Farah Maalim v Independent Electoral & Boundaries Commission, Returning Officer Garissa Township Constituency, Aden Duale & County Commandant Garissa County [2017] KEHC 2673 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION NO. 4 OF 2017

IN THE MATTER OF:ARTICLES1,2, 2(2), 3(1), 4(2), 10,21(1), 22(1), 22(1) 23,38(3), 47(2), 48, 81(A) & (E), 82(2), (B), 84, 86, 87(2), & (3), 88(5), 165(3) (A) &(E) & 180 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF: SECTION 75, 80, 83 OF THE 1  ELECTIONS ACT, 2011

AND

IN THE MATTER OF: ELECTIONS ACT (NO. 24 OF 2011) THE LAWS OF KENYA

AND

IN THE MATTER OF:ELECTION OFFENCES (ACT NO. 37 OF 2016) THE LAWS OF KENYA

AND

IN THE MATTER OF: ELECTIONS ACT 2011, (ACT NO. 24 OF 2011) AS AMMENDED

AND

IN THE MATTER OF:LEGAL NOTICE NO. 128 OF 2012, THE ELECTIONS (REGISTRATION OF VOTERS) REGULATIONS, 2013

AND

IN THE MATTER OF: PARLIAMENTARY AND COUNTY ELECTIONS PETITION RULES, 2017

AND

IN THE MATTER OF: ELECTIONS (GENERAL)   AMENDMENT   REGULATIONS, 2017

AND

IN THE MATTER OF: A PETITION BY

FARAH MAALIM……………….........…………………………….. PETITIONER

AND

INDEPENDENT ELECTORAL &

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

RETURNING OFFICER

GARISSA TOWNSHIP

CONSTITUENCY .....…..………….……………………….2ND RESPONDENT

HON. ADEN DUALE……...…..………………………….3RD  RESPONDENT

COUNTY COMMANDANT

GARISSA COUNTY…….…....….………..……………..4TH  RESPONDENT

RULING

1. Farah Maalim, the petitioner and applicant was one of the contestants in the Garissa Township parliamentary elections that were held on the 8th August, 2017. The 2nd respondent declared results on 9th August, 2017 wherein the 3rd respondent (HON. Aden Duale) was declared winner and MP elect vide gazette notice Vol. CXIX NO. 121 GAZZETTE NOTICE No.8239.

2. By the Notice of Motion dated 6th September, 2017, the petitioner impugned the results on grounds that the elections were marred with irregularities and illegalities and were made in breach of the Constitution and applicable electoral laws. He sought the following orders among others:-

1. That the notice of motion be certified as urgent owing to its demonstrated extreme urgency, and be heard ex parte in the first instance during this vacation period pursuant to the vacation rules therein.

2. That the petitioner be granted a read only access with permission to copy:-

(i)Specific GPRS location of each of the KIEMS kit and their co-ordinates used for the Garissa Township Constituency for the period between and including 5th August, 2017 and 11th august, 2017

(ii)Log in trails of users and equipment used to gain access into the IEBC servers for Garissa Township Constituency

(iii)Log in trail of users and equipment’s used to gain access into the KIEMS database management systems for Garissa township constituency

3. That the 1st respondent through its CEO be compelled to produce before the court and the petitioners the following documents;

a. Copy of the register used during the Garissa Township Constituency parliamentary elections covering all the polling stations and wards,

b. Copies of results of each polling station in the constituency

c. Any written report from its officers and complaints of the candidates and their representatives

d. The packets of all spoilt ballot papers for the entire constituency.

e. The packets of counterfoils of used papers for the entire constituency.

f. The packet of counted valid ballot papers for the entire constituency

g. The packets or rejected ballot papers for the entire constituency

h. The statement showing the number of rejected ballot papers in the entire constituency

i. The original form 36 Declaration of elections results at Garissa township constituency

j. A certified list of all persons appointed by the 1st respondent as the polling clerks, presiding officers and deputy presiding officers and the returning officer in the constituency for the purpose of the conduct of the 8th August 2017 Garissa Township Constituency, elections.

k. A certified copy specifying:-

i. The exact number of ballot books issued to each polling clerk within Garissa township constituency for the conduct of Garissa town parliamentary elections held on 8th  August, 2017

ii. The number of ballot books returned unused to the IEBC for the Garissa Township parliamentary elections and their respective serial numbers

iii. The total number of IEBC stamps for valid votes, spoilt votes and rejected votes issued by the 1st respondent to the 2nd  respondent in respect of Garissa township parliamentary elections held on 8th August, 2017.

iv. The total number of IEBC stamps for valid votes, spoilt votes and rejected votes issued by the 1st respondent to the polling clerks in respect of Garissa township parliamentary elections held on 8th  August, 2017.

4. An order compelling the 4th respondent to deploy police officers to secure all the election materials subject to these proceedings

5. That the petitioner be allowed to add his padlock on the lock where the materials will be stored to prevent illegal entry until otherwise directed by the court.

