Eliud Musikongo Tenge v Nyongesa Sospeter Erastus, Independent Electoral Boundaries Commission & Nobert Kimei [2018] KEHC 5119 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

ELECTION APPEAL NO. 1 OF 2018.

ELIUD MUSIKONGO TENGE........................................APPELLANT

VERSUS.

NYONGESA SOSPETER ERASTUS.....................1ST RESPONDENT

THE INDEPENDENT

ELECTORAL BOUNDARIES COMMISSION...2ND RESPONDENT

NOBERT KIMEI......................................................3RD RESPONDENT

(Appeal from Ruling and Judgment of Original BGM ELC PET. No. 4 of 2017

Hon. J. King’ori (CM)delivered on 23rd March, 2018)

JUDGMENT.

In the history of the 2nd general elections held under the New Constitution of Kenya 2010 on 8th August 2017, the appellant Eliud Musikongo Tenge  and the 1st Respondent Nyongesa Sospeter Erastus were among the eleven (11) candidates who vied for the seat of Member of County Assembly West Bukusu Ward, Bungoma County.  The 2nd Respondent IEBC is the Constitutional body charged with the responsibility of conducting and managing elections and referenda pursuant to Article 88 Constitution of Kenya 2010 in Kenya, and the 3rd Respondent Nobert Kimei was the Constituency Returning Officer Bumula Constituency acting for and on behalf of the 2nd Respondent.  Upon conclusion of the election, collation, tallying and verification the 3rd Respondent declared the 1st Respondent as the duly elected MCA for West Bukusu Ward having garnered 1392 votes.  The Appellant was declared the 2nd candidate with highest votes having garnered 1314 votes.  the votes as declared by IEBC were;

(1) Barasa Joseph Khaemba              245

(2) Barasa Woah Simiyu                    577

(3) Busolo George Wekesa                524

(4) Juma Gabriel Wafula                   106

(5) Musikongo Eliud Tenge             1229

(6) Nyongesa Sospeter Erastus        1240

(7) Wabwire Christopher Mulati      1214

(8) Wafula Fred Juma                        120

(9) Wamalwa Bendele Juma                45

(10) Wangunda Dennis Juma              380

(11) Wekesa Simpson Kenyenya         92

Aggrieved by the declaration of the 1st Respondent as the duly elected MCA West Bukusu Ward, the appellant filed a Petition in the Chief Magistrate’s Court challenging the election and declaration on the following grounds:  inter alia

1. The petitioner further avers that the 2nd Respondent and its officer’s acts and omissions in the electoral process of the ward and the outcome thereunder were rampant and flawed in such fundamental and grave sense that taken together or viewed separately, they completely obliterate the possibility of discerning there from whether the results announced were true, lawful and proper expression of the West Bukusu ward people’s will.  The 2nd Respondent’s officers and employees’ acts and omissions so substantially and materially went against the root and purport for which an electoral dispensation is created.

2. Your petitioner states that the Respondents singularly, jointly and/or severally contravened, violated and breached several provisions of the constitution of Kenya 2010, Elections Act 2011, the Elections (General) Regulations 2012 and all the enabling provisions of law which contraventions, violations and breaches renders the announcement and declaration of the 1st Respondent as the winner of the member by County Assembly null and void.

3. The 2nd Respondent and its officers, staff and other persons who had duties and functions to perform during the said elections held on the 8th August, 2017 committed criminal offences under the Elections Act for doing acts and thins that they are prohibited from doing.

4. The petitioner states that discrepancies in the various documents provided by the 2nd and 3rd Respondents are in explainable upon any reasonable hypothesis other than the  existence of actual ballot stuffing, multiple voting or gerrymandering or inflating the number of votes in the tallying thereof by the 2nd and 3rd Respondents herein or their officers or their condoning in the same to the advantage of the 1st Respondent.

5. The forms 36A for Nang’eni Primary polling station 1, Nang’eni Primary polling station 2, Machwele Primary polling station 1, Ngoli Primary polling station 1, Lwanja polling station and Wacholi Primary polling station 1, are reflective of the aforestated ills of the 2nd Respondents, its officers and 3rd Respondent.

6. The form 36B issued by the 3rd Respondent is the most offending document of all.  It is all indicative of a process that was manipulated.

7. The 1st Respondent personally/or with his agents and servants heavily and with impunity engaged themselves in outright bribery and treating of voters prior to the polling day and on the 8th August 2017, particularly these instances were witnessed in Machwele, Lwanja and St, Jude Nabuyeywe Primary School.

8. Your petitioner asserts and contends that giving and distribution of the money at the said campaign and polling stations was not only illegal and irregular but it was intended to and did induce voters to cast their votes in favour of the 1st Respondent.

