Evans Nabwera Tarachi v Independent Electoral & Boundaries Commission, Constituency Returning Officer Enock Gichaba Otara ( Likuyani Constituency ) & Enock Wamalwa Kibunguchi [2017] KEHC 2332 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT  OF KENYA AT KAKAMEGA

ELECTION PETITION NO. 05 OF 2017

EVANS NABWERA TARACHI :::::::::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

VERSUS

INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION :::::::::::::::::::::::::::::::::::::::::::::::::::1ST RESPONDENT

THE CONSTITUENCY RETURNING OFFICER ENOCK GICHABA OTARA

( LIKUYANI CONSTITUENCY ):::::::::::::::::::::::::::::::::::::::::::::::::::2ND RESPONDENT

ENOCK WAMALWA KIBUNGUCHI :::::::::::::::::::::::::::::::::::::::::3RD RESPONDENT

R  U L  I  N G

1. The grounds upon  which the petition hereof is based are five :-

(a). Violation  of the principles of a free and fair election and electoral process .

(b). Partiality, neutrality and independence of IEBC.

(c). Relay and transmission of results

(d) Irregularities associated with the 3rd Respondent, being bribery   allegations .

(e) Other irregularity that fundamentally affected the results of the election.

2. Upon filing of the petition on the 6/9/2017 , the petitioner by his Notice of Motion  application dated 4/10/17 sought the following orders:

(1).  …………………………………………….

(2). The Honourable court makes orders securing the records materials and memoranda in the  hands of the 1st and 2nd Respondents in respect to the election for Member, National Assembly Likuyani Constituency for the election held on 8/8/2017 .

(3). That the Honourable Court be pleased to make an order for scrutiny , and if found appropriate , recount of the votes cast for the Seat of Member National ASSEMBLY , Likuyani Constituency on the 8th August, 2017. Such an order for scrutiny and audit of all the returns of the parliamentary Election including but not limited for Forms 33, 35A, 35B  KIEMS data and actual votes cast in the ballot boxes in the following polling centres;

1. Kilimani

2. Seregeyo

3. Aligula

4. Siyenga

5. Likuyani

6. Kambi Mawe

7. Lumino.

8. Mirember

9. Nangili

10. Matunda Primary

11. Matunda Secondary

12. Kware

13. Eshikulu

14. Mlimani health Centre

15. Ludodo

16. Namunyiri

17. Matisi

18. Luanda

19. Kongoni

20. Lugulu

21. Sikhendu

22. Soysambu

23. Mbururu

24. Kongoni

(4). That upon completion of the exercise, the Honourable courts makes such orders and gives such directions as it deems fit.

(5). That upon recount and confirmation of tallies , the Honourable court declares the Petitioner duly elected member, National Assembly , Likuyani Constituency .

(6). The Honourable Court makes such orders ad directions as it deems fit for the ends of a just disposal of the  Petition herein.

3.  The main grounds as may be seen on the face of the application are that, based on the affidavit evidence in support of the petition , the applicant and the declared winner have a thin margin  of less than 1000 votes , that the core issue in the petition is who was the winner in the election , amid claims of irregularities and errors in the management of the election by the 1st and 2nd Respondents.

4. The application  is premised  on provisions of section 80(4) (a), 82 of the Elections Act 2011 , Rules 30 and 31 of The Election  ( parliamentary and County Elections ) Rules 2017 and Articles 81,86 and 159 of the Constitution of Kenya 2010.

All the respondents oppose the application by their respective replying affidavits, and submissions. The application was argued after the petitioner and his witnesses evidence was taken as directed by the court on the 11/10/17 .

5. I have considered the pleadings by all the parties and  their affidavit evidence , well as the replies filed in opposition to  the orders sought.

The basis  upon which the court may order a scrutiny and or recount of votes and audit of election materials being Forms 35A and 35B  and the KIEM’s data is now well settled both in the Election Laws and regulations as well as  in numerous Judicial pronouncements.

Under section 28 and 29 of the Elections (Parliamentary and County Elections ) Petitions Rules 2017 , a petitioner or a party to an election petition may apply for an order for recount of votes or examine the tallying , if the only issue for determination is the count or tallying of votes  received by the candidates . They may too apply for scrutiny for purposes of establishing the validity of the votes cast, if the validity is questioned.

