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JOASH WAMANG’OLI v INDEPENDENT AND BOUNDARIES COMMISSION & 3 others [2013] eKLR

REPUBLIC OF KENYA

High Court at Bungoma

Election Petition 6 of 2013

ELECTION FOR MEMBER ASSEMBLY OF WEBUYE WEST CONSTITUENCY (NO.222) BUNGOMA COUNTY

BETWEEN

JOASH WAMANG’OLI..........................................................................................PETITIONER/APPLICANT

AND

THE INDEPENDENT AND BOUNDARIES COMMISSION.............................................1ST RESPONDENT

BENARD ODUOL, RETURNING OFFICER OF WEBUYE WEST CONSTITUENCY...2ND RESPONDENT

DANIEL WANYAMA SITATI.............................................................................................3RD RESPONDENT
ZACHARY KARIUKI KIAGA.............................................................................................4TH RESPONDENT
 
RULING

1. At the close of hearing of both the petitioner and respondent’s case, the petitioner filed an application dated 11/06/2013 pursuant to Provisions of Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules 2013 (EPR), seeking that the court orders for scrutiny in respect of the Parliamentary elections of Webuye West Constituency. The petitioner has sought scrutiny of the following:-

(1)        Copies of the principal register used during the 4th March 2013 elections.

(2)        The packets of spoilt ballot papers

(3)        The marked copy of registers used during the 4th March 2013 elections.

(4)        Copies of results of each polling station.

(5)        The packets of counterfoils of used and un-used ballot papers.

(6)        The packets of rejected ballot papers

(7)        The statement showing the number of rejected ballot papers.

2. The petitioner also seeks a recount and scrutiny of ALL ballot papers relating to the polling stations in respect of Parliamentary elections in Webuye West Constituency.

The application is premised on grounds that:-

(a)        The petition has raised serious doubts as to the credibility of the electoral process conducted on 4th March 2013.

(b)        The petitioner and his witnesses have in both their affidavits and testimonies in court, laid a proper basis that justifies the orders sought.

(c)         Scrutiny will greatly help the court to address and fully determine the real issues in controversy.

3. In the affidavit supporting the application, it is deposed by the petitioner that, the elections were riddled with serious discrepancies which included:-

(i)          Multiple alterations and overwriting on figures on Form 35 which were not authenticated by the makers.

(ii)        Lack of signatures of the Presiding Officers on Forms 35.

(iii)      Lack of statutory comments on Form 35.

(iv)       Lack of signatures of agents on Form 35.

(v)         Failure to indicate the number of registered voters on Form 35.

(vi)       Use of strange Form 35 in stream 4 at Webuye SA Primary School (034).

(vii)     Use of incomplete Form 35 in Misikhu mixed Primary School (011).

(viii)   Entries contained in Form 35 being different from the resulting aggregate forms.

(ix)      Signing and dating of Form 35 on 4/4/2013 in respect of Webuye DEB Primary School Stream 2.

(x)        Excluding valid votes from the final tally in respect of KUYWA FYM Stream 1 and Matulo Market polling stations.

(xi)      Signing and dating of different sets of Form 36, a day after the declaration of results.

(xii)    Publishing Form 36 with manipulated entries.

4.These discrepancies are said to have been more rampant in Matulo Market, Kuywa FYM (both streams), Witi Cheng’oli, Lutaso, Webuye DEB, Webuye S.A, Chebini, Mang’ana, Mahanga, Kakimanyi, Bunjosi, Matisi, Ngwelo, Khalala, Kituni, Sawa, Bokoli RC, Ben Kapten, Misikhu Mixed, Nambami and Milo FYM.

Further the results in Forms 35 from all the polling stations within the said Constituency are incapable of being verified as accurate due to the aforesaid discrepancies.

The petitioner also takes issue with the manner in which Form 38 was prepared, signed, and issued, saying the 2nd respondent did not even disclose the name of the person who prepared it, thus confirming the fears that it was prepared under the orders of the 4th respondent.

5. The accuracy of the reconciliation prepared and filed by the 2nd respondent is described as dubious, as it stems from the discredited contents of Form 35. In any event such reconciliation was done only after the filing and serving of the petition, and in the absence of the petitioner or any other independent party, the explanation given by the 2nd respondent as to why he signed and dated the Form 36 a day after the declaration of results is rejected as not being credible.

RESPONSE

6. The respondents have opposed the application on grounds which are more or less similar, so I will deal with them simultaneously. It is their contention that the applicant has failed to disclose in his application the polling stations in respect of which the results are disputed, so as to bring himself within Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules.