9. Officers appointed by the 2nd Respondent did, deliberately or by way of commission or omission make false and inaccurate entries in statutory forms.

10. The officers appointed by the 2nd Respondent deliberately knowingly and intentionally denied the petitioners and or his lawfully appointed and accredited agents access to documents and other election process information and consequently access to the sorting counting and tallying and declaration of results.

11. The 2nd Respondent’s officers at various polling stations in the ward failed and/or refused to allow the petitioner’s party lawfully appointed and accredited access to the said polling stations and further denied the said agents access to statutory forms and other crucial information.  This is as reflected in the affidavits herewith filed.

12. The 2nd Respondent and its electoral officers failed and/or refused to reconcile and sanitize the results from the various polling stations to the extent that it was not possible to tell which results were the correct and true reflection of the voting held for the ward elections.

13. The petitioner contends that the results gazette infavour of the 1st Respondent was greatly at variance with the other electoral documents.

14. By reason of the foregoing, your petitioner avers and asserts that the entire electoral process for the ward elections was irredeemably compromised and titled infavour of the 1st Respondent.

15. The results declared by the 3rd Respondent and gazette by the 2nd Respondent are untenable null and void and an abuse of the electoral system and process.

16. By further reason of the illegalities, irregularities and malpractices stated and averred herein  the 1st Respondent herein is guilty of election offences which offences include but not limited to illegal campaigns and meetings, bribery, treating and voter malpulation.

The Respondent filed Response to Petition stating; inter alia

1) That in his petition documents, the Petitioner has not compiled all relevant documents, exhibits and or official results that are necessary for final and full discovery in all polling stations that were involving.

2) That a close scrutiny of the forms 36A and 36B shows that the agents and Polling Officials signed the said forms including the Petitioners agents and witnesses which is a clear indication that the process and final collation of results were transparent, free and credible.

3) That the total number of votes cast as indicated in the Form No. 36B at the Constituency Tallying Centre show clearly the outcome and the number of votes garnered by each candidate and the 1st Respondent had a cool commanding lead with 1,240 votes, the same is signed and stamped.

4) That the votes in all tallying documents, both primary forms and final tally are consistent and indicate all votes cast, spoiled or rejected, any contradiction thereof is false, baseless and holds on water.

5) That 1st Respondent vehemently denies having engaged in any Electoral malpractices, unconstitutional conduct and or bribery or treatment of voters and shall invite strict proof or supporting evidence to the contrary and more so in Nang’eni Primary Polling Centre, Kibuke Primary Polling Centre and Mwomo Polling Centre as it was the Petitioner who infact got majority of the votes in those mentioned areas.

By Judgment dated 2. 3.2018 the learned trial Magistrate rendered himself thus  “the people of West Bukusu on 8/8/2017 went out to the 17 polling stations within the Ward and cast their votes peacefully without intimidation, without influence by bribery or treating, their votes were sorted, counted and tallied in form 36A.  The results were not challenged or disputed.  The presiding officers submitted the form 36As to the Returning officer who captured the results therein correctly, tallied the results and declared the 1st Respondent the winner and accordingly issued him with a certificate of elected Member of County Assembly. His tally was 1392 and the Petitioner was 1st runner up with a tally of 1314.  I have in the foregoing shown that the petitioner has not proved his grounds to the required standard. The election in my view was conducted in accordance with the principles of the Constitution and the Elections Act as set out at the onset in this Judgment. The people of West Bukusu Ward elected their Member of County Assembly.  I am not to nullify the election on the omission at the Constituency Tallying Centre where incorrect results were entered by inadvertently omitting the votes from Kisioyi polling centre for all candidates.  The error did not affect the results as the winner remained the winner less Kisioyi.  The people of West Bukusu spoke loudly and their will must be given effect.  In the results, I dismiss the petition and declare the 1st Respondent the duly elected Member of County Assembly for West Bukusu Ward.  The Returning officer is to reconstitute afresh Form 36B with the correct Tallies for all candidates and gazette the right tally for the 1st Respondent and serve copies of the form 36B to the other contestants on request.”

Aggrieved by the decision of the Learned Magistrate, the appellant filed this appeal premised on the following grounds;

1) The learned trial Magistrate erred in law and fact when he in a skewed manner took into account matters that were never made issues for determination either by the parties pleadings or at the pre trial conference to the prejudice of the Appellant’s case.

2) The learned trial magistrate erred in law and fact when he in his judgment failed to keep in mind the importance and purpose of the parties’ pleadings and pre-trial directions resulting to a judgment that was erroneous and biased.

3) The learned trial magistrate erred in law and fact when he failed to take into account relevant pieces of evidence and or took into account irrelevant and inadmissible evidence to the prejudice of the Appellant’s petition.

