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RICHARD NYAGAKA TONG’I V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 2 OTHERS[2013]eKLR

REPUBLIC OF KENYA

High Court of Kisii

Election Petition 5 of 2013

IN THE MATTER OF THE ELECTIONS ACT, NO. 24 OF 2011 LAWS OF KENYA

AND

IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2013

AND

IN THE MATTER OF THE ELECTION FOR MEMBER OF THE NATIONAL ASSEMBLY OF NYARIBARI CHACHE CONSTITUENCY CODE NO. 267

BETWEEN

RICHARD NYAGAKA TONG’I …….......………………………………………………….... PETITIONER

-VERSUS-

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION .………….. 1ST RESPONDENT

ROBERT K. NG’ENY RETURNING OFFICER,

NYARIBARI CHACHE CONSTITUENCY …………………………….…………. 2ND RESPONDENT

CHRIS MUNGA NYAMARATANDI BICHAGE ………………………...…..…… 3RD RESPONDENT

RULING
Introduction

1.      Before the court is a Notice of Motion dated 14th May 2013 brought by the 3rd Respondent pursuant to Order 51(1) of the Civil Procedure Rules 2010, the Elections Act 2011, the Elections (Parliamentary and County Elections) Petition Rules 2013 and all other enabling provisions of the law seeking to expunge paragraphs 10 to 39 of the Petition of Richard Tong’i and all references to those paragraphs in the accompanying affidavits. The application is based on the grounds that the said paragraphs are fictitious and imaginary in the mind of the Petitioner; that they are plagiarized from the Petition of John Oroo Oyioka the Petitioner in Election Petition No. 2 of 2013 in the High Court at Kisii; and that seeking to determine the truth of these paragraphs will be a waste of the court’s time as it is clear that they are inventions without legitimate basis. The application is supported by the affidavit of Chris Munga Nyamaratandi Bichage, the 3rd Respondent, who contends that the contents of the Petition No. 2 of 2013, Kisii John Oroo Oyioka v. IEBC, Peter Pesa & Zebedeo John Opore are similar to those of the Petition against him. He further avers that the Petition by John Oroo Oyioka was filed on 26th March 2013 while the present Petition was filed on 5th April 2013 leading to the conclusion that the latter Petition is a copy of the previous Petition; that Paragraphs 10-39 are direct copies of paragraphs of the Petition of John Oroo Oyioka making the Petition against him a plagiarized, derivative of the Petition of John Oroo Oyioka and the paragraphs complained of are not factual, genuine, true or a correct description of the events occurring in Nyaribari Chache Constituency; that such paragraphs do not add value to the present Petition as they are not true accounts of the events in Nyaribari Chache constituency and therefore they should be expunged from the Petition.

2.      The application is opposed.  There is a replying affidavit dated 20th May 2013 sworn by Richard Nyagaka Tong’i and a supplementary affidavit sworn on the 24th May 2013. In the affidavits, the Petitioner maintains that paras 10-39 are factual as the same have been responded to by the Respondents. He has denied that those paragraphs are fictitious and imaginary and attested that they are not plagiarized and derivative elements of Election Petition No. 2 of 2013 Kisii High Court. He has further stated that the facts stated in those paragraphs took place in Nyaribari Chache Constituency perpetrated by the respondent or its authorized agents. He contends that if the same acts were committed at Bonchari Constituency then the resemblance does not make the aforesaid paragraphs fictitious and if there are any similarities in terms of wordings, construction of sentences etc same can be attributed to the similar conduct of the 1st Respondent who received common training.

3.      The Petitioner in response has denied having knowledge as to whether John Oroo Oyioka filed his Petition on 26th March, 2013 but he knows that he filed his on 5th April 2013. He states that having carefully studied the Petition of John Oroo Oyioka and looking at the wording, idioms and phrases of the paragraphs therein, the same differ substantially with those in the Petition, there are no duplications in terms of time, personalities mentioned figures given and the table. He states that he was present when his lawyer on record was drafting and preparing the Petition together with all the witnesses who have sworn affidavits herein. 

Submissions

4.      The application was urged by counsel for the 3rd Respondent, Mr. Nyaundi, who appeared with Mr. Wasilwa, and who referred to Petition of John Oroo No. 2 of 2013 on Bonchari Constituency and Petition No. 5 of 2013 and to a table annexture to Mr. Chris Bichange’s affidavit in support of the motion comparing paragraph to paragraph by numbers and arguing that Petition No 5 of 2013 filed on 5th April 2013 is a copy of Petition no. 2 of 2013 which was filed on 26th March 2013, in 28 out of 40 paragraphs. That 70% of the paragraphs in Petition no. 5 of 2013 are represented word for word, language and style of Petition no. 2 of 2013 making it fictitious and fabricated and not made up of the true representation of the facts to this petition. It is a clear case of plagiarism, inventing incidents and asserting the incidents to situations that are not factual. He made reference to the preamble and to various paragraphs which he says are curiously similar in the two Petitions and therefore urged the court to find that the complaints are not factual. He justified the expunction of the said paragraphs on the grounds that:-

a.     They are based on fictitious evidence.

b.      By expunging the paragraph the court will be seeking to refine the issues for trial and directing focus on matters relevant.

c.      The 3rd Respondent has not approved any of the incidents.