7. Further that the applicant has not laid a reasonable basis or sufficient reasons for an order of scrutiny and recount of votes. The evidence on record is said to confirm that the results were accurate and verifiable, and scrutiny will not achieve any useful objective in the circumstances of this case.

8. It is argued that there is no evidence that the petitioner exercised his right under Regulation 80 of the Elections (General) Regulations 2012, by requiring the Presiding Officers in the polling stations to recount the votes cast, and the Presiding Officers declined the request. Consequently the petitioner should be stopped from making such an application as it amounts to an abuse of the court process.

9. Further that the results declared were the product of an honest, fair, free, transparent, accountable and verifiable process reflecting the will of the people of Webuye West Constituency.

10. The application is contested as having been filed out of time, made in bad faith, and not in the interest of justice. This is because whereas the same is made under the Provisions of Rule 33 of the Election Petition Rules 2013, this conflicts with provisions of section 82 of the Elections Act which requires that such an application be made during the hearing of the petition, therefore, if the court allows this prayer, it will promote an illegality.

11. It is also pointed out that whereas the petitioner now seeks for orders of scrutiny and recount in respect of the entire Constituency comprising 56 polling stations, (with 65 streams), he has in the petition only complained of or mentioned 29 polling stations. Further out of the said 29 polling stations, the petitioner, and his ten witnesses, in their affidavits mentioned or only complained about 17 polling stations.

12. Despite the fact that St. Anthony School of the Deaf is referred to in the petition, neither the petitioner nor any of his witnesses mentioned it in their testimony. Again, whereas the petitioner in his testimony in court mentioned Wamangoli Primary School polling station, the same is not mentioned in the petition or in any of the witnesses’ affidavits.

13. It is the respondents\\\\\\\' contention that whatever shortfall of votes claimed (the number being 313) in respect of Kuywa polling station and Matulo Market was an error which has since been admitted by IEBC and the lost votes have since been restored to the petitioner.

14. The grounds relied on, as set out on the face of the application, are faulted as being too generalized, merely speculative and unhelpful. The court is urged to dismiss the application with costs.

ARGUMENTS BY COUNSEL

15. Miss. Wakoli, counsel for the petitioner reiterated the contention by the petitioner that the evidence adduced during the hearing of the petition has disclosed wide spread discrepancies which include multiple overwriting and alterations in figures in form 35; that in Bunjosi polling station (polling station No.003) there is an alteration of the total votes cast from 621 to 631; that the alteration is neither countersigned nor was an explanation given for the alteration. Counsel submitted that this makes it difficult to vouch for the credibility of the results from that polling station.

16. Regarding the alleged multiple over writings and alterations, counsel stated that in all the form 35\\\\\\\'s complained about there are over writings and alterations which were neither countersigned nor was any plausible explanation given for the alterations. She submitted that the explanations given by the 2nd respondent were merely speculative and were incapable of clearing the doubts raised over the impugned forms; that as the forms are incapable of speaking for themselves, the only feasible way of clearing the doubt cast over the forms is by ordering recount and scrutiny.

17. Similar doubts are raised with regard to form 35’s which were not signed by presiding officers, their deputies and agents. Counsel submitted that without the signatures of these election officials and the agents, it is not possible to tell whether the concerned election officials or agents agreed with or owned the results contained therein.

18. Counsel further submitted that failure by the presiding officers to make statutory comments, where there were such alterations, over writings and omissions aggravates the doubt raised over the said forms.

19. As concerns Webuye SA stream 4, counsel submitted that use of a strange form 35 without any written explanation as to why such a form was used renders the results in that stream unverifiable. Reacting to the explanation offered in court by the 2nd respondent, counsel submitted that the explanation offered was unsatisfactory as no evidence was tendered in court to demonstrate that communication was indeed made to the IEBC Headquarter. She dismissed the explanation offered by the 2nd respondent as mere speculation.

20. The use of an incomplete form 35 at Misikhu Mixed Primary School (polling station No.011) is faulted on grounds that it was the duty of the presiding officer to ensure that the materials used were in compliance with the law.

21. Counsel further pointed out that there were incidences in which the entries in form 35 contradicted those in the aggregation forms. Counsel submitted that no satisfactory explanation was given as to why the entries in form 35 differed with those in the aggregation forms yet the aggregation forms were the source documents of the information contained in form 35.

22. At Webuye DEB primary school stream 2, counsel contended that the presiding officer signed the form long after the elections were conducted, to be specific, on 4th April, 2013. She submitted that since the maker of the form was not called to vouch for the allegation that the impugned entry was an error, the only reasonable conclusion that can be drawn from that entry is that the form was made way after the elections, in an attempt to make the figures tally.