6. The Hon. Court to issue directions as to the hearing of the main petition.

7. The costs of the application.

3. The application is supported by the grounds on its face as well as the 1st petitioner’s supporting affidavit sworn on 6th September, 2017. The 1st and 2nd respondents filed their grounds of opposition on 3rd October, 2017. The 3rd respondent also filed his grounds of opposition on 2nd October, 2017. The petitioner/applicant filed skeleton submissions on 2nd October, 2017, while the 1st & 2nd respondents filed theirs on 3rd October, 2017

4. When the application came for hearing on 3rd October, 2017 Mr. Ayiro for the petitioner/applicant submitted that the applicant was seeking prayers No.2, 3, & 4 of the application which touch on securing the electoral materials used in the Garissa Township parliamentary elections.  It was his submission that the said election was marred with irregularities and illegalities and raises many issues on the 1st and 2nd respondents’ conduct. Counsel stated that the petitioner had a right under Article 35 of the Constitution to seek the information he seeks through this application.

5. He said that the application was made in respect and honesty as the applicant guided by the Supreme Court procedure in securing electoral materials believed that the 1st respondent had a duty to secure the said materials.  He cited Article 86 of the Constitution and Regulation 93 of the Election Petition Rules.  He argued that where the material is so secured an affidavit in that regard should be filed.  He added that the application was not prejudicial to the 3rd respondent but could strengthen his win. On the other hand he argued that failure to secure the kits would prejudice the petitioner/applicant. He therefore urged the court to allow the application.

6. Mr. Isssa Mansur for the 1st & 2nd respondents urged the court to take judicial notice that all the kits used in the Garissa Township Parliamentary elections on 8th August, 2017 had been retrieved from their stations.  That the said kits were currently at the 1st respondent’s head office in Nairobi for reconfiguration for use in the repeat of presidential elections to be held on 26th October, 2017. He added that the data previously stored in the KIEMS kits had been moved into an SD card currently stored at the 1st respondent’s constituency office in Garissa in compliance with Regulation 86 of the Election (General) Regulations.

7. It was his further submission that the petitioner’s application was premised on Article 35 of the Constitution of Kenya 2010. That it was only after a decline to the request that the applicant could move the court for such an order. Counsel argued that such a request should have been made within 28 days after the declaration of results. He stated that the applicant had not shown that he made any request under the Access to Information Act.

8. Regarding prayer No. 2, Counsel submitted that the Order sought is not grounded on any complaint in the petition e.g. loss of kits or the working of the kits in the Garissa Township Constituency.  Prayer No. 3 was opposed on the ground that the register was in the KIEMS kit and para (b) of prayer 3 had been dealt with while prayer 3c-h would be dealt with during the pretrial conference.

9. Counsel argued that the applicant had not shown why he wanted the 1st & 2nd respondents to make copies of all the documents in prayer 3 for him.  He stated that this was an attempt to re-open a whole election and the applicant should not be granted the orders sought.

10. Senior Counsel Mr. Ahmednassir for the 3rd respondent relied on the grounds of opposition in opposing the application.  He associated himself with the submissions by Mr. Issa for the 1st & 2nd respondents. He submitted that the application lacked any factual basis and does not lie in law. He said the right to information should not be abused as an election petition is not a bill of rights petition. He further argued that the petitioner’s right to information should not be confused for searching for information as the petitioner was just looking for evidence to boost his petition.

11. Counsel submitted that the applicant had not raised any particular complaint on any specific polling station as his application was too generalized and the orders sought were not limited to any particular polling station/stations.  Referring to his list of authorities, Counsel submitted that scrutiny of election materials must be specifically pleaded. He prayed for dismissal of the application with costs.

12. In reply Mr. Ayiro for the applicant stated that Regulation 93(2) of the Elections (general) Regulations provides for inspection of documents.  Further that the present application was not the same as an application for scrutiny.  The application he said, touched on both the manual and electronic election process and the two should not be separated. He urged the court to ensure that the election materials used in the subject election are secured.

13. The petitioner and the 1st & 2nd respondents filed skeleton submissions which I have carefully read and considered. I have also considered the authorities filed and relied on by the parties herein as well as their oral submissions. I find the issues falling for determination to be:

(i) Whether this court should order for the electoral materials for the subject election, to be secured.

(ii) Whether to allow the petitioner access tothe KIEMS kits used during the subject  election.

Issue No. (i)Whether this court should order for the electoral  materials for the subject election to be secured.

14. On securing of election materials, the 1st respondent is by law required to ensure the security of election materials after elections for a period of three years. Regulation 86 of the Election (General) Regulations, 2012 provides:

(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.

15. Further Regulation 93(1) of the Election (General) Regulations, 2012 provides:

(1) All documents relating to an election shall be retained in safe custody by the returning officer for a period of three years after the results of the elections have been declared and shall then, unless the Commission or the court otherwise directs, be disposed of in accordance with procedures prescribed by the Public Archives & Documentation Service Act (Cap. 19)

16. From the above provisions of the law, it is my view that the 1st respondent has the duty to secure electoral materials. When this responsibility is questioned, it is the duty of the 1st respondent to assure the court of such compliance.  In this case it is counsel for the 1st and 2nd respondents who has informed this court that there has been such compliance.  It would have been prudent for the 2nd respondent who is the returning officer for the subject election to swear an affidavit and confirm compliance with Regulations 86 and 93(1) of the Election (General) Regulations.  This court may therefore order the 1st & 2nd respondents to undertake and ensure security of the materials used in the subject parliamentary election. This will however be dealt with during the pretrial conference.

