Joseph Oyugi Magwanga & Joshua Orero v Independent Electoral and Boundaries Commission, Returning Officer Homa Bay County, Cyprian Awiti & Hamilton Orata [2017] KEHC 10124 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMABAY

ELECTION PETITION  NO. 1 OF 2017

IN THE MATTER OF ELECTIONS ACT, 2011

AND

IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTION) PETITION RULES, 2017

AND

IN THE MATTER OF THE ELECTION FOR THE GOVERNOR OF HOMABAY COUNTY

BETWEEN

JOSEPH OYUGI MAGWANGA …….…………..…….......1ST PETITIONER

JOSHUA ORERO ………………………………….......… 2ND PETITIONER

VERSUS

INDEPENDENT ELECTORAL  AND

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

THE RETURNING OFFICER HOMA BAY COUNTY...….2ND RESPONDENT

CYPRIAN AWITI ……………..………………….......….3RD RESPONDENT

HAMILTON ORATA …………..……………….…....…...4TH RESPONDENT

R U L I N G

1. The Gubernatorial election for the County of Homa-bay was held during other elections on the 8th August 2017.  The Independent Electoral and Boundaries Commission (I.E.B.C)(First Respondent) was responsible for the conduct of the said election as provided under Article 88(4) of the Constitution of Kenya, 2010, and through its returning officer for the County of Homa-Bay (Second Respondent) it declared or announced on the 10th August 2017, that Mr. Cyprian Awiti (third Respondent) and Mr. Hamilton Orata (fourth Respondent) were the duly elected Governor and Deputy Governor respectively for the County of Homa-Bay.

2. Mr. Joseph Oyugi Magwanga (First Petitioner) and Mr. Joshua Orero (second Petitioner) were among the several candidates for the said two electoral positions.  As it were, the second Petitioner was the first Petitioner’s running mate in the elections.  They were aggrieved by the outcome of the election as announced by the first Respondent and therefore filed the present Petition seeking orders for scrutiny and audit of the electoral returns including Forms 37A, 37B and 37C as well as the Kenya Integrated Electoral Management System (KIEMS) Kit, sampling and recount of votes in the specified polling stations and an order that the third and fourth Respondents were not validly elected.

3. The Petitioners also seek an order directing the Director of Criminal Investigations to investigate possible election offences committed by agents of the first Respondent and the third or fourth Respondents or their agents and those found culpable be prosecuted by the Director of Public Prosecution.  The Petitioners further seek a declaratory order to the effect that they were validly elected Governor and Deputy Governor respectively for the County of Homa-Bay and be sworn in and assume office forthwith.  Alternatively, an order that a fresh gubernatorial election for the County of Homa-Bay be held.  Lastly, the Petitioners pray for costs of the Petition and any other relief or redress the court may deem expedient in the cause of determination of this Petition.

4. All the Respondents filed their respective responses to the Petition and called for its dismissal with costs. Following the Petition are two interlocutory applications by the Petitioners vide a Notice of Motion dated 6th September 2017 and another dated 5th October 2017.  At the pre-trail conference held on the 11th October 2017 this court directed that the application be heard by way of affidavit evidence and written submissions which were to be orally highlighted, if necessary.

5. With regard to the application dated 6th September 2017, the basic orders sought by the Petitioners are that pending the hearing and determination of the Petition:-

(a)The integrated electoral system kits (KIEMS) used for all the polling stations and tallying centres respecting the gubernatorial election for Homa Bay County held on 8th August 2017 in all the eight (8) constituencies within the identity be preserved and secured or safely kept.

(b)All electoral material used in the said gubernatorial election by the first and second respondents including ballot boxes, written statements by presiding officers, printed copies of the results i.e Forms 37A, 37B and 37C, packets of spoilt ballot papers etc be preserved and secured and the Petitioners be given immediate access by the first and second respondents to place their own seals on the ballot boxes.

(c)There be a recount and retallying of votes cast in all or randomly selected polling stations in Wang Chieng, Karachuonyo and all the polling stations particularized in paragraph 34 of the Petition.

(d)There be a scrutiny of votes cast in all or alternatively randomly selected polling stations particularized in paragraph 34 of the Petition.

6. The application is based on the grounds in the body of the appropriate Notice of Motion as fortified by the averments contained in the supporting affidavit of the first petitioner dated 6th September 2017. All the Respondents oppose the application on the basis of their respective grounds of opposition and/or replying affidavits filed herein on 18th September 2017 and 19th October 2017 by the first and second Respondents and on the 23rd October 2017 by the third and fourth Respondents.