4) The learned trial magistrate erred in law and fact when he arrived at a judgment that was against the weight of the evidence on record.

5) The learned trial magistrate erred in law and fact when he failed to sufficiently appreciate the legal purpose for orders of scrutiny and recount and the grounds that would attract the grant of the orders, with a consequence that he unjustifiably declined the appellant’s application for scrutiny and recount.

6) The learned trial magistrate erred in law and fact when he in ignorance of the circumstances of the petition condemned the appellant to shoulder the costs of the petition.

7) The learned trial magistrate erred in law and fact when he in defiance of the principles governing the quantum of costs awardable in a matter, and the need for Judicial consistency excessively capped the instruction fees.

8) The learned trial magistrate erred in law and fact when he failed to appreciate the purpose of the various electoral statutory forms consequently arriving at an erroneous judgment.

The evidence before the trial court was that;

Eliud Musikongo Tenge (PW1) the petitioner testified that he was a candidate in west bukusu ward Bumula Constituency for the position of an MCA through Jubilee party and emerged 2nd with 1,229 votes whereas the winner Sospeter Nyongesa garnered 1,240votes. The margin was 11 votes. That he was supposed to be the winner since according to his totals he had 1,314 votes. That there were variances in the results declared since the 1st gazette notice no. 121 dated 22/8/2017 indicated 1,214 votes but was later corrected to 1,240 vide gazette notice No. 8378 of 25/8/2017 where it showed he got 1,240 votes.

That there were various election irregularities to wit:- forms not being signed and he mentioned Nang’eni primary polling station and Kibuke primary polling station, forms not being stamped in Nang’eni Primary, Uwanja Primary, Muoma Primary and Ngoli Primary polling stations and figures not tallying for all the elective posts.

During cross examination by counsel for the 1st respondent Mr. Sichangi the petitioner testified that he was contesting the results that declared the 1st respondent the winner.

During cross examination by advocate for the 2nd and 3rd respondent Mr. Barakathe petitioner testified that the 1st respondent garnered 1,392 according to the announcement made in the ward. That he personally garnered 1,314 making the difference between him and the winner to be 78 votes. That there were variations in West bukusu polling station of about 11 votes which if he could have added to his could have made it to 1,325 votes. That still the 1st respondent could have been the winner. That apart from forms 36 A and 36B he did not have any other documents to show irregularities and there was no complaint from any person of being denied to vote nor any criminal activities with reference to the respondents.

That he did not have proof of ballot stuffing, multiple voting and did not witness any incidence of bribery. No offences were reported to the police. Did not report any bribery or malpractice as well. Did not report to IEBC of any compromise of IEBC official. Did not have proof of voting by unregistered voters, did not witness any personification of votes or voting by people who had voted or by a disqualified person. No evidence from an expert on KIEMS. That there was a gazette notice correcting the results and from that correction the 1st respondent was the winner in both the gazette notices. From the 2nd gazette notice he did not know how many votes were added to the 1st respondent.

In re-examination the petitioner testified that it is the votes of the 1st respondent that were corrected. That the corrected gazette figure does not tally with the figures in form 36As. That because of that contradiction it was difficult to establish the votes cast and that the only way to ascertain is through scrutiny and recount.

That his sole purpose of coming to court was that he is dissatisfied with the figures used to declare the winner.

Sospeter Erastus Nyongesa (RW) testified that he is the elected MCA of west bukusu ward Bungoma County on an ANC ticket. That he garnered 1,392. The second person was Eliud Musikongo Tenge with 1,314 votes as announced by the returning officer. That he was ahead of the petitioner with 78 votes. That elections were fair and there was no evidence of any electoral offences committed. That he did not bribe anybody and had no issues with form 36As. That the figures collected from every polling station were correct and the only problem was with the were the totals. That even with the errors that affected each candidate he still emerged the winner.

During cross examination by Mr. Barasa the 1st respondent testified that the elections were free and fair. That he had no problem with form 36As. That there is a provision for agents present to sign and/or indicated their refusal to sign. That he defeated the petitioner with 78 votes. That if the supporters of other candidates ganged up against him the petitioner would win. That there is no perfect election and that during the announcement of the winner agents are always happy that they even forget to follow up on the forms to sign. That the difference announced by the results of 1,392 and the gazette results of 1,249 is 152 votes. That he lost most of his votes and was the most aggrieved.

During cross-examination by Mr. Kebira for the petitioner the 1st respondent testified that the electoral process is about the numbers and the process. That no agent signed affidavit to say he did not sign because they were celebrating. That at Kibuke he got 40 votes and his opponent got 105 and the highest got 127. That he did no find anything strange on there being no signatures of agents and no certificates by the presiding officers.  In para 7 he indicated he got 1,240 and that his response did not indicate he got 1,392.

