Seth Ambusini Panyako v Independent Electoral & Boundaries Commission, Returning Officer Kakamega County & Cleophas Wakhungu Malalah [2017] KEHC 2320 (KLR)

IN THE HIGH COURT OF KENYA AT KISUMU

KAKAMEGA ELECTION PETITION NO. 14 OF 2017

ELECTION FOR THE MEMBER OF SENATE KAKAMEGA COUNTY

BETWEEN

SETH AMBUSINI PANYAKO.................................................................PETITIONER

VERSUS

THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION..1ST RESPONDENT

THE RETURNING OFFICER KAKAMEGA COUNTY............................2ND RESPONDENT

CLEOPHAS WAKHUNGU MALALAH....................................................3RD RESPONDENT

RULING

1. By a Notice of Motion dated and filed on 6. 10. 17, brought under the inherent powers and jurisdiction of this court and all enabling provisions of the Law, the 3rd respondent, CleophasWakhunguMalala seeks the following orders:

1)That the witness affidavit of Elijah Natili John sworn on 6. 9.17 and submitted by the petitioner in support of his petition be struck out, expunged and excluded from the evidence

2)That the witness affidavit of Emmanuel Wawire sworn on 6. 9.17 and submitted by the petitioner in support of his petition be struck out, expunged and excluded from the evidence

3)That any reference to Elijah Natili John as Constituency Chief Agent for Malava Constituency for the petitioner be struck out and deleted

4)That any reference to Emmanuel Wawire as Constituency Chief Agent for Nabakholo Constituency for the petitioner be struck out and deleted

5)Costs of this application be provided for

2. The application is based on the grounds among others:-

i. That neitherElijah Natili John nor EmmanuelWawirewere agents properly accredited by the 1st respondent

ii. That neitherElijah Natili John nor Emmanuel Wawireare in possession of a letter of accreditation or a badge from the 1st respondent

3. The application is also supported by 3rd respondent’s ’s affidavit sworn on 6. 9.17 in which he reiterates the grounds on the face of the application and gives further details in respect thereof. He relies on paragraph 11 of an affidavit sworn and filed on 20. 9.17 and 22. 9.17respectively by Isaac KiplagatRutto who describes himself as the returning officer of the 1st respondent of Malava Constituency who denies that Elijah Natili John was Constituency Chief Agent in that Constituency.He also relies on paragraph 3 of Elijah Natili John’s admission in his affidavit sworn on 6. 9.17 and filed on 8. 9.17 that he as neither issued with neither an accreditation letter nor a badge by the 1st respondent. The 3rd respondent’s further avers that Emmanuel Wawire was not an agent at the Constituency Tally Centre at Chebuyusi. He relies on an affidavit sworn on 20. 9.17 by Joyce Nanunyak, a constituency returning officer for NavakholoConstutency and Emmanuel Wawire’s admission in his supporting affidavit sworn on 5. 9.17 and filed on 8. 9.17 in which he admits that he was neither issued with an accreditation letter nor a badge by the 1st respondent.

4. The application is opposed on the basis of a replying affidavit sworn by the petitioner on 18. 10. 17 in which he reiterates that Emmanuel Wawire and Elijah Natili John were his agents at Navakholo Constituency and Chebuyusi Tallying Centre.

3rd respondent’s submissions

5. In his submissions, Mr. Malalah for the respondent relied on Section 30, 62(4), 74 and section 109 of the Elections Act and agents’ manual attached to the 3rd respondent’s supporting affidavit. It was submitted for the 3rd respondents that Emmanuel Wawire and Elijah Natili John were not authorized agents of the petitioner and that their affidavits should be struck out.

Petitioner’s submissions

6. In opposing the application; Mr. Jaoko referred to a letter of appointment issued by the petitioner to Emmanuel Wawire who he says was authorized under section 85 of the Elections Act. He further submitted that the 3rd respondent has not established the criteria for striking out affidavits under Order 19, rule 6 of the Civil Procedure Rules which provides that only scandalous, oppressive or irrelevant affidavits be struck out. It was further submitted that Emmanuel Wawire and Elijah Natili John are relevant witnesses and striking out their affidavits will deny the petitioner an opportunity to present his case.

7. I have considered the notice of motion in the light of the supporting affidavit, the replying affidavit and the written and oral submission on behalf of the parties.

8. The issue for determination isWhether Emmanuel Wawire and Elijah Natili John were authorized agents of the petitioner.

9. Section 30 of the Elections Act on appointment of agents provides as follows:

(1) A political party may appoint one agent for its candidates at each polling station.

(2) Whereapoliticalpartydoesnotnominateanagentundersubsection(1),a candidate nominated by a political party may appoint an agent of the candidate’s choice.

(3)  An independent candidate may appoint his own agent.

10. On admission to a polling station; Section 62 of the Elections Act provides as follows:

(1)Thepresidingofficershallregulatethenumberofvoterstobeadmittedtothepolling station at the same time, and may exclude all other persons except—

(a)   a candidate;

(b)   a person nominated as a deputy to the candidate, where applicable;

(c)   authorized agents;

(d)   members of the Commission and election officers on duty;

(e)   police officers on duty;

(f) personsnecessarilyassistingorsupportingvoterswithspecialneedsor assisted voter; and

(g) observersandrepresentativesoftheprintandelectronicmediaaccredited by the Commission.

11. On admission to Tallying Centres, Section 85of the Elections Act provides as follows:

(1) Thereturningofficershallallowthefollowingpersonstobepresentatthetallying centre—

(a) the presiding officers and other election officials on duty;

(b) a candidate;

(c) a person nominated as a deputy to the candidate, where applicable;

(d) a member of the Commission;

(e) authorized agents;

(f) a police officer on duty;

(g) duly accredited election observers; and

(h) duly accredited media persons.

12. On the other hand, Section 74of the Elections Act provides as follows:

(1) No agent shall be deemed to be an agent for the purposes of counting unless, at least forty eight hours before the close of the poll in that election, the candidate or political party, as the case may be, has submitted to the presiding officer—

(a) the name and address of the agent; and

(b) a letter of the appointment of the agent.

(2)Apresidingofficershallnotallowapersonwhosename,addressandauthorization has not been so submitted to attend at a counting of votes notwithstanding that the appointment of that person is otherwise in order.

13. This section defines authorized agents as those whose (a) name and address and (b) a letter of the appointment of the agent have been submitted to the presiding officer, at least forty eight hours before the close of the poll in that election.

14. In support of his reply that Emmanuel Wawire and Elijah Natili John were his agents at Chebuyusi High School and Malava Boys High School Constituency Tallying Centres respectively, the petitioner has attached a letter of appointment for Emmanuel Wawire but none for Elijah Natili John. There is no evidence that their names, addresses and letters of the appointment had been submitted to the respective presiding officers, at least forty eight hours before the close of the poll in that election.Having failed to establish that Emmanuel Wawire and Elijah Natili John were his authorized agents, Ifind that the returning officers cannot be faulted for denying them access to Chebuyusi High School and Malava Boys High School Constituency Tallying Centres respectively.

ORDERS

15. From what is stated herein above, this court makes the following orders on the Notice of Motion dated 6. 10. 17:-

1. I invoke Order19 rule 6 of the Civil Procedure Rules and strike out the affidavits byEmmanuel Wawire and Elijah Natili Johnfor being scandalous, oppressive and irrelevant

2. Petitioner shall bear the costs of the petition

DATED AND DELIVERED THIS14thDAY OFNovember, 2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant                     - Felix

Petitioner                              - N/A

1st and 2nd Respondent      - Mr Bukania

3rd respondent                     - N/A