7. With regard to the application dated 5th October 2017, the Petitioners basically seek orders to Firstly, have the first and second respondents compelled to produce original Forms 32A, 37A, 37B and 37C used for all polling stations and tallying centres respecting the Homa Bay County elections held on 8th August 2017, in all the eight constituencies forming the county.  Secondly, have the first and second Respondents produced all the logs in respect of the 1062 KIEMS Kits used in the said elections.  Thirdly, have the first and second respondents provide records of the total number of voters who voted per polling station, total votes cast per polling stations, the number of voters who had been identified biometrically and by supervision mode per polling stations as at 0900hrs, 100hrs, 1300hrs, 1500hrs and 1700hrs, the total number of voters who were identified biometrically and by supervision mode per polling station and the total number of voters identified by the KIEMS Kits.

8. Fourthly, have scrutiny of various ballot materials including Forms 32A, 37A, 37B and 37C in all the eight constituencies forming the County of Homa Bay for verification by the Petitioners.

The grounds in support of this application are in the body of the appropriate Notice of Motion and are fortified and enhanced by the supporting affidavit of the first Petitioner dated 5th October, 2017.

9. The application is opposed by all the Respondents on the basis of the grounds of objection filed on the 19th October 2017 and dated 18th October 2017 by the first and second Respondents and also on the grounds of opposition by the third and fourth Respondents dated 19th October 2017 and filed on 23rd October 2017.  Each party was at the pre-trial conference given the leave to file further or additional affidavits prior to the hearing of the applications.

10. All the parties filed their respective written submissions in support of or in opposition to the two applications.  These and the oral highlights thereof by counsel representing each party have been given due consideration by this court.  First and foremost, let it be stated that the best way of determining an election petition such as the present one is through a full hearing of the matter, meaning that interlocutory applications should be avoided or kept at a minimal if only to realize the overriding objective of the Elections Petitions Rules 2017, which is to facilitate the just, expeditious, proportionate and affordable resolution of the election petitions under the Constitution and the Elections Act.  (See Section 4(1) of the Elections (Parliamentary and County Elections) Petitions Rules, 2017.

11. However, the objective may also be realized other than by way of a full hearing by the parties involving Article 159(2)(c) of the Constitution and attempting an out of court settlement through Alternative Dispute Resolution Mechanism (ADR) such as reconciliation, mediation or arbitration.  The court, even in electoral disputes, has a constitutional duty to promote Alternative Dispute Resolution mechanisms as part of its management of such cases.

12. For a start, consideration being given to the fact that the Petition itself and these two applications include prayers for scrutiny, recount and/or re-tally of the votes cast in the subject election and that the exercise and its outcome may actually determine who between the Petitioners and the third/fourth Respondents attained the highest number of the valid votes cast, hence be declared by this court as the validly elected Governor and Deputy Governor respectively of the County of Homa Bay, would it not be reasonable if the parties were to arrive at an agreement along these  lines so that this Petition may be concluded with lightening speed without much ado?

13. After all, aren’t the alleged anomalies in the electoral Forms 32A, 37A, 37B and 37C post-election anomalies which may not have affected the vote and which could be cured by scrutiny and recount of all the votes, more so, considering that the object of scrutiny may include to ascertain by striking out votes or adding votes for purposes of determining which candidate had the majority of the lawful votes? Is it not the object of recount to eliminate any mistake made in the counting of votes?

14. Even as this matter progresses the parties are at liberty to agree at any stage of the proceedings on a determination of the dispute by way of scrutiny and recount of all votes cast in the subject gubernatorial election and declaration thereafter of the winner by the court.  Under Section 75(3) (b) of the Elections Act 2011, a court is bestowed with the power to declare which of the competing candidates was validly elected.  Short of that, a court may order that a fresh election be held if only to undo the “wrongs” which may have occurred in the conduct of the impugned elections and thus firmly give effect to the will of the electorate and protect their fundamental rights guaranteed under Article 38 of the Constitution.

15. Be that as it may, the application dated 6th September 2017 is brought under Articles 81 and 82 of the Constitution and Sections 75, 76, 80 and 82 of the Elections Act 2011, together with Part VI of the Elections (Parliamentary and County Elections) Petitions Rules, 2017.  Both Articles 81 and 86 fall within Chapter Seven of the Constitution of Kenya, 2010 which deals with the representation of the people to whom all sovereign power belongs and which power must be exercised in accordance with the Constitution either directly by the people or through their democratically elected representatives as provided in Article 1(1) and (2) of the Constitution.