That at Kisioyi primary 1 of 3 agents signed. That he does not know that they were carbonated shown Muomo polling station form 36 A it has no stamp. Signed by 2 agents but his agent did not sign. Kennedy Meji was his agent at Muomo polling station that the agent does not indicate how many votes he got at Muomo. Not attached his agent appointment form. That he does not know if certificate of closure could assist. No certificate of closure exhibited for Muomo. In Muomo 2 of 2, the registered voters are not indicated. Not certain how many voters were there. Cannot tell whether the voters who voted exceeded the registered voters. Ngolo 2 of 2, form 36A does not have an IEBC stamp. It is not clear the figure scribbled to the total registered voters. Mayanja 2 of 2, form 36A not sure whether it by the same hands it looks different hands because of the appearance of letter a, letter b looks the same in the form. The form is dated 9/8/17. The rest of his forms 36A are dated 8/8/2017. That Busolo George Wekesa won in the stations. That he got more votes that the petitioner. He got 69 and the petitioner got 51. Agent of the petitioner has not signed the form and his agent as well did not sign but 2 agents of ODM signed.

That it is true St. Jude the total registered voters are not indicated. In Kibuke 1 of 1, the figure 350 is overwritten and is not countersigned. In Wacholi there is no rubber stamp for IEBC. That he did not complain to IEBC about 1,240 because he had won anyway. That this was the figure that was gazetted and he did not know of any other earlier figure that was gazetted. That a final tally would be the results of all forms 36As while admitting there was a variance of the totals of forms 36A s and 36B.

In re-examination he testified That the issue of form 36B came to his mind after seeing the petition.

Nobert Kemei (RW), the constituency returning officer Bumula constituency testified that there were 11 candidates for the MCA and the 1st respondent emerged the winner. That the elections were conducted in a free and fair manner in accordance with the electoral laws and no any electoral offence or electoral malpractice was reported to IEBC. That the tallies of Kisioyi were accidentally skipped and there was no ill intention since it affected all candidates and that even if they were included the 1st respondent would be the winner. That his prayer would be to reconstitute form 36B afresh and gazette the right figures.

During cross examination by Mr. Sichangi he testified that he was in charge of the entire Bumula constituency. That if a malpractice was reported he would record in an incident book and if criminal in nature report to  the police and there was no such report.  That the candidates accepted the results and nobody raised a red flag. That Kisioyi primary was erroneously left out. That in that polling station the 1st respondent got 152 votes and the petitioner got 85 votes.

Cross examination by Mr. Kebira testified that the normal procedure after declaring the results is to issue for 36C but that did not happen. That he is aware the petitioner is attacking the quality of the process. That form 36As were duly stamped and signed and were reflective of the correct figures. That some forms did not bear the stamps because they were carbonated. That he raised the issue of the figures in form 36B with the county elections manager. That there is no basis to think of manipulation. That it is an anomaly not to indicate the total number of registered voters. Form 36B is sent with the total number of registered voters. The top seal on the ballot seal is sealed first. It is not possible to access the ballot box even without the top seal because there is 24 hours security. The top seal for Tunya was broken.

Re-examination the broken seal for Tunya was broken but still intact. Contents inside the box could not be accessed. No agents raised queries regarding form 36A, voters voting twice or voters not registered voting. No agents raised concerns during tallying or even with the tallies since verification was possible as the results were being displayed. The results were announced as they were. When results are announced the presiding officer and deputy presiding officer sign the results, date and stamp after which the agents sign. Not possible for an agent not present to sign. No concern by an agent at Kisioyi. Having tallied form 36As the 1st respondent emerged the winner and that even if form 36B is reconstructed the 1st respondent would still emerge the winner. That there is zero relationship between presidential and MCA votes.

On 2. 5.2018,  By consent Counsel for all parties agreed that the appeal be canvassed by way of written submissions.  All the parties filed their respective written submissions.

Mr. Ocharo for the appellant submitted that the finding by the trial magistrate that the appellants agents did not lead evidence that they were agents and therefore did not prove that there were agents in the polling station was not an issue agreed upon by the parties or discernable from the pleadings.  He submits that the trial magistrate in making it an issue took into account matters that were not pleaded.  He submitted that the trial magistrate’s finding on this uncontested issue was prejudicial to the appellant as the parties are bound by their pleadings.  He invited this court to be guided by the decision in Dakianga Distribution (K) LTD   -Vs-  Kenya Seed Company [2015] eKLR.