Referring to Rule 15(1) of Election Petition Rules which import the provisions of Order 19 of Civil Procedure Rules 2010 counsel stated that Order 19(3) Civil Procedure Rules requires that the affidavits be confined to facts that the deponent is able to prove. 

5.      Mr. Wasilwa co-counsel with Mr. Nyaundi for the 3rd respondent  has also submitted for the 3rd Respondent on issues of law where he identified the issues for determination in a Petition as being:-

a.      Tallying

b.      Malpractice

c.       Electoral offence

6.      He contended that proof of any of these issues is by affidavit under Order 19 of Civil Procedure Rules and Section 63 of the Evidence Act; that affidavit must be sworn by a deponent who has direct evidence refers to Rule 12 of the election Petition rules; and in his submission all the substance of the paragraphs 10 and words of the affidavit in support of the Petition particularly paragraph 22 has no relevance in evidence. He stated that Petitioner has violated rule 4(1) of the Election Petition Rules. In anticipating the Petitioner’s reply, counsel submitted that the authorities relied upon by the Petitioners are irrelevant to an objection under section 63 and order 19. The case before the courts is on affidavits and not scrutiny of votes as in Joho’s case; D.T Dobie case is on striking out pleadings; and Maitha’s case [Said v. Maitha (2005) EA 505] relates to discretion in allowing scrutiny where the margin of votes is small.

7.      Mr. Musundi for the 1st and 2nd Respondents though having filed a response by returning officer of Nyaribari Chache of 17th May 2013 in answer to the Notice of Motion supported the 3rd respondent/applicant’s motion.

8.      In reply, Mr. Momanyi for the Petitioner relied on the replying affidavit sworn on 20th May 2013. He relied on the case of Joho v. Nyange & Anor (No. 2) (2008) 3KLR (EP) 188 and argued that Electoral Laws i.e Constitution, Election Act and the Rules are self-sufficient in Election Petitions and they do not import any other law including the Evidence Act; the only exception being Order 19 of Civil Procedure Rules 2010. He contends that the contents of the Petitioners affidavit are facts which are known to him. He argues that there are different figures given in form no. 35 and form 36 and a lot of cancellations therein. He refers to Article 159 of the Constitution where the court has inherent powers to do substantive justice, and section 80(1) (d) of the Elections Act and Rule No. 4 of the Election Rules to similar effect. He urges that the grounds in the Petition are not fictitious but facts on which the Petition is grounded. According to Mr. Momanyi, relying on D. T Dobie & Co (K) Ltd v. Muchina, (1982) KLR 1, the court cannot strike out something which has some substance which can be amended to bring life to it and the court ought to deal with substance pursuant to rule 17 Election Petition Rules on case management. He holds that the Notice of Motion does not cite any provisions of law for the expunction of the paragraph except Order 51 Civil Procedure Rules. 

9.      Counsel for the Petitioner conceded during argument that he used Petition no. 2 of 2013 as a precedent format but contended that the facts set out in the Petition herein relate to the election of the member of National Assembly in Nyaribari Chache Constituency and not Bonchari Constituency the subject of Petition no. 2 of 2013. The ground raised by the 3rd Respondent is not a ground for striking out or expunging the said paragraphs as provided for under rule 6 of Order 19 of the Civil Procedure Rules which provides that:- “The court may order to be struck out from any affidavit any matter which is scandalous, irrelevant or oppressive”. The Petitioner has denied that paragraphs 10-39 are fictitious and imaginary. He maintained that those facts took place in Nyaribari Chache Constituency perpetrated by the Respondent or its authorized agents and he contends that if the same acts were committed at Bonchari Constituency then the resemblance does not make the aforesaid paragraphs fictitious and the similarities thereof can be attributed to the similar conduct of the 1st Respondent who received common training.

10. Responding to the reply by the counsel for the Petitioner, counsels for the 3rd respondent Messrs Nyaundi and Wasilwa, respectively, reiterated the submission for expunction of ‘copy cat paragraphs’ and the requirement under Order 19 of the Civil Procedure Rules and the Evidence Act for affidavits to contain matters of knowledge as a substantive matter and not a technicality which could be cured by the Article 159 principle of the Constitution of Kenya, 2010 and Section 80(1) (d) of the Elections Act.

Issues

11. Having considered the averments contained in the Notice of Motion dated 14th May 2013 and affidavits in support and in opposition thereto, together with the arguments by the counsel for the parties herein, I consider that the questions for determination are:-

i.                  Whether the averments contained in the Petition dated 5th April 2013 at paragraphs 10-39 are fictitious and imaginary, and plagiarized from the Petition of John Oroo Oyioka, Petitioner in Election Petition No. 2 of 2013 in the High Court of Kisii.

ii.                  Whether the said paragraphs 10-39 of the Petition and their corresponding paragraphs of the affidavit in support of Petition should be expunged from the court’s record.

