Mugambi Imanyara v I.E.B.C, Meru County Returning Officer & Franklin Mithika Linturi [2017] KEHC 2237 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

ELECTION PETITION NO. 5 OF 2017

MUGAMBI IMANYARA.......................................................PETITIONER

VERSUS

I.E.B.C........................................................................1ST RESPONDENT

MERU COUNTY RETURNING OFFICER................2ND RESPONDENT

FRANKLIN MITHIKA LINTURI.................................3RD RESPONDENT

RULING

By an application dated 6th September 2017 brought under Certificate of urgency by the petitioner herein the petitioner prayed as follows:-

That the Honourable Court be pleased to order the 1st Respondent to give access to the applicants/petitioner to the following:-

a) Full and unfettered physical and remote access to each biometric electronic appliance used at each voting/polling location used to verify voters identification against the list of registered voters and for the appliances to be forensically imaged to capture Inter alia metadata such as data files, creation times and dates, devises, IDs, MNs addresses IP.

b) Electronic devices used to capture form 38 As and form 38 Bs onto the KIEMs system and transmitted to Constituency Tallying Centres and The National Tallying Centre.

c) Full and unfettered access to any form of scanning device which saved images onto access local server(s) for onward transmission to the Constituency and National Tallying Centre.

d) That the court be pleased to order the 1st Respondent to give access to all the parties, for purposes of scrutiny and supply to the court and to the parties original form 38 As and 38 C prepared at and obtained from the polling stations by presiding offers and used to generate the final tallying of the Senators election and pursuant to such production leave be granted for the use of an aid or reading devise to assist in distinguishing the fake forms from the genuine ones.

e) The 1st Respondent be compelled to give the petitioner/Applicant access to the original form 38 As, 38 Bs and 38 Cs.

f) The honourable court be pleased to grant the petitioner leave to put in any other and/or further affidavits to or in reply to any responses filed by the Respondents.

g) That the court be pleased to grant any other reliefs that it may deem just and fit to grant in the interest of justice.

The application dated 6th September 2017 was supported by the grounds on face of the application and sworn affidavit of the petitioner and other affidavits sworn in support of the petitioner.

Among the grounds was that in Supreme Court Petition No. 1 of 2017 the court found and held that

a) There were irregularities and that some of the Declaration forms used to tally results from Meru County had anomalies and inconsistencies including but not limited to most of them lacking security features.

b) That pursuant to the finding in Supreme Court Petition No. 1 of 2017 the petitioner has noted similar and extensive anomalies in the forms that were used to declare the senatorial results for Meru County which anomalies and inconsistencies go to the very root of the integrity, accountability and verifiability of the senatorial elections conducted in Meru County.

c) The 1st Respondent issued applicants/petitioners the forms 38 As and 38 Bs for various polling stations and constituencies respectively which bear grave anomalies for instance they do not bear the handing over/Taking over section and in addition, the same bear only 2 signatures from Party Agents affiliated to the 3rd Respondents political party.

d) The aforesaid form 38 As and 38 Bs issued to the applicant/petitioner by the 1st Respondent interestingly do not bear the security features as had been stipulated in the contract signed  between the 1st Respondent and Al Ghurair LLC for the standard forms used for the declarations of the election results.

e) The Petitioner/Applicant is apprehensive that the rights of the people of Meru County as  enshrined in Article 38 of the constitution has been and shall continue to be prejudiced and trampled upon should the court not intervene by granting orders sought is the present application.

f) The 1st Respondent has blatantly and/or inadvertently failed and/or omitted to surrender and/or issue the applicant copies of various form 38 As as requested for 300 or there about polling stations.

g) The 1st Respondent has issued the applicant/Petitioner with form 38 B for South Imenti Constituency which bear various irregularities including a mismatch in the names of the candidates, no serial number and quoting the wrong provision of the Election (General) Regulations 2012.

h) That based on the foregoing it is incumbent upon the court to order and direct the 1st Respondent to furnish the court with all the original form 38 As, 38 Bs and 38 Cs for purposes of scrutiny, verification, transparency and accountability.

i) It is in the interest of justice that the orders sought herein are granted so as to enable applicants and their supporters exercise their constitutional  right to enforcing the fundamental right to having elections that are free, fair, credible, transparent verifiable and accountable and in line with the constitutional principles as stipulated under Articles 1,2,3,10,38, 81 and 86 of the constitution.