The system of pleadings operates to define and delimit with clarity and precision and real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which court will be called upon to adjudicate between them.  It thus served the two-fold purposes of informing each party what is in the case of the opposite party which he will have to met before and at the trial and at the same time informing the court what the issues between the parties which will govern the interlocutory proceedings before trial and which the court will have to determine at the trial.”

Learned counsel for the appellant further submitted that the learned trial magistrate failed to consider the affidavit evidence which was the evidence in Chief of the witnesses and that he only considered the responses of the witnesses in cross-examination.  He specifically finds fault in the consideration of the evidence of the 1st Respondent in both the affidavit and cross-examination. He makes reference to the same treatment of the Respondents Witnesses and in particular on the issue whether the statutory forms 36A was signed by the agents. This Counsel submissions made the trial magistrate to arrive at a Judgment that was against the weight of evidence on record.

Counsel further submitted that the Petition was an premised in both the quality of the process and the quantitative aspect of the election.  He specifically faults the trial magistrate failure to appreciate that the total number of votes garnered are a summation of the figures recorded in the forms, and if the forms lacked integrity, the figures from the same cannot be legitimate.  He refers this court to persuasive decision in Francis Wambugu Mureithi  -Vs- Owino Paul Ongil & 2 Others [2018] eKLRto buttress this submission.  In particular he relies on the Supreme Court decision Raila Odinga 2017 which the court stated;

“224 on our part having considered the opposing position, we are of the view that the contentions by the 1st and 2nd Respondents ignore two important factors;- one that elections are not only about numbers as may surprisingly even prominent lawyers would like the county to believe.  Even in numbers we used to be told in school that to solve a mathematical solution there is always a computational path which one has to take as proof that the process gives rise to the stated solution.”

Counsel submitted that;

the appellant raised a number of queries worth regard to the validity of a good number of form 36A. According to the petitioner some of the documents had no statutory comments, did not have signatures of his party’s agents whilst and the agents had signed the same at the closure of counting, presiding officer signed as though he/she was an agent. The appellant places weight on the discrepancies, which he maintained are massive widespread and fundamentally affected the integrity of the election.Counsel for the appellant faulted the trial magistrate dismissal of the application for scrutiny and recount and failing to appreciate the purpose of scrutiny which is to investigate allegation of irregularities and breaches complained of; verify the votes cast infavour of each candidate and to assist the court to understand the details of the  electoral process and gain.  Impression of its integrity. Finally counsel submits that the costs awarded were excessive in the circumstances and not in harmony with comparable costs in other petitions for Member of County Assembly.

Mr. Sichangi learned Counsel for the 1st Respondent filed submission in support of prayer for appeal be dismissed.  Counsel submitted that this being an appeal from the decision of the MCA election court, to the High Court, it is guided by Sec. 75(4) of the Elections Act.  He submits that the appeal must be on matters of law only.  He submits that the bulk of this appeal are complaints against evidence; or findings of fact and that this court should resist the temptation to treat findings of fact as holdings of law or mixed findings of facts and law.

The Counsel further submits that;

The issues complained of in this appeal are matters of fact and not law.  He submits that the question of whether Petitioner’s agent signed the statutory forms, is a matter of fact and the appellant failed to tender evidence that the agents were denied access to the polling stations. On the issue of the trial court failing to appreciate the importance and purpose of pleadings Counsel submits that the trial magistrate in his Judgment made reference to the appellants petition and affidavits and in his Judgment states that he considered the Petition, Responses, Witness affidavits, Witness evidence in Court and Submissions.  He submits that the inclusion of the findings of KISOYI Polling Station is because there was evidence that it had been left out in the initial tallying and it was an important finding in assessing the contents of Form 36B and was a matter that had come up in the testimony of witnesses.  On the rejection of the application for scrutiny and recount, counsel for the respondent submit that scrutiny and recount is not a matter of course for the applicant; he must demonstrate sufficient basis for the same.  He submits that Sec. 82(2) sets out the object of a scrutiny and recount and this was considered and application was disallowed.  Indeed in his finding the trial magistrate was of the opinion that the purpose of the application was to seek to discover new or fresh evidence.  The granting of the orders for scrutiny and recount is at the discretion of the court and it has not been shown that the trial court exercised it unlawfully.  Finally on costs, the counsel for respondents submitted that costs follow the event; and that through the petition was vexatious, the costs assessed were appropriate.

The County election Petitions are provided for in Sec. 75 of the Elections Act.  Sec. 75 (4) provides;  An appeal under subsection (1A) shall lie to the High Court on matters of law only and shall be;

(a) filed within thirty days of the decision of the Magistrate’s Court; and

(b) heard and determined within six months from the date of filing of the appeal.