Determination

12. I consider that while a Petition may involve the same questions of law as a previously filed Petition, and while legal argument and the communicative phraseology and terminology may be adopted from a previous Petition, commonly referred to in lawyer’s terms as “a precedent”, for use in a subsequent pleading, the facts of each case must be different. In formulating the principles that I followed in determining whether the expunction of paragraphs of the Petition for being merely “copy and paste” adoptions of a previous Petition, I considered that:

(1)   The new Petition should not adopt the factual details of the previous Petition as these must reasonably differ from case to case. The factual details cannot be the same or too closely resemble those of a previous Petition such to suggest that in all human probability the latter Petition is really a copy of the first Petition with an unsubstantiated claim unsupported by its own set of facts.

(2)   The Petitioner may use the phraseology and terminology used in a previous Petition for precedent value only where the facts that support the factual situation depicted by the phraseology and or terminology must be different.

(3)   Legal contentions and propositions may be adopted from one Petition to the other so far as it is understood that such arguments will depend on the factual basis established in the given Petition.

(4)   Recitals on the jurisdiction of the court or the non-existence of prior suit between the parties on the same facts may be adopted from one Petition to another and expression of the reliefs sought in the Petition may be adopted for use in a subsequent Petition.

(5)   Where the court takes the view that it is within the realm of possibility that a factual detail resembles that described in a previous Petition precedent, such as the mode of doing something required to be done under election procedures, the court may allow a pleading in terms resembling or exactly as in a previous Petition.

(6)   The use by a pleader of the phraseology, design and structure of the Petition used by another in a previous Petition is really not plagiarism as there is no passing off the previous work as belonging the present pleader’s; it is the accepted practice of pleading by precedent among practicing advocates. 

13. This practice of ‘precedents’ must be the understanding upon which “forms and precedents” documents are created by statutes and subsidiary legislation for various branches for legal practice. Indeed, the Elections Act contains forms for adoption by the Petitioners and the Respondents in substantially the same formats for their respective pleadings. In addition section 72 of the Interpretation and General Provisions Act Cap 2 provides for use of Statutory forms as precedents and excuses deviations from the forms in these terms:-

“Save as is otherwise expressly provided, whenever a form is prescribed by a written law, an instrument or document which purports to be in that form shall not be void by reason of a deviation therefrom which does not affect the substance of the instrument or document, or which is not calculated to mislead.”

14. Furthermore, plagiarism is defined under the Black Law Dictionary as “the act of appropriating the literary composition of another, or parts of passages of his writing or the ideas or language of the same and passing them off as the products of one’s mind”.  The use of forms and documents in legal practice as precedents is a common usage and does not amount to plagiarism. 

15. I have juxtaposed the paragraphs of the two Petitions for ease of reference in determining which paragraphs use the Petition No. 2 of 2013 as a precedent, giving their own factual particularity relevant to Petition No. 5 of 2013 and which are mere ‘copy cat paragraphs’ as submitted by the counsel for the respondents, which only replicate the averments of the earlier Petition without any particulars to characterize the Petition No. 5 of 2013. The latter are for expunction; the former will remain as paraphrases of the precedent petition.

Juxtaposition Table for the Comparison of Paragraphs in Petitions Nos. 2 and 5 of 2013.

N/B: Where applicable, the differences between the paragraphs are highlighted in bold italics in the column on Petition No. 5 of 2013.

Para

ELECTION PETITION NO. 2 OF 2013 (KISII)

JOHN OROO OYIOKA

AND
IEBC
PETER RESA
ZEBEDEO OPORE
Para

ELECTION PETITION NO. 5 OF 2013 (KISII)

RICHARD NYAGAKA TONG’I

AND
IEBC
ROBERT NGENY
CHRIS BICHAGE
7.

The 2nd Respondent misconducted himself in the manner in which he handled the process of tallying votes in the election which was a complete departure from Regulation 83 of the Election (General Regulations), and thereby committed the following criminal offences contrary to section 59 of the Elections Act, thus:-

(a)     Makes, in any record, return or other document which they are required to keep or make under such written law, an entry which they know or have reasonable cause to believe to be false, or do not believe to be true;

(b)     Without reasonable cause doing or omitting to do anything in breach of his official duty;

(c)     Colluding with any political party or candidate for purposes of giving an undue advantage to the political party or candidate;

(d)     Willfully contravening the law to give undue advantage to a candidate or a political party on partisan, ethnic, religious, gender or any other unlawful considerations.

10.

The 2nd Respondent misconducted himself in the manner in which he handled the process of tallying votes in the election which was a complete departure from Regulation 83 of the Election (General) Regulations 2012 as follows:-

a)       Did not allow the Petitioner or his chief agent or any of his agent to sit with him in the tallying desk or near there.

b)       Did not announce publicly the total valid votes cast for each candidate.

c)       Did not supply to the Petitioner or hisagent(s) copies of form 35 till a request by the lawyer.

8.

The violation of the Regulation 83 of the Election (General Regulations) and Section 59 of the Elections Act by the 2nd Respondent embedded a flawed vote tallying process and manifestly affected a fair outcome of the elections, and culminated in wrongfully and illegally declaring the 3rd Respondent as the winner thereof.

