Tarbaj Constituency (Wajir County) v Ahmed Bashane, Independent Electoral & Boundaries Commission (IEBC) & Returning Officer Tarbaj Constituency [2017] KEHC 908 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ELECTION PETITION NO 6 OF 2017

IN THE MATTER OF PARLIAMENTARY ELECTION FOR TARBAJ CONSTITUENCY (WAJIR COUNTY)

VERSUS

AHMED BASHANE.................................................................................................1ST RESPONDENT

INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION (IEBC)...2ND RESPONDENT

RETURNING OFFICER TARBAJ CONSTITUENCY.......................................3RD RESPONDENT

RULING (3)

EVENTS

This Court by virtue of its Ruling of 31st October 2017 granted scrutiny of election materials with regard to 2 polling stations Kajaja II primary School Polling station and Berjini Dam Polling Station. With regard to Haragal Primary School Polling Station, Leheley Centre Polling Station and Gunana Primary School Polling Station the issue would be determined during the conduct of the hearing of the petition.

On 6th October 2017, the parties through Counsel reached Consent on preservation of the election materials. The Consent was that the Petitioner and Respondent representatives will include their padlocks to the Tarbaj Constituency Tallying Centre held by IEBC and the agreement and implementation to take place immediately to secure integrity of the election materials.

The Deputy Registrar Family Division officially informed this Court that pursuant to the hearing of Election Petition 4 of 2017 which involves the gubernatorial election in the same area, the Court ordered the conduct of scrutiny and the process involves the same election materials that were used during the General Elections of 8th August 2017 in the same area.

Therefore, in light of these new developments that the election materials are subject of the scrutiny in another petition as confirmed by the 2nd Respondent, the Consent /orders of 6th October 2017 were not feasible as locking out the election materials at the Tarbaj Constituency Tallying Centre by the parties to the instant election petition and to the exclusion of the parties in Election Petition 4 of 2017 who have equal rights to access, would prejudice each party’s right in both Petitions.

ORAL SUBMISSIONS:

Although this Court varied and set aside the said Consent of 6th October 2017 on 20th November 2017 to facilitate the access and retrieval of the election materials by parties in Election Petition 4 of 2017apparently this has not taken place awaiting the Ruling of this Court on the election materials to be safeguarded and in what way now that the padlocks would be removed.

On 23rd November, 2017 Counsel for the Petitioner addressed this Court as follows;

All election materials relating to this election petition of member of Parliament for Tarbaj Constituency which involved 50 polling stations be preserved. The Petitioner prayed specifically for scrutiny of the votes cast and recorded, rejected and spoilt votes, the Kiems Register and counterfoils of all ballot papers issued at polling stations.

The petitioner pleaded that the 2nd Respondent did not safeguard the national assembly election in an efficient and accurate manner as required under the law;  Article 81 of the Election Act. The Petitioner pleaded in paragraph 39 of his petition that scrutiny be conducted for all polling stations and recount for the 5 polling stations. If the Court deems it fit to conduct scrutiny of all polling stations what confidence will the court have that the election materials have been stored and kept and they are secured all through conduct of the election petition? What prejudice will be suffered if all election materials are secured? All election materials should be secured so that if the Court is satisfied that there will be need for a scrutiny it can order scrutiny suo moto of any/or all polling stations. The Petitioner sought the resealing of all the election materials of all 50 polling stations so that if the Court orders scrutiny there will no prejudice to the parties.

The 2nd Respondent objected to the application on the following grounds;

There is sufficient evidence that this Court ordered scrutiny of 2 polling stations. The petitioner pleaded what grounds and evidence he will rely on in the Petition and is presumed to know the confines of the Petition. It is drafted in precision and not couched in generality with the hope of seeking an order for scrutiny to extrapolate the hearing of the petition and the statutory limitation period. The Petitioner is on a fishing expedition wherein he is coming to Court not sure of his petition and is using a blanket provision for scrutiny in the Regulations. This does not give the Petitioner a blank cheque to run away from the 4 walls of his petition. The Court should confine itself to the Petition if not we will find ourselves in a very unpopular situation of filing documents ad infinitum. The election materials to be secured should only be those related to the 5 polling stations. The 2nd Respondent should not be put to incur unnecessary expenses.

The 1st Respondent objected to the application and associated himself with submissions by the 2nd Respondent. The issue of all polling stations was not sought and there is no specification of all polling stations in the Petition. The issue of securing all election materials in all polling stations cannot be raised in November 2017 and it is an attempt to amend the Petition and it will prejudice the 1st Respondent. The petition raises issues with regard to 5 polling stations, for the Petitioner to raise the issue of all polling stations is to embark on a fishing expedition and the court should not allow the same. The Court is being asked to secure all election materials in the election that is election materials of another 45 polling stations, he urged the Court to reject the belated attempt by the Petitioner to change the claim in the Petition.

