Against the above legal provisions backed by the authorities cited , a basis for an order for scrutiny and recount , must be sufficiently laid by the applicant  for  such orders to be granted.

16.  Petitioners pleadings .

At paragraph 24 and 25 of the petition, the petitioner stated the polling  stations where election malpractices were witnessed as  Luanda South , Luanda Township , Emabungo ,  mwiboma , Epanga , Wemilabi , Esirabe , Ebusiralo , Emululu , Emmaloba,Khwiliba.

I have considered the alleged malpractices and irregularities.

a. The irregularities stated in the above stations in the Petition were voter bribery only.

b. Irregularities , malpractices and systematic negative campaigns stated in the petition were not attached to any particular polling station, but were  generalized .

c. Ballot stuffing and fraudulent manipulations of ballot papers too is a general complaint  across board and not for any particular polling station . No evidence was adduced on this issue.

d. Violence too was alleged  to have been experienced in  the petitioners strongholds that are not stated in the Petition or in the supporting affidavits.

e. On  KIEMS Kit , it is stated that in many polling stations the date entered therein was not consistent with the information and data from the respective Form 35As. No polling stations are stated were such inconsistencies were witnessed.  It is a general complaint without any specificity.

f. It is further stated  that a significant number of polling stations votes were not counted tabulated and  accurately collated . None of these polling stations are stated, among other cited  irregularities in  unspecified stations in the petition. It is a general complaint.

17. I have noted and confirmed from the petitioners documents and affidavits that Forms 35As from the 99 polling stations in Luanda Constituency were not filed or annexed to the affidavits . The application under interrogation was field on the 29/9/2017 , while the  1st and 2nd Respondents filed their responses to the petition and their witness affidavits on the  21/9/2017, and  their documents among them the 99 copies of the Form 35As for the entire Luanda Constituency.

It is therefore evident that the present application was triggered  by perusal of the Respondents  responses and documents .

18. In  Philip Ogutucase ( supra)  the court rendered that there must be specificity and sufficient detail in the  petitioners petition as to why he requires courts intervention in the specified polling stations .The Supreme Court Judges in Raila Omolo Odinga  & Others Vs IEBC & 2 others ( 2017 ) eKLR  held, that lack of specificity in a petition is a cause to disallow an order of scrutiny and recount . The court further proceeded to hold that under Rule 29(4) of the 2017 Elections Rules  Scrutiny is to be confirmed to specific polling stations and  cannot be ordered in  an entire constituency , unless irregularities are disclosed in the pleadings in all the  polling stations.

19. The Main reasons advanced by the applicant /petitioner for  the order of scrutiny were that some Form 35As had not been stamped by IEBC officials, had alterations that were not countersigned  by IEBC  officials and in some , no agents signed or the petitioners agents did not sign.

A further  complaint was that unauthorized persons were allowed to sign Forms 35A as agents of the various  political parties and that some petitioners agents too were not allowed into the polling stations whereas some polling centres allowed  more than one agent for the parties  including the petitioners agents .

20. A further complaint was that IEBC allowed unauthorized presiding officers to oversee the voting process and in particular singled out one Jairo Ganyanaya ( RW2 ) the presiding officer for Embusakami Primary School stream  3, and termed him a stranger for the  , reason that he did not have his appointment letter issued by the IEBC.

21. The respondents in their reply to the application  submitted  that parties are bound by their pleadings and cannot expand them through evidence.

It was their submissions that it is not open for a party once served with responses by their opponent to try and expand their grounds of the petition without amending the petition , and that the grounds ought to  remain as they are stated in the petition.

22. On specific complaints of bribery, unauthorized persons signing documents,denial of agents entry into polling stations , unauthorized presiding officer , presiding over polling stations , voters claims of being given less than  six ballot papers , violence upon the petitioner , Election campaign Bill board  banner  not pulled down by the polling day. The Respondents urged that scrutiny cannot resolve any of the alleged irregularities and are issues that can only be proved or disapproved through evidence.

They cited authorities to reiterate the purpose  of scrutiny among them,.

Nicholas  Kiptoo Arap Korir Salat Vs IEBC & others ( 2014 ) eKLR, Gideon Mwangangi Wambua & another Vs IEBC ( 2013) eKLR, Philip Osore Ogutu Vs Micharl Aringo & 2 otehrs ( 2013) Eklr

It was their submission that without specificity  of the polling  stations  being pleaded the court cannot issue a blanket order to cover the 99 polling  stations . It was further submitted that , the petitioner himself , and none of his witnesses  during cross examination and re – examination disputed the results of the election in any station.