11.

The violation of the Regulation 83 of the Election (General Regulations) and Section 59 of the Election Act by the 2nd Respondent embedded a flawed vote tallying process and manifestly affected a fair outcome of the elections, and culminated in wrongfully and illegally declaring the 3rd Respondent as the winner thereof.

a)       The 1st and 2nd Respondent and/or their agents or staff are guilty of the crimes outlined in Section 59 of the Elections Act No. 24 of 2011.

9.

Upon conclusion of the voting, polling and vote counting processes in the polling stations of the Constituency on 4th March 2013 all the Presiding Officers of the respective polling stations delivered up the declaration of results (Form 35) from their respective polling stations to the 2nd Respondent who was the Returning Officer for Bonchari Constituency at Suneka Secondary School which was the tallying centre.

12.

Upon conclusion of the voting, and vote counting processes in the Polling Stations of the Constituency on 4th March, 2013 all the presiding officers of the respective polling stations delivered up the declaration of results in Form 35 from their respective polling stations to the 2nd Respondent at Keumbu Social Hall which was the tallying centre for purposes of tallying, but the 2nd Respondent ignored and/or did not use the forms in his tallying processes.

10.

The tallying exercise relating to the election of Member of the National Assembly began at 11:00pm on 4th March, 2013 and was concluded at 2:00pm on 5th March, 2013; In this tallying exercise, the first candidate was, the Petitioner, John Oroo Oyioka with 9007 votes and the second candidate was Zebedeo John Opore, the 3rd Respondent, with 8899 votes. For clarity, the results of the first three candidates in the election was as follows:-

Name of candidate             Number of Votes

Charles Onyancha                6897

John Oroo Oyioka                9007

Zebedeo John Opore            8899

13.

The tallying exercise relating to the election of Member of the National Assembly began at 9:00am on 4th March, 2013 and was concluded at 8:00pm on 5th March, 2013; In this tallying exercise, the winner was the Petitioner Richard Nyagaka Tong’i with 10,717 votes as per Form 35 which is the primary source of data.

11.

Upon conclusion of the tallying process aforesaid the 2nd Respondent was required by Regulation 83 of the Elections (General Elections) Regulations to declare the winner of the election who was clearly, the Petitioner. However, the 2nd Respondent declined to declare the results thereof which he disguised by stating that he would announce the results for all seats in the General Election together upon conclusion of tallying of votes in each, and every, one of them.

14.

The 2nd Respondent was required by Regulation 83 of the Elections (General Elections) Regulations 2012, to declare the winner of the election who was clearly, the Petitioner. However, the 2nd Respondent declined to declare the results thereof which he disguised by stating that he would announce the results for all seats in the General Election together upon conclusion of tallying of votes in each, and every, one of them.

14.

However, a proper reading of the Elections Act and the Elections Regulations does not reveal that the results of the election of Member of the National Assembly should not be announced, nor that the 2nd Respondent as the returning officer in the election empower was empowered to withhold the results, in the event the difference between the votes garnered by the first two candidates small or narrow.

15.

A proper reading of the Elections Act and the Elections Regulations does not reveal that the results of the election of Member of the National Assembly should await other results before it is declared nor does the 2nd Respondent as the returning officer in the election empower was empowered to withhold the results, in an event that the difference between the votes garnered by the first two candidates small or narrow.

16.

The 2nd Respondent embarked on the re-tallying exercise together with the 1st Respondent’s tallying clerks. This he did three more times, resulting in four tallying processes when the law recognizes only one tallying process.

16.

The 2nd Respondent embarked on the tallying exercise together with the 1st Respondent’s tallying clerks without involving the Petitioner and/or his agents which was against the law.

22.

From the foregoing, it is clear that whilst using Form 35 from every polling station as the primary source of data for the first three tallying processes, the winner was the Petitioner.

17.

Consequently, it is clear from Form 35 from every polling station as the primary source of data for the tallying processes that the Petitioner herein was the winner and 2nd Respondent failed to declare him so.

24

There is strong evidence to believe that the 3rd Respondent influence the 2nd Respondent in the eventual declaration of the results of the election. Further, the Petitioner avers that the 2nd and 3rd Respondent colluded to deny the Petitioner victory in the election. This occurred as follows:-

(a)     Throughout the so-called re-tallying processes, the 3rd Respondent, was restless and kept strutting in and out of the tallying centre.

(b)     Upon conclusion of the tallying exercise, the 3rd Respondent hurriedly walked into the tallying centre heading towards the direction of the 2nd Respondent and pulled him away from the agents and other candidates who were in the tallying centre where they conversed in low tones for a while. This angered the people in the tallying centre. They shouted in unison at them telling them not to collude and manipulate the results of the election.

(c)     The 2nd and 3rd Respondents then came back. The 3rd Respondent took a seat at the front row.

(d)     The 2nd Respondent stated that he would undertake a fourth tallying process, thus effectively, but illegally setting aside the third tallying process.

