Justin Kithinji S. Nderi v James Mutembei Augostino, Independent Electoral and Boundaries Commission & Wilfred Ndungu Wainaina Constituency Returning Officer Chuka Igambang'ombe Constituency [2018] KEHC 5145 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

ELECTION PETITION APPEAL NO. 1 OF 2018

JUSTIN KITHINJI  S. NDERI..........................................................APPELLANT

VERSUS

JAMES MUTEMBEI AUGOSTINO.......................................1ST RESPONDENT

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION...........................................2ND RESPONDENT

WILFRED NDUNGU WAINAINA

THE CONSTITUENCY RETURNING OFFICER

CHUKA IGAMBANG'OMBE CONSTITUENCY..............3RD RESPONDENT

(Being an appeal to the whole Judgment and decree delivered by the Chief Magistrate at Chuka  Law Courts by (Hon. J.M Njoroge) on the 1st March, 2018 in Chuka Chief Magistrate Election Petition Number 1 of 2017)

BETWEEN

JAMES  MUTEMBEI AUGOSTINO............ ...............................PETITIONER

VERSUS

JUSTIN KITHINJI  S. NDERI.............................................1ST RESPONDENT

THE INDEPENDENT ELECTORAL AND

BOUNDARIES COMMISSION..........................................2ND RESPONDENT

WILFRED NDUNGU WAINAINA

THE CONSTITUENCY RETURNING OFFICER

CHUKA - IGAMBANG'OMBE CONSTITUENCY.........3RD RESPONDENT

J U D G M E N T

1. JUSTIN KITHINJI  S. NDERI, the Appellant herein was declared the  winner and the duly elected member of County Assembly for Magumoni  Ward in the general elections held on 8th August 2017.  The elections held  on that day in respect of member of County Assembly Magumoni Ward saw  the 2nd and 3rd Respondents (cross appellants) declare the appellant as the  winner with 4664 votes while the 1st Respondent, JAMES MUTEMBEI  AUGOSTINO, was the runners up with 4629votes.

2. The 1st Respondent herein was aggrieved by the results declared by the 3rd  Respondent filed a petition vide Election Petition No. 1 of 2017 at Chuka  Chief Magistrate's Court.   The grounds of the that petition as presented to  the Chief Magistrate's Court were that the results from the polling stations in  Magumoni Ward were manipulated and doctored to favour the appellant  herein and besides that it was also contended that the appellant herein and  2nd and 3rd Respondents committed election offences and  malpractices  which rendered  the election's anullity and not reflective of the  general will  of voters at Magumoni Ward.   There was also a contention that the  impugned elections had contravened Article 81(e)(iv), (v), Article 86 of  the Constitution and the Election Act and Regulations made thereunder.

3. On the basis of the above, the 1st Respondent sought the following reliefs  from the trial court.

a) An order for immediate scrutiny, recount and retallying of  votes cast in all the named 57 polling stations in Magumoni Ward.

b) A declaration that the Respondent (appellant and 2nd and 3rd Respondents herein) committed  election offences and engaged in electoral offences and malpractices contrary to Sections 71, 72 and82 of the Elections Act.

c) A declaration that the appellant was not validly  and lawfully elected as member of the County Assembly for Magumoni Ward due to his participation and condoning of malpractices.

d) An order nullying the  election of the appellant as the member of the County Assembly Magumoni Ward.

e) Upon the scrutiny, recounting and retallying of cast votes the honourable court be pleased to declare the 1st Respondent as the validly elected member of County Assembly in Magumoni Ward and the 2nd and 3rd Respondent be ordered to declare the 1st respondent as the Member of County Assembly  Magumoni Ward and issue him with a certificate of election and notify the speaker County Assembly Tharaka Nithi County of the decision.

f) Costs

g) Any other relief as the court may order in the interest of justice.

4. The appellant, 2nd and 3rd Respondents denied all the allegations leveled  against them and asserted that the elections in their view was conducted in  accordance with the constitution and electoral law and that it was free and  fair.  They faulted the 1st Respondent herein for not pointing out specifies  and particulars of  electoral malpractices and offences done and contended  that the petition was seeking for scrutiny and recount in order to fish for  evidence.  They further averred that the 1st Respondent's agents did not raise  any query at any polling station requiring recount and that the minor  discrepancies noted did not affect the final results.  They maintained that the  appellant was validly elected as Member of County Assembly  Magumoni  and lawfully declared as such after the voters at Magumoni Ward had  exercised their sovereign right to vote and choose their representative at  Magumoni Ward.

5. The trial court upon hearing  three witnesses from the Petitioner (1st  Respondent) and four witnesses from the appellant, the 2nd and 3rd  Respondent herein and after evaluating evidence tendered including the  outcome of scrutiny and recount ordered determined that the elections  conducted in Magumoni Ward on 8th August, 2017 in respect to member of  County Assembly contained  errors, irregularities and discrepancies that  rendered election results inaccurate, unverifiable, unsecure, unaccountable  or free, fair and transparent.  The election of the appellant was therefore  nullified and the 2nd and 3rd Respondents  further ordered to conduct a repeat  election in the said ward.  The 2nd and 3rd Respondents were ordered to pay  costs  because the appellant was absolved from blame or commission of  electoral fraud, irregularities or offences.

6. Aggrieved by the above Judgment of the trial court, the appellant lodged this  appeal raising the following 29 grounds namely:

1. The learned magistrate erred in law by delivering a flat judgment devoid of the necessary ingredients as he failed to state any and all the points/issues for determination, the decision thereon and the reasons for the decision and has therefore occasioned failure of justice.

2. The learned trial magistrate erred in law by making substantial alterations, changes and amendments to the judgment delivered and signed in open court on 1st March, 2018, and providing the appellant with totally different judgment upon a request for a certified copy of the judgment.

3. The learned trial magistrate erred in law by ignoring and failing to issue a determination on the raised issues of the mode of transmission of results and the admissibility as evidence  of website printouts of results electronically transmitted to the 2nd Respondent's public portal.

4. The learned trial magistrate erred in law by failing to dismiss the election petition for non-compliance with Rule 8(1) (c) and (d) and Rule 12 (c) and (d) of the Election Petition (Parliamentary and County) Petitions Rules2017 despite his conclusion that there was non-compliance.

5. The learned trial magistrate erred in law by failing to observe and find that the prayer for nullification of the impugned election, the prayers for scrutiny, recount and re-tally votes in all the 57 polling stations in Magumoni Ward and the prayer for declaration of the 1st Respondent herein as duly elected were not pleaded in the alternative in the petition and as such could not be granted for lack of precision and particularly in pleadings.

6. the learned trial magistrate erred in law by ordering a recount of votes cast for the position of Member of County Assembly in all the 57 polling stations within Magumoni Ward including polling stations whose results were not challenged or disputed in the pleadings/petition.

7. The learned trial magistrate erred in law by finding the holding that sufficient basis as is required in law had been laid for grant of an order of recount of votes cast for the position of Member of County Assembly in all the 57 polling stations within Magumoni Ward.

8. The learned trial magistrate erred in law by failing to give detailed reasons for ordering a recount of votes cast for the position of Member of County Assembly in all the 57 polling stations within Magumoni Ward and in effect allowing the petitioner to go on an evidence gathering expedition.

9. The learned trial magistrate erred in law in ordering a recount of votes but proceeding to oversee and conduct a scrutiny contrary to the court orders issued on the 1st February, 2018 and therefore occasioned failure of justice.

10. The learned trial magistrate erred in law by being in direct supervision of the recount/scrutiny process and failing to appoint a court registrar by court order to oversee and supervise the process.

11. The learned trial magistrate erred in law by failing to find and hold that the declared results for the two polling stations whose polling boxes were said to be unidentified and unknown in his Judgment were part of the court record in the form of Form 36As provided by the 2nd and 3rd  Respondent, which were unchallenged in the petition and in evidence.

