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High Court at Kisumu

Election Petition 1 of 2013


JARED ODOYO OKELLO............................................................................PETITIONER



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


FREDRICK OTIENO OUTA................................................................3RD RESPONDENT



          The petitioner challenged the elections of the 3rd respondent as member of the National Assembly for Nyando constituency in the general elections held on 4-3-2013. In the declaration on 5-3-2013 by the returning officer (the 2nd respondent) the 3rd respondent garnered 24,558 votes and the petitioner 23,815 votes. The difference was 743 votes. The petitioner filed a notice of motion dated 10-5-2013 seeking an order of scrutiny and recount of the votes for the purpose of establishing the validity of the votes cast in 13 of the polling stations in Nyando constituency. Some of the polling stations had two streams each. The 13 stations were Arombo, Ogenya, Karanda, Odienya, Lela, Kobura, Osaria, Mao, Yogo, Nyamware, Migingo, Alendu and Nyangande.

            The petitioner alleged that there was ballot stuffing by the respondents, their officers and /or agents in favour of the 3rd respondent; the register of voters was marked for voters who did go to the polling stations to vote and for dead voters; the respondents colluded to inflate the 3rd respondent\'s votes; his agents were denied the opportunity to witness vote counting, to sign the election results documents or to be present during voting; the results were not pinned at the polling station after declaration and the agents were not given copies of forms 35; and that the 1st respondent\'s Biometric Voter Registration System (BVR), Electronic Voter Identification Device (EVID) and electronic results transmission system failed. It was the petitioner\'s case that given these misdeeds and the fact that the difference in votes between the two candidates was only 743, it was necessary to conduct scrutiny and recount.

         The application was prosecuted at the close of the petitioner\'s case in which he called altogether 16 witnesses. During the evidence, the petitioner challenged the nomination of the 3rd respondent as an Orange Democratic Movement (ODM) candidate; he alleged that the 3rd respondent had campaigned in various places in the constituency using Constituency Development Fund monies thereby unduly influencing voters; the 3rd respondent and/or his agents had bribed voters; there was vote stuffing by the respondents in favour of the 3rd respondent; the presiding officers had marked and/or allowed the marking of the names of dead or absent voters to show that they had voted; there were discrepancies between forms 35 and 36; his agents had been denied participation in the supervision of the election; presiding officers campaigned for the 3rd respondent; there was collusion by the 1st and 2nd respondents officials and the 3rd respondent to his disadvantage; and that the electronic equipment and results transmission system had failed which had affected the integrity of the election. It was the submissions by the advocates for the petitioner that given this scenario the only way to get to the bottom of the matter was to conduct scrutiny and recount.

            It is notable that whereas the plea for scrutiny and recount was for 13 polling stations, the number was increased to 20 during the counsel’s submissions. The other 7 stations were Katolo, Kasule, Sare, Obungi, Nyandiwa, Ayweyo and Kasuma. Also included in the submission was Ahero multipurpose tallying centre at which ballot boxes with broken seals were allegedly recovered and at which there was ballot stuffing, among other vices. The motion was not amended to include these extra polling stations and tallying centre and therefore the court\'s jurisdiction will be limited to the application and the prayers therein.

            The respondents opposed the application on the basis that request for scrutiny and recount was being prematurely sought now that they had not tendered evidence to counter the allegations by the petitioner. They contended that to order scrutiny and recount at this stage would prejudice their case. The second reason for opposing the motion was that an order for recount is not available to the petitioner now that he had not sought recount at any of the polling stations following declaration of the results by the respective presiding officers. Thirdly, that recount could only be available to the petitioner if, as provided under Rule 32 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 made under the Elections Act No. 24 of 2011, that was the only issue for determination in the petition. Lastly, the respondents\' counsel submitted that the petitioner had not laid a basis for either scrutiny or recount. This was to counter the petitioner\'s contention that he had through the evidence laid basis for scrutiny and recount.

            While the application was pending this ruling, the respondents\' case begun during which the 2nd respondent testified and called the presiding officers. The 3rd respondent testified and was to call witnesses. Their evidence was that the election was conducted freely and fairly; that there was no ballot stuffing; there were no dead or absent voters whose names were crossed on the register to enable voting or stuffing by the officials; no agent of the petitioner was not allowed to oversee the election or the counting and determination of results; the petitioner and the agents did not complain about the alleged malpractices, or at all; no election official campaigned for the 3rd respondent and/or influenced any voter to vote for the respondent; and that there was no collusion by the respondents to assist the 3rd respondent. The witnesses conceded that there were alterations of the forms 35 mainly which had not been countersigned but denied that such alteration had in any way affected the result, except in one instance where the effect of such alteration had increased the 3rd respondent\'s votes by three. This, in their view, could not materially affect the declared result.