(e)     The 2nd Respondent stated that he would undertake a fourth and the last tallying process he would have it done by the Petitioner and the 2nd Respondent themselves, each tallying his own votes.

(f)      The 2nd Respondent asked the Petitioner to come upfront too, with a calculator. The Petitioner responded that he had a pen and a paper, which were enough tools.

(g)     The 2nd Respondent in a highly prejudicial and condescending manner told the third candidate, Hon. Charles Onyancha, not to bother participating in the fourth tallying exercise and that his score was much too low to waste his time and that of the 2nd Respondent. He told him: “Your votes are way too low. At 6,000 votes you cannot catch up no matter what. You have lost already. Let me deal with these two alone, for now.”

(h)     As soon as the Petitioner sat in the front row, the 2nd Respondent started reading out to him his scores from a laptop computer device. When the Petitioner finished adding up his scores, he said he had a total of 8,987 votes.

(i)       The 2nd Respondent then turned to the 3rd Respondent and stated reading out from the laptop computer device the votes he scored at various polling stations. the 3rd Respondent finished adding up his votes, and declared his total to be 8,992 votes. The 2nd Respondent then quipped: “I have the same figure myself. That is the total I got when tallying on my own. IT IS AS IF OPORE HAS DEFEATED OROO. Now, I move to the next task – tallying presidential votes.”

(j)      In the first, second and third tallying processes the 2nd Respondent relied on the primary documents, that is to say, Form 35 from every polling station, as a source of data.

(k)     It is in the fourth re-tallying exercise the 2nd Respondent declined to use the primary documents, that is to say, From 35 from each of the polling stations, and relied on data from an unlawful source, his laptop computer, which he had opportunity to manipulate being a device within his sole power, possession and control.

(l)       The concept of candidates tallying for themselves each their own votes is not clothes with any statutory or legal foundation.

(m)   In the fourth tallying process, the 2nd Respondent resorted to tallying from his own manipulable source and having the Petitioner and the 3rd Respondent in order circumvent the statutorily laid down procedure of tallying votes and perpetuate his pre-designed end goal of declaring the 3rd Respondent as the winner irrespective of the actual votes he truly scored in the election.

18

There is strong evidence to believe that the 3rd Respondent influence the 2nd Respondent in the declaration of results of the election. Further, the Petitioner avers that the 2nd and 3rd Respondents colluded to deny the Petitioner victory in the election. This occurred as follows:-

(a)     Throughout the so-called tallying processes, the 3rd Respondent, was restless and kept strutting in and out of the tallying centre.

(b)     Upon conclusion of the tallying exercise, the 3rd Respondent hurriedly walked into the tallying centre heading towards the direction of the 2nd Respondent and pulled him away from the agents and other candidates who were in the tallying centre where they conversed in low tones for a while. This angered the people in the tallying centre. They shouted in unison at them telling them not to collude and manipulate the results of the election.

(c)     The 2nd and 3rd Respondents then came back. The 3rd Respondent took a seat at the front row and the 2nd Respondent announced the 3rd Respondent as the winner.

25.

On the basis of this flawed process of arriving at the outcome of the election, the 1st Respondent has gazette the declaration of the 3rd Respondent in the Kenya Gazette, Special Issue, Vol. CXV – No. 45 of 13th March, 2013.

19.

On the basis of this flawed process of arriving at the outcome of the election, the 1st Respondent has gazetted the declaration of the 3rd Respondent in the Kenya Gazette, Special Issue, Vol. CXV – No. 45 of 13th March, 2013 as the member of the National Assembly elect for NYARIBARI CHACHE CONSTITUENCY.

26.

The Petitioner AVERS that the 2nd Respondent overreached his statutory authority and issued two forms in respect of Form 36 for the declaration of election results for Member of the National Assembly. On 5th March, 2013 he issued initial Form 36 and later revised it, and issued revised Form 36 two days later, on l7th March 2013.

20.

The Petitioner AVERS that the 2nd Respondent overreached his statutory authority and used Form 36 which was marred with irregularities for the declaration of election results for Member of the National Assembly in Nyaribari Chache Constituency.

28.

The revisionism acts the 2nd Respondent engaged culminating into the revised Form 36 were aimed at making up for the gaps invariably left after manipulating the votes garnered in the fourth tallying process, in which he concluded with the 3rd Respondent.

21.

The figures in Form 36 were cooked by the 2nd Respondent with sole aim of making up for the gaps invariably left after manipulating the votes garnered in the tallying process, in which he concluded with the 3rd Respondent was the winner.

29.

These Revisionism acts are not envisaged by the Elections Act and the Election (General Election) Regulations. To this extent, they are unconstitutional, illegal, unlawful, criminal, wrongful, null and void, and thus of no effect.

22.

The 1st and 2nd Respondents acts of revision and alterations of Form 35 without countersigning are not envisaged by the Elections Act and the Election (General) Regulations 2012 and to that extent, they are unconstitutional, illegal, unlawful, criminal, wrongful, null and void.

30.

