Silas Muriuki Reteere v Independent Electoral and Boundaries Commission, Abdi Shiekh Mohamed/Returning Officer for Imenti Constituency & Abdul Rahim Dawood [2017] KEHC 3205 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

ELECTION PETITION NO 1 OF 2017

IN THE MATTER OF ARTICLE 1, 86 AND 87 OF THE CONTITUTION OF KENYA 2010

AND

IN THE MATTER OF REGULATIONS 74, 75, 76, 77 & 78, 81, 82, 83, 84, 85, 86 AND 87 OF THE ELECTION (GENERAL) REGULATIONS, 2012

AND

IN THE MATTER OF SECTIONS 80 (4) OF THE ELECTIONS ACT NO. 24 OF 2011

AND

IN THE MATTER OF RULES 28 OF THE ELCTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017

AND

IN THE MATTER OF THE GENERAL ELECTIONS HELD ON 8TH DAY OF AUGUST, 2017

AND

THE ELECTION FOR THE MEMBER OF THE NATIONAL ASSEMBLY FOR NORTH IMENTI CONSTITUTENCY CODE NO. 056, MERU COUNTRY

BETWEEN

SILAS MURIUKI RETEERE ………………...........PETITIONER/APPLICANT

AND

THE INDEPENDENT ELECTORAL &

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

ABDI SHIEKH MOHAMED/RETURNING OFFICER

FOR IMENTI CONSTITUENCY ………………….......…. 2ND RESPONDENT

ABDUL RAHIM DAWOOD ………………………...…… 3RD RESPONDENT

RULING

Before me is a Motion on notice by the Petitioner, Silas Muriuki Ruteere dated 4th September, 2017.  He seeks four substantive prayers.  I allowed the application to be argued during the current Court vacation for reasons on record.  Mr. Mwanzia, Learned Counsel for the Petitioner who appeared before me urged the Court to grant prayer No. 3 ex-parte.  That prayer seeks that the Petitioner be allowed by the 1st and 2nd Respondent to put additional seals forthwith on all the ballot boxes for all the 177 Polling Stations relating to the election of the Member of National Assembly for North Imenti Constituency held on 8th August, 2017.

It was contended that the Applicant is apprehensive that unless the order is granted, the said ballot boxes may be tampered with considering that he is seeking in the main Petition, the recount of the ballot papers. It was further contended that since the margin between the eventual winner and the Applicant was about 100 votes, there is need to preserve the integrity of the electoral materials.

The 1st and 2nd Respondent are constitutionally mandated to retain in their possession and preserve the election materials way after the election date.

The allegations about the state of the said ballot boxes remain mere allegations.  However, although no tangible evidence has been produced about their risk of being tampered with, it may be a reality.  Since however, there was no allegation that if the application is served upon the 1st and 2nd Respondent, there would be immediate tampering with the materials, this Court finds it difficult to allow the application ex-parte.

Accordingly, let the application be served upon the 1st and 2nd Respondents forthwith for hearing inter parties on 6th September, 2017 at 10. 30 a.m.

A. MABEYA

JUDGE

05/09/2017

Ruling delivered in the presence of Mr. Mwanzia in open Court.

A. MABEYA

JUDGE

05/09/2017