This court will only therefore entertain an appeal from the magistrate’s court if the issue in contestation and therefore for determination is of Law only.  What then is an issue of Law only?  The Supreme Court in interpreting Sec. 85A which is similar to Sec. 75(4) in Gatirau Peter Munya  -Vs-  Dickson Mwenda Kithinji & 2 Others [2014] eKLR in defining matters of law envisaged under Section 85Aof the Election Act stated as follows:

“[80] From the foregoing review of the comparative judicial experience, we would characterize the three elements of the phrase “matters of law” as follows:

a. the technical element: involving the interpretation of a constitutional or statutory provision;

b. the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record;

c.  the evidentiary element: involving the evaluation of the conclusions of a trial Court on the basis of the evidence on record.

[81] Now with specific reference to Section 85A of the Elections Act, it emerges that the phrase “matters of Law only”, means a question or an issue involving:

(a) the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor;

(b) the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;

(c) the conclusions arrived at by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claims that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were :so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion on the basis of the evidence.

[81a]  It is for the appellate Court to determine whether the petition and memorandum of appeal lodged before it by the appellant conform to the foregoing principles, before admitting the same for hearing and determination.”

This court will therefore be appropriately guided by the above principles in the determination of this appeal.

From the submissions by the parties, it is clear that though the parties did not file the agreed issues for determinations in the appeal, the issues that rendered themselves for consideration can be condensed into the following.

1) That the learned trial magistrate arrived at a Judgment against the weight of evidence on record;

2) That the trial Magistrate erred by failing to appreciate the law in the purpose of scrutiny by declining to grant the same.

3) That the learned trial magistrate failed to appreciate the purpose of the electoral statutory forms consequently arriving at an erroneous Judgment.

4) That the costs awarded were excessive.

The Constitution in Article 86 Provides the parameters within which an election and voting should be held.  It provides:

At every election, the Independent Electoral and Boundaries Commission shall ensure that;

(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;

(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;

(c)  the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and

(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

Article 86(a) provides for the qualitative parameters while 86(b) and (c) provide the quantitative parameters.

The quantitative requirements deal with the mathematical or arithmetic calculations of results of the election.  Quantitative aspects relate to the counting, tallying, accuracy, verifiability and transmission of results.  It also deals with whether a vote casts was rightfully labelled as invalid, invalid rejected or stray.  In this context, the paper trail of the votes cast is critical in determining quantitative aspects of the electoral process.  The quantitative requirement deals with numbers and figures.  In the Uganda case of Winne Babihuga  -Vs-  Masiko Winnie Komuhamhia & Others HCT-OO-CV-EP-004-2001,  Justice Musoke Kibuka expressed as follows:

“The quantitative test was said to be most relevant where numbers and figures are in question whereas the qualitative test is most suitable where the quality of the entire election process is questioned and the court has to determine whether or not the election was free and fair.  [Odek J.A].

The issues of scrutiny and recount.  Counsel for the appellant faulted the trial magistrate dismissal of the application for scrutiny and recount and failing to appreciate the purpose of scrutiny which is to investigate allegation of irregularities and breaches complained of; verify the votes cast infavour of each candidate and to assist the court to understand the details of the  electoral process and gain.  Impression of its integrity.

Mr. Sichangi for the 1st Respondent on this issue submitted that the law requires that before a Court can give an order for scrutiny and recount, the applicant must lay a basis for the same either in the pleadings or in the evidence.  He submitted that the only error noted was the additions in all the forms where Kisoyi Polling Station has been initially avertedly left out but later corrected.  He submitted that minor discrepancies in the total number of votes cast for President, Governor, MP and Senetor were explained and not sufficient ground to form a basis for Scrutiny and recount.

The appellant on 28. 11. 2017 filed an application for scrutiny and recount.  The same was objected to be the Respondents.  The learned trial magistrate in a ruling delivered on 9. 2.2018 dismissed the application stating;

It is for the petitioner to show that the excluded votes were cast and tabulated.  I have gone through the evidence as pertains to the questioned polling stations.  I have considered the discrepancy in the Form 36B and the submissions and find the alleged irregularities were so minor and were so minor and were explained.  Having weighed the allegations by the applicant against the evidence on record following a full hearing I am not satisfied that the petitioner Applicant has laid a sufficient basis for scrutiny.  I make no further comments as there will be a Judgment in the Petition.  I therefore decline to grant the orders sought for scrutiny and recount.

Costs will be in the course.

An application for scrutiny and recount is anchored in Sec. 82910 of the election Act which provides;

“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.”

The purpose and objective of scrutiny are as processed under Rule 28 and 29 of the Elections Act.  The principles upon which a court will consider in an application for scrutiny were laid down in Gatirau Peter Munya  Vs.  Dickson Mwenda Kithinji & 2 Others (supra) the Supreme Court laid down the principles for consideration in an application for scrutiny.  It stated:

“(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 state 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 of 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 requests 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 votes is called into question in the terms of Rule 33 (4) of the Election (Parliamentary and County Election) Petition Rules.”