6. However, for the court to order the above exercise, it must be satisfied that there is sufficient reason in the context of the pleadings or the evidence or both . A basis for such request must be

established. It granted, it must be limited to specific polling stations in which the results are disputed or where the validity of the vote is questioned ( Rule 29 (4), in this matter in the twenty four (24) polling centres mentioned.

See Gitirau Peter Munya Vs  Dickson Mwenda Kithiuji & 2 others (2014) eKLR and  alsoRaila Odinga & others Vs IEBC & Others (2013) in Supreme Court petition No. 5 of 2013.

7.  I have stated above that the petitioners evidence has  been adduced . The petitioner, in the circumstances of this application is under a duty to demonstrate that the irregularities alleged in the conduct of the election  made the electoral process opaque and not verifiable or credible.

In William Maina Kamanda  Vs Margaret Wanjiru Kaviuki . Election petition No. 5 of 2008 cited in the Gitarau  Peter Munya  above ,the Supreme Court  stated the purpose of scrutiny as to

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

(2). Assist the court in determining the valid votes infavour of each candidate .

(3). Assist the court to better understand the vital details of the electoral process and gain impressions on the integrity of the electoral process .”

8. The Petitioners submissions on the issues is that there were numerious Forms 35As from  the cited stations  that were not stamped by IEBC ,where the petitioners agents did not sign Forms 35 As, and 35B and  that IEBC did not offer any challenge or controvert  such evidence , as well as some alterations on the said forms.

It is further submitted that no explanations were tendered on the alteration of figures and thus the only way to know the truth is through a scrutiny of the said Forms 35A and 35B.

Further it is submitted that the margin between the petitioner and the 3rd Respondent is small , being 909 votes as stated by the petitioner and 1109 votes as stated by the 3rd Respondent . That to come up with the correct valid votes cast for the Petitioner and for the 3rd Respondent an order for scrutiny  will be necessary .

9. The Respondents in their replies see no need for either the scrutiny or recount , and least audit of the KIEM’s data . It is their submission that the evidence adduced is not sufficient to persuade the court  to order the  exercise  on the  basis  that no evidence was adduced touching on the alleged  irregularities nor differences in the valid cast votes  to each of the candidates. It was a further submission that none of the petitioners agents requested  for a recount at the polling stations and  doing so  at this stage ought not be allowed . It is argued that a party cannot request for both recount and scrutiny , or in the alternative.

10. The respondents objection for audit of the KIEMS Kit data is  based on the petitioner’s, failure to lay sufficient basis for its request as the relay and transmission of results is not done through use of the KIEMS Kit and to grant such, it was submitted  , would be to admit new evidence  that would be prejudicial to them.

I have considered all submissions . The KIEM’s Kit data required by the petitioner has not been specified . It is trite  that most of the voting processes are done manually as the Kit is only used for voter registration, identification of the voter on polling day and shows the number of people who voted. None of these are under dispute. Votes are counted manually ,and the number entered manually in Form 35A, and then   physically taken  to the  constituency tallying centre manually and then entered into  Form 35B. I am satisfied that none of the petitioners witnesses had any issue with the Kiems Kit, to necessitate an audit of its data, that prayer is disallowed.

11.  Analysis of the pleadings and evidence shows that the  dispute  at hand  is  on numbers , the valid  votes cast for each of the candidates , in this matter the petitioner and the 3rd Respondent. I carefully listened to the evidence . None of the candidates agents or themselves raised disputes or reported any to the presiding officers or the security agents in any of the 24  polling stations.

The issue as I see it is the victory margin – which differs as stated above with the petitioners stated as  909 while the 3rd respondent  states the margin at  1,109 . The petitioner other than stating the margin of  909 votes  did not furnish  the court or the other parties with any document or any evidence for that matter to support his  numbers .  The 1st and 2nd Respondents did furnish and supply Form 35A’s and 35B to   the applicant and the court . It is  only one Form 35B for the constituency . I have seen it annexed  to the Affidavit of Enock Gichoba Otara the 2nd Respondent . It is the only form used to declare the results of the election of Member of National Assembly. ( See page 121 of the buddle of documents for the 1st and 2nd Respondents , and marked EG02.

12.  Form 35 B is duly stamped by IEBC and signed by three agents. I did not hear the petitioner or any of his witnesses  allude to any manipulation or alterations in Form 35B. The valid votes cast for each candidate is shown.  An issue arose as to some 30 votes which were not accounted for by IEBC . The Petitioner raised numerous  allegations of irregularities in the conduct of the elections by the 1st and 2nd respondents and by the 3rd respondent. Among other electoral malpractices stated are violation of the free and fair election processes , impartiality and neutrality of the 1st and 2nd respondents  in the relay and transmission of results. A recount can not resolve such irregularities or breaches of the electoral laws.

