Nkoidila Ole Lankas & Albert Kiplangat v Independent Electoral and Boundaries Commission, Nduku Kimeu Annahstacia & Ledama Ole Kina [2018] KEHC 8516 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIVASHA

NAROK ELECTION PETITION NO. 3 OF 2017

IN THE MATTER OF A PETITION CONTESTING THE VALIDITY OF THE ELECTIONS

FOR THE SEAT OF SENATOR OF NAROK COUNTY HELD ON 8TH AUGUST 2017

IN THE MATTER OF ARTICLES 1, 2, 3, 10, 20, 23, 47, 81, 82, 83, 86, 87, 98,

165 (3) (b), (d), (e), 258, 259 OF THE CONSTITUTION OF KENYA

IN THE MATTER OF SECTION 75 AND 76 OF THE ELECTIONS ACT 2011

IN THE MATTER OF AN ELECTION PETITION BY

NKOIDILAOLE LANKAS AND ALBERT KIPLANGAT

NKOIDILA OLE LANKAS.......................................1ST PETITIONER

ALBERT KIPLANGAT............................................2ND PETITIONER

-VERSUS-

INDEPENDENT ELECTORAL AND

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

NDUKU KIMEU ANNAHSTACIA........................2ND RESPONDENT

LEDAMA OLE KINA.............................................3RD RESPONDENT

R U L I N G

1. On 14th December 2017, this court received the parties’ oral submissions.  At the close of the submissions, the court directed that a date for the delivery of its judgment would be communicated to the parties by 31st January, 2018.

2. This court has now had opportunity to consider, albeit in a preliminary manner, the evidence adduced by the parties, including documentary evidence, as well as the submissions.  Consequently, the court is of the view that in order that justice may be done in this case, it is imperative for a limited scrutiny exercise to be carried out.

3. Thus, for reasons that will be given in detail at the time of judgment, the court invokes the discretionary power under Section 82 (1) of the Elections Act and Rule 29 of the Elections (Parliamentary and County Elections) Petitions Rules to order suomotu that a scrutiny, limited to the examination of results be carried out as follows:-

a) General examination of the printed copy of the Register of voters, all original Forms 38A, 38B and 38C, as well as Candidate Vote Tally Sheets which were used in the 130 polling stations identified at paragraph 39 of the Petition namely:-