The Supreme Court proceeds to observe thus at paragraph 163:-

“The authority granted to the election court is discretionary in nature.  In this regard, the court may order for scrutiny on its own motion or upon application by a party to the election petition.  This therefore follows that the court may decline to grant an order for scrutiny following an application seeking one.”

In this application the appellant sought for scrutiny and recount in all the 17 polling stations in West Bukusu Ward.  The main reason as submitted by Counsel for the appellant was;

“To demonstrate why, looked at the Declaration Form, Form 36B.  He stated. “The votes declared in favour of the petitioner were 1,229 and those in favour of the 1st Respondent 1,240.  That is a victory margin on 11 votes.  In situations where the margin is so small, microscopic as in this case, courts of law makes orders for scrutiny and recount even without a foundation.  I am persuaded by the decision of Hon. Ali Joho  -Vs-  Hon. Hotham Nyange & Another in Election Petition (Mombasa) No. 1 of 2005  which I supply the court.  I refer court to the 2nd last paragraph where Justice Maraga States:

“where the margin is small scrutiny can be orderedwithout laying a foundation.”

At the last page, he says that in such situation, an order for scrutiny and recount can be issued right from the word go.  If the court looks at form 36B it will realize that the totals from the 8 polling stations as set out in the form, the total for the petitioner are 1,314 and totals for the other candidates are erroneously stated in Form 36B.  That is whey that it is imperative that the recount is done so that the votes obtained by each candidate are ascertained.”

The supreme court while quoting with approval in the case of Gideon Mwangangi Wambua & Another  -Vs- Independent Electoral Boundaries and Commission & 2 Othersit stated:

“The aim of conducting scrutiny and recount is not to enable the court (to) unearth new evidence on the basis of which the petition could be sustained.  Its aim is to assist the court to verify the allegations made by the parties to the petition which allegations themselves must be hinged on pleadings. In other words a party should not expect the court to make an order for scrutiny simply because he has sought such an order in the petition.  The Petitioner ought to set out his case with sufficient clarity and particularly and adduce sufficient evidence in support thereof in order to justify the court to feel that there is need to verify not only the facts pleaded but the evidence by the Petitioner in support of his pleaded facts.  Where a party does not sufficiently plead his facts with the necessary particulars but hinges his case merely on the document filed pursuant to Rule 21 of the Rules, the court would be justified in forming the view that the Petitioner is engaging in a fishing expedition or seeking to expand his petition outside the four corners of the petition”.

In an application such as the Applicant need not only specify the polling stations, he must also give specific reasons for seeking and justifying scrutiny in the named polling station.  He must lay a basis by tendering evidence in support of the prayer for scrutiny.

Though the application also submitted that the scrutiny will assist the court in establishing the validity of the votes cast; the applicant had to lay a basis by stating what he disputed in this documents availed from the polling stations.  While a scrutiny and recount can be ordered in the whole of the 17 polling stations in the ward; an applicant who is unable to state with certainty the disputed polling stations and instead seeks scrutiny in all the polling stations in the ward risks the assumption that he is in a fishing expedition.

Secondly the Margin the number of votes between the Petitioner and Respondent while it can be a factor to consider is not a reason for granting an order for scrutiny and recount.

I am satisfied that the trial magistrate properly addressed himself to the principles governing scrutiny and recount and arrived at a proper determination of the application.

That the learned magistrate failed to appreciate the Role of the statutory forms.

The appellant has raised issues in the trial court and in this court.  This issue of veracity or genuiness of the form used in the election in West Bukusu ward.  On this ground the counsel for the appellant submitted that;

the appellant raised a number of queries with regard to the validity of a good number of form 36A.  According to the petitioner some of the documents had no statutory comments, did not have signatures of his party’s agents whilst and the agents had signed the same at the closure of counting, presiding officer signed as though he/she was an agent.  The appellant places weight on the discrepancies, which he maintained are massive widespread and fundamentally affected the integrity of the election.

Mr. Sichangi for the Respondent submits that forms record results of the votes cast and are procedural in nature.  He submits that any minor errors in the forms which errors are explained cannot be a basis for annulling an election.

In the Member of County Assembly elections, the statutory froms used are those provided in Regulation 79(2)(g).  There are 3 forms Form 36A in which recorded result at the polling station where the number of votes cast in favour of each candidate is entered.  It also captures the total number of voters in the polling station, total number of rejected ballot papers, number

of votes, and Total number of valid votes cast.  Form 36B is declaration of Member of County Assembly Election.  Results at the Constituency Tallying Centre.  It records the polling stations in the ward, votes garnered by each candidate, Aggregate results for each candidate, Total number of Registered votes, number of voters who turned out to vote and percentage of voter turnout.