16. Part 1 of the Chapter Seven of the Constitution deals with general principles for the electoral system and these include free and fair elections which are by secret ballot, free from violence, intimidation, improper influence or corruption and which are conducted by an independent body in a transparent, impartial, neutral, efficient, accurate and accountable manner (see, Article 81(e) Constitution).

17. Article 86 deals with voting which is, most importantly, a direct exercise of the people’s sovereign power.  It is through such exercise of power that the people express their will in any election conducted by an independent body such as the Independent Electoral and Boundaries Commission [I.E.B.C] which is the first respondent in this matter and which is required by dint of Article 86 to 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 properly 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.

(d)Appropriate structures and mechanisms to eliminate electoral malpractice are put in place including the safe keeping of election material.

18. Under Article 87(1) of the Constitution, Parliament enacted legislation to establish mechanisms for timely settling of electoral disputes.  These included the Elections Act, 2011 and the Rules and Regulations made thereunder.  Sections 75, 76, 80 and 82 of the Elections Act are invoked in this application.  They all fall under Part VII (seven) of the Act which basically deals with election disputes resolution by way of settlement through the Electoral Commission and Election Petitions through the High Court and Resident Magistrates Courts.

19. Part VI (six) of the Elections (Parliamentary and County Elections) Petitions Rules 2017, is also invoked in this application.  It essentially deals with scrutiny and recount of votes.  Thus, Section 28 of the Rules provides that:-

“A Petitioner may apply to an election court for an order to-

(a)Recount the votes or

(b)Examine the tallying, if the only issue for determination in the Petition is the count or tallying of votes received by the candidates.”

And Section 29(1) provides that:-

“The parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes.”

Sub-section (2) of the provision provides that:-

“On an application under subrule (1) an election court may, if it is satisfied that there is sufficient reason order for scrutiny or recount of the votes.”

20. The Petitioners herein, vide prayers six (6) and seven (7) of this application seek recount and/or retallying and scrutiny of the votes cast in specified polling stations and/or Constituencies within the County of Homa-Bay.  The preceding prayers three (3) and five(5) seek orders for preservation and safekeeping of the Integrated Electoral System Kits (KIEMS) used in all the eight (8) Constituencies of Homa Bay County together with all the electoral materials used in the impugned election.

21. The Elections Act 2011 defines electoral materials to mean ballot boxes, ballot papers, counterfoils, envelopes, packets statement and other documents used in connection with voting in an election and includes information technology equipment for voting, the voting compartments, instruments, seals and other materials and things required for the purposes of conducting an election.

22. Such materials are normally preserved and safely kept by the Electoral Commission responsible for the conduct of the elections (i.e IEBC) pursuant to Article 86(a) of the Constitution.  The period such preservation and safe keeping is three (3) years as provided by Regulation 93 of the Elections (General) Regulations, 2012.

23. The IEBC (1st and 2nd Respondents) in exercise of its mandate under Article 86(a) of the Constitution is currently safekeeping and preserving all the materials used in the Homa-Bay gubernatorial election conducted on the 8th August 2017.  But notwithstanding this constitutional requirement the Petitioners by this application seek to have some or all the electoral materials preserved and kept safely by the court.

24. The basic grounds for the application are that:-

(a)The first respondent in an effort to get away with blanket electoral malpractice is still feeding data into the KIEMS gadgets.

(b)The agents of the first respondents specifically the Returning Officer Homa-Bay County (second Respondent) have conspired with agents and proxies of third and fourth Respondents to erase and sweep under the carpet the glaring electoral malpractice that was staged by the third/fourth Respondents.

(c)The Petitioners have no other means of securing the information and data that is exclusively in the possession of the first respondent except through a court order which if granted shall ensure that the integrity of the election material is maintained and that the materials are not interfered with.

(d)Unless the court intervenes and takes custody of the materials, this election petition will be rendered nugatory.

25. These grounds are enhanced by the averments in the supporting affidavit deponed by the first Petitioner dated 6th September, 2017, particularly paragraphs 26, 27, 28, 29 and 30 and are magnified in the Petitioners’ submissions presented on their behalf by learned counsel, Mr. Muma, assisted by Mr. Anyona and Mr. Orango, all under instruments from Messrs Muma & Kanjama Advocates.  The gravamen of the submissions appear to be that the Respondents acting in cahoots are in the process of tampering with the electoral materials, mostly, Forms 37A, 37B and 37C in order to frustrate the petition and render it nugatory.