23. Regarding exclusion of ballots from Kuywa stream 1 and Matulo market from the petitioner\\\\\\\'s final tally, counsel submitted that given the small winning margin, between the petitioner and the 3rd respondent, the explanation that the omission was merely an error is unreasonable.

24. Counsel pointed out that form 36, is a very important document for purposes of declaring results and wondered what the 2nd respondent used to declare the results on 5th March, 2012 given that he signed it (form 36) on 6th March, 2013, a day after he had declared the results.

25. Counsel maintains that the forms attached in the IEBC bundle and those supplied to petitioner show different entries a fact which suggests that the forms were manipulated. Further that the circumstances under which a certificate was issued to the 3rd respondent is extremely curious; and it is difficult to comprehend why the 2nd respondent was able to have form 35 prepared, filled and signed yet he could not do the same for form 36. Citing this court\\\\\\\'s decision in Philip Mukui Wasike v. James Lusweti Bungoma High Court EP No. 5 of 2013, she submitted that only an order for scrutiny and recount can clear the doubts raised over the results announced by the 1st and 2nd respondent. 

26. Clarifying to court why it is necessary to order scrutiny in respect of all polling stations counsel explained that the prayer is informed by the fact that candidates entries contained in form 36 come from all the polling stations yet the contents therein were not verified by anyone during the tallying; and that only the 2nd respondent knows the source of information he fed in form 36.

27.On behalf of 2nd and 3rd respondents, counsel, Mr. Lubulellah, pointed out that the situation in this matter is similar to that in Philip Mukui Wasike v. James Lusweti (supra) and urged this court to be guided by its own decision in that matter.

28. In respect of the grounds of opposition filed by 1st and 2nd respondent he reiterated that the applicant has failed to disclose the polling stations in respect of which the results are disputed. He submitted that it is not the responsibility of the court to identify such stations for the applicant. Counsel emphasized that for the court to grant the orders sought, it must be satisfied that sufficient grounds to order for scrutiny and recount exist. Further, that the burden of satisfying the court rests with the applicant.

He further submitted that under Rule 33 (1) of EPR parties are allowed to apply for scrutiny and not recount; that a party can only apply for recount under Regulation 80 of the Election (General Regulations) 2012 and this can only be applied for at the polling station upon request by parties or their agents before form 35 is completed and signed. Counsel argues that in situations where a party alleges that request for recount was made to the presiding officer and the same declined, that fact must be specifically pleaded giving the name of polling station and the presiding officer named. Further, that it is also expected that such an allegation would be contained in an affidavit, which is not the case here.

29. Counsel submitted that where the aforesaid situation is not established, a petitioner is estopped from making an application for recount, as it is not the business of an election court to conduct recount of votes. He pointed out that, this does not mean that a court cannot, on its own motion, order for counting of votes, as Rule 33(2) contemplates a situation where a court orders for scrutiny without being prompted.

He further, submitted that the applicant, having moved the court under Rule 33 (1) which does not provide for recount of votes, cannot expect an order for recount to issue in his favour.

30. Counsel further contends that Rule 33(4) confines scrutiny and recount to the polling stations on which results are disputed; that the disputes are to be found in the pleadings; and where there is no dispute, an order of scrutiny cannot be made.

31.In Kuywa and Matulo where the petitioner claims he lost 213 and 100 votes respectively, counsel pointed out that the errors complained of have been admitted and wonders what purpose scrutiny and recount would serve in such a situation.

32. Regarding the satisfaction referred to in paragraph 28, counsel reiterated that the court would be so satisfied, when there is sufficient pleading and material facts which commend an order of scrutiny, in order to decide the dispute and to achieve the ends of justice in a non-partisan manner. He urged the court to resist the temptation of descending into the arena of litigation to aid a litigant who has been indolent. He contended that it is not the court to satisfy itself but the petitioner has to satisfy it by way of pleading and evidence.

33. Regarding the alleged erasures and alterations counsel submitted that the question to be asked about the erasures and alterations is whether they affected the ultimate results, especially the distribution of votes among the respective candidates. Further, that where the court finds the results are verifiable by considering the entries in form 35, it cannot order for scrutiny. Regarding polling stations where the petitioner garnered majority votes counsel wondered why the petitioner should be seeking for scrutiny in such polling stations.