Form 36C is Certificate of Elected Member of County Assembly declaring the candidate with the highest number of votes as duly elected member of the County Assembly for that Ward.

The appellant in the trial court and here has raised issues with Form 36A and 36B.  He submits that Forms 36A were not signed by his agents, not dated and therefore are invalid as documents to show that the 1st Respondent was duly elected.  He annexed to his Petition copies of Form 36A which show that some are signed by agents while others are not signed by all the 11 agents of the 11 candidates.  The appellant in his evidence stated that he received information that Nangeni Primary, Kimwanga Primary, Vuoma Primary and Ngoli Primary polling stations were not stamped.  He also raised the issue to declaration of total votes cast in in Presidential, Gubernatorial and MCA to show that that there was doctoring of MCA results.  He on being Cross examined testified that he got 1314 votes and the 1st Respondent on 1392 giving a margin of 78 votes.

What was the effect of the Form all 36A not being signed by the appellants Chief agent or agent?  It is a requirement that the agents of the parties do sign the Form 36A first to confirm the results are true and accurate count of the ballots and as a sign of accountability.  The agent is required to sign but can also refuse to sign in which case reasons for refusal have to be recorded.  The fact that the agent has not signed either because he is not available, is unwilling or has refused to sign does not in law invalidate the contents of form if the same is properly signed by the Presiding officer Deputy Presiding officer and stamped, and reasons for refusal to sign indicated.

The main issue in the Petition and in this appeal raised by the appellant is that the conduct of the election in West Bukusu did not pass both the qualitative and quantitative test.  As stated the grievances raised and which the election court was to determine was, non signing of electoral forms by the appellants agents; chasing away of agents; faulty computation of the votes cast.  The petitioner also complained of existence of ballot stuffing.  Multiple voting or gerry meandering  inflating the number of votes in the tallying which are all qualitative aspect of the elections.  However in the evidence in court appellant upon cross-examination stated that he did not lead evidence of ballot stuffing, multiple voting, did not witness incidents of bribery, personification, or aspects of criminal conduct by IEBC officials which he would resport to police.  Having stated so, then the qualitative irregularities he was complaining of had no supportive evidence.

This now leaves us with the issue of anomalies in the forms complained of and even admitted by the Respondents.  The anomaly of forms not signed by the agents, particularly in Nang’eni Primary Polling Station 1 and 2, Machwele Primary Polling Station 1, Ngoli Primary Polling Station 1 and From 36B.

It is now settled as a principle that where an election is conducted substantially in accordance to the principles of constitution, and the election act; any irregularities which are shown not to be systemic or persuasive, nor deliberate or intended to advantage one party or prejudice another cannot be a basic for annulment of an election.

In Joho Vs.  Nyange & Another [2008] 3KLR(EP) where Maraga, J. (as he then was) stated:

“irregularities which can be attributed to an innocent mistake or an obvious human error cannot constitute a reason for impeaching an election results.  This court is mindful of the fact that at the stage where election officials are required to tally the results, some of them would have stayed awake fore more than thirty six (36) hours and therefore simple arithmetical mistakes are bound to happen.”

In my view therefore the question of irregularity complained of has materially affected the result of an election or not is a question of fact which must be proved by adducing credible evidence.  In this appeal reliance was placed on the failure of agents/appellant to sign from 36A.  as I have indicated above, that infraction does not invalidate the terms or the contents thereof.  I was not demonstrated that the failure to sign was deliberate, and systems aimed at prejudicing the appellant; and most importantly it materially affected the result of the elections.

Upon considering this appeal, and submissions and perusing the evidence in the trial court, I am satisfied that it has not been shown to the required standards of proof that the irregularities complained of were of such magnitude that it affected the results of the Election of West Bukusu Ward.

The last issue raised by the appellant is that the capping of costs at Kshs.500,000/= was erroneous and not comparable to costs awarded in other petitions involving members of County Assembly.  The award and amount of costs awarded is at the discretion of the trial court.  An appellate court will not normally interfere with that discretion unless it has been shown that the trial court applied wrong principles or that same as so high or low as reflect wrong approach to assessment of costs.  No evidence of such has been demonstrate in this appeal and I thereby resist the invitation to disturb the same.

In the analysis I find no merit in this appeal which is hereby dismissed with costs capped at Kshs.100,000/= to the 1st Respondent and Kshs.150,000/= for jointly the 2nd and 3rd Respondent.

Dated at Bungoma this 26th day of July, 2018.

S.N. RIECHI

JUDGE.