26. It is contended by the Petitioners that if the materials are preserved and kept in safe custody by the court, it would prevent any interference or further interference with them by the Respondents.  These allegations are unadmitted by the Respondents in their respective replying affidavits and/or grounds of opposition and/or submissions.  The first and second Respondents contend that it is their constitutional and statutory duty to preserve and keep safely all election materials and therefore, prayers three (3) and five (5) of the Petitioners application are unnecessary.

27. While orally highlighting their written submissions through learned counsel, Mr. Orego, the first and second Respondents contended that they are not about to abrogate from their role of keeping the election materials in safe custody.  However, they would have no objection to safe keeping of the materials by the court.

28. As for the third and fourth Respondents, they argued through their learned counsel, Mr. Makokha, that the Petitioners’ fifth prayer for preservation of specified items includes an item described as ‘No. L’ which is non-existent.  They contended that the inclusion of that item was mischievous.  They also contended together with the first and second Respondents that the Petitioners have failed to establish a basis for grant of prayers three and five by this court in their favour.

29. Other than Article 86 of the Constitution and Regulation 93 of the Elections (General) Regulations, 2012, there is also Regulation 86 which provides for safe keeping of election materials by a Returning Officer.  Clause (2) (b) of the Regulation provides that the Returning Officer shall keep the sealed ballot boxes and all material relating to the election in safe custody for the period as may be required under the Regulations and the Act.

30. The law as it stands gives the first and second Respondents [IEBC] the mandate to preserve and safe keep all the electoral materials.  Such mandate cannot be ‘wrestled’ from them unless it is shown by credible and cogent evidence that they have breached or are in the process of breaching it in one way or the other.  It is not enough for a party such as the Petitioners to allege a breach of the mandate on the basis of mere suspicion and apprehension.

31.  Not even a scintilla of evidence has been tendered by the Petitioners to establish the alleged tampering with the electoral materials by the IEBC in concert with the third and fourth Respondents.  No evidence of untoward or overt activity towards that end has been demonstrated against the respondents by the Petitioners.

32. It would therefore follow that the Petitioners have failed to establish a basis for grant of prayers three (3) and five (5) of the application dated 6th September 2017.  Consequently, all the electoral materials shall continue being preserved and held in safe custody by the first and second Respondents and not the court.  In any event, it is doubtful whether this court has adequate and secure storage facilities for such very vital materials.

33. However, the Petitioners are hereby granted an order to access the original electoral forms and documents on a “read only” basis with liberty to produce photocopies thereof.  They may also inspect the ballot boxes and place seals of their own choice thereon and further be allowed to access and digitally or electronically download the data in the KIEMS Kits used in the impugned gubernatorial election. This order shall operate for a period of five (5) days from this date hereof i.e Between 7th November 2017 and 13th November 2017 excluding the weekend.

34. With regard to prayers six (6) and seven (7) of the application dated 6th September 2017, the Petitioners are essentially seeking for orders for scrutiny and recount of all the votes cast in the impugned elections or alternatively, randomly selected polling stations in Wang-Chieng Karachuonyo Constituency and in the polling stations particularized in paragraph 34 of the Petition dated 6th September 2017.  It may be noted prayers six (6) and seven (7) in this application are also part of the prayers in the main petition i.e prayers (a), (b) and (c).

35. Under Section 82 (1) of the Elections Act, 2011, 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.  This provision of the law pre-supposes that a party wishing to apply for scrutiny ought to do so during the hearing of the Petition.  However, in the case of Nicholas Kiptoo Arap Salat –vs- IEBC & Others Supreme Court Petition No. 23 of 2014, it was held by the Supreme Court that an application for scrutiny and recount may be made before, during or at the end of the trial of an election petition.

36. Therefore, the present application is proper and competent in as much as it is made before and not during the hearing of the main petition.  Part VI (six) of the Elections (Parliamentary and County Elections) Petition Rules, 2017, provides for scrutiny and recount and in that regard under Section 28 of the Rules, a Petitioner may apply to an election court for an order to recount the votes or examine the tallying, if the only issue for determination in the Petition is the count or tallying of the votes received by the candidates.  In this Petition, it is already noted that the prayers for scrutiny and recount are not the sole prayers.

37. Under Section 29(1) and (2) of the said Petitions Rules, the parties to the proceedings, may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast and the election court may, if it is satisfied that there is sufficient reason, order for scrutiny or recount of the votes.  The parties may however, agree, if they so wish to make the prayers for scrutiny and recount in the Petition as the sole prayers.  They would in that way assist greatly in the expeditious disposal of this matter.