In response to the application dated 6th September 2017 the 1st and 2nd Respondent filed a Replying Affidavit sworn on 20th September 2017 by Gichihi Macharia Samuel the County Returning Officer for Meru County who contended that the election for the position of senator of Meru County was conducted in accordance with the principles laid down in the constitution, the Elections Act and all the subsidiary legislation thereto.

The Returning officer invited the court to examine the evidence and adduced by the commission in all the affidavits.  In response to the petition.

He averred that the petitioners claims of anomalies are clearly speculative and generalities which are unsupported by evidence and particulars and should be dismissed forwith.

The Returning officer averred that without prejudice to averments in paragraph 9 the 1st and 2nd Respondents are ready and willing to lodge with the court all the original Results forms 38 As, 38 B and 38 C that declared the Results of the Election for SenatorMeru County which copies have been annexed to the affidavit hereto.

Further averment is that the Returning Officer is aware that in a few instances presiding officers, by sheer oversight, placed the original form 38 A with the Ballot Boxes and upon the sealing of the Ballot Boxes the form is not accessible of the Honourable court.

That carbonated and scanned copies are however available and have been annexed to his affidavit. At paragraph 12 the Returning Officer avers that for avoidance of doubt, the Petitioners has in duly demonized the statutory forms that were signed by his parties agents and indeed many agents across the board and agents duly given their own copies.  That any errors on those forms are not unusual in an election process and the totality of these does not by any stretch of imagination impact on the validity of the election or change the declared result.

At paragraph 13 the Returning Officer averred that allegation by the petitioner that the Supreme Court in petition No. 1 of 2017 held that there were irregularities and that some of the Declaration forms used to tally results from Meru County had anomalies and inconsistencies are ill- intentioned reckless and unfortunate second guessing as reasons for supreme courts finding had not yet been published.  At paragraph 14 the Returning Officers says that all forms in Respondents possession had features that authenticate them;

At paragraph 15, 16, 17 and 18 the Returning officer averred that the Respondent is not able to comply with an order requiring KIEMs kits inclusive of all the electronic and scanning  devices for the county of Meru and indeed all the other counties have already been dispatched to the Headquarters in preparation of the Fresh Presidential Elections and could not avail them in court.

The Returning Officer prayed that application dated 6. 9.2017 be dismissed.  The 3rd Respondent in response to the petitioners application dated 6. 9.2017 filed a Reply/Response dated 20th September 2017 and at paragraph 7 averred that the petitioner must prove the allegations of lack of integrity.  He said the Meru County Senator Elections held on 8th day of August 2017 were free, fair and transparent and that the results therein are a true reflection of the will of the people of Meru County and Elections were held in accordance with the spirit and intention of Articles 81 and 86 of the Constitution of Kenya, the Elections Act 2011 and Elections (General) Regulations 2012.

That there was no proof whatsoever of alleged bribery by the 3rd Respondent as Petitioner doesn’t disclose names of the alleged potential presiding officers.  That no report of bribery of voters or presiding officers was made at any police station within Meru County.

That the 3rd Respondent cannot be made to answer allegations that have been attributed to Hon. Kiraitu Murungi as there is no nexus between them.

The Third Respondent averred that there was no evidence persons not identified by KIEMS kit were allowed to vote.  The 3rd Respondent also said the petitioner had not demonstrated any violence that allegedly interrupted the electoral process and Further more that the 3rd Respondent was the author, facilitator or financier of any act of violence in so far as Meru Senatorial Elections were concerned.

The 3rd Respondent says that the petitioner had not mentioned even one polling station where votes were deliberately rejected in a bid to lower the number of total votes that had been cast in his favour.

The 3rd Respondent also averred that he was eligible to be nominated and indeed elected as the Meru County Senator as he has never falsified any self-declaration forms. He said there was an order staying EACC from summoning him pending hearing and determination of the petition herein and to raise the issue here is sub-judice.

Further that this court does not have jurisdiction to address its mind to a matter, that is a preserve for the criminal corut.

That there is no judicial pronouncement that the 3rd Respondent falsified information in 2013 and that claim cant be a basis for his disqualification from running to the seat of the Meru County Senator.

The 3rd Respondent said that on 5th day of March 2017 he didn’t participate in any fund raising and/or harambee and that on the material day he only parted with his weekly Sunday sacrificial offering as a staunch Catholic believer.

The 3rd Respondent denied dishing out Ksh 52,000 to any one and promising a further Kshs 50,000/- for purposes of influencing the results of 8th August 2017.  He denied having asked Hon. Kiraitu to solicit a meeting with any potential presiding officer and deputy presiding officers on his behalf for purposes of influencing 8. 8.2017 elections.