An accurate tally of the votes garnered by the Petitioner and the 3rd Respondent in both the initial and the revised Form 36 is as follows:-

 
CANDIDATE

INITIAL FORM 36

REVISED FORM 36

 
Actual
Recorded
Actual
Recorded

John Oroo Oyioka- Petitioner

8,987
8,987
8,987
8,987

John Zebedeo Opore – 3rd Respondent

8,946
8,992
8,992
8,992
23.

An accurate tally of the votes garnered by the Petitioner and the 3rd Respondent in form 35 will reveal that the Petitioner was the winner.

33.

The total votes cast must correspond to the sum of valid votes cast and the rejected votes. This is not the case with respect to the initial and revised Form 36 as illustrated hereafter. The total votes cast in the initial Form 36, on the one hand, was recorded as 33,294 but the sum of the total valid votes and rejected votes is 33,275 being a difference of 21 votes. On the other hand, the total votes cast in the revised Form 36 was recorded as 33,339 leading to a difference of 5 votes coincidentally a margin by which the 3rd Respondent allegedly won the election.

24-25

The total votes cast must correspond to the sum of valid votes cast and the rejected votes.

In further perpetuation of 2nd Respondent’s revisions and alteration schemes relating to Forms 35 and 36, he engaged in an exercise of interfering with the actual votes declared at polling stations with the aim of achieving consistency and congruency of votes from the various polling stations with the manipulated election results.

35.

Besides the foregoing electoral malpractices designed, perpetuated and entrenched by the 2nd Respondent, and aided by the 3rd Respondent, for the undue advantage of the 3rd Respondent, but much to the detriment of the Petitioner, the election documents reveal a litany of other inconsistencies outlined in the succeeding paragraphs.

26.

Besides the foregoing electoral malpractices designed, perpetuated and entrenched by the 2nd Respondent to aid the 3rd Respondent to win in the elections as the Member of the National Assembly of Nyaribari Chache Constituency, the 2nd Respondent also changed and/or altered the serial numbers of the ballot boxes used at the end of counting.

36.

The votes garnered by the candidates in both the initial and the revised Form 36, in certain instances, differs with actual votes recorded in the primary source, Form 35.

27.

The votes garnered by the candidates in both Form 36, in certain instances, differ with the actual votes recorded in the primary source, Form 35.

37.

The discrepancies apparent on the face of the documents are as follows:-

a)       Bogitaa Primary School Polling Station No. 046:

Here Zebedeo John Opore scored 69 votes, but the 2nd Respondent has altered his score to 215 votes in the revised Form 36 and corresponding altered the underlying Form 35. The net effect is that the 2nd Respondent inflated the votes of the 3rd Respondent by 146 votes.

b)       Igonga Primary School – Stream 2 Polling Station NO. 004:

In the initial Form 36 the 3rd Respondent scored 249 votes and the Petitioner 39 votes.

c)       Igonga Primary School – Stream 1 polling station No. 004:

In the initial Form 36 the 3rd Respondent scored 226 votes but in the revised Form 36 his votes are 249.

d)       Isamwera Primary School – Polling Station No. 005 – Stream 1:

In the initial Form 36 and the underlying Form 35 the 3rd Respondent scored 189, but this has been inflated to 198 votes in the revised Form 36.

e)       Ekerubo Primary School – Stream 2 – Polling Station No. 029: In the initial Form 36 and indeed in Form 35 Charles Onyancha scored 36 votes, but in Form 36 his votes have been diminished to 26.

f)        Botoro Primary School, Polling Station NO. 033 – Stream 2: In the initial form 36 the 3rd Respondent scored 26 votes which has been increased to 44 in the revised Form 36.

g)       Suneka Baraza Hall, Polling Station NO. 042 – Stream 3: In the initial Form 36 the 3rd Respondent scored 50 votes, which have been inflated to 56 in the revised Form 36. The accurate number of votes the 3rd Respondent garnered is 50 as shown in Form 35.

h)       Gesero Primary School – Stream 2 – Polling Station No. 052: In the initial Form 36 and accompanying Form 35 the rejected votes were 7, but this has been adjusted upwards to 8 in the revised Form 36; the 3rd Respondent scored 151 votes but in the revised Form 36 his voted have been inflated to 158.

i)         Nyakungu Primary School – Polling Station No. 019: Total number of valid votes cast as per the revised Form 36 is 659, whereas Form 35 which has various alterations shows total number of valid votes as 620.

28.

The discrepancies apparent on the face of the documents are as follows:-

a)       Bobaracho Primary School, Polling Station No. 006: In the Form 35 the 3rd Respondent scored 099 votes, which was altered as indicated in Form 35 to 199 votes, but in form 36, they indicated 279 votes for the 3rd Respondent.

b)       Bobaracho Primary School – Stream 2 – Polling Station No. 006: In Form 35 Richard Nyagaka Tong’I scored 17 votes, but in Form 36 his votes have been diminished to 13 votes.

c)       Kegati Primary School, Polling Station NO. 001: In Form 35, Richard Nyagaka Tong’i scored 37 votes which has been diminished to 23 votes in Form 36.

d)       Kisii Primary Polling Station NO. 022 – Stream 2: In Form 35, Richard Nyagaka Tong’i scored 46 votes, which have been diminished to 37 in Form 36.