       Mr. Odeny and Mr. Odhiambo were the advocates for the petitioner, Mr. Mukele for the 1st and 2nd respondents, Mr. P.J. Otieno for the 3rd respondent and Mr. Ochieng for the 4th respondent. I am grateful to them for their submissions.

This application was brought under rule 33 of the Elections (Parliamentary and County Elections) Petition Rules (herewith referred to as the “Rules”) whose sub-rule 1 provides that:

“33 (1) the parties to the proceedings may at any stage, apply for scrutiny of the votes for the purpose of establishing the validity of the votes cast.

“(2) Upon an application under sub-rule (1), the court may, if it is satisfied that there is sufficient reason, order for a scrutiny or recount of the votes.”

Under sub rule (4) scrutiny shall be confined to the polling stations in which results are disputed and shall be limited to the examination by:-

(a)    the written statements made by the presiding officers under the provisions of the Act;

(b)   the copy of the register used during the elections;

(c)   the copies of the results of each polling station in which the results of the election are in dispute;

(d)  the written complaints of the candidates and their representatives;

(e)  the packet of spoilt papers;

(f)   the marked copy of register;

(g) the packets of counterfoils of used ballot papers;

(h) the packets of counted ballot papers;

(i)  the packets by rejected ballot papers; and

(j)  the statements showing the number of rejected ballot papers.

            Rule 32 of the Rules is applicable whence the only issue in the election petition is the count or tallying of the votes received by the candidates. In that case, the petitioner may apply to the court for an order to recount the votes or examine the tallying. The results of such record or examination of the tallying will determine the petition. In the present circumstances, however, the petitioner has raised various grievances which will have to be determined at the conclusion of the evidence. The grievances include scrutiny and recount. So that, even if scrutiny and recount are ordered in this application and are conducted that will not in itself bring the petition to a conclusion. The Court will have to consider the results of the scrutiny and recount along with the other complaints in the petition to be able to determine the matter. In other words, the contention of the respondent that the Court does not have jurisdiction to grant the request of scrutiny and/or recount is without any legal basis.

            In determining this application, I will bear in mind that neither the petitioner nor his agents sought to have any of the presiding officers recheck or recount the votes at the time when there was count and determination of the results at the polling stations. This option was available under rule 80 of the Elections (General) Regulations, 2012 of the Election Act. I will consider that neither the petitioner nor his agents made any written complaint to either the presiding officers or to the 2nd respondent. Such written complaint would be one of the materials to be examined during scrutiny under sub-rule 4 (d) of the Rules. Lastly, the unchallenged evidence was that the marked registers used during the election are not available as they were put in the presidential ballot boxes and sent to Nairobi in anticipation of the presidential petition. They were, therefore, not part of the material submitted to the deputy registrar and neither were they exhibited by either party in this petition. They were supposed to be examined at scrutiny under sub-rule 4 (b) and (f).

         Before determining whether or not sufficient reason has been shown to allow the application for scrutiny and recount, it is necessary to appreciate what scrutiny entails. This is because the scope of counting of votes is known. It entails counting all the votes cast to determine the winner by the election. In the exercise, the presiding officer will exclude spoilt and rejected votes to be left with valid votes. The numbers of valid votes attributed to each candidate is what will determine the winner.

          In Halsbury\'s Laws of England, Volume 15, 4th Edition, at page 501 the object of scrutiny is described in the following terms:-

“On a petition complaining of an undue election, the petitioner may claim that the successful candidate was not elected by a majority of lawful votes and demand a scrutiny. The object of scrutiny it to ascertain by striking off votes or adding votes which candidate had the majority of the lawful votes.”

In SAID-VS- MAITHA [2000] 2 EA 505 the Court of Appeal agreed with the High Court that scrutiny meant “reviewing of the ballot papers following a court order” and that “scrutiny would necessarily involve recount of votes”. In Election Petition No. 1 of 2008 at Nairobi between Dickson Daniel Karaba -VS- Hon. John Ngata Kariuki, & 2 others, the High Court stated that the purpose of scrutiny:-

“…was to ascertain whether there exists any material discrepancies between the results captured in Form 35 which necessitates the determination of the number of votes cast and obtained by each candidate. It is only after this exercise that the court can form an opinion whether the results obtained in the form 35 are correct.”

            The petitioner claims that the 3rd respondent was not validly elected as the member of parliament for Nyando constituency; that the integrity of the election was compromised by the election officers and malpractices committed by the respondents which included the manipulation of the results; and that he was the one who in fact was validly elected. It is in these circumstances that one can appreciate the place of scrutiny to be able to ascertain the valid votes garnered by the 3rd respondent vis-à-vis those garnered by the petitioner. In my view, therefore, scrutiny is the exercise by which the court ascertains the valid votes garnered by a candidate in an election. This is done by looking at the declared results at the polling station in question against the examination of the materials listed under sub rule 4 (a) to (j) of the Rules.