He denied that he enlisted persons named in paragraphs 84,85,86,88 and 89 as his agents and put the petitioner to strict proof that they were teachers.  He said Jubilee party never knowingly appointed any public officers as its party agent and the entire list of all the party agents doesn’t bear the names of the persons mentioned by the petitioner and there is no letter of appointment or oath of secrecy issued to the indivicuals by 3rd Respondent and his party.

The 3rd Respondent says he never bribed any one to vote for him or any potential presiding offcer and Deputy presiding officer for any purpose whatsoever.  He said he didn’t know Caroline Kendi.  He said he was not aware of any MPesa transactions between Hn Cyprian Kubai Kirungo and one Gitonga Shadrack Kathure.  He said he didn’t know Gitonga, Shadrack Kithure and Hon Cyprian Kubai Kiringo was not his agent for any purpose let a lone to bribe a Mr Gitonga Shadrack Kithure.

The 3rd Respondnt in response to paragraph 91 (iii) if the petition avers he doesn’t know Amos Barogo Mugambi and had not procured his services as he is a staunch catholic and could not procure the services of a witchdoctor as it would be an insult to his faith and defamatory to his person.

In response to paragraph 95 the 3rd Respondent said counting at Nkubu Polling Station and tabulation therein was free and fair drove in accordance with the law.

The 3rd Respondent on response to allegations at paragraph 101 said he is a man of honour and does not believe in sabotaging his political opponents but believes in fair competition.  That he never disrupted any rally at Maua.

In response to paragraphs 107 and 108 the 3rd Respondent averred that he has never forged any document or any party manifesto.

The 3rd Respondent denied ever defacing anyone’s Billboard and there was no report to the police to that effect.  The 3rd Respondent avers that all forms 38 A were available and were used to fill forms 38 Bs.  That the court cannot help the petitioner to establish the forms 38 A that he alleges are missing.

That the petitioner has not identified forms 38 B that were filled without 38 As.  The petitioner is accused of failing to file affidavits of agents who were allegedly chased in over 300 polling stations and even their names are not idenfitied.

That there was no evidence that any of petitioners agent were stopped from signing any forms 38 A at any polling stations.

That the petitioner has not even given the list of his agents who were allegedly stopped from the signing the forms 38 A.

The 3rd Respondent said that there are no unauthorised alterations of the Forms 38 A which have not been counter signed and puts the petitioner to strict proof thereof.  The 3rd Respondent has averred that the samples presented by the petitioner show that forms 38 A were stamped and signed by various presiding officers of the polling stations.

The 3rd Respondent averred that a random sampling of various polling stations a cross the 9 constituencies would show that Results entered in form 38 As tallied with those in forms 38 Bs.

The 3rd Respondent denied having manipulated the elections and averred that the 1st and 2nd Respondent conducted the elections in a free, fair, credible and transparent manner.

It was the 3rd Respondents contention that the petitioner herein lack in originality and authenticity as it is a replica of the Supreme Court Presidential Election Petition No. 1 of 2017 aimed at giving the impression that the perceived systematic failure (if any) in the conduct of the Presidential Election were replicated at the county level to cajole the court into making a similar finding without discharging the evidentiary burden.  It was the 3rd Respondents stand that the petition and supporting affidavit do not justify the granting of the prayers sought; that the petition lacks merit, is misconceived and ought to be dismissed with costs.

In the Petitioners 2nd application dated 8th September 2017, brought under the Judicature Act, the High Court (practice and Procedure Rules (Part 1 rule 3 section 76(4) of the Elections Act, Rule 12(8) (g) and 15(1)(h) of the Election (Parliamentary and County Election Petition Rules 2017, the Petitioner sought leave to file a witness supplementary affidavit and exhibits, thereof  containing additional evidence crucial, sensitive and be exposed to great risk and peril if the said affidavit is not file in a sealed envelop not to be opened by any person whatsoever other than the Election Court when the witness shall give evidence.

The application is also supported by the affidavit of petitioner which is not dated.  The application is also supported by affidavit of N.K. sworn on 6th September 2017.

The 3rd Respondent opposed the application vide Replying Affidavit sworn on 9th October 2017 averring that the application violates the principles of right to administrative justice as enshrined in Article 47 and the right to fair hearing as enshrined under Article 50 of the constitution of Kenya.

The 3rd Respondent averred that under Article 50 (2) (c) every accused person has the right to a fair trial which includes the right to have adequate time and facilities to prepare a defence and Article 50 (2)(f) to be informed in advance of the evidence the prosecution intends to rely on and have reasonable access to that evidence.