38.

The following table summarizes the apparent discrepancies in the initial and the revised Form 36 and the corresponding Form 35 the number of votes the 3rd Respondent allegedly garnered. Strangely such discrepancies only affected the 3rd Respondent.

Polling Station

Initial Form 36

Revised Form 36

Form 35

017: Nyamokenye Stream 2

98
141
 
017: Nyamokenye Stream 1.
141
98
 

018: Nyamerako Stream 2

104
99
99

018: Nyamerako Stream 1

99
104
104

021: Mosado Stream 2

30
32
32

021: Mosando Stream 1

32
30
30

042: Suneka Hall Stream 2

50
56
50

049: Omwari Stream 1

286
285
285

049: Omwari Stream 2

285
286
286

053: Kerina Primary Stream 2

213
113
113
29.

The following table summarizes the apparent discrepancies in Form 36 and the corresponding Form 35 the number of votes the 3rd Respondent allegedly garnered. Strangely, such discrepancies only affected the 3rd Respondent. 

Polling Station
Form 35
Form 36
Votes deducted
Bobaracho Primary School – Stream 1
17 votes
13 votes
4 votes
Kisii Primary School – Stream 2
46 votes
37 votes
9 votes
Kegati Primary School – Stream 1
37 votes
23 votes
14 votes
39.

There is a discrepancy in the number of valid votes cast in Nyakungu polling station number 19 with respect to the two Forms 36 issued with the initial one showing that the valid votes cast was 620 while the revised one showing that the valid votes cast was 611.

30.

There is a discrepancy in the number of valid votes cast in Bobaracho Primary School – Stream 2 Polling Station, in which Form 35 shows 099 votes which was altered to 199 votes but in Form 36, they are indicated as 279 votes, a huge increment of 180 votes were added to the 3rd Respondent.

40.

The 2nd Respondent failed to transfer the number of rejected votes from Form 35 for the declared election results relating to certain polling stations to Form 36 accurately and in fact inflated or reduced the number of rejected votes in the following instances:-

Polling Station Code

Polling Station

Rejected votes as per Form 35

Rejected votes as per Form 36

003
Mogumo Primary
1
3
007
Kenyorora Primary
5
4
021

Mosando Primary Stream 2

Nil
2
029

Ekerubo Primary – Stream 2

3
4
030

Rianyabaro Primary – Stream 1

4
Nil
044

Suneka Airstrip

3
4
045
Ekerorano
3
1
052

Gesero Primary – Stream 2

7
8
064
Nyamegukuna
3
4
31.

The 2nd Respondent failed to transfer the number of rejected votes from Form 35 for the declared election results relating to certain polling stations to Form 36 accurately and inflated or reduced the number of rejected votes.

41.

It is not clear at all why the 2nd Respondent decided to infract the number of rejected votes in Form 36 in contradiction declared results in Form 35 of the Polling Stations shown above. Serious doubt exists as to whether or not the 2nd Respondent used this infraction to increase or reduce the number of scores earned by the respective candidates.

32.

The 2nd Respondent’s decision to inflate the number of rejected votes in Form 36 contradicts the declared results in Form 35 of the Polling Stations. Thus serious doubt exists as to whether or not the 2nd Respondent used this inflation to increase or reduce the number of scores earned by the respective candidates.

43.

As a consequence of misreporting the actual number of valid votes cast some valid votes have, as appears above, been lost or gained. There is a high likelihood that these lost or gained votes affected the total tally of candidates.

33.

As a consequence of misreporting the actual number of valid votes cast, some valid votes have been lost or gained. There is a high likelihood that these lost or gained votes affected the total tally votes.

47.

Whereas the General Election of 4th March, 2013 involved the following elections: presidential; senator, governor, women representative and county ward representative in which the same register of voters ought to have been used, the total number of registered voters reported by the 2nd Respondent in Form 36 relating to each of these election differs, thus:

Category of election

Total number of registered voters

Presidential
39,629
Senator
39,750
Governor
40,880

Member of National Assembly

39,646

Women Representative

40,888
34.

Whereas the General Election of 4th March, 2013 involved the following elections: presidential; senator, governor and women representative in which the same register of voters was used, the total number of casted votes reported by the 2nd Respondent in Form 36 relating to each of these election differs, thus:

Category of election

Total number of votes cast and/or garnered

Presidential
46704
Senator
46361
Governor
48411
Member of National Assembly
48981
Women Representative
48412
48.

From the foregoing, it is clear that the 2nd Respondent grossly misrepresented data from Form 35 to Form 36, including illegally altering the contents of Form 35 from various polling stations so as to match up with his manipulation with the actual total tally of votes in the election.

35.

From the foregoing, it is clear that the 2nd Respondent grossly misrepresented data from Form 35 to Form 36, including illegally altering the contents of Form 35 from various polling stations so as to match up with his manipulation with the actual total tally of votes in the election.

50.

By altering election records as shown above, the 2nd Respondent committed several offences under the Election Offences Act, 2011.

36.

By altering election records as shown above, the 2nd Respondent committed several offences under the Election Offences Act, 2011.