The Petitioner in reply reiterated the earlier position of fixing seals to all election materials of 50 polling stations. He confirmed that the same shall be carried out at the Petitioner’s own expense and not the IEBC 2nd Respondent’s expense. This court was referred to Prayer 1 of the Petition where the Petitioner seeks tallying of all ballot papers of all polling stations. This prayer confirms that the Petitioner included all 50 polling stations. Therefore, Prayer 1 will be rendered superfluous if the Court does not grant resealing of all election materials. The Court is bound to do substantive justice by allowing resealing of all election materials as allowed in Rule 16 of the Elections (Parliamentary & county Elections) Petitions Rules, 2017. Upto this point the Consent of 6th October 2017 was to secure all election materials.

DETERMINATION

After consideration of pleadings and submissions by Counsel, the issue is what should be stored in terms of election materials with regard to this election to secure integrity of the materials after the Consent of 6th October 2017 was set aside to allow parties in Election 4 of 2017 to retrieve election materials for scrutiny?

The law on storage of election materials is as follows;

Article 86 (d) of COK- 2010prescribes;

At every election, the Independent Electoral Boundaries Commission shall ensure;

Appropriate structures and mechanisms to eliminate electoral mal practice are put in place, including the safe keeping of election materials.

Section 2 of Elections Act of 2011defines election materials as;

Ballot boxes, ballot papers, counterfoils, envelopes, packets, statements and other documents used in connection with voting in an election and includes information technology equipment for voting, the voting compartments, instruments, seals and other materials and things required for purposes of conducting an election.

Section 16(1)- (5) of the Election (Parliamentary and County Elections) Petitions Rules, 2017 provides;

“On conclusion of the Pre-trial Conference under Rule 15, the election court may give directions on;

a) Storage of the election materials including ballot boxes and documents relating to the petition;

b) The handling and safety of election materials;

c) The time for furnishing the election materials to the election Court;

2.  In giving directions under Sub Rule 1 the election courtshall;

a) Consider the prudent, efficient and economic use of storage and transport facilities;

b) Consider maintenance and integrity of election materials

c) Ensure that election materials are not interfered with

3. An election Court may direct that the Commission maintains custody of all election materials in relation to a petition.

4.  Only material relating to a particular petition maybe furnished to an election Court.

5. The Election Court may order that additional seals be placed on ballot boxes related to the election for which a petition has been lodged.

Section 29 (4) of the Election (Parliamentary and County Elections) Petitions Rules, 2017 provides;

“The scrutiny or recount of votes in accordance with Sub rule (2) shall be confined to the polling stations in which the results are disputed and may include the examination of…..”

PLEADINGS

The Petitioner’s petition outlines specific claims against the Respondents in conduct of the election of 8th August 2017 as follows;

a) Paragraph 7- 16 are alleged claims against conduct of election in Kajaja 2 -Primary School Polling Station and this Court by its Ruling of 31st October 2017 granted scrutiny of election materials in this polling station to be conducted.

b) Paragraph 17-20 relate to alleged claims against the conduct of election in Berjini Dam Polling Station and this Court by its Ruling of 31st October 2017 granted scrutiny of election materials in this polling station to be conducted.

c) Paragraph 21-22 relate alleged claims against the conduct of election in Haragal Primary School Polling Station and this Court by its Ruling of 31st October 2017 was not satisfied with the pleadings to grant scrutiny of election materials in this polling station and will await the hearing of the petition.

d) Interference with ballot boxes was generally alluded to between paragraph 23-26 and specifically alleged with regard to Kajaja 2 Primary School Polling Station and this Court by its Ruling of 31st October 2017 granted scrutiny of election materials in this polling station  only to be conducted.

e) Irregularity of Forms 35A was generally alluded to between paragraphs 27-30 and no allegation was advanced to a particular polling station;

f) Election offences were alluded to in paragraphs 31-35 and from pleadings does not relate to election materials but alleged incidences during the election campaign period.

g) Interference with Biometric machine was generally alluded to in paragraphs 36-40 with specific reference only to Berjini Dam Polling station and this Court by its Ruling of 31st October 2017 granted scrutiny of election materials in this polling station to be conducted.

h) The Prayers sought by Petitioner relevant herein are;

This Court be pleased to order scrutiny of all votes cast and recorded the rejected and spoilt votes, the Kiem register and counter foils of all the ballot papers issued at the polling stations.