It was further contended that the court ought to ensure that constitutional safeguards are jealously guarded and upheld at all times and that elections petitioners should be judicious, fair, transparent and expeditious but must ensure compliance with the basic rule of law.

It was argued further that right to fair trial can’t be achieved if one is not given adequate facilities to prepare for defence by being supplied. With the evidence intended to be adduced in advance.  The 3rd Respondent argued that there was no basis for the court to grant orders sought by the petitioner since the petitioner has not disclosed relevant and enforcement agencies the so called verify crucial sensitive and confidential evidence which is in the possession and ownership of the petitioners witness.  Who is apprehensive for their life which would be exposed to great risk and peril if the said affidavit is not filed in a sealed envelope not to be opened by any person whatsoever other than the election petition where the witness shall give evidence.

That the applicant is not giving the court a chance to evaluate the kind of additional and/or Supplementary evidence that he is seeking to adduce;

That the court will not have a chance to determine how the additional evidence may affect the petition itself whether totally altering the petition?

The 3rd Respondent prayed that the application be struck out and/or dismissed with costs.

The and 2nd Respondents also opposed application dated 8th September 2017 by Replying Affidavit of Gichimu Macharia Samuel sworn on 11th October 2017.  He averred that the application is misconceived, Mischievous and blatant abuse of court process.

That the Election conducted on 8th August 2017 was in process that is wholly owned by the residents in Meru county.  Whose political rights under Article 38 of the constitution must be safeguarded by the court in the hearing of the petition and ought not be curtailed by limiting the access to information in the manner sought;

That the petitioner has failed to explain how the said sensitive and confidential information would expose the petitioners witness to risk and peril if the said additional evidence would be presented to the parties to the petition in advance;

The Returning officer argued that the prayer sought violates the fundamental principles of natural justice particularly the right to a fair hearing as guaranteed under Article 50 of the Constitution of Kenya 2010 and includes the right to notice of the evidence to be presented in court and to challenge evidence before a court of law.

That the Petitioner has not in anyway demonstrated that the apprehension and safety of the concerned witness are in anyway justified as no demonstrable threat has been established.

That the Petitioner merely seeks to deny the Respondent the right to reply to the evidence presented by him and to prepare witness in rebuttal.

The deponent to Replying Affidavits for the 1st and 2nd Respondent alluded to provisions of Rule 15(1)(h) which he contended allows for adduction of additional evidence which must be done in a manner so as to safeguard the rights of all the parties to the petition;

That the court must be aware of the additional evidence sought to be adduced and the judicial exercise of discretion to allow such evidence.  It was argued that the court had no notice of the evidence to be adduced  and the Judicial exercise of discretion to allow such evidence.  It was argued that the court had no notice of the evidence to be adduced and should therefore dismiss the application.

Submissions in relation to both applications dated 6th September 2017 and 8th September 2017 were filed by all the parties ad same were highlighted on 19th October 2017.  Mr Gitonga for the Petitioner in highlighting drew the courts attention to the authorities relied upon by the petitioner and the Respondents which are similar and which have settled the jurisprudence on scrutiny as provided under Section 71(1) of The Elections Act and Rule 22(1) Election Petitions Rules 2017.

Mr Gitonga argued  that the basis that is to be laid before an order for scrutiny is made is discernible from the petition and witnesses.  It was argued that the petitioner had pleaded that 3rd Respondent influenced presiding officers and Returning Officers and scrutiny/Verification of the Kits would have shown interference by the 3rd Respondent.  Mr Gitonga argued that vide Nairobi H.C. Miscelleneous Application No. 544 of 2017 IEBC was ordered to avail all forms 38 A, 38 B and 38 C but it had failed to do so.  He said less than half the forms were supplied and it was not explained how results were declared without the total number of forms 38 A, 38 B and 38 C.

There was also an allegation that ballot papers marked in favour of the petitioner were removed and burnt and a scrutiny would reveal from which polling station the ballot papers came from Mr Gitonga indicated that forms referred to as having been burnt is shown at pages 30, 31, 33, 36 and 42 of the bundles.  He said that there is no explanation why only Jubilee agents signed the forms and not agents from other parties and that is a good basis laid to justify an order for scrutiny.  Mr Gitonga argued that 1st Respondent should formally present the forms 38 A and 38 B to court.

