Mercy Achieng Mola & John Ndagwa v Raphael Bitta Sauti Wanjala, Independent Electoral & Boundaries Commission (I.E.B.C) & Returning Officer, Budalangi Constituency [2017] KEHC 2582 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

ELECTION PETITION NO. 3 OF 2017

1. MERCY ACHIENG MOLA…………………….1ST PETITIONER

2. JOHN NDAGWA………………………….......2ND PETITIONER

VERSUS

1. RAPHAEL BITTA SAUTI WANJALA.….....1ST RESPONDENT

2. INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION (I.E.B.C)….....2ND RESPONDENT

3. RETURNING OFFICER, BUDALANGI

CONSTITUENCY…………………………..…3RD RESPONDENT

RULING

The petitioners /applicants have moved this court by way of Notice of Motion dated 3rd October 2017 pursuant to sections 80(1)(d),3,82(1) of the Elections Act, Rules 4(1)&(2),5(1),16(1),(4)&(5),28 & 29 of the Elections (Parliamentary and County Elections) Petition rules, 2017, Article 159 of the Constitution of Kenya and all enabling provisions of the law for orders for:

1. A recount and examination of tallying of votes in respect of votes received on 8th August 2017 by all candidates for the member of the National Assembly Budalangi constituency.

2. Scrutiny of votes cast in election for member of National Assembly, Budalangi Constituency on 8th August 2017 in respect of all polling stations.

3. Preservation and storage of all ballot boxes, votes, register and other electronic paraphernalia and electronic devices used in election on 8th August 2017 for member of national Assembly, Budalangi constituency.

The application was opposed by the respondents who contended that no basis was established for the grant of the orders sought.

The right to scrutiny and recount of votes is provided for under section 82(1) of the Elections Act and Rule 30 of the Elections (Parliamentary and County Elections) Petition Rules, 2017. This was emphasized by the Supreme Court in the case of GATIRAU PETER MUNYA vs. DICKSON MWENDA KITHINJI & 2 OTHERS [2014] eKLRwhere it stated at paragraph 153 as follows:

From the foregoing review of the emerging jurisprudence in our Courts, on the right to scrutiny and recount of votes in an election petition, we would propose certain guiding principles, as follows:

a. The right to scrutiny and recount of votes in an election petition is anchored in Section 82(1) of the Elections Act and Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013. Consequently, any party to an election petition is entitled to make a request for a recount and/or scrutiny of votes, at any stage after the filing of petition, and before the determination of the petition.

b. The trial Court is vested with discretion under Section 82(1) of the Elections Act to make an order on its own motion for a recount or scrutiny of votes as it may specify, if it considers that such scrutiny or recount is necessary to enable it to arrive at a just and fair determination of the petition. In exercising this discretion, the Court is to have sufficient reasons in the context of the pleadings or the evidence or both.  It is appropriate that the Court should record the reasons for the order for scrutiny or recount.

c. 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 a 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.

d. Where a party makes a request for scrutiny or recount of votes, such scrutiny or recount if granted, is to be conducted in specific polling stations in respect of which the results are disputed, or where the validity of the vote is called into question in the terms of Rule 33(4) of the Election (Parliamentary and County Elections) Petition Rules.

What emerges from these guiding principles is that an application for scrutiny is a right that can be exercised by a party to the petition or the court seized of the petition can make an order suo moto. The most important consideration is that before such an order is made, there must be sufficient reasons for the court to exercise this discretion.

In the instant case, the applicants have described themselves as voters. It would have been easier for them to call for scrutiny in respect of the polling stations they interacted with. The court would have seen their point very easily for they would be talking of facts within their knowledge. The applicants would be allowed to request scrutiny in respect of other polling stations as long as there were supporting affidavits to the same.

The purpose for scrutiny and recount is to aid the court to arrive at a fair and just decision. This is why the law allows the court to make such an order suo moto.  In the case of GIDEON MWANGANGI WAMBUA & ANOTHER VS. I E B C & 2 OTHERS, MOMBASA ELECTION PETITION NO. 4 OF 2013.

The aim of conducting scrutiny and recount is not to enable the Court to unearth new evidence on the basis of which the petition could be sustained.  Its aim is to assist the court to verify the allegations made by the parties to the Petition, which allegations themselves must be hinged on pleadings.

Having perused the petition, I am satisfied that the petitioners/applicants had raised issues in respect of specific polling stations. It is not open for them to ask for orders for scrutiny in all polling stations in the constituency. If the same is allowed, it would widen the scope of the petition. This is what the respondents termed as a fishing expedition.

After considering the submissions by all the counsel for the parties, I will allow partial scrutiny of votes in the following polling stations:

1. Lunyofu Primary School,

2. Mundere Primary School,

3. St. Benedict’s Secondary School,

4. Osieko Primary School,

5. Budalangi Primary School,

5. Bukoma Primary School; and

6. Ruambwa Primary School.

The Independent Electoral and Boundaries Commission is enjoined by the law to keep all election materials in safe custody. I will however under the provisions of Rule 16(5) order that the petitioners may add an extra seal to the ballot boxes in the presence of the other parties. The electoral materials shall however remain in the custody of I.E.B.C.

The application is therefore allowed in the aforementioned terms.

DELIVEREDandSIGNEDatBUSIA this 6th day of November, 2017

KIARIE WAWERU KIARIE

JUDGE