12.  The learned trial magistrate erred in law by misdirecting himself and ignoring the Court of Appeal decision in Independent Electoral and Boundaries Commission -vs- Maina Kiai & 5 Others NRB CA Civil Appeal No.105 of 2017 (2017) eKLR where it was held that results declared at the polling stations are final until they are disputed in an election petition and set aside the election court.

13. The learned trial magistrate erred in law by failing to observe that all polling stations in Magumoni Ward are gazetted in the Kenya Gazette and there was no allegation of fictitious polling stations or results in the pleadings/petition.

14. The learned trial magistrate erred in law by finding and holding that two ballot boxes were unidentified and unknown during the recount despite the fact that he personally sanctioned a recount of votes in the two impugned ballot boxes, and recorded the result thereof, thereby recognizing that there were from Magumoni Ward and the cast votes were for candidates in the disputed election.

15. The learned trial magistrate erred in law by finding the holding that two ballot boxes were unidentified and unknown in is Judgment despite the fact that the 2nd and 3rd Respondents produced 60 ballot boxes to the satisfaction of the trial magistrate before the recount exercise and have not been held in contempt of court for non-compliance with the orders issued on the 1st February, 2018 directing that all ballot boxes relating to the disputed elections be availed for a recount.

16. The learned trial magistrate erred in law by finding and holding that two ballot boxes were unidentified and unknown and did not contain results as per his judgment despite the fact that the boxes had distinct ballot box codes, unbroken seals that are the standard manner of identifying ballot boxes, which evidence he ignored.

17. The learned trial magistrate erred in law observing and holding by implication that ballot boxes can only be identified through statutory forms used to declare results that are left inside the ballot boxes after counting in the polling stations and not by way of ballot box after codes/numbers and distinct seal numbers.

18. The learned trial magistrate erred in law by failing to observe in his judgment that there was no question as to the integrity of two boxes marked as unknown as the ballot box seals were intact at the time of the recount and further that tamperproof packets of ballot papers for each candidate were also intact and untampered with at the commencement of the recount.

19. The learned trial magistrate erred in law by failing to give the respondent's an opportunity to respond to the adverse findings of the recount process that was done before  close of proceedings therefore occasioning a failure of justice

20. The learned trial magistrate erred in law by misdirecting himself on the effect of margins of loss in election petitions and proceeding to nullify on account of a 'narrow margin' despite the fact that after an arithmetical calculation is made by applying the results after a recount the appellant not only maintains a lead over the 1st Respondent herein but also increases it.

21.  The learned trial magistrate erred in law by misdirecting himself on the effect of a random and unpremeditated human error by a presiding officer on the integrity of an entire election particularly in his holding on the effect of failure to leave a copy of Form 36As in ballot boxes after counting of votes in the polling station and therefore proceeding to nullify the election on a mere technicality.

22. The learned trial magistrate erred in law by making no reliance and/or reference on the entirety of the evidence, summations and authorities provided by the appellant and giving no reasons for disallowing them in his judgment.

23. The learned trial magistrate erred in law by holding that the 1st respondent herein had not  proven any instances of malpractices or irregularities pleaded in the petition and then proceeding to nullify the election against the weight of evidence.

24. The learned trial magistrate erred in law by failing to find and hold that the 1st Respondent  herein had admitted in his pleadings and evidence at the hearing to having committed electoral malpractices and offences.

25. The learned trial magistrate erred in law by ignoring the time tested principle that parties are bound by their pleadings and evidence in support of petition, and allowing the 1st Respondent herein to travel outside his pleadings and then determining the entire election petition on the basis of issues not originally pleaded.

26. The learned trial magistrate erred in law by misdirecting himself on the burden, standard of proof in election petitions and misapplied the binding interpretations of Section 83 of the Election Act, 2011.

27.  The learned trial magistrate erred in law by finding and holding that the appellant was not validly elected and election process was not free, fair credible and verifiable.

28. The learned trial magistrate erred in law by ignoring the doctrine of stare decisis in his determination and judgment.

29. The learned trial magistrate erred in law in predisposing himself to a position favourable to the 1st Respondent herein and failed to accord the Respondent the right to a fair hearing  with the effect of arriving at a decision that was unreasonable, wrong in law and unjust in effect.

7. The 2nd and 3rd Respondent were equally dissatisfied with the decision of  the trial court and filed a cross appeal raising the following 11 grounds  namely:-

1. That the magistrate erred in law and in fact in allowing recount/scrutiny all the polling stations in the ward without any legal and factual basis.

2. That the magistrate erred in law and in fact in failing to dismiss the application for scrutiny/recount dated 4th September, 2017 for lack of merit.

3. That the magistrate erred in law and in fact failing to find out that the two polling stations lacking Form 36As were easy to identify and belonged to specific areas.

4. That the magistrate erred in law and in fact by failing to add the result of the two "unidentified polling stations" where the will of the people could clearly be discerned.

5. That the magistrate erred in law and in fact by failing to find that the result of the recount favored the 1st Respondent (in Chuka CMCC Election Petition No. 1 of 2017).

6. That the magistrate erred in law and in fact by finding that the petition had proved yet none of the grounds set out in the petition had been proved.

7. That the magistrate erred in law and in fact by failing to find that none of the grounds set out in the petition had been proved and there by failing to dismiss the petition.

8. That the magistrate erred in law and in fact by failing to find that the appellant and the 2nd Respondent had provided sufficient answer to the petition in terms of the responses, affidavit and oral audience in court.

9. That the magistrate erred in law and in fact by introducing a new ground in the petition and using the new ground to allow the petition.

10. That the magistrate erred in law and in fact by failing to stick to the pleadings, testimony and issues arising from the petition in the judgment.

11. That the magistrate erred in law and in fact by failing to dismiss the petition with costs to the appellant.

8. All the parties in this appeal chose to proceed through both written and oral  submissions which I will summarize herebelow before consideration and  final determination of this appeal.

Appellant's submissions:

9. In his written submissions done through Ms Yunis Osman and Mwiti  Advocate the appellant has submitted that the trial court did not find the  appellant or 2nd and 3rd Respondent guilty of any electoral malpractices as  was pleaded in the election petition.  The appellant further contends that the  trial court found no electoral offences had been proven by the 1st Respondent  herein.  The appellant further contended that in this appeal they are not  challenging the findings of facts made by the trial magistrate and reiterated  that this appeal has been brought pursuant to the provisions of Section 75(4)  of the Elections Act No.24of 2011.

10. The appellant has submitted that it was the trial court's findings that the  errors, omissions that were found out did not impute all  ill motive on the  part of the 2nd and 3rd Respondent and has pointed out an instance where a  Presiding Officer at Nthambo Polling Station  inadvertently placed  the  original Form 36A in the ballot box  and sealed it.

11. The appellant argued grounds 1 to 3 together and contended that the learned  trial magistrate erred by not addressing all issues that had been framed for  determination.  It is the appellant's contention that that the 1st Respondent in  his petition at the trial relied on electronic evidence whose admissibility was  challenged by the appellant but the trial court in his view erred by not  rendering a decision on it.  The appellant has submitted that the 1st  Respondent failed to tender electronic evidence certificate  and that the trial  court  should have ruled that the said evidence was inadmissible by dint of  Section 106 Bof the Evidence Act.

12. The appellant has also faulted the learned trial magistrate for not punishing  the 1st Respondent despite what he considers an admission on his part about  committing an electoral offence which was preventing the Returning Officer  from announcing the official results at the tallying centre.  The appellant  contends that the Judgment delivered by the trial court was incomplete  without this aspect being covered.