Regarding application dated 8th September 2017 Mr Gitonga argued that prior to the passing of the new constitution evidence in election petitions were being presented in sealed envelopes and therefore the application is not new.  He said the witness seeking to file statement in confidence due to its sensitivity feared for their life due to emotive nature of election petition and their safety has to be safe guarded

Ms Mabele for the 1st and 2nd Respondent said that the import for requiring an order of scrutiny is the point of departure between her and the petitioner.  She said the 1st Respondent had obtained expert evidence in regard to storage of information in the KIEMs kit as well as the kits themselves and the petitioner has not availed an expert to counter that evidence.  She said the petitioner had failed to address in consistencies at paragraph 7 and 8 of submissions.  She said data from KIEMs kits had been stored in SD cards and are available.  She said no basis has  been laid for scrutiny she questioned whether the ballot papers allegedly removed from ballot boxes and burnt were genuine.  That this is a question that has to be interrogated and it can’t be assumed that the alleged burnt ballot papers are valid.  That the allegation can only be rebutted at hearing.  That there is no report as to where the alleged ballot papers were obtained and by who.  Ms Mabele said forms produced are duly signed by agents of parties who participated during the polling. She said there was no evidence of tampering with the forms and that all the forms  are stamped. She said the petitioner has made general statements not specific to any polling station and that petitioner having failed to provide evidence wants the court to do investigations for it.

She said the timing of the application for scrutiny is suspect and should be dismissed.  Ms Mabele claimed that submissions have raised new causes of action at page 3 paragraph (d) where forms signed by agents of candidates who didn’t participate are included.  She urged that application for scrutiny should be dismissed.

Regarding application to adduce additional evidence it was argued by Ms Mabele that its impact should be apparent.  That in the present case it is not clear what evidence is sought to be adduced and allowing it might end up altering the petition.

That the court is being urged to disregard provisions of Article 50 of the constitution regarding fair trial.  She said the 1st and 2nd Respondents will be prejudiced if they don’t know evidence intended to be adduced against them.

She said that it has not been shown the alleged witness life is threatened and if so whether the IG is not capable of giving security.

She said prior to a witness being called to testify their evidence/affidavits must have been filed.  She said petitioner should not be allowed to ambush them.  She urged that the application be dismissed.

Professor Ojienda for the 3rd Respondent assisted by Ms Awuor argued that the margin between votes garnered by the petitioner and the 3rd Respondent was to wide and the Petitioner’s petition is made up  of general statements of violations that are attributed to parties other than the 3rd Respondent.

That there was no specific accusation against the 3rd Respondent.

Professor Ojienda argued that all the allegations made in affidavits have been controverted and unless and until admitted there is no basis for scrutiny that can be said to have been made.  He argued that as per Rule 29(1) to (40) the basis for scrutiny is the  polling station and a prty must establish and lay a basis specific to a polling station for an order for scrutiny to be made.  The case of Peter Munya and others at the Supreme Court it was emphasized that scrutiny is polling station centred.  He argued that application for scrutiny is in most cases made at the end of a  hearing where evidence of witnesses has been tested.  In the case of Philip Osore Ogutu vs IEBC & Others, counsel argued that it was held that applying for scrutiny before a hearing is a risk that aparty will rarely take as what is before court is not evidence unless same is tested. That in absence of admission of irregularity the application should be dismissed.

Prof. Ojienda also submitted that the filing fo petitions 28 days after declaration of results is meant to allow parties time to come to court with petitions they can establish.

That the Petitioner wants to expand time beyond what is provided under Rule 15(1)(h).  He argued that whenever a party applies for leave to file out of time draft affidavit should be filed together with the application.  He argued that petitioners is seeking for forms 38 A because he  has realised he does not have a petition that can stand trial.  That the petitioner is asking for blanket scrutiny based on general assertions and allegations.

That the 3rd Respondent will suffer prejudice as he would not know what he would be dealing with and for what purpose scrutiny is being sought.  Prof Ojienda said that apart form prayer for scrutiny the petitioner has not asked for one other prayer unlike in many petitions where prayer for scrutiny go together with recounting.  It is argued reason for scrutiny has not been given other than that necessary forms were not attached.

Ms Awuor in tackling application dated 8th September 2017 about adduction of new confidential and sensitive evidence said that the Petitioners counsel imputed that the said evidence relates to bribery of presiding officers and polling clerks.  She said these are election offences provided for under Section 7 of the Election Offences Act.

That the consequence of finding 3rd Respondent culpable is that he will be disqualified from vying as senator and will be presented to DPP for prosecution and will have a permanent criminal record and his name will be removed from register of voters.  She said that the allegation has dire consequences on the person of 3rd Respondent.

