Kithinji Kiragu v Martin Nyaga Wambora, David Kiambi, Independent Electoral & Boundaries Commission [2013] KEHC 2954 (KLR)

REPUBLIC  OF  KENYA

IN   THE  HIGH  COURT  OF  KENYA  AT  EMBU

ELECTION  PETITION  NO. 1   0F  2013

KITHINJI  KIRAGU…………………………………………PETITIONER

VERSUS

MARTIN  NYAGA  WAMBORA………………....….1ST RESPONDENT

DAVID  KIAMBI……………..……….………………2ND RESPONDENT

INDEPENDENT  ELECTORAL &

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

DIRECTIONS

Upon a reading of the Petition, Responses, all affidavits (in support & against), annextures & Embu Governor's results (filed by IEBC) this Court discerned that there would be need for scrutiny & recount. The counsels and parties were duly informed. The Court made an order to that effect with a rider that it would in due course give directions on which polling stations would be affected. I would also wish to add that the Petitioner in prayer (iv) of his petition made the following  prayer;

“That an order do issue for the scrutiny or recount of ballots from Runyenjes & Manyatta constituencies to ascertain and authenticate the votes garnered by the 1st respondent”.

On the first day of the hearing i.e 10th June 2013, Ms.  Omuko for the 2nd & 3rd respondents requested to be allowed to submit on the issue of scrutiny at a later date. The request was granted. The Petition has been heard to its conclusion with the Petitioner calling six (6) witnesses plus himself; the 1st respondent called six (6) witnesses plus himself while the 2nd& 3rd respondents called four (4) witnesses plus the 2nd respondent. In total this Court has heard nineteen (19) witnesses.  At the close of the hearing the Court inquired from all the counsels if they were still keen on submitting on scrutiny & recount and they all responded in the negative.

Scrutiny, Tallying, and recount are all founded on the following  provisions of the law;

S82(1) of the Elections  Act which provides:

“ 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 a manner as the election court may  determine”.

Part vi of the Elections (Parliamentary & County Elections) Petitions Rules 2013 - Rules 32 & 33. Rule  32 provides;

“Petitioner may request for recount or examination of tallying”

Rule 33(1) provides;

“The parties to the proceedings may at any    stage, apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.”

In the present petition R32 &33 do not apply as none of the parties made an application under the said Rules. The Order herein was therefore made under Section 82(1) of the Elections  Act. The following  would make a Court on its own motion make an Order for scrutiny and/ or recount;

There having been laid a basis for the same from the pleadings and/ or the evidence adduced.

To assist the Court investigate the validity of allegations of irregularities and breaches of the law complained of.

Ref;

(a)          REUBEN  NYANGINJA  NDOLO  VERSUS   DICKSON WATHIKA  MWANGI. PETITION  NO.11 OF 2008.

(b)       WILLIAM  MAINA  KAMANDA  VERSUS  MARGARET WANJIRU  KARIUKI & 2   OTHERS.   ELECTION  PETITION NO.5 OF 2008

To assist the Court in determining the valid votes cast in favour of the candidates.  Ref;  WILLIAM MAINA KAMANDA’S  CASE (supra).

After hearing all the parties and their witnesses herein I hereby confirm the Order for scrutiny & recount made on 27th May 2013 and proceed to issue the following directions:

There shall be Full Scrutiny and Recount of valid votes in the following polling stations;

(i)        Code No. 041 – Kithimu Primary School –                            Manyatta Constituency, and,

(ii)       Code No. 075 – Kithiruri Tea Buying Centre

(iii)      Code No. 104 – Kathunguri Primary School

of Runyenjes Constituency

There shall be Partial Scrutiny & Recount in the   following polling   stations;

MANYATTA  CONSTITUENCY

(i) Code 028 - Kianjugu Tea Buying Centre

(ii)Code 122 - Embu Urban Primary School    (iii)Code 124 - Embu Municipal Council (stadium)

(iv)Code 130 - Embu Municipal Council (Town hall)

(v)Code 083  Kibugu Tea Buying Centre

RUNYENJES CONSTITUENCY

(i)Code 002  Kianjokoma Primary School

(ii)Code 034  Ugweri Primary School

(iii)Code  045  Gikuuri Primary School

(iv)Code 050  Gitare Primary School

(v)Code 057  Kanja Primary School

(vi)Code 066  Mbuinjeru Primary School

(vii)Code 077  Miandari Tea Buying Centre

3.        The scrutiny & recount in the above polling  stations shall be restricted to the ascertainment  of the number of valid votes that each candidate  obtained as compared with the results that were            announced in the Form 35s that were later collated in Form 36s by the constituency     returning officers.  The Form 35s in respect of these polling stations will be photocopied by the Deputy Registrar for the Court's record.

4.        There shall be verification & retally of ALL Form   35s & 36s limited to ascertainment of

(i)      Valid Votes,

(ii)       cumulative/aggregate votes of the   candidates;

(iii)  unaccounted for votes in the following   polling stations:

MANYATTA  CONSTITUENCY

(i)  Code 029- Kithunguri Tea Buying Centre

(ii) Code 046- ACK Church Grounds Kithimu   market  stream 2

(iii)      Code 118- Kapingazi Coffee Factory stream 1

(iv)      Code 159- Full Gospel Church Grounds– Kivue

(v)       Code 045  St. Joseph Allamano

RUNYENJES  CONSTITUENCY

Code 009  Karue Primary School

Code 015  Machagori Primary School

Code 030 Ndumari Primary School

Code 039  Nthagaiyia Primary School

Code 046  Ngarare Primary School

Code 048  Kigaa Primary School

Code 061  Ndamunge Tea Buying Centre

Code 063 Kirimiri Tea Buying Centre

Code 067 Mugui Primary School

Code 068  Kareretire Tea Buying Centre

Code 070  Karangu Tea Buying Centre

Code 073  Machiara Tea Buying Centre

Code 079  Kiamuchiri Tea Buying Centre

Code 080  Kiandong’o Tea Buying Centre

Code 087 Njeruri Primary School

Code 091  Riari Primary School

Code 098  Gakwegori Primary School

Code 101  Karungu Primary School

Code 105  Kathunguri Youth Polytechnic

Code 106 Kariru Primary School

Code 108  Kaveti Primary School

Code 117  Mikundu Tea Factory

5.        This scrutiny & recount shall be undertaken  under the supervision of the Deputy Registrar of this Court.  After the exercise she will file a report which will form part of the proceedings herein.

For ease of the exercise the Petitioner, the 1st ,2nd & 3rd Respondents shall each be allowed to have  four (4) agents present during the exercise.

6.       This exercise shall commence on 3rd July, 2013  8. 30am and shall proceed on a day to day basis until it’s conclusion.

Mention on 8th July, 2013.

Dated at Embu this 2nd day of July, 2013.

H.I.ONG’UDI

JUDGE

Mr. Njagi for Petitioner

Mr. Marete assisted by Ms. Wairimu for 1st Respondent

Ms. Omuko for 2nd & 3rd Respondents

Njue CC