13. On grounds 5-10 of his appeal, the appellant's main contention is that the  trial court erred on two respects;

(i) Ordering a recount at the tail end of trial when the prayer by the 1st Respondent was for immediate scrutiny, recounting and   retalling of votes cast in 57 polling stations in Magumoni Ward. The appellant opines that he suffered prejudice because the learned trial  magistrate did not exercise his discretion  judiciously.

(ii) Secondly the appellant contended  that an order for recount as per Rule 28 of the Elections (Parliamentary and County Elections) Petition Rules, is only available as a relief in a  petition if the only issue for determination in the petition is the count or retallying of votes garnered  by candidates in an  election petition. The appellant expressed his displeasure at how the trial court applied this rule during trial although he conceded that there have been different positions taken by  different courts.

His contention is the decision in Gitarau Peter Munya -vs- Dickson Mwenda Kithinji & 2 Others [2014] (b) and the Raila Amolo Ondinga & Another -vs- IEBC & 2 Others [2017] eKLR (Raila II) shows that the  literal meaning of  an order of recount is retallying of votes  and a party  should ask for this relief as a sole prayer to get it.  The appellant has also  cited the decision in Benjamin Onguyo Adama -vs- Benjamin Andola & others (Kakamega Election Petition No. 8 of 2013) to back up this position.

14. The appellant has faulted the learned trial magistrate for ordering for a  recount when no sufficient basis had been laid.  Citing Raila Amolo Odinga & Another -vs- IEBC & 2 others (Raila II), the appellant advance the  following factors to be established before a trial court can order for a  recount namely;-

a) That the court must be satisfied that a prima facie case is established

b) The material facts and full particulars have been pleaded stating the irregularities in counting of votes.

c) A roving and fishing  inquiry should not be directed by way of an order to recount votes.

d) An opportunity should be given to file objection and

e) Secrecy of the ballot should be guarded.

The appellant drew the attention of this court on what the 1st Respondent  told the trial court under cross examination, the sum of it being that he had  no problem with counting and tallying of votes at polling stations as  reflected in Form 36 A. His problem was posting of results from Form 36A  to Form 36 B. The appellant has further contended that no recount was  requested at any polling station.  The appellant has in the premises faulted  the learned  trial magistrate for ordering for recount and retallying of votes  in all polling stations in Magumoni Ward when not all results were contested  and when the 1st Respondent had questioned only the retallying process  which could according to the appellant could be done without going through  recounting process.

15. The appellant's other grounds revolves around the trail court's finding that  there were two an unidentified ballot boxes discovered during the process of  scrutiny and recount.  The trial court found that the origins of 2 ballot boxes  could not be ascertained and this affected the credibility of the elections held  because the ballot boxes were not marked, no serial numbers and had no  Form 36 As.  The appellant has contended that these findings were not  supported by any factual basis and has drawn the attention of this court  to  results of recounting/scrutiny process contained in the 2 forms in respect to  the two contestious polling stations.  He further contends that the ballot  boxes had codes and unbroken seals duly captured during the recount  exercise by the trial court.

16. The appellant contends that the trial magistrate erred by framing an issue  that was outside the pleadings and evidence tendered. It is the appellant's  contention that the issue of the 2 boxes should  not have been considered and  cited RAILA II as an authority to back up the contention.  In his view, the  Supreme Court in RAILA IIobserved that;

"In absence of pleadings, evidence if any, produced by parties    cannot be considered.  It is also a settled legal proposition that no    party should be permitted to travel beyond its pleadings and parties  are bound to take all necessary and material facts in support of the  case set up by them................. therefore, it is not desirable or permissible for a court to frame an issue not arising on the pleadings."

17. The appellant has further submitted that the learned magistrate erred in law  by ordering for recount and proceeded to oversee scrutiny thus expanding  the nature of the orders issued without giving the parties a chance to make  objections. To him this occasioned miscarriage of justice.  It is  submitted  that scrutiny  as per Rule 29 is done to establish validity of the votes and  that while Regulations 77 of Elections (General) Regulations  2017  dictates what constitutes a valid vote to be counted, interrogating the  validity of rejected and spoilt vote like was done by the trial case was no  longer recount but scrutiny.

18. The appellant further submits that the trial court went ahead to reject two  ballot boxes contrary to Regulation 67 of Election (General) Regulations  2012 when in his view the ballot boxes were identifiable through seal  numbers and ballot box codes which provided unique distinction of every  ballot box used.   In his view the only legal way of verifying a ballot box is  through seal numbers and ballot box codes.  It is further submitted  that the  learned magistrate erred by coming to the conclusions he made in his  judgment because there was no allegations of fictitious results or ballot  boxes in the 1st Respondent's petition, affidavits or  oral evidence during  trial.  The appellant has faulted the learned trial magistrate for sanctioning  the counting of votes in the impugned boxes which were in his view valid as  per Rule 68(1) (f) and (4) and rejecting the results when it was clear what  each candidate in Magumoni Ward had garnered  in those 2 stations.  He  further argues that Magumoni Ward had 57 polling stations with 60 streams  or polling centres and hence the 60  ballot boxes which  were stored in a  guarded warehouse and produced to the trial court for recount as ordered.  It  is submitted that when the ballot boxes were  opened it was found to contain  ballot papers for candidates vying in the seat of Member of County  Assembly Magumoni Ward and this, in his view, showed that the "unknown" ballot boxes were not alien but identifiable and known.  He has  further argued that there was no question raised on the integrity of the said 2  boxes since the seals were intact and ballot papers therein intact and  tamperproof.  The appellant  has submitted that the 2nd and 3rd Respondents  did provide  Form 36A for all polling centres and because  58 ballot boxes  could easily  be identified using Form 36As inside that ballot boxes.  In his  opinion only  the remaining stations were Magumoni Primary School I and  Nyaga Primary School whose results were  as per the form 36A supplied by  2nd and 3rd Respondent which marched those recorded by trial magistrate  during recount exercise.

19. The appellant has contended that he was denied a chance to respond to any  of the findings of the recount and that the trial court completely ignored his  written submissions on the subject.  This in view was erroneous because the  court of appeal in RAILA AMOLO ONDINGA II determined that the  results of a polling station was final and polling station was a true locus to  determine voters free will. The appellant contends that by shutting out the 2  ballot boxes the learned trial magistrate erred  by not preserving the will of  the people in those stations.

20. On grounds 20-23 of  his approval, the appellant has submitted there was no  evidence of premeditation to leave no mark on the impugned ballot boxes  and that failure to leave Form 36A in the boxes did not prejudice any  candidate and it was down to human error which in his view was excusable.   He has cited the decision in Gitarau Peter Munya -vs- Dickson MwendaKithinji & 2 others [2014] eKLR where the Court of Appeal held that if the  mistakes are premeditated persistent, multiple and substantial and reveal a  pattern or cause prejudice  to any individual candidate, or affect the will of  the people, then integrity and credibility of an election can come into  question.  The appellant has further submitted that small human errors should not be used to vitiate an election done in accordance with the law and  cited the decision of Lenny Maxwell Kivuti -vs- IEBC & 3 Others [2018] eKLR.  The appellant has submitted that the trial court should have found  that failure to leave Form 36As in the 2 ballot boxes was just a human error  just like he had found that a Presiding  Officer at Ntambo Primary School I  had also committed an excusable error of inserting and locking the original  form 36A in the ballot box instead of a carbon copy.  The two errors in the  appellant's view were random, minimal and not premeditated to prejudice  any candidate. The appellant has faulted the trial magistrate for deciding  the petition on a technicality against the  weight of evidence.  In his view the  evidential burden was not discharged by the 1st Respondent to justify the  finding of the trial court and that in Joho - vs- Nyange (2008) 3 eKLRMaraga J. (as he then was) held that election petitions should be proved by  cogent, credible and consistent evidence.