Issue No. (ii)whether to allow the petitioner access to the KIEMS kits used during the subject election.

17. The applicant argued that he has a right to information and secondly that the subject election was marred with irregularities and illegalities.  The respondents in opposing the application argued that the requirements under the Access to Information Act had not been complied with by the applicant.  Secondly that the applicant had not laid any basis to warrant the issuance of the orders sought.  They argued and cited authorities showing that scrutiny is not a matter of course.

18. I have considered all these submissions and authorities.  The thread running through them is that scrutiny and/or recount has its place in any petition.  It is not an issue that can be considered at this stage.  See Rishad A. Amana V. IEBC & 2 others Malindi EP No. 6/2013 U/R at paragraph 29;

19. It is true that the applicant has cited Article 35 among the provisions of law he relies on to seek access to the KIEMS kits.  It must however be appreciated that what is before this court is an election petition and not a constitutional petition.  Failure to comply with the requirement for requests under the Access to Information Act in an Election petition would in my view not be fatal.  Section 80 (I) (d) of the Election Act provides that:

(1) An election court may, in the exercise of its jurisdiction-

(d) decide all matters that come before it without undue regard to technicalities.

20. The petition herein was filed on 5th September 2017 while this application was filed on 7th September 2017.  The Elections (Parliamentary & County elections) Petitions Rules 2017 do not set out the period within which interlocutory applications ought to have been filed.  What is however clear under Rule 15 is that by the time the court conducts the Pretrial conference the applications ought to have been filed. This application was therefore filed within that time frame and is properly before this court.

21. I do agree with the submissions by the respondents that prayer 3 amounts to scrutiny and it is premature. This is an issue which should be handled during the pretrial conference.  No evidence has been laid before this court to warrant the issuance of prayers No. 4 & 5. It has not been shown that the materials are in any eminent danger or that they have not been secured.  Prayer No. 6 is also premature as what is being asked for will be dealt with during the pretrial conference.

22. I am therefore left only with prayer No. 2 to deal with,  since prayer No. 1 has been spent.  Regulation 93 (2) of the Elections (General) Regulations, 2012, provides:

“Any person may apply to the High Court with notice to all candidates in the election concerned for authority to inspect documents retained under these Regulations, other than ballot papers, and their counterfoils.”

23. Preservation of these electoral materials by the 1st & 2nd respondents is for the interest of all the parties involved in this petition and for the purpose of enabling the court arrive at a just determination of the matter.  The KIEMS kits are part of the materials which are secured by the 1st & 2nd respondents.  They are therefore part of the materials that may be inspected upon issuance of an order by the High Court.  The court must however guard against giving the petitioner/applicant an opportunity to go on a fishing expedition for new evidence.

24. Mr. Issa for the 1st and 2nd respondents stated that the data from the KIEMS kits has been stored in SD cards which are at the Constituency IEBC offices.  The KIEMS kits are at the Nairobi IEBC offices for purposes of reconfiguration.  There is a three week period between the delivery of this ruling and the repeat presidential elections. There is no guarantee that the KIEMS kits will be available soon after the repeat elections of 26th October 2017. What is available for now are the SD cards.  The petitioner is seeking his right under the law and provision must be made for him in the interest of justice.

25. I therefore allow the petitioner/applicant to a read only access to the data extracted from the KIEMS kits in respect to the polling stations enumerated in prayer b (vii) of the Petitioner/applicant’s supporting affidavit sworn on 6th September 2017.  The polling stations are: Garissa Secondary School, Jamuhuri, Nasin Primary School, Kazuko Primary, Chief Medina, ASK Show, Nep Girls, Garissa Ndogo, Yathrib Primary School, Jaribu Primary School, Kenya National Library County High School, Sambul Primary School, Guest House, Iftin Primary School, Young Muslim Primary School, Kiwanja Najah Primary School, Rahma Village, Bulla Nur Primary, Sambul Primary School, Korakora Primary School, Chief Township Office Centre, Garissa Ndogo Open Grounds, Umu Salama Girls Secondary School, Jaribu Primary School, Garissa Medical Training College, Garissa Youth Polytechnic, Kefri Centre, Hyuga Girls Primary Schol, Tetu Primary School, Jamuhuri Club, ADC Primary, Boytown Primary School, Nasib Primary School, Garissa Secondary School.

The 1st respondent to make arrangements for the read only access to be conducted in the presence of all the parties and/or their agents. Compliance must be within 5 days.

26. The result is that all prayers are disallowed save for prayer No. 2, which is allowed for a read access only to specific polling stations, as mentioned above.

Costs to be in the cause.

Orders accordingly.

Dated, Signed and delivered this 6th day of October, 2017 in open court at Nairobi

H.I. ONG’UDI

JUDGE