34. As concerns the failure to call makers of form 35\\\\\\\'s to come and testify, counsel pointed out that the 1st respondent (IEBC) is a Constitutional Commission and not a natural person who is represented by the 2nd respondent under whom all the presiding officers worked. He submitted that the 2nd respondent was the one best placed to testify on behalf of the 1st respondent as it is impractical to bring all the presiding officers before court.

35. Regarding Webuye SA, he pointed out that the main complaint was voter bribery and wondered how scrutiny and recount would help the petitioner as it cannot reveal which ballot was cast by a bribed voter.

36. Concerning the date on form 35 from Webuye DEB Primary School counsel submitted that was a mistake as no such day exists. Pointing out the reverse side of the form where the deputy presiding officer is indicated to have signed on the right day (4.3.2013) he wondered on what basis the petitioner could allege that the form was signed with the petition in mind when on the day the form was allegedly signed (4.4.2013) no petition had been filed.

37. Regarding form 36 he pointed out that the 2nd respondent relied on form 36 in its electronic form to declare results. He maintains that the 2nd respondent gave a true and believable account of circumstances leading to his failure to get printed and signed the form 36 which was in existence but in soft copy. Counsel urged this court to find that form 36 was in existence when the 2nd respondent declared the results but in soft copy.

38. Finally, counsel submitted that in an application involving claims of irregularities, malpractices and discrepancies it must be shown that the matters complained of substantially and materially affected the results in particular polling stations which the petitioner herein has failed to do.

39. The 3rd respondent\\\\\\\'s counsel further stated in the grounds of opposition filed that the application is invalid for having been filed out of time and is intended to fish for evidence. He submitted that the main basis of this application is doubt and is intended to create doubt even where none exists. Counsel submits that there has to be reasonable doubt in the mind, and not misgivings flowing from a faint and weak-hearted poll loser. His argument is that Section 82 of the Elections Act sets out the limits within which an application can be made, insisting that such an application MUST be made during the hearing of the petition.

40. He pointed out that there is a conflict between the provisions of Section 82 of the Elections Act, and Rule 33 of the Election Petition Rules which provides that scrutiny may be made at any stage. It is his contention that where there is a conflict between the parent Act and the subsidiary legislation, the statute must prevail. In this regard, he referred the court to the decision in MWALAGAYA V BANDALI (1984) KLR pg 751 at pg 760 at para 30-35 where Law, J.A stated:-

Where a subsidiary legislation is in conflict with an Act of Parliament, the Act must prevail over the subsidiary legislation.”

41.This position was reiterated in the case of KISIWAMKUNZO & ANOTHER V R [2006] eKLR where the court relied on the provisions of Section 31(b) of the Interpretation and General Provisions Act (Cap 2) which states that:-

No subsidiary legislation shall be inconsistent with the provisions of an Act.”

42. This court is urged to make a finding that indeed there is a conflict between Section 82 of the Elections Act and Rule 33(1) of the Election (Parliamentary and County) Election Petition Rules. Once the court makes such finding then it should follow that the application must collapse.

43. Counsel also took issue with the petitioner’s blanket reliance on this court’s earlier decision in Election Petition No.5 of 2013, PHILLIP MUKUI WASIKE V JAMES LUSWETI MUKWE where the court had ordered for scrutiny and recount, making a distinction that, in this instance the petitioner does not even seem to know what he needs and has made a generalization of everything. The court is urged not to assist an indigent litigant, pointing out that the petitioner seems obsessed with the idea that since he started JOASH WAMANG’OLI PRIMARY SCHOOL, he ought to have garnered the majority votes there.

44. It is also submitted that the petitioner is seeking to open ballot boxes even at polling stations where his agents have signed Form 35 (which is prima facie evidence of acceptance of results). He refers to the Ugandan decision in KAMBA SALEH V NAMUYANGU JENNIFER BYAKATONDA (2011) UGHC 44 pg 4 where the court observed as follows:-

Interestingly as pointed out by counsel for the appellant, the agent endorsed/signed the declaration forms without raising any objection to the contents therein. It is the position of law that for scrutiny of votes to be allowed, it should be in respect of votes objected to the presiding officer by the candidate or agent. . . . Court cannot be called upon to scrutinize all the votes cast in favour of candidates, which is in terms of thousands, nor can it go into the ballot boxes on a hunting expedition in the hope that it will chance on ballot papers in favor of the applicant but were not counted as hers.”

45. The respondent’s counsel points out that the Ugandan regime on scrutiny is in para materia with the Kenyan one. In urging the court not to grant the orders, counsel states that an order for recount is intended to untangle any numerical question, yet in this instance, no particulars of numerical figures of votes complained of by the petitioner has been given or mentioned in the application. The application is described as a mere lamentation which cannot be resolved by a recount as there was no specific complaint about counting, his agents signed Form 35 and the petitioner’s reactions after the declaration of results typical of any poll loser.