51.

The presiding officer for Genga Primary School – Polling Station number 51 misconducted herself and acted in grossly opaque a manner by: firstly, keeping all agents of the candidates eight (8) meters away from where she was counting votes; and secondly, failing to prominently display the ballot papers such as to be clear which of the candidates gained a particular vote and in this nebulous style disguised other candidates’ votes purporting them to be the 3rd Respondent’s.

37.

The Presiding Officers for Municipal Hall, Bobaracho Primary School, Nyanchwa Primary School, Kisii Primary School, and Gusii County Council polling stations misconducted themselves by keeping all agents of the candidates 8 meters away from where they were counting votes, and failing to prominently display the ballot papers in such a way that they clearly show which candidates is marked in each and every ballot paper.

52.

Based on the foregoing, the declaration of the 3rd Respondent by the 2nd Respondent and subsequent gazettement by the 1st Respondent was unlawful, illegal and irregular, and cannot stand and should be nullified and set aside by this Honourable court.

38.

Based on the foregoing, the declaration of the 3rd Respondent by the 2nd Respondent as the winner and the subsequent gazettement of his name as the Member of National Assembly for Nyaribari Chache Constituency by the 1st Respondent was unlawful, illegal and irregular, and cannot stand and should be nullified and set aside by this Honourable court.

53.

Further, based on the foregoing, the Petitioner clearly garnered more votes than any other candidate, thus emerging the winner and should have been declared by the 2nd Respondent and gazetted as such by the 1st Respondent, but for the obstructionist illegal conduct of the 2nd Respondent who colluded with the 3rd Respondent who colluded with the 3rd Respondent to steal victory from him. The Petitioner urges this honourable court to right and remedy this injustice and violence attack on the rule of law, good governance, democracy and free and fair elections.

39.

Further, based on the foregoing, the Petitioner clearly garnered more votes than any other candidate, thus emerging the winner and should have been declared by the 2nd Respondent as the winner and gazette by the 1st Respondent as such, but due to the said illegal conduct of the 2nd Respondent who colluded with the 3rd Respondent to steal victory from the Petitioner, the Petitioner has been denied his victory and urges this Honourable Court to right and remedy this injustice and denial of a free and fair elections.

 

16. With the aid of the juxtaposition table above, I have carefully examined the paragraphs of the Petition against the paragraphs of Petition No. 2 of 2013 from which the paragraphs herein are said to have been copied. I am of the considered view that only the following paragraphs 14, 15, 18, 31, 32 and 33 are unsubstantiated copying of the precedent in Petition No. 2 of 2013, and the same are only weight the Petition. In the absence of substantiation, I consider the same to be a mere copying of the Petition No. 2 of 2013. Paragraphs 27, 35, 36, 38, 39 are clearly conclusions of law and fact with the reliefs sought in the Petition. The other paragraphs are adaptations of the Petition precedent with sufficient particularity relating to the election in Nyaribari Chache Constituency the subject of Petition No. 5 of 2013.

17. As regards the legal requirement that affidavits contain matters of personal knowledge of the deponent, save in interlocutory matters or with leave of the court, under Order 19 of the Civil Procedure Rules, the Petitioner appears keenly aware of the requirement when he asserts that the matters set out in his affidavit are of “my own knowledge.” The rule against hearsay which is contained in section 63 of the Evidence Act, in the case of oral evidence, and in Order 19 of Civil Procedure Rules, in the case of affidavit evidence, is a rule of substantive law and not a technicality of procedure which can be cured by Article 159 of the Constitution and excused by section 80 (1) (d) of the Elections act.

18. The Petitioner contends that the averments in his affidavit in support of the Petition are matters of fact which are known to him, and that the errors pointed out in the paragraphs have been admitted by the 2nd respondent in his affidavit in reply. The paragraphs of the affidavit in support of the Petition are pre-fixed with a phrase “That I know of my own knowledge that ...”

19. In the light of this positive assertion by the Petitioner that he was personally aware of the facts deponed to in the supporting affidavit, the court may only properly determine the veracity of his averments upon cross-examination of the deponent at the hearing when his knowledge and or actual basis of his alleged knowledge of the facts will be put to the test. This is in accordance with Rule 12 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 where affidavits form part of the record and the basis of cross-examination of witnesses. 

20. Accordingly, I do not have a basis for disregarding a particular averment in the affidavit at this preliminary stage and that must await the trial of the Petition.

21. For the reasons set out above, I make the following orders on the 3rd respondent’s application dated 14/5/2013:-

(a)   The following paragraphs of the Petition are struck out and expunged from the record: Paragraphs 14, 15, 18, 31, 32 and 33 of the Petition herein.

(b)   The costs of the application to be in the cause.

Dated, signed and delivered this 27TH day of JUNE 2013.

 
…………………………...

EDWARD M. MURIITHI

JUDGE

In the presence of: -

……………………………............................. for the Petitioner

............................................................for the 1st Respondent

...........................................................for the 2nd Respondent

...........................................................for the 3rd Respondent

............................................................................... Court Clerk  

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