13. A recount will not unearth or prove any of the above allegations against the respondent. In any event the petitioner will be accorded able opportunity to cross examine the respondents and their witnesses to bring out the truths, and prove the allegations stated in the petition, if indeed such irregularities were committed.

In the case Ledama Ole King  Vs Samuel Kuritai Tunai & 10 others , Election petition No. 3 of 2013 ,(2013) eKLR, the learned judge held that the application for scrutiny lacked  specificity ,and was a blanket prayer and that the order for scrutiny  would open new evidence.

In the case of Gatirau Peter Munya ( 2014) eKLR(Supra) , it was held  the scrutiny could only be granted in respect of polling stations specified in the petition and results  are disputed.

14. In Peter Gichuki Kingara Vs IEBC & others Nyeri Election Petition No. 3 of 2013 (2013)eKLR ,the court was categorical  that any allegation of malpractice must not only be pleaded but also that evidence of such malpractice must be laid out or established prior to an order of scrutiny or recount . The court went  on to state that :-

“ Asking the  court for an order of scrutiny  or recount when there  is no evidence or basis for such an exercise would be like engaging the court on a mission of  searching for evidence  where none exists, a practice that would not only be prejudicial to the respondents but would also be deprecatory in a legal system that  believed in fair and impartial administration of justice.”

15. I say so because, having  perused the stated polling centres and stations Forms 35A’s stated to have disputes, I find that the Petitioner in his own words on cross examination on the alleged disputes in the Polling Stations did  not give any specific where the results were disputed , or where any complaints were reported

16.  In his petition , par 27,28,29,30,31,32,and 33, the Petitioner stated Stations where he alleges Forms 35 A were not:

(a) Stamped by IEBC officials and

(b) not signed by the various agents .

(c ) Not signed by IEBC officials .

(d ) Forms 35A’s did not bear names and signatures  of presidingofficers and Deputy presiding officers.

(e) Where  there were anomalies  in Forms 35A and Form 35B.

(f) Forms 35A had unexplained alterations  and not countersignedby election officials and agents.

( g) Form 35A has varying data and information ( pages 9-17 of thepetition)

17. However  on cross  examination the petitioner owned up,that he had no specific complaints in the results (numbers) announced at the said polling stations . His  chief agent (PW2). Mr.Lyanda Kilwake Aineah on cross examination confirmed that  the parties agents (ANC) did sign the Forms 35As and the  only complaint was that ANC agents were chased away at Esikhulu polling station  but were later allowed . He also verified that all ballot boxes were sealed, and therefore intact.

18. He confirmed that he had no dispute at all over the results in the 24 stated polling stations , except the delay in the announcement of the results by two days .

All the other witnesses for the petitioner had no complaints whatsoever  over the results announced at the polling stations .

19. Against the above evidence , I considered the Responses filed by the 1st and 3rd Respondents as well as the Returning Officers Replying Affidavit and specifically on the allegations on  Forms 35As, from the 24 stations . They annexed all the Forms  35A from the 120 poling centres within Lukunyani Constituency. Those are the official IEBC records . They wondered where the petitioner obtained his Forms 35As with the anomalies they stated.

20. I have looked at the IEBC Form 35A’s, from the 24 polling stations. In his Replying Affidavit sworn on the  19/9/2017 the Returning officer denied all the allegations and annexed as “ EGOI” the 120 Forms 35As. It is avered that no alterations  were made in any of the forms and that no complaints of malpractice of irregularities or a request for Recount or  scrutiny were made or recorded in  any of the polling stations  on the polling day and that the petitioners agents signed almost all the Forms.

21. I have noted that in most the returned Forms 35As the presiding officers comments were that the results were accepted by the candidates and the parties ; that tallying was acceptable and all went on well ,except in some few where there are no comments by the Presiding officers.

22. The Applicant/ Petitioner was hard pressed to tell the court where he obtained his Forms 35As. He did not have Form 35B. He told the court that he obtained them from his agents and other candidates agents and some from IEBC.

He further told the court that he did not get time to  peruse the copies provided by IEBC  vide the  Replying Affidavit . The court is unable to make a finding , at this stage ,as to the authenticity of the Forms 35As produced by the Petitioner from which data he bases his claims , and from which he says  has laid a satisfactory basis for an order of scrutiny and recount to be issued by the court .