Narok South Constituency

ITEM POLLING STATION

1. Lengina Primary School

2. Lengina Primary School

3. EngareNgiro Primary School

4. EngareNgiro Primary School

5. Olenkuluo Primary School

6. Erupata Primary School

7. OldonyoOrasha Primary School

8. EnkareNairowua Primary School

9. EnkareNairowua Primary School

10. Enkiu Primary School

11. Ingoswani Primary School

12. Esupetai Primary School

13. Morloo Ole Kasale Primary School

14. Olgilai-Osupuko Primary School

ITEM POLLING STATION

15. KosekaNur School

16. Kanunka Primary School

17. Kanunka Primary School

18. OsupukoOirobi Primary School

19. NkoisusuNur School

20. Nkimpa Primary School

21. Olosirua Primary School

22. Olepolos Primary School

23. Isinon Primary School

24. ElangataEnterit Primary School

25. ElangataEnterit Primary School

26. Ntuka Primary School

27. Kideket Primary School

28. Oloisuisho-Osupuko Primary School

29. Kuntai Primary School

30. Kuntai Primary School

31. Kuntai Primary School

32. Entiapirri Primary School

33. Naserian Primary School

34. Olepariata Primary School

35. Enkutoto Primary School

36. Enkutoto Primary School

37. Iladoru Primary School

38. Iladoru Primary School

39. Ilchorroi Primary School

40. Olemegili Primary School

41. Iletukunyi Primary School

42. Inchaishi Primary School

43. MoyongoNur School

44. Olosiyoi Primary School

45. Kotolian Primary School

ITEM POLLING STATION

46. Eroret Primary School

47. Olmusakwa Primary School

48. Olmusakwa Primary School

49. Oloisuisho Primary School

50. Oloisuisho Primary School

51. Oloisuisho Primary School

52. Oloisuisho Primary School

53. Osotua Primary School

54. Osotua Primary School

55. Nkoben Primary School

56. Masaantare Primary School

57. Masaantare Primary School

58. Oloirien Primary School

59. EorEwuaso Primary School

60. Ololoipangi Primary School

61. Ololoipangi Primary School

62. Ololoipangi Primary School

63. Iltriben Primary School

64. Olonini Primary School

65. Olgilai-Ololulunga Primary School

66. Oloshapani Primary School

67. OlmekenyuNur School

68. OlmekenyuNur School

69. OlmekenyuNur School

70. OlmekenyuNur School

71. OlmekenyuNur School

72. Enoosokon Primary School

73. Enoosokon Primary School

74. Enoosokon Primary School

75. Ilubi Primary School

76. Ilubi Primary School

ITEM POLLING STATION

77. Olengajinabo Primary School

78. Olpukoti Primary School

79. Melelo Primary School

80. EnosagamiWuas Primary School

81. Ole Nkanai Primary School

82. Isinantet Primary School

83. Ololua Primary School

84. Olengapune Primary School

85. Olengapune Primary School

86. Olmukonge Primary School

87. Oltarakwai Primary School

88. Ilkujuka Primary School

89. Emorogi Primary School

90. Olpusare Primary School

91. Olmesutie Primary School

92. Emupurputia Primary School

93. Entasekera Primary School

94. Entasekera Primary School

95. Osinantei Primary School

96. MorijoLoita Primary School

97. MorijoLoita Primary School

98. Olorte Primary School

99. NairebukNur School

100. Kone Primary School

101. Enkaroni Primary School

102. Enkaroni Primary School

103. Naisudori Primary School

104. Naisudori Primary School

105. Sogoo Primary School

106. Sogoo Primary School

107. Sogoo Primary School

ITEM POLLING STATION

108. Kichapa Primary School

109. Kapkatet Primary School

110. Siwot Primary School

111. Siwot Primary School

112. Marinua Primary School

113. Marinua Primary School

114. Tumuyot Primary School

115. Tumuyot Primary School

116. Minet Primary School

117. Kewet Primary School

118. Kewet Primary School

119. Bondet Primary School

120. Sitowet Primary School

121. Tendwet Primary School

122. Tendwet Primary School

123. Choronook Primary School

124. Kebenet Primary School

125. Kebenet Primary School

126. Kebenet Primary School

127. Kalyet Primary School

128. Saire Primary School

129. Sagamian Primary School

130. Sagamian Primary School

b) Examination and comparison of the entries in the printed copy of the Register of Voters, the Candidate Vote Tally Sheets, the original Forms 38A and B alongside corresponding entries in the original  Form 38C, stated above to confirm:-

i) the general accuracy of the entries;

ii)   the number of registered voters in the polling stations in question;

iii) specifically, the accuracy in the tallying and transposition of votes as captured in the entries in the stated documents.

iv) where necessary reference may be made to relevant notices in the Kenya Gazette.

c) Special note is to be made of incidents, if any, where the total number of votes cast or valid votes exceed the total number of registered voters; and of any similarities in entries that may be noted in the Form 38C annexed to the Petition and the Original Form 38C supplied by the Independent Electoral & Boundaries Commission (I.E.B.C.).

d) The exercise will be conducted at Naivasha Law Courts under the supervision of the Deputy Registrar of this court between the 5th and 9th of February, 2018 and a report filed and served on all parties by 12th February, 2018.

e) For purposes of the scrutiny exercise, each party will be at liberty to nominate one agent to act as its representative during the exercise.

f) For the avoidance of doubt, the scrutiny exercise is limited to the stated documentation,and does not include the scrutiny or recounting of physical ballots (votes).

4. Parties will be accorded opportunity to make comments or submissions on the contents of the report on 14th February 2018.

Delivered and Signed at Naivasha this 30thday ofJanuary, 2018.

In the presence of:

Miss Kithinji holding brief for Mr. Marete for the Petitioners

Mr. Mwangi for the 1st& 2nd Respondents

Mr. Odhiamboor the 3rd Respondent

Court Clerk –Quinter

..................

C. MEOLI

JUDGE