            The crucial question now is whether the petitioner has laid sufficient basis to warrant scrutiny and recount. In determining what sufficient basis is, the court has to bear in mind that it has not come to the conclusion of the evidence. It is not determining the petition where the burden of proof is higher than the balance of probabilities but lesser than proof beyond doubt (Muliro -VS- Musonye & Another [2008] 2 KLR 52). All that is required at this stage is for the petitioner to show on a prima facie basis that the validity of the declared results is questionable as to require ascertainment by scrutiny and recount.

            In Joho & 2 others -VS- Nyange & another [2008] 3 KLR 388 it was held that scrutiny is considered where there are grounds for believing there were irregularities in the election process or if there was a mistake or mistakes on the part of the returning officer or other election officials. In Masinde -VS- Bwire & Another [2008] 1 KLR (9EP) 547, the Court of Appeal held that scrutiny will only be ordered when a foundation or a basis has been laid.

          The petitioner contended that given that the margin between him and the 3rd respondent was 743 votes, which he considered a small margin, scrutiny and recount should be ordered. It is, I think, hoped that scrutiny and recount will wipe out the margin. In Joho\'s case the court considered the cases of Onamu -VS- Maitsi Election Petition No. 2 of 1983, in which the margin was only 30, Kirwa -VS- Muliro Election Petition No. 12 of 1988 where the margin was only 7 and in Hemed Said -VS- Ibrahim Mwaruwa Election Petition No. 1 of 1983 where the margin was only 62. In each of these cases, the Court ordered scrutiny without hesitation. In Joho\'s case the margin was 1061. No scrutiny or recount was ordered. What is therefore clear is that the margin between the petitioner and the winner will be one of the considerations in determining whether or not to order scrutiny and recount.

          Back to the facts of this case. I have read entire petition and the evidence availed to support it. The petitioner and his agents did not give to the court what in their view were the total votes that they got. The agents do not appear to have kept record of their count or tally to be able to say that the declared results did not agree with their record. Their count and tally would have been helpful during scrutiny and/or recount.

          If agents are going to add value to the electoral process, and be of assistance to their candidate, they have to maintain a written record of the happenings from the time a polling station is opened up to the time of the declaration of the final results. An agent who sits in a polling room for the whole day, for instance, should be able to keep a record of his count of the total number of people who voted. Such count would be used to compare with the number as per the marked register. At the counting, he should be able to keep record of all votes cast, valid votes, rejected/spoilt votes and the votes garnered by the candidates. All this information would help in scrutiny and recount.

         It was alleged that voters around Sare Primary School, Obugi Primary School, Nyamware Primary School and Ayweyo Primary School were influenced by the 3rd respondent campaigning there using CDF cheques that he dished out to the projects; that the respondent used the cheques to persuade them to vote for him with a promise to bring more money if he won. The respondent denied the allegation. He testified that when the cheques were taken to the respective places he was no longer the patron of CDF as parliament had been dissolved and he did not attend the alleged cheque presentations. The use of public funds to campaign is an election offence with dire consequences for the culprit. At the conclusion of evidence the competing evidence will have to be assessed and a determination made one way or another.

Whereas the use of public money to campaign may compromise the integrity of an election, scrutiny and recount may not necessarily follow such a claim as it would be difficult, if not impossible, to isolate the votes that were influenced by the money. The other important and relevant consideration regarding the application is that Sare, Obugi, Nyachola and Ayweyo polling centres were not among the disputed stations in respect of which scrutiny was sought. I say the same about Ahero Multipurpose tallying centre.

        There was the issue that absent and or dead voters “voted” at Arombo, Ogenya, Lela, Kobura, Mao, Yogo, Nyamware, Alendu and Nyangande polling centres. Whether or not these happened will have to be decided. What concerns the court at this stage is that the marked register would have to be examined against, for instance, a burial permit to find out if the name of the deceased has been crossed as having voted. Such name would have to be excluded from the tally of valid votes during scrutiny. Unfortunately, the court does not have the marked register. In the same manner, the allegation of ballot stuffing can only be cross-checked at scrutiny by using such a register.

        Lastly, there was the issue of the unsigned and/or undated corrections and alterations in the forms 35 which the 2nd respondent conceded during his testimony. The witness pointed out that the corrections and alteration did not alter or affect the final result. I have looked at the tallies in these forms. The petitioner will ultimately have to show how the results were materially affected by the alterations to his disadvantage. But there is nothing in them that should cause either scrutiny or recount.

        In conclusion, I have considered the motion dated 10-5-2013 and have come to the conclusion that no sufficient reasons have been demonstrated by the petitioner to cause the court to order scrutiny and /or recount of results of any of the polling stations in Nyando constituency. I dismiss the motion, but ask that costs do abide the outcome of the petition.




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