She said that under Article 50(2)(c) of the constitution which is the supreme law of the counting it is provided that an accused person shall be informed in advance of evidence the prosecution wants to rely upon.  That this is a right that can’t be taken away.  She urged that application be dismissed as it calls upon the court to violate the constitution .

She said the impact of the additional evidence is know and evidence should not amend petition, it should only support what is already in court.

That allowing secretive evidence will not allow the parties an opportunity to respond.  She claimed paragraph of the petitioners submission at page 3 introduces new evidence not mentioned in the petition.

The issues due for this courts determination are briefly as far as application dated 6th September 2017;

whether the Petitioner/Applicant has satisfied the court that he is entitled to an order for scrutiny;

Whether a basis for scrutiny has been established by the Petitioner/Applicant.

Whether application for scrutiny is specific to particular polling stations.

Whether there is one particular malpractices and/or irregularities that the Petitioners seeks the court to investigate which affected the conduct of the impugned elections and against the dictates of the constitution.

Whether  the petitioner has established that the effect of scrutiny will not be tantamount to a wild goose chase or amend the petition thus prejudicing the Respondents;

Which documents and other election materials and in which polling stations does the petitioner require to be scrutinized?

When responses to those averments controvert them?

The Legal Regime in Relation to scrutiny:

1. Article 86 and 87 of the constitution of Kenya 2010.

2. Elections Act 2011 Section 82 (1) & (2)

3. Elections (Parliamentary and County Elections) Petitions Rules 2017 part vi.

1. 29(1) provides  parties to the proceedings may apply for scrutiny of the votes for purposes of establishing the validity of the votes cast.

2. On an application under sub Rule (1) an election court may if it is satisfied that there is sufficient reason, order for scrutiny or recount of votes.

3. The scrutiny or recount of votes ordered under Rule 29(2) shall be confined to the polling stations in which the results are disputed and shall be subject to the directions of the election court gives.

4. The scrutiny or recount of votes in accordance to 29(2) shall be confined to the polling stations in which the results are disputed and may include the  examination of

a) The written statements made by the Returning officers under the Act.

b) The printed copy of the Register of voters 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 election are in dispute

d) The written complaints of the candidates and their representatives

e) The packets of spoilt ballots.

f) The marked copy of 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

k) The statements showing the number of rejected ballot papers.

29(5) for Purposes of Rule 29(4)(b) every Returning officer shall upon declaration of the results seal the printed copy of the Register of voters used at that election in a tamper proof envelop and such envelop shall be stored by the commission subject to the elections court directions under Rule 16.

An application for scrutiny can be made at any stage of the Petition before the hearing, during hearing and even at the end of hearing of evidence. To that end this court is in agreement with the Petitioners counsels submissions while relying on the authority of Philip Osore Ogutu vs Michael Aringo & 2 others wherein Justice Tuiyot held:

“.....It all depends, I think  on the ability of applicant to marshal sufficient evidence to persuade the court that an order for scrutiny is deserved.  And there is no reason why this cannot be made prior to the hearing given that the Election Petition Rules require that the substance of the evidence to be relied on by the parties be set out in the Affidavits accompanying the petition or the responses.”

However, Justice Tuiyot only made an order for scrutiny after the petitioner had led evidence to prove allegations of malpractices, and/or irregularities and led evidence that this affected the results of the election or was substantial non-compliance with the law. One has to demonstrate effect of the alleged malpractices and irregularities through evidence and the evidence to be subjected to cross examination for it to be a basis for an objective examination by the court.  The margin of votes would sometimes determine whether scrutiny is ordered before hearing but again it must come out clearly that margin is very narrow and that counting was flawed.  In this case the margin is quite wide over 100,000 votes between Petitioner and 3rd Respondent and there will be need to adduce sufficient evidence to show there were irregularities or malpractices which were so widespread that they affected the final tally of the votes or they ultimately substantially and materially affected the results of the election.

In response to application for supply for forms 38 A, B and C Gichihi Macharia Samuel the Returning Officer for Meru County by his affidavit sworn on 20th September 2017 indicated the 1st Respondent was ready and willing to lodge with the court all original Result forms 38 A, 38 B and 38 C that declared Results of the Election for Senator for Meru County save that they may not be able to avail those which may have been placed into the ballot boxes and sealed by sheer oversight.  Although the deponent claimed that carbonated and scanned copies were available and were annexed to his affidavit.  I have not seen these annextures.  The Returning officer is therefore ready and willing to avail all the forms 38 As, 38 Bs and 38 Cs.