46. It is argued that the 313 votes the petitioner complained of were restored after reconciliation had been done by IEBC (as demonstrated in the evidence of Bernard Oduol) and the application is rendered spent. Counsel contends that the petitioner has failed to prove bad motive intended to disadvantage the petitioner since the evidence shows that where there were omissions of votes in counting, all the candidates results were affected by that error. The problem is described as sheer lack of arithmetical competence by the petitioner and not any genuine malpractice.

47. In a rejoinder by the petitioner’s counsel (Miss Wakoli) it is argued that Regulation (EGR) 2012 does not state that failure by a candidate to address a grievance at the polling station bars a candidate from pursuing such redress. It is her contention that petitioner has specified polling stations by saying all the polling station in Webuye West Constituency must be scrutinized and votes recounted.

48. It is also her submission that Form 36 affects the entire Constituency and Regulation 83 of the Elections (General) Regulations clearly provide that the Returning Officer shall publicly announce the results and issue copies of Form 36 to any candidate or their agents not later. She wonders where the Returning Officer would get the agents or candidate to sign and receive the form the next day if not at the Tallying Centre. The explanation given by the returning Officer is rejected as not being credible since the claims about chaos having erupted at the Tallying Centre are not supported by any other witness.

49.   As for the reconciliation of results carried out by IEBC after the petition had been filed, the petitioner’s counsel argues that this was an attempt to blindfold the court and parties. She points out the sources of information were used to feed the reconciliation, were the discredited Forms 35 and 36.

Several issues have arisen from the arguments presented by counsel – I will address some separately and other together as they have a common basis. The issues are:-

(1)        Whether there is a conflict between Section 82 of the Elections Act and Rule 33 of the Elections (Parliamentary and County) Petition Rules.

(b) When is a hearing deemed to have ended.
(c) The place of generalized pleadings.

(2)        (a) When does the court order for scrutiny and recount.

(b) Marginal win.

(c) Petitioner’s duty to satisfy the court.

(3)        Alterations, Omissions, Exclusion of ballot from final tally.

50. Section 82 V Rule 33 Conflict?

The legal basis for scrutiny is set under Section 82(1) of the Elections Act which provides that:-

An election court may on its own motion or on an application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out. . . .”

51. This provision clearly envisages a situation where an application is made during or in the cause of the hearing. The question as to when a hearing begins and ends creates a moot point. Undoubtedly, hearing begins when a party starts to state its case and call witnesses. Does it end with the opposite side stating its case and calling witnesses? One school of thought is of the view that the moment the respondent indicates “That is the close of the respondent’s case”, the hearing has ended. Anything else that comes after that is deemed to be done after the hearing. This would then mean that an application such as the one made here ought to have been made at least before the respondent closed its case.

52. However, another school of thought is that hearing only comes to an end after parties have presented submissions in a matter. Black’s Law Dictionary 7th Edition Bryan A. Garner Editor in Chief pg 725 defines a hearing as a Judicial session held for the purpose of deciding issues of fact or law, sometimes with witnesses testifying or any settings in which an affected person presents arguments to the decision maker. This equates a hearing to a trial, which is any process before pronouncement of judgment or decree.

The provision of Section 82 of the Elections Act seems to contradict the Provisions of Rule 33(1) of the Election Petition Rules which provides that:-

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

53. This provision seems to give parties latitude to file an application for scrutiny any time before judgment, which is the approach the petitioner has used.

Obviously “during the hearing” and “at any stage of the proceedings”, cannot mean one and the same thing and on a plain reading it appears there is a conflict between the provisions in the main statute, and the subsidiary legislation (i.e. the rules).

54.Under Section 31 (b) of the Interpretation and General Provisions Act (Cap 2), no subsidiary legislation shall be inconsistent with the provisions of the Act.

55. Obviously from this provision and the earlier case law cited i.e. MWALAGAYA V BANDALI, since the rules, (which are the subsidiary legislation) conflict with the provision of the statute (which is a substantive Act of Parliament), the Act must prevail over the subsidiary legislation. To that extent, the observation made by Prof. Sifuna (counsel for 3rd respondent) has some merit. Given that a prayer for scrutiny is in the petition, should the application for scrutiny then be dismissed? I think dont think so, because:-

(1)        Scrutiny and recount are prayers sought specifically in the petition.