21. Finally the appellant has joined issue with the 1st Respondent in regard to the  requirements of Regulation 81(4) of CourtofAppeal Election Rulesand  submitted that the said rules only apply in the Court of Appeal and not a  requirement in this court.  In his view the Deputy Registrar of this court  forwarded the lower court file and entire proceedings and nothing was  omitted to warrant the 1st Respondent to complain that he has suffered prejudice because certificate of correctness of the lower court record is  missing.

2nd and 3rd Respondents' submissions

22. The 2nd and 3rd Respondent herein were also aggrieved by the decision of  the trial court and filed a cross-appeal and written submissions in support of  the appeal vide Kinyanjui Njuguna & Co. Advocates.  It is their contention  that the 1st Respondent did not discharge his burden at trial court and that  the petition should not have seen the light of the day.  Mr. Laisagor, the  learned counsel for the 2nd and 3rd Respondent submitted that the 1st  Respondent  had the burden to prove the allegations contained in the petition  at the trial and that the law places that burden on him and that the burden  only shifts to the Respondents once it is proved.  In their view that never  happened.  The 2nd and 3rd Respondents has pointed out that during trial the  1st Respondent and his witness stated that they had no problem with voting and tallying  and that none of their agents in Magumoni Ward reported any  irregularities  during the voting exercise on 8th August, 2017.

23. The 2nd and 3rd Respondents in their written submissions have reiterated  most of the grounds and submissions made by the appellant and for the  interest of time, I will not repeat them here suffice to say that the 2nd and  3rd Respondents  contend that none of grounds set out in the petition was  proved at the trial court.  The 2nd and 3rd Respondent have therefore  faulted the finding of the trial court and its conclusion to allow the petition.

24. The 2nd and 3rd Respondent further contend that the 1st Respondent should  have laid a proper basis in his pleadings or  evidence for recount and  scrutiny and that the 1st Respondent totally failed to do so to justify the trial  court's finding and decision to order for a recount.  They have also cited the  decision in Gitarau Peter Munya -vs- Dickson Mwenda Kithinji [supra]  where the Supreme Court set out guidelines or principles on when recount or  scrutiny can be ordered observing that the same does not lie as a matter of  course.  The 2nd & 3rd Respondents contend that the trial court failed to stick  to those established principles when ordering for a recount of all 57 polling  stations at the trial.  In their view there were no specific allegations or  challenges to found a sufficient basis by the trial court to order for recount  and scrutiny.  The trial magistrate  is faulted for making a finding that  irregularities were not proved and yet again found basis to order for recount  and proceed to nullify the elections when the 1st Respondent in their view  had failed to prove the allegations of malpractices and electoral offences.

26. The 2nd and 3rd Respondent have also faulted the learned trial magistrate  for making a determination over an unpleaded issue.  They contend that  parties are bound by their pleadings and that the trial court could not go  beyond the pleading because doing so infringed on their right to be heard.   They have cited Court of Appeal decision in IEBC & ANOTHER -VS- STEPHEN MUTINDA MULE & 3 OTHERS [2014] eKLRto butress their  submissions.

27. The 2nd and 3rd Respondent have submitted that the trial magistrate erred in  deciding on the effect of random and unpremeditated human error by a  Returning Officer who in their view failed to leave a copy of Form 36A on  the ballot boxes after the counting process.  In their view the said errors   were innocent human errors that were not systematic or geard towards  assisting any particular candidate.  It was not, in their view, tenable for the  trial court to nullify the elections on such a ground and slap the 2nd and 3rd  Respondents with costs.  In their view the two polling stations found by the  trial court to be unidentifiable were identifiable as they were Magumoni  School I and Nyaga Kairu Primary School polling stations for the reasons  that they were the only ones out of the 60 boxes identified through Form  36A and that is was erroneous for the trial court to exclude the votes from  the two stations in the  tallying process when the will of the voters were  clearly discernible in their view.

1st Respondent's submissions

28. The 1st Respondent herein has opposed this appeal through both oral and  written submissions by Mr. Ayuka and Nyamu Nyaga Advocates.  Mr.  Ayuka has contended that an appeal to this court under Section 75(4) is  limited to only matters of law and that grounds 3, 13, 14, 15, 16, 17 and 19  of the Memorandum of Appeal is an invitation of this court to go to areas  that the law does not permit and have argued that the cited grounds requires   this court to render a decision in matters of fact.

29. The 1st Respondent has also submitted that the record of appeal filed has no  schedule nor a certificate of the manner of production and as such in his  view the record of appeal cannot be relied upon to make a conclusive  determination of the matters in contention in respect to the evidence  tendered and the determination thereof.

30. It is the 1st Respondent's contention that the trial court exercised its  discretionary powers properly and judiciously in ordering for a recount.  In  his view the court correctly invoked the provisions of Rule 28 of the  Elections (Parliamentary and County Elections) Petitions Rules 2017 and  followed the principles set out in the decision of Gitarau Peter Munya - vs- Dickson Mwenda & 2 Others [supra].  In his view the margin of victory  of the appellant was low and were separated by only 25 votes and that was  in order for the trial to carry out investigations by way of recount.  In this  regard the 1st Respondent has relied on the decision of Charles Ongondo Were -vs- Joseph Oyugi Magwanga & 2 Others (Election Petition No. 1of  2013 at Homabay High Court) and Richard Kalembe Ndile& Another -vs- Patrick Musimba Mweu & 2 Others (Machakos Election Petition No.7of2013).

31. The 1st Respondent has contended that upon recount the learned trial  magistrate was entitled to use results obtained there on to draw and make  inference as whether the results declared were accurate and reflective on  who had won the elections in Magumoni Ward.

32. On unpleaded matters in an election petition, the 1st Respondent has cited  the decision in Zachariah Okoth Obado-vs- Edward Okongo Oyugi & 2  Others [2014] eKLR where the court reportedly held that the court may  make findings on unearthed irregularities  even if not pleaded in the petition.   The 1st Respondent has further cited decisions in;

Musikari Nazi Kombo-vs- Moses Masika Wetangula [2015] eKLR &   Lenny Maxwel Kivuti -vs- IEBC &  & 3 Otherswhere the courts  noted that a court cannot condone an illegality in  election process or shut  its eyes even if these were not on the pleadings but arose in the course of  trial.  He has submitted that the learned trial magistrate  conducted the  recount in accordance with the law and came to the resolution of all the  evidence that arose and in particular the unidentified ballot boxes that did  not have corresponding results in them from the Returning Officers.   He  has cited the decision in Justus Mong'umbu Omiti - vs- Walter Enoch Nyabati (Election Petition No. 1 of 2008 where the court observed that all  issues pleaded and those that crop up in the course of trial whether pleaded  or not but which have the potential to adversely affect the final results and  the will of the people must come into the spotlight  through scrutiny and  interrogation and that it would be a sad day if such evidence were to be  disregarded on the  ground that the same was not the subject of any pleading.   The 1st Respondent has argued that the appellant is trying to evade the  question as to whether it was possible for a Presiding Officer to legally  declare results in  the absence of Form 36A duly signed by the Returning  officer.  The 1st Respondent has supported the learned trial magistrate's  finding that the boxes were not identified and had no statutory forms to  authenticate them.

33. On the question of not being given a chance to be heard  on the recount, the  1st Respondent has contended that all parties had a chance to make  submissions on the issue of unidentified boxes and that because the  appellant's views were not upheld it does not in law amount to denial of right  of hearing.

34. According to the first Respondent there were no legal results  in two polling  stations to compare with what had been filed in court and that any court  could not overlook that fact.

35. The 1st Respondent has supported the trial Court in its decision to order for  a recount submitting that on the basis of evidence tendered including the  evidence of the Returning Officer conceding that there were errors, the trial  court was according to him in order to invoke the provisions of Section 82to order for a recount on 1st December 2018 given that the margin of victory  was also small.

