George Aladwa Omwera v Benson Mutura Kang’ara, Florence Kwamboka Mogaka & Independent Electoral And Boundaries Commission [2013] KEHC 5502 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

ELECTION PETITION NO. 4 OF 2013

BETWEEN

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

AND

BENSON MUTURA KANG’ARA ………………….........…. 1ST RESPONDENT

FLORENCE KWAMBOKA MOGAKA ………….................2ND RESPONDENT

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION ………………................... 3RD RESPONDENT

RULING

During the evidence of the Petitioner’s witness 1, Daniel Nyakundi, it was clear from his affidavit sworn on 5th April, 2013 at paragraphs 10 to 13 that he had received two ballot papers for Member of Parliament elections in Makadara Constituency, Kaloleni Primary School, Polling Centre.  That he had voted with both ballot papers and was assisted in the exercise by at least two officials of IEBC.  His evidence  on cross-examination and  Re-examination  reiterated the facts and confirmed the same.  The witness was  also taken through and did read the provision of section 58 (m) of the Elections Act and understood that voting twice is an offence punishable by a fine not exceeding one million shillings  or 6 years in prison.  Counsel for IEBC seeks the arrest of the witness on his own admission of wrongdoing for further investigations. Counsel for the Petitioner seeks that the IEBC officials who were mentioned by the witness should also be arrested for investigation and a list be brought to court of all officers  involved in the election at Kaloleni.

This court is a court of law.  An offence has been admitted to have been committed by witness Daniel Nyakundi. It would be improper if such actions, admitted in court, should not be further investigated so that all who are culpable face the consequences.   Aiding and abetting any crime is also a criminal offence.

Accordingly I am inclined to, and do order as follows:

Daniel Nyakundi ID No. 24634472 be arrested forthwith on his own clear and unambiguous admission of culpability as having voted twice contrary to section 58 of the Elections Act and that investigations be carried out by the police in that regard.

Counsel for the 2nd and 3rd Respondent do provide this court with the list of all officers of IEBC who were  involved  or engaged at Kaloleni Primary School  Streams 2 and 5 not later than  close of business today.

All such officers shall forthwith record a statement with the police and investigations be carried out by police with the aim of identifying the officers or officer of IEBC who were complicit in the unlawful act.

That the matter be handled hereafter by the appropriate court at first instance.

Orders accordingly.

DATED at Milimani Law Courts, NAIROBI this 6th Day of June, 2013.

..........……………………………………..

R. MWONGO

JUDGE