56. In a situation where the petitioner has prayed for scrutiny in the pleadings, when else would the issue be dealt with, if not at the close of the hearing? How else would the court give effect to the prayers sought, if it is so satisfied? I think the Act sets out the principles on scrutiny and the Rules elucidate the principles. I am inclined to adopt an interpretation which favours realization of the objective of Elections Dispute Resolution – i.e. to facilitate a just and proportional resolution. The application therefore remains.

(2)        Even without an application for scrutiny and recount, the court, if satisfied, can on its own motion order for scrutiny and recount. The Act and Rules do not restrict the discretion of the court.

There is however need to harmonize the two provisions so as to avoid creating confusion.

57. Admittedly, the application is rather general, simply seeking a recount in all the polling stations and scrutiny of all the documents listed under Rule 33(4) (a) – (j).

58. The supporting affidavit lists a host of discrepancies in various documents but only singles out:-

(a)        Strange Form 35 in stream 4 at Webuye S.A Primary School (034).

(b)        Use of incomplete Form 35 in Misikhu Mixed Primary School (011).

(c)         Questioned date in Form 35 in respect of Matulo Market.

(d)        Signing and dating of different sets of Form 36 a day after the results (which suggests manipulated entries).

59. Although the supporting affidavit lists 21 polling stations as those with disputes, other than the ones mentioned above, there are no particular details or specifications as to what the irregularities were. [In a number of stations listed in the petition the same are just named but without numerical votes complained of.]

60. The saving grace is found in the fact that the court has heard evidence from all witnesses in this matter and cannot ignore the issues raised by them, at least touching on some specific stations and some documents.

61. The gist of the petitioner’s grievances, I will admit is not very easy to decipher from the application, but from the evidence presented, he complains that at the Tallying Centre, results were manipulated towards the end, to ensure a win for the 3rd respondent.

62. This court has a duty to ensure that if there is evidence of irregularities, these should be exposed to the view of the general public, so as to encourage transparency and credibility in the electoral process for Webuye West Constituency.  This is the view which was expressed in the case of JUSTUS MUNGUMBU OMITI V WALTER ENOCK NYAMBATI OSEBE & 2 OTHERS [EP No.1 of 2008] Kisii that:-

All issues raised in the petition and those which crop up during the hearing, whether pleaded or not, and which had the potential to affect adversely the final result, and the will of the voters in a Constituency must come under spotlight, scrutiny and interrogation.”

63. I think it would be totally myopic for this court to disregard the evidence which came through the petitioner, his witnesses, the respondent and their witnesses, merely on grounds that the same were not pleaded. However in the same breath, it will be overtly indulgent for the court to pay regard to each polling station the petitioner whimpers about, even if it did not feature in the pleadings or in evidence. 

64. I will therefore consider what has been presented in evidence and in the petition. However I must point out that this generalized and casual approach to drawing of pleadings does not convey professionalism and in fact is a big disadvantage to a litigant who has relied on the skills of legal professional, only to come up with rather unhelpful generalization.

SCRUTINY

65. The purpose for scrutiny is to establish the validity of votes cast where there have been allegations of irregularities and breaches of the law. Scrutiny also helps the court to better understand the vital details of the electoral process and gain impressions on the integrity of the electoral process. I can do no better than draw from the sentiments expressed by Warsame J. in the case of DICKSON DANIEL KARABA V HON. JOHN NGATA KARIUKI & 2 OTHERS, Election Petition No.3 of 2008, to the effect that it is only after scrutiny that the court can form an opinion whether the results contained in Form 35 are correct.

66. Certainly an order for scrutiny and recount cannot be based on whimsical suspicion, the court has to be satisfied that such an exercise is necessary for the just resolution of the petition. The primary duty of the court is to examine whether the elections in Webuye West Constituency were conducted in a free, fair, impartial, accurate and accountable manner. It cannot be based on the belief that the petitioner was the poll favourite.

67. For the court to order for scrutiny and recount, it must be satisfied that there is sufficient reason for an examination of the ballots and documents. Scrutiny should not be an opportunity for a petitioner to hunt for evidence in the hope of catching something new.

68. A serious issue which the court has to grapple with involves the meanings of the phrases “satisfaction of court”, and affecting the results in a “substantial manner.” In some instances non-compliance with certain procedures may affect the results in a substantial manner.

69. Indeed in the case of DR. KIIZA BESIGYE V ELECTORAL COMMISSION and Y.K. MUSEVENI (Election Petition No.1 of 2006), the majority judgment was that, errors are bound to occur in holding of an election, which is why a court is required to be satisfied regarding claims of non-compliance, and then evaluate the evidence to find if it affects the results in a substantial manner.