Looking at the subsidiary law providing for scrutiny, it is obviously a discretionary order to be exercised judiciously by the trial court upon sufficient/good and satisfactory grounds being advanced/tendered by the applicant and the scrutiny of votes if and when ordered shall be confined to the polling stations in which the results are disputed and shall be subject to the directions of the election court given. Scrutiny is not an automatic right to be granted as a matter of course.

The authorities relied upon by the parties herein have settled the principles to guide the court in granting or denying orders for scrutiny and I need not go over them again save to say that the these principles have been developed to ensure parties stick to their pleadings and don’t use the order of scrutiny to go on a fishing expedition which may amend the scope of the petition and thus prejudice the opposing party; that is the reason why it has been held time and again that a court cannot grant an order for scrutiny without 1st hearing the petition even partly or an application in that regard. Refer to the authority of Kakuta Hamisi vs Peris Tobiko and 2 others Nairobi H.C. EP No. 5 of 2013.

The court has to as in the holding in Phillip Osore vs Micheal Aringo that consider in making an order for scrutiny the malpractices and irregularities that may warrant scrutiny are concisely pleaded in a petition and in affidavit in support thereof.

Similarly in the case of Philip Mungu Ndolo vs Omar Mwinyi  Shimbwa plea for scrutiny must be precise.  It should not be ambiguous and intended to enable a petitioner to engage in a fishing expedition and perhaps salvage their case or couched in general terms.

The courts have held time and again that it would be an abuse of the court to look upon scrutiny as a lottery to allow a party to use for purposes of chancing on new evidence. For scrutiny to be granted specificity is crucial.  The polling station in which results are disputed must be specified.  The documents to be scrutinized and why they are being scrutinized.

The Petitioner in his 1st prayer to the petition has sought for an order of scrutiny, supported by a broad based grounds as well as his own 130 paragraph supporting affidavit and the affidavits of his 5 witnesses.  By all means the grounds and the averments in the affidavits are so bloated and cannot pass  the test of being concise. From the affidavits of the witnesses it is possible to pick out alleged irregularities and malpractices which the respondents in their responses have controverted and that means that the deponents of the affidavits will have to be examined on them to verify their credibility as witnesses and  truthfulness of the allegations before either the court on its own motion makes an order for scrutiny if it considers sufficient ground has been laid and that such scrutiny will be necessary to enable it to arrive at a just and fair determination of the petition or upon application by any of the parties.

In the authority of Phillip Mukhwana Wasike vs James Lusweti Mukwe and 2 others EP No. of 2013  it was held among others that the purpose of Suo Moto order for scrutiny is to:

Assist the court to investigate upon sufficient basis being laid if the allegations of irregularities and breaches of the law complained of are valid.

Assist the court determine the valid votes cast in favour of each candidate.

Assist the court better understand the vital details of electoral processed gain impressions on the integrity of the electoral process.

In a similar manner upon the petition being heard the petition may also at any stage apply for court to reconsider making an order for scrutiny.

As things  stand now, and in consideration that the Petitioner is even still making applications to introduce more evidence by way of supplementary affidavits and summoning of more witness, I think the application for scrutiny is premature.

In regard to the application dated 8th September 2017 the Petitioner sought to introduce supplementary affidavit containing confidential, sensitive evidence which the required to be filed in a sealed envelop and be kept with Deputy Registrar until such a time that the said witness will testify that the said evidence be availed to the respondents and given time to respond by replying affidavits or otherwise.

The petitioners application is premised on provisions of Order 1 Rule 3 of Civil Procedure Rules,

S.76 (4) of Elections Act which provides,

A petition filed in time may for the purpose of questioning a return or an election upon an allegation of an election offence may be amended with the leave of the court within the time within which the petition questioning the return of the election upon that ground maybe presented,

Rule 12(8) of the Elections (Parliamentary and county Elections) Petitions Rules 2017 which provides,

Except with the leave of the election court and for the sufficient cause a witness shall not give evidence unless an affidavit sworn by the said witness is filed as required under these rules,

Rule 12 (9) of the Elections (Parliamentary and county Elections) Petitions Rules 2017 which provides,

The election court may on its own motion or on the application by any party to the petition direct a party or witness to file supplementary affidavits.

Rule 15(1)(h) of the Elections (Parliamentary and county Elections) Petitions Rules 2017 which provides,

Within 7 days after receipt of the last response to a petition an election court shall schedule a pre-trial conference with the parties which the election court shall give directions as to the filing and serving of any further affidavits or giving of additional evidence.

The application was also supported with the grounds on the face of application and supporting affidavit of the petitioner.