23. In my considered view , a recount will not prove any of the alleged irregularities , biases , violence , bribery or non compliance with the law as it is about numbers of the votes cast.

To that extended , an order  for recount can not be available to the petitioner. I deny to order a recount of the votes cast.

24. As for the order for scrutiny whose purpose is stated in the William Maina Kamanda case ( supra) at pg 7 of this ruling ,and for  purposes of assisting the court to investigate fully the allegations of irregularities and breaches of which are pleaded in the petition, and for purposes of giving the Petitioner a fair hearing .

See EPT No. 7 of 2013 at Kakamega  Aurther  Kibira Apunga Vs IEBC & 2 others . The  court , Justice Ohola E.K.O rendered further that ;

“ It clarifies the lingering doubts on the tallying exercise , entries in Forms 35, confirms results at hand or identifies irregularities which cast serious doubts on the results --- ultimately the purpose of scrutiny is to validate or invalidate the results before the court ……”

25. Section  80 (4) (a) and 82  of the 2011 Elections Act and Rules 28 and 29 of the Elections ( Parliamentary and County Elections) petitions Rules 2017 provides the manner scrutiny is to be carried out.

The order is not automatic or of course. Sufficient reason must be shown. I have stated earlier in this ruling that numerous allegations of irregularities were made including there being two sets of Forms 35A’s – one put forth by the Petitioner and the other by the 1st and 2nd   Respondents. Legally there  can be only one set of Form 35As from the various polling centres and stations, and one Form 35B for the entire constituency.That casts a lot of doubt on the legality of the said sets of forms . The Petitioner stated the various  polling station and  centres subject of the irregularities.

See Hassan Mohamed Hassan of another Vs IEBC & 2  others  Election petition No. 6 of 2013 (2013) eKLR.

26. To clear the doubts and uncertainties raised by the Petitioner, it is therefore my finding that an order for scrutiny may be granted. I am satisfied that the circumstances  call for a clear establishment or otherwise of the irregularities  alleged to have been committed by the 1st and 2nd Respondents and the  election officials ,a s well as the margin of votes between the petitioner and the 3rd Respondent which is narrow with each party putting forth  a different margin number .

27. I find it necessary that a scrutiny exercise be undertaken, in the 24 Polling Stations that such irregularities and breaches of the law are alleged to have occurred. See Par. 17 above

Having stated as above , I allow a scrutiny of the votes in the 24 stated polling centres and stations by the petitioner to establish the validity of the votes cast, as well as unearth the alleged irregularities.

Guided by the provisions of Rule 29(4) of the 2017 Election ( Parliamentary and county ) Elections Rules , the exercise shall include for examination the following , election materials:

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

(b) the printed copy of the Register of voters used during the electionsSealed in a temper proof envelope;

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

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

(e) the packets of spoilt ballots;

(f) he 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.

I am minded that not all election material may be subjected to scrutiny. Suffice to state that only the disputed materials may be scrutinized see holding by J. Majanja in Wavinya Ndeti Vs IEBC & 2 others  Machakos Election petition No.4 of 2013 . This is informed by the fact that a scrutiny is not a fishing expendition to bring out fresh evidence on irregularities or illegalities that have not been pleaded or proud.

28. Following therefore the following directions and orders are issued :

1. That all the Election materials and records in respect of the 24 stated Polling Centres and stations for the election of the Member of the National Assembly for Likuyani Constituency , in the custody of the 1st and 2nd Respondents be immediately secured by having the parties to the petition place their own seals thereon.

2. That the exercise shall be overseen and supervised by the Deputy Registrar of this court , with assistance from Judicial Staff of this court who will be authorized in writing  to participate in the exercise.

3. That the 1st and 2nd Respondents shall provide adequate and secure transport  for  the election materials from IEBC  offices to the court where a room shall be secured for the exercise.

4. That the parties to the petition shall authorise and deputise two of their agents , to whom written authority shall be given to observe the exercise.

5. That upon completion of the scrutiny exercise the Deputy Registrar of the court shall prepare a report of its findings. The parties agents will be at liberty to endorse the findings by way of signatures.

The report shall then be presented to the court on a date to be agreed , but not later than the 10/11/2017 at 12. 00 Noon.

There shall be no orders as to costs.

Dated and delivered this 2nd day of November,2017.

J. MULWA

JUDGE