70.Secondly in considering what “substantial manner” means the court must be alive to the fact that conduct of free, fair and credible elections are not just determined by numbers alone. As was pointed out by GIDUDU J, in his Discussion paper on Management and Trial of Election Petitions in Uganda, “…….. Elections is a process whose voting pattern and the number of ballots cast for each candidate depends significantly on how smooth or rough the electoral process has been managed.”

71. In this petition, the victory was not a landslide win, but a narrow margin of initially 426, and after reconciliation by IEBC from the votes unearthed by the errors, it narrowed significantly to 210 votes.

ALTERATIONS AND RELATED DISCREPANCIES

72. There are several Form 35 which have alterations that have not been endorsed by the Presiding Officers for various stations. There are also omission of results from some polling stations, which the 1st and 2nd respondents have conceded. These have now been recalculated in what is referred to as a reconciliation to give the petitioner an additional 313 votes which had not been included at the Tallying process. 

73. However this inclusion does not alter the net outcome, which is that the 3rd respondent still garnered more votes. In a majority of the 56 polling stations, the alterations do not affect the substance of the results, especially because they do not touch on the distribution of the votes garnered by the candidates. The alterations are discernible and it is easy to verify them by taking into consideration the other entries within specific Form 35’s.

74.It must be made clear that the aggregation form is an administrative form used by IEBC and does not form one of the documents under rule 33 which would be scrutinized. 75. It is not available to poll agents nor is it one of the documents placed inside the ballot box. However, the court cannot ignore its contents as it is one of the documents IEBC gave the petitioner and reference has been made to it in evidence.

76. In most of the stations, IEBC officials signed the form, as did the agents (meaning they accepted the contents of the forms); and the alterations do not materially affect the results there and in the polling stations mentioned in evidence.

EFFECT OF OMISSION OF RESULTS AND EVENTUAL RECONCILIATION

77. It is admitted that results from an entire stream in Kuywa stream 1, were left out, and the petitioner’s votes in Matulo Market were under cast by 100 votes. However it is contested that the lost results have ever since been restored vide a reconciliation done by the 2nd respondent, so the petitioner should have no further claim over the alleged loss of votes in those polling stations. It is important to note that the petitioner’s complaint was not limited to the votes he allegedly lost in those polling stations. Apart from complaining that he lost 313 votes in those polling stations, he also complained that the 3rd respondent’s votes were overcast by 90 votes made up as follows:- 60 votes in respect of Kuywa FYM stream 2 and 30 votes in respect of Witi-Cheng’oli.

78. Despite the explanation given by the 2nd respondent regarding the use of aggregation forms, there is no reason why the results in the aggregation form and those contained in Form 35 should differ because it is the information in the aggregation form that eventually was filled in Form 35 (or vice versa as the Returning Officer claimed in his evidence). This is because logically results in Form 35 formed what was eventually used to fill form 36.

79. With regard to Kuywa polling station (020) the aggregation form shows the 3rd respondent garnered a total of 108 votes from Kuywa stream 1 and 2. The forms 35 issued in respect of the two streams indicate the 3rd respondent garnered a total of 178 votes. The suspicion that the 3rd respondent’s votes were over-stated at Kuywa stream 2 has basis because the aggregation forms show 16 votes while Form 35 shows he garnered 76 votes. Similar concerns are raised in respect of Witi Chengoli. In this polling station there was only one station, whereas the aggregation form shows the 3rd respondent to have garnered 6 votes, Form 35 shows him to have garnered 36 votes. This brings to question which of the two documents contains the correct information regarding these two polling stations.

80. In respect of Matulo Market (031), the petitioner’s claim here was specific, that his votes were undercast by 100 votes. This contention has been admitted by the 1st and 2nd respondent and the lost votes restored. Similarly, the petitioner’s claim in respect of Kuywa stream 1 is specific that he lost 213 votes which have ever since been restored to him. Ordering scrutiny and recount in respect of the two would in my view, serve no purpose at all. However, there is a strong cause to scrutinize the documents and votes in Kuywa stream 2 and Witi Chengoli.

81. It is also worth noting that whereas the winning margin in the Form 36 used is 426 votes, the number of votes affected by the allegedly minor errors or discrepancies and omissions is, according to the reconciliation done by the 2nd respondent without involvement of the parties or an uninterested party is 624. The question which arises in respect of this is, in whose favour were the 624 votes cast? It is possible that more than the 416 votes required to tilt the winning margin were garnered by the petitioner. 

It is also possible that these votes could have been manipulated to ensure that the 3rd respondent maintained the lead. 