36. The 1st Respondent has also submitted that the trial court could do both  recount and scrutiny as in his view the rules do not provide for practical  differences between the two exercises.  The 1st Respondent contends that  the appellant become uncomfortable  because the trial court carried out  recount exercise in a manner that appeared to suggest that scrutiny was  being done at the same time.  He has relied on the authority in James Omingo Magara -vs- Manson Onyongo Nyamweya [2010] eKLR.

37. The 1st Respondent contends that there is no legal requirement that a  recount exercise must have a report summarizing the exercise.  He has  pointed out that the recount at the trial court in this instance of all polling  stations were captured in a form signed by officers and agents who carried   out the recount exercise.

38. The 1st Respondent has further contended that the errors pointed out in their  petition was sufficient for the trial court to order for a recount and have  submitted that it was not necessary  that the errors pointed out amounted to  the provisions of Section 83 of Elections Act for an order of recount to be  made.  He has relied on the case of Lenny Maxwel Kivuti -vs- IEBC & 3  Others [2018] eKLRto support this contention in that case the court held  that a  court can look at the material that emerges from scrutiny or recount  and  that a  court is not precluded from studying the material merely  because the  same  was not pleaded.

39. On costs the 1st Respondent contended that it is fair that costs be capped at  Kshs.2 million.

Issues for determination

40. This court has considered  this appeal, the cross appeal  and submissions  made by all the parties.  In my view the issues arising from this appeal for  determination are as follows namely:-

(i) Whether this court has jurisdiction to determine the appeal.

(ii) Whether the judgment delivered in the trial court delved with on all the issues raised by the parties in the trial.

(iii) Whether the learned trial magistrate erred in law and fact in the exercise of his discretion to order recount of all 57 polling     stations in Magumoni Ward.

(iv) Whether the learned trial magistrate erred by relying on  an unpleaded issue.

(v) Whether failure to insert Form 36A in respect to two ballot boxes in respect to two polling stations amounted to human errors that did not affect credibility of  the polls by dint of Section 83 of the Election Act.

41. To begin with the first issue, is that this court is clothed with appellate  jurisdiction to entertain appeals emanating from gazetted election  subordinates courts.  Section 75(4) of the Election Acthowever caps  jurisdictional limits of this court to only matters of law under Article  165(1)(e), the constitution confers this court with appellate jurisdiction over  matters emanating from the lower court including election matters and as  observed above the statute (read Section 75(4) of the Election Act) limits  the jurisdiction of this court on appeal to only matters of law on election  matters.  There has been a big debate as to what constitutes matters of law  and matters of fact and that debate was settled  in the Supreme Court case of  Gitarau Peter Munya -vs- Dickson Mwenda Kithinji & 2 Others [2014] eKLR where the Supreme Court weighed in and gave the following guiding  principles in determining what constitutes matters of law;

" Matters of law only means a question or an issue involving:-

a) the interpretation, or construction of a provision of the constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine in an election petition in the High Court, concerning membership of the National Assembly, the Senate or the office of County Governor;

b) the application of a provision of the constitution, an Act of Parliament, Subsidiary Legislation or any legal doctrine to a set of fact or evidence on record, by the trial judge in an election petition in the High Court concerning membership of the National Assembly the Senate or the office of County Governor.

c) the conclusions arrived at by the trial Judge in an election petition........................... where the appellant claims that such conclusions were based on "no evidence" or the conclusions were not supported by the established facts or evidence on record or that the conclusions were so "perverse" or so illegal that no reasonable tribunal would arrive at the same it is not enough for the appellant to contend that the trial Judge would probably have arrived at a different conclusion .............................."

42. Going by the above guiding principles, this court finds that this court is  seized with the jurisdiction to determine the issues raised in this appeal and I  will go into the finer details of the same as I delve into the issues arising.

43.  (ii) Whether the Judgment delivered by the trial court coveredall issues raised.

A court of law is at liberty to choose whatever style it deems in Judgment  writing. The guiding principle on what a judgment should contain is  provided under Order 21 Rule 4 of the Civil Procedure Rules which  provide as follows:-

"Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the    reasons for such decision."

44. This court has perused through the 21 page Judgment delivered by the trial  court and in so far as the above guidelines are concerned I do find that the  judgment contains the statement of the petitioner as well as the responses  made by all the Respondents.  The trial magistrate has also included in the  body of the judgment the issues for determination.  Issues for determination  are usually drawn from the issues framed by parties in a given case and I  have perused through the issues drawn by the parties and none of the parties  herein really raised the issue of admissibility of the electronic evidence  tendered by the 1st Respondent herein.  Of courts a trial court is not  precluded from framing up an important issue if it feels that the issue is an  important issue that effects the direction of a judgment.  The trial magistrate  in my  view framed up what it considered important issues and rendered his  decision on the issues including whether or not any party was guilty of  electoral offences.

45. It is ofcourse true that the issue of electronic evidence featured during trial  when the 1st Respondent filed what he considered the electronically  transmitted results supplied to him.  The first record of proceedings indicate   that the evidence tendered did not comply with the provisions of Section  106 B(2) of the Evidence Act in that there was no certificate authenticating  the source of the electronic results print outs.  In the absence of a certificate  issued in accordance with the above cited provisions the evidence supplied  by the 1st Respondent to prove the allegations of irregularities were not  admissible in law but the aspect of the decision was not a factor in the  judgment from the trial court because the trial court's mind was directed at  whether the elections conducted in Magumoni Ward met the threshold  stipulated under Article 86 of the Constitution.  A court properly directing  itself can at times determine only one issue in a case and the determination  renders the other issues either mundane or academic and the fact that the  court clearly states that there is no need to determine the other issues does  not in itself render a judgment bad in law.  In the premises the appellant's  attack on the judgment from the trial court on its contents is not merited  because he has not shown how the omission by the learned trial magistrate  of the issue (which were not even framed by any of the parties) affected the  directions of the judgment.

46.  (iii) Whether the learned trial magistrate erred in       ordering a  recount of all 57 polling stations at       Magumoni Ward.

This is one of the major issues in this appeal and all the parties are in  agreement that an order of recount is discretionary issued by a trial court  pursuant to the  provisions  of Rule 28 of the Elections (Parliamentary and  County Elections) Petitions Rules 2017 which provide as follows:-

" 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."

The above provision in my view can only mean one thing which is the fact  that a party can go to court and apply for recount if he/she has issues on how  the valid votes were counted or collated from various polling stations and  tallied.  This covers a situation where a party in all election has issues with  the electoral agency in the manner in which the valid votes cast were counted and tallied. The party must be specific with particulars that show  that counting and tallying was riddled with irregularities that can be  interrogated and determined by an order of recount.  In my view that is how  a discretion of a trial court to order for a recount can be invoked.

47. The word "recount" at times is used interchangeably with the word  "scrutiny"  because it is tricky to separate the two exercises in an election  process. The law distinguishes the two exercises because while a  scrutiny exercise done under Rule 29 of Election Rules is anchored by the  provisions of Section 82(1) of the Elections Act, recount is only provided  under Rule 28 of the Election  (Parliamentary and County Election) Petition  Rules.   An order for scrutiny is given to inspect the validity of the votes cast  and can only be ordered on sufficient reasons or grounds.  Rule 29(2) also  provides that for any recount or scrutiny to be ordered sufficient reasons  must be shown.  It is therefore not hard to see why the two exercises are at  times used interchangeably.