The application was opposed and responses vide Replying Affidavits filed together with submissions which were duly highlighted by the parties herein.

On 2nd October 2017 the Petitioners counsel informally applied to adduce further evidence in a supplementary affidavit and by a ruling rendered on 11th October 2017 this court ordered that for it to be ascertain that it was necessary for further evidence to be adduced the said evidence has to be tabled before the court in a formal application with the opposing parties being given an opportunity to respond to the application.

Refer to pages 4 to 6 of the ruling.

Rule 15(1)(h) is subsidiary legislation that is anchored on the Election Act and the Constitution of Kenya and so whatever orders that are to be made pursuit to it must not be in conflict particularly with the constitution which is the supreme law of the land.

Provisions of Rule 15(1)(h) are discretionary and guidelines that support constitutional threshold and Rights to fair hearing under Article 50(2) (a)(b)(c)(j)(k) have been settled by the courts in many authorities and especially in authorities arising out of election petitions. For instance in Supreme Court Election Petition No. 5 of 2013 Raila Odinga vs IEBC & 3 Others the following guidelines were pronounced:-

The admission of additional evidence is not an automatic right and the election court has discretion on whether or not to admit the evidence.

Affidavits must not seek to introduce massive evidence which would in effect, change the nature of the petition or affect the Respondents ability to respond to the said evidence.

Admission of new evidence must not unfairly disadvantage the other parties.

Rule 12(8) – provides that except with the leave of the court and for sufficient cause, all witnesses to election petition shall give evidence based on affidavits they filed together with the petition.  How does the court arrive at the conclusion that there is sufficient cause to warrant a witness coming to give evidence without disclosing the kind/nature of evidence they want to tender in court.

I think it would be making an order in futility without knowing what kind of evidence is to be adduced.  Allowing the Petitioner to tender additional evidence  which particulars have not been disclosed by a witness whose identity is not known to court in the view of this court will be going against the grain and spirit of Article 50 of the constitution and therefore amount to unfair disadvantage  and prejudicial to the other parties.

Provisions of Section 76(4) relate to an application where an election offence is alleged to have been committed. The applicant does not specifically identify the nature of the election offence which is intended to be adduced against any of the Respondents.  The Petitioner has not disclosed the cause for the fear of insecurity of the witness in question and whether or not it is a threat that the state security which bears the primary responsibility for protecting the rights of all citizens under its  jurisdiction is incapable of protecting.

I know that we have the Witness Protection Act Cap 79 Laws of Kenya and under S.3A the Witness Protection Agency which processes vulnerable witnesses  and assesses the risks that may be experienced by State witnesses but even in criminal cases what would happen is that the statement or affidavit of the particular witness at risk has to be submitted with the deductions of information that would lead to their identities being known or their places of residence being known.  The Petitioner can be assisted by this particular agency to understand how to go about this process  for individual implementation at individual cost.

I know for a fact that even where a witness is declared vulnerable they have to be involved in the process of establishing the threat and they must consent to be declared vulnerable witness and give consent as to the nature of security they are being accorded.

That would not be possible in the circumstances and to transfer an alleged threat on an unknown person with unknown evidence to the custody of the Deputy Registrar, I think would not be prudent in the circumstances.

The upshot of the analysis of applications herein is that application dated 6th September 2017 fails for the time being as far as prayer for scrutiny is concerned.

However the prayer to have access to forms 38As, 38 Bs and 38 C is allowed as admitted by Gichihi Macharia Samuel in his affidavit sworn on 20th September 2017 at paragraph 10 and 11.  All the certified copies of forms 38 As and 38 Bs from all the polling stations i.e 1473 as well as SD cards for information  from all the KIEMs kits should be supplied by the 1st Respondent to the Petitioner and the 3rd Respondent.

The 1st Respondent also to supply the Deputy Registrar with the  SD card containing the information from all the KIEMs kits used in the impugned election of Meru Senator. The original of the said forms 38 As and 38 Bs together with 38 C shall be produced by 1st Respondent during the hearing of the petition.

As for application dated 8th September 2017 the same fails in its entirety for reasons raised by the court.

The applicant will pay half of the costs in application dated 6th September  2017 and full costs in application dated 8th September 2017.

HON. A.ONG’INJO

JUDGE

Ruling Signed Delivered and Dated this 9th Day of November 2017.

In the presence of :-

Petitioner:- Mr Gitonga Advocate

1st Respondent:       Ms Mabele Advocate

2nd Respondent:

3rd Respondent:   Prof Ojienda & Ms Awuor Advocate

HON. A.ONG’INJO

JUDGE