GEORGE ALADWA OMWERA V BENSON MUTURA KANGARA & 2 OTHERS [2013] KEHC 3282 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Election Petition 4 of 2013 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]

IN THE MATTER OF THE ELECTIONS ACT, LAWS OF KENYA

AND

IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY) ELECTIONS PETITION RULES

AND

IN THE MATTER OF THE ELECTION FOR THE MEMBER OF PARLIAMENT MAKADARA CONSTITUENCY

GEORGE ALADWA OMWERA.…….…………………...…….. PETITIONER

VERSUS

BENSON MUTURA KANGARA..…………………..…….1ST RESPONDENT

FLORENCE KWAMBOKA MOGAKA, RETURNING

OFFICER MAKADARA CONSTITUENCY….…..........…2ND RESPONDENT

THE INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION (IEBC)………………..….3RD RESPONDENT

RULING

1. At the commencement of the hearing on 3rd June 2013, Mr. Miller for the Petitioner sought clarification as to whether the 2nd Respondent (IEBC) had complied with the provisions of Rule 21 of the Elections Petition Rules. Counsel argued that the petition could not proceed unless that mandatory provision had been complied with. Rule 21 provides as follows:

“The Commission shall deliver to the Registrar –

(a)the ballot boxes in respect of that election not less than forty eight hours before the date fixed by the court for the trial; and

(b)the results of the relevant election within fourteen days of being served with the petition.”

2. The 3rd Respondent’s answer was that this had not been done; that the Petitioner had not raised this matter earlier at the pre-trial conference; but that it could, if ordered, deliver the same. The 1st Respondent, on his part, objected to the delivery of the ballot papers on grounds of the Petitioner’s delay in seeking formal compliance with the Rule.

3. The Court, in a short ruling, held that the failure to comply with Rule 21 could not inhibit the court from proceeding with the hearing on the dates consensually agreed by the parties, since the issue of non- compliance had not previously been raised by the Petitioner. The court decided it would proceed with the expeditious disposal of the hearing as earlier fixed. The Petitioner then sought, and was granted leave to appeal.

4. At the close of the first day of hearing, the Petitioner orally applied for directions that the 2nd Respondent be ordered to deliver the ballot papers in compliance with Rule 21. Counsel pointed out that at the appropriate time, the Petitioner would make an application under Rules 32 and 33 for scrutiny and recount. Accordingly, Rule 21 must be complied with in any event.

5. Mr Kibe for the 1st Respondent opposed the application on the ground that no prayer had been sought by the Petitioner for scrutiny of votes under section 82 of the Elections Act.

6. Mr Onsando for the 2nd and 3rd Respondents also opposed the application. He characterized it as an attempt by the Petitioner to institute an appeal to the court against its earlier decision. Further, he concurred with the 1st Respondent that a recount had not been pleaded, which is what Rules 32 and 33 were intended to provide for, where the only issue was the tallying of votes. Finally, counsel argued that as there were no disputed votes there was no justification for scrutiny or recount. In any event, counsel stated, it was too late in the day for interlocutory applications.

7. In response, Mr Miller asserted that scrutiny of votes may be ordered by the court on its own motion, or on application by a party at any stage of a hearing pursuant to section 82(1) of the Elections Act. Finally, Counsel stated that he was not applying for scrutiny at this point but was merely seeking a direction that the 2nd Respondent should comply with Rule 21.

8. I have considered the parties submissions, and note that the Petitioner is not at this stage making an application for scrutiny or recount under section 82 of the Elections Act.

9. In the circumstances, only one issue lies for determination: Does Rule 21 of the Petition Rules mandatorily and automatically require the Commission in every petition to deliver to the Registrar the ballot boxes for the election concerned irrespective of whether scrutiny or recount shall be resorted to?

10. In interpreting the meaning of Rule 21, the whole context of the Rules and the Elections Act, as the enabling statute, must be read together. This would avert a literalistic or narrow approach which may not be in accord with the purpose of the law.

11. Rule 4(1) and (2) of the Rules supports this approach. It provides that:

“(1) The overriding objective of these Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act.

(2) The court shall, in the exercise of its powers under the Constitution and the Act or in the interpretation of any of the provisions in these Rules, seek to give effect to the overriding objective specified in sub-rule (1).”

12. The first point to note is that Rule 21 places two obligations on the Commission. The first in time is to deliver the results within fourteen days of being served with the petition. This is in accord with the obligation of a petitioner under Rule 10(1)(c) to state in the petition “the results of the election however declared”, and the obligation on the respondent under Rule 14(1) to file a response within fourteen days. It also accords with section 39 of the Elections Act that obliges the Commission to determine and declare election results after closure of polling. The second obligation is for the Commission to deliver the ballot boxes to the Registrar before commencement of the hearing.