48. It is my view that a scrutiny exercise will involve some element of recount at  the tail end of the exercise because after separating the valid votes from the  rejected votes or spoilt votes,    a scrutiny exercise will only be meaningful if  the valid votes cast are recounted and retallied after scrutiny.  On the other  hand recount exercise also involves to some extent some level of inspection  or scrutiny because a court cannot be expected to act like a counting   machine during a recount exercise.  It has to first separate the wheat from the  chaff  before embarking on a recount exercise.  So if one is the pose and ask   what is the process of separating the wheat from the chaff called?  Is it not  thoroughly examining or inspecting the valid votes from the rejected or  spoilt  votes to enable the appointed officials embark on a recount exercise? Now let us revisit the meaning of recount again and in this context it means  to count something again to establish if what is stated in a statutory form  (Form 35A) is reflective of what each candidate garnered in a given polling  station.  So an order for recount is to establish the number of VALID  VOTES each candidate garnered in a disputed polling station.  The two words scrutiny and recount are therefore though distinct are difficult to  separate when it comes to the actual exercise in either case.  As I have  observed above even if a  court orders for recount of votes, the exercise  cannot be done blindly.  A trial court must verify what is recounting to  ensure  that what is obtained reflects valid votes and hence the true will of  the voter.

49. The appellant in my view cannot fault the learned trial magistrate in the  exercise of recount per se.  What this court is minded about is not whether  the court went ahead to conduct a scrutiny instead of first minding about  recount but rather whether the provisions of the law was applied properly.   The provisions of Rule 29(4) of the Election Petitions Rules 2017  provides as follows:-

"The scrutiny or recount of votes in accordance with sub-rule (2) shall  be confined to the polling stations in which the results are    disputed and may include;

a) written statement made by the returning officers under the Act

b) the printed copy of the Register of votes used during the elections sealed in a tamper proof envelope,

c) the copies of the results of each polling station in which the results of the elections are in dispute.

d) the written complaints of the candidates and their representatives

e) the packets of spoilt ballots

f) the 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) statement showing the number of rejected ballot papers".

50. The above provision of the law show that the reliefs of recount or scrutiny is  not automatic.  A party asking for the reliefs must really show good reasons  for either of the reliefs to be granted.  In the case of Gitarau Peter Munya - vs- Dickson Mwenda Kithinji the Supreme Count referred the Court of  Appeal case ofNicholas Salat - vs- Wilfred Rotich Lesan & Others (Nairobi Court of Appeal No.228/13) where the court made the following  observations:-

"Rule 33(2) (in our case its now Rule 29(2)) requires the court to be    satisfied that there is sufficient reason and manner in which the    scrutiny is to be carried out is set out in detail.  An order for scrutiny   is therefore not automatic; sufficient reason has to be shown before the court orders scrutiny and recount......................the first part of    the appellant prayer sought an order for recount throughout the    entire Bomet County.  The appellant laid no basis whatsoever to justify that request.............. it seemed that the appellant was on a fishing expedition. The alternative prayer for recount was restricted to some polling stations in three constituencies, namely Chepalungu, Bomet East Constituency and Sotik Constituency. Each of those constituencies had numerous polling stations with  respect to which the appellant made no complaints."

51. This court has looked at the petition presented to the trial court together with  the Supporting Affidavit and though the 1st Respondent sought for scrutiny  and recount of all 57 polling stations in Magumoni Ward, the orders sought  were blanket orders because save for the 11 polling stations pleaded under  paragraph 14 of the petition, the Petitioner in my view did not establish with  sufficient particulars basis for recount of  all 57 polling stations because he  only pleaded particulars of irregularities  in the 11 polling stations and even  then the basis of his complaint was that there were marked differences  between the electronically transmitted results and what was  on Form 35B  yet he failed to tender admissible evidence pursuant to Section 106B of the  Evidence Act.  In  his evidence before the trial court he told the trial court  thus;

"none of my agents in 57 polling stations reported any irregularities.............none of my agents asked for a recount."

The evidence tendered by the Petitioner in totality indicated that he had no   problem with the primary results as captured in Form 36As .  His major  complaint was in respect to Form 36B.

52. A trial court in Election matters should always be on guard because  politicians more often than not do not lose an election contest so when  elections results are announced sometimes they file election petitions as an  endeavour to fish for evidence or something that can alter the announced  results. So courts should be careful not to be used in such endeavours.  A  party aggrieved by election results declared should come to court with  specifics on how he/she thinks he/she was robbed  of victory despite being  voted by majority of voters.

53. In this appeal, the record of appeal shows at the trial, the 1st Respondent  pleaded that the appellant " committed numerous election offences and  malpractices "which in his view vitiated the will of the voters of Magumoni  Ward but during cross examination when put to task to  explain what he  meant by election offences and malpractices he stated that the appellant  agreed to be declared a winner when he knew that he had not won  and  proceed to name the following polling stations which he claimed the 2nd and  3rd Respondents transmitted wrong results;

1) Magumoni Nursery

2) Kathiru polling station

3) Kagaari Primary School

4) Gachuri Primary School

5) Kangoro Primary School

6) Maabe Primary School

7) Rubate Primary School

8) Thambo Primary School 1

9) Thambo Primary School &

10)  Magumoni Polling Station

Again when asked during cross-examination matter he had evidence to  prove that the results were tampered with he said;

"I rely on downloaded results and IEBC portal.  I have no certificate of electronic evidence."

54. With the above pleadings and evidence highlighted above, the big question  is, did the trial court exercise its discretion properly/judiciously in ordering  for a recount?  It is true that the power to order for count or scrutiny is a  discretionary one to be exercised judiciously at a stage in the pleadings a  trial court may deem fit.  In this regard I disagree with the appellant's view that because the 1st Respondent asked for "immediate scrutiny and  recount" the court hands were tied to only granting or not granting the relief  immediately.  An election court has wide latitude to decide at what stage and  it is desirable that the determination of whether or not to grant such a relief  is done after all the parties have tendered their evidence  to enable the court determine with the benefit of evidence tendered whether there is sufficient  basis to warrant recount or scrutiny or both in order to determine the petition  filed.

55. Back to whether the trial court exercised its discretion properly in ordering  for a recount of all 57 polling stations is that the answer to the question  posed is clearly given in  the cited case of Gitarau Peter Munya (supra)  where the Supreme Court made the following observations;

"Indeed the rule (referring to then Rule 33(4) now Rule 29(2) of    Election Petitions Rules) should be seen as providing the necessary guidelines for the exercise of discretion by the court under Section 82 of the Act.  By providing that scrutiny shall be confined to the  polling stations in which the results are disputed, the rule is by no means limiting the court's  discretion. If election results are seriously disputed, in all  polling stations in a constituency then   Rule 33(4) (read Rule 29 (4) ) would not erect any barrier to an  order for scrutiny in those polling stations. Otherwise why should a court order for scrutiny in a polling station in which there is no    dispute whatsoever.  What would the court be scrutinizing?"And so  I ask why did the trial court order for a recount in all 57 or 60 polling  stations? What was the rationale?  In my considered view the 1st  Respondent  did not establish sufficient basis to warrant the trial court  undertake a  laborious task of recounting of votes in all 60 polling stations in  Magumoni  Ward- given that the overriding objective of Rule 29(4) is to  facilitate the timely resolution of election petitions as held in Gitarau Peter  Munya where the Supreme Court held that an order of scrutiny should not  be abused and "turned into a fishing expedition" where a petitioner comes  without a basis for challenging an election but instead elects to seek scrutiny  as a device to generate election dispute  material.

56. This court finds, on the basis of the above, that the trial court misdirected  itself when it ordered for a recount of all the 57 polling stations in  Magumoni Ward for the following reasons:-

(i) The petition did not indicate with sufficient particulars the    malpractices or irregularities to warrant a recount or scrutiny of votes in all the 57 polling stations.

(ii) The 1st Respondent and his witness during trial stated that had  no problem with Form 36As and that the only complaint they had was that the results on the IEBC portal was reflective of the results contained in Form 36A.  As I have observed above no legal basis was tendered as the evidence tendered in this regard contravened the provisions of Section 106B of the Evidence     Act.