23. I have carefully considered the pleadings and the evidence adduced as far as the application is concerned.

It is trite that where a party does not sufficiently plead  his case he cannot hinge  it  on his opponents documents, or evidence.

The  Form 35As  being the basis for the  request for an order of scrutiny were not field with the petition nor annexed to the  supporting affidavit including the supplementary affidavit  nor with  the applicants  witness affidavits.The petitioner listed the 99 polling stations in the entire constituency .

24. The requirement for specificity is stated in numerous court decisions , the latest  being the Supreme Court Election Petition No.1 of 2017 – Raila    Omollo Odinga ( Supra ) and  Supreme Court Election petition No. 5 of 2013 Raila odinga & others vs  IEBC and others ( 2013 ) eKLRand all other decisions stated in par 9 of this ruling.

The purpose of scrutiny is well stated . It is not to   unearth new evidence of expand the ground stated in the petition . It is not a fishing expendition .

However it found to be necessary , it ought to be  granted for specific and identifiable polling stations .

25. I want to  associate myself with the holding by Majanja J and Wendo J in Wavinya Ndeti case and Ledama  Ole Kina cases  supra (see Par 12 above ).

That – ( Majanja J )

“ … the petitioner must not be permitted to launch a  fishing expendition under the  guise of an application for scrutiny  in order to discover new evidence upon which to foist his or her case  to invalidate an election “.

And Wendo J that :

“ Am application for scrutiny of all Narok South Constituency lacks specificity , is a blanket prayer , that in my   view cannot  be granted ….. if he wanted scrutiny in all the polling station then a basis should have been laid for each polling station …. The applicant cannot be let at liberty to seek ambiguous prayers and waste precious courts time and incur unnecessary costs ……..”

26. The Supreme Court in reiterating  the above necessity cited also the  petition in Musikari Kombo Vs Moses Masika Wetangula (supra) ( par 14 above ) where Gikonyo J stated

“ That there were no evidence that all polling stations were affected by the irregularities complained of . It will not be supported by the law to make a general order  for  scrutiny or recount of all votes cast .

…… that kind  of extravagant exercise of discretion is an affront to the constitutional policy  that election petitions must be determined expeditiously……………..”.

27. In my very considered opinion, the petitioner by his application and  pleadings  laid bear that he did not  have any specific dispute  on any polling station complaints that a scrutiny or recount could resolve and therefore stated generalized complaints in all the 99 polling stations , and hoped that  by using the respondents would be responses and witness affidavits some irregularities and illegalities would be unearthed to  persuade the court to order a scrutiny and /or a recount of the votes cast.

28. The manner the prayers sought are crafted in the application under interrogation, bring out my above findings clearly.

Prayer No. 2 :- In the alternative

“…………………to order a recount and or scrutiny of the ballot  cast in respect of …………Luanda Constituency in the polling stations whose errors have been identified in the petition and respondents answers to  the petition and errors  identified during trial and whose results of the election are disputed by the petitioner”.

There is no gainsaying that the prayer as crafted is but a fishing expendition as the court is being asked to find for itself which polling stations in may identify from both the respondents documents and during hearing.

29. This petition belongs to the petitioner. It is the petitioner who has the duty , before filing his pleadings to identify where his disputes lie  and attach them to specific polling stations. A nexus between the pleadings and the disputes must be established and demonstrated by a party seeking the orders for scrutiny/ recount.

30. Neither the petitioner nor any of his witnesses had any dispute as to the results in any of the  99 polling stations. It is therefore my findings that the irregularities and illegalities complained of by the Petitioner, by their very nature , can only be resolved through evidence  and not through scrutiny or recount.

For those reasons, the prayers of scrutiny and /or recount of all votes cast for the entire 99 polling stations in Luanda Constituency cannot be granted  to the petitioner .

31. The application is therefore dismissed with no orders as to costs.

DATED ,delivered and signed at Kakamega  this  21st  day of November, 2017

J .N. MULWA

JUDGE

In the presence

M/S Oketch holding brief for Odeny………………..................or petitioner

Mr. Musyoka ………………………………………for 1st & 2nd  Respondents

Mr. Musyoka holding brief for Tollo for ……………….......... 3rd Respondent

Lilian & Susan ……………………………………….........……court assistant