This Honorable Court be pleased to order recount of all votes cast in Kajaja 2, BerjiniDam, Haragal Primary School, Leheley Centre and Gunana Primary School Polling Stations.

The Court has outlined the above to confirm at no part or point did the Petitioner plead the request to have scrutiny in all 50 polling stations of the Tarbaj Constituency; it was raised for the first time in the oral submissions on 23. 11. 2017.   The above prayer for scrutiny is for all election materials used  at the polling stations. Going by the content of petition the polling stations referred to are the ones named in the Petition itself. Secondly, the allegations giving rise to the prayer for scrutiny in all 50 polling stations are not specifically pleaded in the body of the Petition.

Except for general allegations but not attributed to any polling station (s) and then request for the prayer for scrutiny.  Secondly, the body of the Petition there is no allegation on conduct of election in any other polling stations except Berjini Dam; Kajaja 2 and Haragal Primary School,  Leheley and Gunana Polling Stations are in fact included in the Prayers in the Petition and no mention is made or any claim in the body of the petition about the 2 last Polling stations.

Parties are bound by their pleadings and one is under legal obligation to prove the allegations in these pleadings through evidence during the hearing.

In the case of PHILIP OSORE OGUTU vs MICHAEL ARINGO & 2 OTHERS BUSIA HIGH COURT PETITION NO1 of 2013; the court observed;

For a Petitioner to deserve order of scrutiny……then as a starting point; [that] the Petition and the affidavit in support must contain concise statement of material facts upon which the claim for impropriety or illegality of the casting and counting of votes is made.

In the instant case; the Petitioner’s petition made no specific reference to any other polling stations save the 5 that are specifically pleaded. Prayer 1 of the Petition does not amount to seeking scrutiny of all polling stations in Tarbaj Constituency as it refers to all election materials used in polling stations but does not clarify which polling stations.

Therefore, to submit that the election materials defined by Section 2 of the Elections Act 2011that should be secured include 50 Polling stations is to amend the Petition without notice to the Respondents and without equal opportunity for them to also amend their Replying Affidavits in light of new issue raised as pleadings are closed. If the other parties do not know the new issues that have been raised and have an opportunity to also reply to new issues, then they are prejudiced because pleadings enable parties to know in advance the type of evidence they will acquire to adduce at the hearing.

The Consent of 6th October 2017 did not make specific reference to election materials of 50 polling stations. The request to have all polling stations election materials secured without formal application and/or reasons to satisfy the Court at this stage of recount or scrutiny and/or hear evidence of the same is to preempt the Court from interrogating legal basis for such scrutiny.

Article 86 of the Constitution 2010 and Section 16 (3) of Election (Parliamentary and County Elections) Petitions Rules, 2017 provides for the 2nd Respondent IEBCto maintain custody of election materials. The storage measures are to ensure extra caution and prevent any prejudice to the parties in this election petition.

Since election materials are preserved for conduct of scrutiny and or recount depending on satisfactory reasons to the Court at this stage the pleadings have not disclosed scrutiny or recount to be conducted in any other polling station. The scrutiny or recount of votes shall be confined to the polling stations in which the results are disputed only as prescribed by Section 29 (4) of the Election (Parliamentary and County Elections) Petitions Rules, 2017. The election materials relevant to this petition are those in relation to the 5 Polling stations.

DISPOSITION

Therefore, from the above reasons and this Court’s Ruling of 31st October 2017 the storage of election materials shall be as follows;

a) The padlocks shall be removed in the presence of the parties’ representatives in this petition as named on 20th November 2017 and Deputy Registrar Garissa High Court on 8th December 2017;

b) The parties’ representatives shall place additional seals to the ballot boxes of the 5 Polling Stations; Kajaja 2 Primary School, Berjini Dam, Haragal Primary School, Leheley and Gunana Primary School only.

c) The election materials of the 2 Polling Stations Kajaja 2 and Berjini Dam shall be transported to Nairobi for scrutiny to be conducted by 11th December 2017.

d) Scrutiny process shall be agreed on upon arrival and safe custody of the election materials in the presence of all parties to this Petition and information by the Deputy Registrar Family Division to this Court.

DELIVERED SIGNED & DATED IN OPEN COURT ON 6TH DECEMBER  2017

M.W. MUIGAI

JUDGE

IN THE PRESENCE OF:

M/S MARIENGA FOR PETITIONER

MR. WANJOHI FOR THE 1ST RESPONDENT

MR. OLAHA FOR 2ND RESPONDENT