(iii) The Petitioner told the trial court that none of his agents raised a complaint at any polling station or requested for a recount.

This court finds that the trial's court conclusion that a basis for a  recount had been established was erroneous and unsupported by evidence  and as held in Zachariah Okoth Obado-vs- Edward Akango Oyugi & 2 Others [2014] eKLRthe appellant had a right to appeal against such finding  under Section 75(4) of the Elections Act because as I have observed above  on the evidence and pleadings presented before the trial court, "no reasonable tribunal could have reached that conclusion" basically  because there was  lack of "sufficient reasons" within the context of Rule  29(2) of Election  Petitions Rules and the decision inRaila Amolo Odinga & Another  -vs- Indepedent Electoral & Boundaries Commission & 2 Others [2017] eKLRto engage in a recount exercise in the face of the  following set guidelines by the Supreme Court;

" Before the trial court permits recounting the following conditions must be satisfied;

(i) The court must be satisfied  that a prima facie case is established.

(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes

(iii) A roving and fishing inquiry should not be directed by way of an order to recount the votes.

(iv) An opportunity should be given to file objection and

(v) Secrecy of the ballot should be guarded."

In Peter Gichuki Kingara -vs- IEBC & 2 Others [2013] eKLRJustice  Ngaah made the following remarks which I find relevant on this issue;

"........................... the law on scrutiny and recount that I have  addressed hereinbefore suggests that scrutiny and recount in a  petition..................... is not a gambling exercise that sets the court  rummaging through ballot boxes to see whether any scintilla of evidence  of electoral malpractice or irregularity can be found.  If the petition is  based on any particular malpractice or irregularity that would warrant  scrutiny or recount of votes, the malpractice must be pleaded and the  evidence of such malpractice must be laid out or established prior to an  order for scrutiny or recount; the court must be satisfied that on the basis  of evidence before it, it is necessary to call for scrutiny and recount, if not  for anything else, to confirm the truth of particular evidence.  Asking for  scrutiny or recount where there is no evidence or basis for such exercise  would be more or less engaging the court on a mission searching for evidence where non exists, a practice that would not only be prejudicial to the Respondents but would also be deprecatory in a legal system that  believes in fair and impartial administration of justice."

The trial court therefore clearly made an error to order for recount of all 57  polling stations.

57. (iv) whether the learned trial magistrate erred by relying on    unpleaded  issues.

The appellant has faulted the learned trial magistrate for framing up an issue outside the pleadings filed and the evidence adduced.  This is in regard to the  trial's court finding that in the process of recounting  he found "two ballot  boxes that were not identifiable" as the boxes lacked Form 36As.  The  appellant has stated that the issue of the 2 ballot boxes did not crop up during trial neither was it pleaded and the 1st Respondent's response is that  the trial court was not expected and could not shut its eyes to an irregularity.

58. This issue no doubt is major in this appeal and I have taken time to ponder  over it.  I will give this issue a multifaceted approach with a view  to  addressing it adequately.

Firstly, can a trial court make a finding or render a decision on an issue not  pleaded?  It is quite clear from the pleadings the question of "two ballot  boxes" was not specifically pleaded. The issue of some two boxes also did  not crop up during the hearing as per the proceedings  of the trial.  The two  boxes came up during the recount exercise.

59. From the onset it is important to note that our legal system is an adversarial  one where each party is required in law to lay open his case for adversary to  have a fair chance to respond to it.  It is prejudicial to a party in litigation to  be presented with a case and on adequately responding to it, he/she gets  confronted with new set of facts for which he/she was not prepared for.  That  is why parties are precluded from departing from their pleadings unless they  seek leave and are allowed to amend their pleadings in which event the  opposing party also has chance to respond.  The underpinning of this is the  right to be heard and right to access justice which are embedded in Kenya's  Constitution 2010 (Article 25(e), 48 and 50).  It is true therefore that parties  should be bound by their pleadings and should not be given latitude to build  up their cases in the course of trial because that would amount to changing  of goal posts when the parties have prepared their respective positions in a  case.  In the case of Benjamin Ogunyo Andoma -vs- Benjamin Andola  Andayi & 2 Others [2013] the court had this to say,

" The affidavit evidence relied upon by the Petitioner however sought to expand the scope of the petition by adding complaints    which were  not pleaded in the petition.  It is trite, in my view that    parties are bound by their pleadings.  A party cannot be allowed to come to court and attempt to prove complaints which are not pleaded unless a request for amendment of pleading is considered and granted by court.  In my view the evidence whether by affidavit or otherwise is meant to support what is contained in a party's    pleadings and not to expand the cause of action......"

In Ferdinard Ndung'u Waititu -vs- IEBC & Others [2013] eKLR the court  made similar observations as follows:-

".............................. the 3rd principle is that as in all litigations, a    petitioner is bound by his pleadings.  It is common that a Petitioner    will file a petition and will in the course of the proceedings veer    away the initial track.  This puts the opponent into a difficult position in knowing what the real case is and what the court must    determine..........."

60. Now turning on to the question posed by the 1st Respondent regarding  whether a court should turn a blind eye to an illegality even if the same was  not pleaded, is that there is another school of thought that elections courts  enjoy special jurisdiction which is inquisitorial in nature.  The reasoning  behind this school is that an election court is at the end of the day a fact finding court whose mandate is to check whether an election carried out  meet the constitutional requirements as stipulated under Article 81 and 86 of  the Constitution of Kenya 2010.  So in the exercise of this inquisitorial  jurisdiction can an election court render a decision on an unpleaded issue?  Let me start first by turning to older case law  in the case of ODD JOBS-vs-  MUBIA [1970] EA 476 where the Court of Appeal held as follows:-

"...................a court may base its decision on an unpleaded issue if it   appears from the course followed at the trial that the issue has been    left to the court for decision .................pleadings should contain    concise statement of the material facts on which the party pleading    facts on which the party pleading relies......................... Generally    speaking pleadings are  intended to give the other side fair notice of   the case that it has to meet and also arrive at the issues to be     determined by the court.  In this respect a trial court may frame    issues on a point that is not  covered by the  pleadings but arises    from the facts stated by the parties or their advocates and on which    a decision is necessary in order to determine the dispute between the   parties."

In the case of Clement Kungu Wambora -vs- Benard Chege Mburu & 2  others [201] the Court of Appeal emphasized this position in the following  observations;

" In our view, the issue was pleaded though not expressly. Even assuming it was not, on the authority of Odd Jobs -vs- Mubia,(Supra) the issue was canvassed at the hearing of the petition and a    decision therein was necessary."

The two decisions above shows that a venture outside pleadings can be  allowed so long as  the issue can be deduced from the facts presented and the  issue was canvassed at the hearing .  In the case of Hassan Abdalla Albeity - vs-Abu Mohammed Chiaba & Another [2013] eKLR, on the court made the  following observations.

" .................................. though ordinarily parties in civil suits are    bound by their pleadings and the court ought not to entertain or    make a determination on matters not covered by the parties     pleadings, I am of the view that an election court enjoys special jurisdiction which is inquisitorial in nature.  An election court and indeed this court has clear mandate to inquire into and determine whether a disputed election was conducted in accordance with the  law, whether it was free, fair and transparent and lastly whether the winning candidate was validly elected.  It  therefore follows that any ground which is relevant to a determination concerning the validity of results whether pleaded or not in the petition ought to be considered by the court of course after ensuring that no prejudice would be occasioned to the opposing parties. It is my considered view that an election court should be flexible in its approach in the conduct of its inquiry as this is the only way that it can make a fair and substantive determination of all issues raised in an election dispute.  Such an approach would be in tandem with Article 159(2) of the Constitution and Section 80(1) of the Election Act which  enjoins court to administer substantive justice."