38. It is apparent form the law on scrutiny and recount of votes that the words “scrutiny” and “recount”are used together interchangeably.  But, they are in principle different.  Whereas a recount is pegged at the numbers of the votes garnered by each of the candidates, a scrutiny goes beyond the numbers and examines the validity of votes.  In the circumstances, the conduct of scrutiny invariably encompasses a recount of votes.

39. It has already been observed hereinabove that any forms of irregularity related to the counting and/or tallying of votes are generally post electoral anomalies which do not affect the vote.  Scrutiny is thus meant for striking out or adding votes in order to ascertain which candidate had the majority of the lawful votes.  On the other hand, recount is meant for elimination of mistakes in the counting of votes.

40. Herein, the alleged anomalies in the electoral Forms 32, 37A, 37B and 37C could be resolved or cured by a recount and scrutiny of the votes for purposes of verifying which candidate actually won the elections.  And, since the primary duty of the election court is to give effect to the will of the electorate, reasonable compliance with the procedures set out in the legislation would be the standard to apply when considering procedural matters [See, Fitch –vs- Stephenson [2008] EOTC 501 Q.B].

41. Be that as it may, the issue for determination in this application is basically whether the Petitioners have laid proper and sufficient basis for grant of the twin orders for scrutiny and recount. The grounds set forth by the Petitioners in the body of the appropriate Notice of Motion dated 6th September 2017 are fortified by the averments in the first Petitioners supporting affidavit.  These were greatly emphasized and elaborated in the Petitioners written submissions as orally highlighted.

42. Basically, the supporting grounds with regard to scrutiny and recount are based on allegations of irregularities and breaches of the law in the conduct of elections such that an order for scrutiny and recount would be most appropriate, reliable, qualitative and objective means of addressing the issues of credibility, verifiability, transparency and accuracy.  That, scrutiny in particular would assist the court in determining valid votes in favour of each candidate and also understand better the vital details of the election process and ascertain whether there exists any material discrepancies between the results captured in Forms 37As and 37Bs and as declared in Form 37C.

43. In the supporting affidavit, it is averred that there was numerous inconsistencies and inaccuracies between the results carried in the statutory returns generated by the first Respondent and its various agencies and the results publicly carried and conveyed electronically by the first Respondent.  That, copies of Forms 37A brought in by agents of the Petitioners from various polling stations were at variance with the information posted and published by the first Respondent in Form 37B and 37C on their public portal.

44. The Petitioners further averred that the inaccuracies between Forms 37A and 37B and the I.E.B.C portal was not random, accidental or inadvertent but rather widespread and deliberate and that, the whole exercise more specifically the counting of ballots was marred by irregularities.  Paragraph 24 of the supporting affidavit is an attempt to reveal the manner in which the alleged irregularities occurred and effected against the Petitioners in favour of the third and fourth Respondents.

45. In sum, it was the Petitioners argument and contention that the grounds in support of the application together with the averments in the supporting affidavit and the pleadings in the Petition are sufficient enough to lay a basis for grant of an order for scrutiny and recount in their favour.  They denied that the application is a fishing expedition as contended by the Respondents and relied on various decisions of the superior courts to buttress their case.  These included the decisions in William Kamanda –vs- Margaret Wanjiru [2008] eKLR, Joho –vs- Nyange [2006] eKLRandPhillip Ogutu –vs- Michael Aringo & Others Busia High Court Election Petitoin No. 1 of 2013.

46. On their part, the Respondents oppose the application and regard it as nothing less than a fishing expedition.  They all placed great reliance in the Supreme Court decision in the case of Gatirau Peter Munya –vs- Dickson Mwenda Kithinji & Others [2014] eKLR and contended in sum that the application is unmerited for failure to lay a basis for scrutiny and/or recount and should therefore be dismissed with costs.

47. Scrutiny and recount of votes is an area where courts have over time taken different approaches in determining whether or not such orders should issue.  However, the common denominator in all the approaches was that a basis must be laid for a court to exercise discretion in favour of an applicant.  This is clearly shown in the aforementioned decisions cited herein by both the Petitioners and the Respondents.

48. It is also clear that an order of scrutiny will not be granted haphazardly or as a matter of course.  In Khaoya –vs- Lubehi & Another [2008] 1 KLR 590, the court held that a basis had been laid to warrant scrutiny and recount of ballot papers.  In Nathan Nyanga –vs- Anania Mwasmbu Mwaboza [2006] KLR, the court held that where the margin in the votes is small a scrutiny may be ordered without laying a basis but where the margin is big, the scrutiny could be done where a foundation is held.