13. It is clear that the Elections Act recognizes three types of petition. The first is that under Section 76(1)(a), to question the validity of an election. This clearly covers petitions of the widest scope and character. The second is that under section 76(2), limited to questioning a return or an election upon a ground of a corrupt practice and alleging payment of money. The third one is that under section 76(3), which is limited to questioning a return or an election upon an allegation of an illegal practice or alleging payment of money. Whilst an illegal practice is described as one falling under sections 69 to 72 of the Elections Act, a corrupt practice is not defined in the Act. However, practices or acts involving “corruption” are clearly defined in section 2 of the Anti - Corruption and Economic Crimes Act, Chapter 65, and include crimes of dishonesty, fraud, bribery, embezzlement, misappropriation, abuse of office, inducement, deceit, rigging, breach of trust, and the like.

14. Section 82 of the Elections Act is the provision under which scrutiny of votes is enabled, and therefore under which Rules 32 and 33 of the Rules is predicated. Under those rules, the votes which, on scrutiny, may be struck off are the votes of persons not on the register; or whose vote was procured by bribery, treating or undue influence; or who committed or procured the commission of personation; or who voted in more than one constituency; or who was disqualified by reason of conviction of an election offence; or the vote of a disqualified candidate.

15. In the context of section 76 therefore, and the different types of petition, and given the nature of scrutiny as expressed under section 82, there is no basis for suggesting that in respect of every type of petition there is always need for scrutiny. Accordingly, it is not the case that ballot boxes need necessarily always be availed for every petition. I consider that the more accurate perspective of the law overall, is that ballot boxes are required on a case by case basis whenever scrutiny is in issue, and in such case, on the motion of the court or upon application of a party.

16. The court also has to consider, in terms of pragmatism, what is connoted by the requirement of Rule 21 to “deliver to the Registrar the ballot boxes”. Within this phrase is covered all aspects that pertain to the security of voting materials, the maintenance of their integrity from the completion of voting and their sealing, the verification of their state from the date of voting up to the date upon which they are ordered up by the court, and the overall safety of the boxes for use in the scrutiny.

17. In addition, upon receipt of ballot boxes, it is incumbent upon the Registrar to ensure, inter alia, that the following steps are taken, information recorded and actions assured: The name, designation and details of the person or persons delivering and the person or persons receiving the boxes is duly noted; the date and time of delivery is noted; record of the physical address and details of the place of delivery; the case number and parties in whose respect the delivery is made; the number of ballot boxes delivered; the date of issue of the order for delivery; the electoral post in respect of whom the delivery is made; the electoral region in respect of whom the delivery is made; details regarding whether all or only some of the boxes are sealed, and whether intact or tampered with; the total number of seals on each box; the colours of the seals used; a record of the seal number on each of the seals used; and an accurate description of the condition of the ballot boxes.

18. These aspects, not to mention the costs involved in security and transportation, are amongst the details which would have to be taken into account in ensuring a proper delivery, irrespective of whether a physical movement of the ballot boxes is involved or not. The importance of these details cannot be gainsaid if the integrity of the delivery and subsequent scrutiny is to be guaranteed to withstand the tests of inspection and examination, in such event. Accordingly, it appears to me that delivery of ballot boxes cannot have been envisaged as an event that occurs willy-nilly and automatically every time a petition hearing is fixed. From this perspective, delivery must relate to the issues that are the subject matter of the petition and the reliefs sought by a party.

19. In light of all the above, I am not prepared to hold that it is forgone under Rule 21, that the moment forty eight hours before a petition hearing is arrived at, and without more, the Commission is under strict automatic mandatumor precept to deliver the ballot papers to the Registrar. Accordingly, I decline to so order, and direct that delivery of ballot boxes shall be upon an application by a party or on the court’s motion, in appropriate circumstances. The purpose and overriding objective of delivery of ballot boxes is to enable effective and efficient scrutiny thereof.

20. In reaching this decision, I am also aware of the case of Microsoft Corporation v. Mitsumi Computer Garage Ltd & Anor [23001] KLR 470where Ringera, J. held:

“Deviations from or lapses in form and procedure which do not go to the jurisdictionof the Court or prejudice the adverse party in any fundamental respect ought not to be treated as nullifying the legal instruments thus affected. In those instances the Court should rise to its higher calling to do justice by saving the proceedings in issue”( Underlining added)

21. In obiter, remarks the same judge stated:

“Rules of procedure are the handmaidens and not the mistresses of justice. They should not be elevated to a fetish. Theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not to choke it”

22. Accordingly, I hereby dismiss the application. Costs to abide the event. I direct that the hearing shall now continue as previously scheduled by this court.

Orders accordingly.

Dated, signed and delivered this  05  day of June  2013

R.M. MWONGO.…................................................... JUDGE

Read in open court In Presence of Parties/Representative as follows:

a)Mrs. MacAsila for Petitioner

b)Mr. Onsando Osimo & Tiego for 2nd & 3rd Respondents

c)Mr. Kibe Mungai for 1st Respondent

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