I believe the Judge in the above decision when expressing the need to  first  ensure that no prejudice should be occasioned to any party  when  deciding on unpleaded ground or issue was minded about fair trial that  entails that parties get a chance to be heard before a decision is  rendered.

61. As I have observed above, one of the cardinal principles of a fair trial is  giving parties a chance to be heard.  In my view rendering a decision on an  issue not pleaded or not canvassed fully at the trial compromises that  cardinal principle. So while I agree that at the times in rare special  circumstances, it may be necessary to entertain an issue which, though  pleaded, crops up in the course of trial like a glaring illegality, it is necessary  and an imperative to invite parties to make their representations/responses  on it before a decision is rendered.  That way no party will feel prejudiced or  hard done but courts should be careful so as to avoid descending into the  arena of conflict because doing so would be dangerous to the overall  administration of justice which must be done with fairness and impartiality.

62. In the case cited by the 1st Respondent, of Zacharia Okoth Obado -vs- Edward Akongo Oyugi & 2 Others [2014] eKLR the Supreme Court  rendered itself on this question of upleaded facts and its place in the right to  a fair hearing and held as follows:

".............. In our opinion the trial Judge rightly refused to consider    any issues that had not been canvassed fairly such as the introduction of new matters which had not been disputed  by the    Petitioner.............."

In that case the 1st Respondent wanted to  introduce a new issue at the  stage of submissions and the trial court declined on the ground that the rest  of the parties would not have an opportunity to respond.

63. In the light of the above decision the question posed is whether the  trial  magistrate accorded the parties a fair chance to be heard on the discovery of  two unidentified ballot boxes? The answer to this question brings me to the  second facet of approach to this issue.  It is clear from the proceedings in the  court  below that the parties were not given an opportunity to interrogate or  canvass about the missing Form 36A in the 2 boxes.  That in my view is where the learned trial magistrate fell into error the result of which the  election of the appellant was nullified hence prejudice suffered.

64. The appellant also complained that the trial magistrate should not have  taken part in recount exercise and that a written report should have been  availed to the parties with a view to giving them a chance to interrogate  them. While there is no rule barring a trial court from conducting either  scrutiny or recount, itself, it is in my view desirable  that another judicial officer, in this respect, an Executive Officer should carry out that exercise to  enable the trial court maintain its impartiality and address any issue arising  from scrutiny or recount exercise.  But  be that as it may that is not a major  problem in this appeal.

65. The main issue is the results of an exercise brought up new evidence on the  basis of which the petition was allowed.  Where a petitioner in an election  petition does not sufficiently plead his facts with necessary particulars to  give the other a chance to respond and hope that a scrutiny or recount  exercise would unearth evidence to support him, the court would be justified  to reject such a move as the same amounts to a fishing expedition.

In Zacharia Okoth Obado, the Supreme Court held as follows:-

"We hold it to be improper that, when re-tally is conducted, a party  should take this as an opportunity to introduce new spheres of disputewhich had not been signaled in his or her original pleadings.  It is vital in  election disputes, that the Respondent should know the case that faces him  or her.  Hence the Petitioner ought to have indicated in his or her pleadings  that the disputed matters, with clarity and specificity, as a basis for being  allowed to urge that there were irregularities in those spheres, after re-tally  has been conducted.  However, where a trial court exercises its discretion  and, suo moto, orders a scrutiny, recount or retally, revealing irregularities  other than those that were pleaded, then there is a proper basis for any party  to pose question upon such "new" findings and the court then will make  findings on the effect of those irregularities on the declared results."

66. In the present case, the 1st Respondent never pleaded that he had any issue  with the two ballot boxes or the polling stations in respect to which the two  ballot  boxes relates.  So it is quite clear that the recount exercise conducted  by the trial court upon application or motion by the 1st Respondent  introduced a new sphere of dispute which was outside the four corners of his  petition.  The appellant and 2nd and 3rd Respondent did not know about this  when they turned up in court to defend themselves and were clearly got off  guard when  they were confronted with the same at the tail end of the  proceedings that is at submissions stage.  They were clearly and unfairly  exposed because they did not get a chance to interrogate why the Form36As  were missing and who was responsible.

67. Thirdly, the appellant posed a question which I found legitimate that the  learned magistrate found, on one hand that  in Nthambo Primary School  polling station, the Returning Officer made a human error by inadvertently  inserting original Form 36A in the ballot box of that station and sealing it.   The trial court in its Judgment found that error to be a human error and excusable in the circumstances but on the other hand, he found out that two  Presiding Officers had inadvertently forgot to insert the carbon copy of Form  36As in their respective polling station and found that the same was an  irregularity sufficient enough to nullify an election.  This court finds that two  findings even on their own are inconsistent and incapable of any other inference other than either one or both are an erroneous findings but given  the evidence tendered the latter conclusion was erroneous and unfair to the  appellant and 2nd and 3rd Respondent because they did not get a chance to  interrogate and canvass about the missing Form 36A in the two ballot boxes.   The process of that finding in my considered view was wrong and so to the  trials  court's conclusion that it was sufficient to show that the "errors/discrepancies were of such magnitude"that it affected the final  result or outcome of election.

68. This court finds that on the evidence tendered  before the trial court, failure  of two Returning Officers to insert copies Form 36A in two ballot boxes  discovered during recount exercise may have been due to human error that  did not affect the credibility of the polls in Magumoni Ward by dint of  Section 83 of the   Election Act.  Had the learned trial magistrate invited  parties to interrogate the missing copies of Form 36As in the two ballot  boxes perhaps he could have gotten answers which could have exonerated  the 2nd and 3rd Respondents. The bottom line however is that sight should not  be lost on who bears the burden of proof in an election petition.  The  Petitioner always  carries the burden and where there is failure to discharge  that burden as it was clear from the  evidence presented  before the  trial  court, then the sovereign will of voters should always be sustained.

The 1st Respondent did not make any specific complaint on the two ballot  boxes in his pleadings or during trial and the trial court in my view erred  because in effect it introduced a new ground in the petition, and introducing  it failed to invite the parties to ventilate upon it and used same the new  ground to determine the  petition. As held ZACHARIO OKOTH OBADO  he ought to have given a  chance to the parties to canvass about the issue in a  trial and not through submissions because submissions were not sufficient.  Parties should be  given a chance to call evidence if necessary to rebut or  defend themselves  against any allegation made against them.  That is the  essence of a fair, trial as contemplated under Article 25 (2) 48, and 50(1) of  the Constitution of Kenya 2010.

69. On costs, it is now settled that costs awarded should not be so punitive as to  impede litigants rights to access justice as provided  under Article 48 of the  Constitution.  In the premises and having heard all the parties on this score, I  will cap costs of this appeal to Kshs.1. 5 million (one million five hundred  thousand)

70. In the light of the considerations on the submissions made by the appellant  and the 2nd and 3rd Respondents who were also cross appealing and the 1st  Respondent, this court finds merit in this appeal.  The same is allowed.  The  decision made by the learned trial magistrate on 1st March, 2018 nullifying  the election of the appellant is set aside and  in it's place an order is made  sustaining his election as Member of County Assembly Magumoni Ward  as declared by the 2nd and 3rd Respondent on 10th August, 2017 and gazetted  on 22nd August, 2017.  The 1st Respondent shall pay costs to both the  Appellant and 2nd and 3rd Respondents capped at Ksh.1. 5 Million (One  Million Five Hundred Thousand) in this appeal and also pay the costs of  the petition in the lower court to the Appellant and Respondents also capped  at Kshs.1. 5 Million.

Dated, signed and delivered at  Chuka  this 31st   day of July, 2018.

R.K. LIMO

JUDGE

31/7/2018

The Judgment is signed dated and delivered in the open court in the presence of Leisagor for 2nd and 3rd Respondent (also cross Appellants) and Nyamu for the 1st Respondent.

R. K. LIMO

JUDGE

31/7/2018