49. Sub-section (2) of Section 29 of the Elections (Parliamentary and County Elections) Petitions Rules 2017, talks of an election court being satisfied that there is sufficient reason before issuing a scrutiny or recount order.  The reason for this is to prevent abuse of the court process and hence the so-called “fishing expedition” in which a party engages in nothing more than gathering evidence.

50. Thus, an election court would order scrutiny or recount or retallying of votes if this would serve the purpose of establishing the sovereign will of the people and only after it is satisfied that the Petition contains adequate statement of material facts on which the Petitioner relies on in support of his case.

51. Where there is ground for believing that there were irregularities in the election process or if there is a mistake or mistakes on the part of the election officials, an order of scrutiny may issue (see, Halbury’s Law of England – 4th Edition). In Raila Odinga –vs- Uhuru Kenyatta & Others Supreme Court Election Petition No. 5 of 2013, it was stated that the purpose of scrutiny in that matter was to understand the vital details of the electoral process and to gain impression on the integrity thereof.

52. From all the foregoing and having regard to the guidelines set out by the Supreme Court in the Munya –vs- Kithinji case [supra] including that “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 request, 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”, it is the opinion of this court that the facts disclosed in the petition and indeed in this application are substantial in their very nature for exercise of discretion in favour of the Petition in this application.

53. However, it cannot escape the court’s mind that those material facts in the Petition and the supporting affidavits are vehemently contested by the Respondents and bearing in mind that a scrutiny and recount order has the potential of ultimately determining a Petition such as the present one, it would only be fair and just that such order be effected if only to create an opportunity for testing the veracity of the Petitioners’ allegations by way of cross-examination, in the course of the hearing of this Petition as the court may direct.

54. In that regard, and in terms of Section 29(4) of the Elections Petitions Rules 2017, the scrutiny of the votes garnered by each candidate shall include recount and ascertainment of votes garnered by each candidate in each of the polling stations specified in paragraph 33 or 34 of the Petition and any other polling station that the court may in the course of taking evidence deem fit.

55. The exercise shall be undertaken under the supervision of the Deputy Registrar of this court but both the Petitioners and Respondents shall each be allowed to have three (3) agents present.  Further, the exercise shall commence on a date that the court may direct or be agreed by the parties.  The costs shall abide the outcome of the Petition.

56. With regard to the application dated 5th October 2017, it is clearly essentially founded on Part VI (6) of the Elections (Parliamentary and county Elections) Petitions Rules 2013, which were effected by Legal Notice No. 54 of 2013, which was subsequently revoked and replaced with Legal Notice No. 116 of 2017, that brought into effect the current and applicable Elections (Parliamentary and County Elections) Petitions Rules, 2017.

57. It is therefore very surprising that the Petitioners would in this application invoke provisions of the law which have since been revoked.  Yet, the Petitioners had adequate opportunity prior to the hearing of the application or during the pre-trial conference to make necessary amends to correct the glaring errors and mistakes.

58. Yet again, the apparent defect was brought to the attention of the Petitioners after they were served with the third and fourth Respondents grounds of opposition dated 19th October 2017.  The issue was also raised by the third and fourth Respondents in their oral highlights of their submissions and grounds of opposition.

59. Needless to say that the omission by the Petitioners was fatally defective as to find any solace in Article 159 of the Constitution, which is not a “panacea” for all manner of procedural errors or mistakes.  It was not this court’s obligation to assume that the inclusion of the 2013 Elections Petitions Rules in this application was a mere error to be ignored and then proceed to determine the matter on the basis of the 2017 Elections Petitions Rules.  Any attempt to that effect would have been greatly prejudicial to the Respondents and amount to a grave injustice against them.

60. In the upshot, the application dated 6th September 2017 is partly allowed as indicated hereinabove while the application date 5th October 2017 is dismissed with costs to the Respondents for being incompetent and fatally defective.

61. Ordered accordingly.

Ruling deliveredand datedat Homa Bay this 7th day ofNovember, 2017.

J. R KARANJA

JUDGE

In the presence of:

………………………….……………..... for the 1st and 2nd Petitioners

………………………………………….. for the 1st and 2nd Respondents

………………………………………….. for the 3rd and 4th Respondents

……………………………………..........court assistant

J. R. KARANJA

JUDGE