However, as pointed out by counsel for the 1st and 2nd respondents, it was the duty of the petitioner to satisfy the court that the information contained in Form 36 allegedly used to declare the result and those in the reconciliation documents differ. Without such evidence the court cannot make any finding to the effect that the results contained in Form 35’s were manipulated to ensure the 3rd respondent maintained the lead.

82. Although no evidence of manipulation of the results contained in form 35 was tendered, there were incidences in which the contents of Form 35’s annexed to the petitioner’s affidavit and those annexed to the petitioner’s affidavit as well as those annexed to the 1st and 2nd respondent’s affidavit differ. In my view those documents having come from the same source (the 1st respondent), they should not differ. In such instances, despite there being no evidence of manipulation, the court would be obliged, in the interest of justice to order for scrutiny of such documents to ascertain their authenticity.

Signing of Form 36

83. It is contended that as Form 36 was signed by the 2nd respondent a day after he declared the results, he had an opportunity to manipulate the results to accord with the results he announced or the outcome he wanted.

84.I have partially addressed this contention in the earlier paragraph above to the extent that it was the duty of the petitioner to satisfy the court in what respect the Form 36 differed with the “Form 36” allegedly used to declare the results. Whereas, it is true that no Form 36 existed in hard copy at the time the results were declared, parties seemed to be in agreement that there was a Form 36 used to declare results projected on the screen at the tallying centre. That Form 36 was in soft copy and it showed the petitioner to have garnered 10,715 and the 3rd respondent 11,141 votes. Whereas the petitioner alleges that the declaration of final results upon tallying does not contain the correct information or statistics of votes actually cast, and that the results of the election amount to manipulation of figures. He has not particularized the polling station in respect of which the results were manipulated. Contrary to his allegation, the evidence led in court proves that in most of the polling stations the results contained in Form 36 and the reconciliation document are a true reflection of the results as announced in the polling stations.

85. As pointed out in Philip Mukui Wasike V James Lusweti Mukwe, Bungoma High Court Election Petition No.5 of 2013, elections in each of the 56 polling stations were distinct and separate. If the results declared in any of these polling stations differ with those in Form 36, it is the duty of the petitioner to point out that fact to the court and specify in which way they differ. Mere speculation that results may have been manipulated does not suffice for this court to order for scrutiny.

86.Regarding tallying at the Constituency centre, the evidence given by all the witnesses was to the effect that it went on smoothly save at the end, in particular, when the results of the last three polling stations were brought.

87. It is alleged that before results from these three polling stations were tallied the petitioner was leading the 3rd respondent by several votes. Although the respondent could not vouch for this allegation, they equally did not dispute it. All the 2nd respondent said is that he cannot remember having projected results showing the petitioner with 10,928 votes.

88. If I understand the petitioner correctly, his contention that he must have won the elections is premised on the fact that in the last three polling stations, he beat the 3rd respondent by 187 votes. If indeed results had been projected showing the 3rd respondent trailing him by 7 votes, as alleged, this would mean he won the election by 11,739 votes against the 3rd respondent’s 11,545 votes. Interestingly, whereas the petitioner alleges that the last projected results did not include the results from the last three polling stations, in his evidence he maintained he would have won the elections by 11,341 which position does not support his contention that the results from the three last polling stations were not projected when allegedly the figure of 10,928 was projected.

89. Regarding whether an order for scrutiny and recount of votes cast in the last three polling stations I note that the only complaint over them was delay in relaying results. There was no complaint whatsoever that the results from those polling stations were manipulated or changed in favour of the 3rd respondent or any candidate. Moreover, the evidence led in court is to the effect that the results reflected in Form 35 and the reconciliation documents are a true reflection of the votes garnered by the candidates in the respective polling stations. For these reasons, no case has been made for scrutiny or recount of votes in these polling stations.

90. Consequently from the evidence presented the petitioner referred to several polling stations with a host of discrepancies but on his evidence he appeared to retract or was mixed up regarding the following:

Malaha FYM Primary School (037)
Kakimanyi FYM Primary School (028)
Bunjosi (003) – over writings werecountersigned andresults were credible
Webuye DEB – Dating of Form 35 to show 4/4/2013 doesnot qualify for scrutiny. The explanation given is satisfactory
Misikhu Mixed Primary – No evidence demonstrated aneed for scrutiny

St. Anthony Deaf School (040) where petitioner appeared mixed up as to exactly what was improperly done. I however checked the Form 35 which had alterations which were countersigned, and the party agents also signed. Wamangoli Primary School (038) -thestray vote iscredibly explained. 

In some Form 35 although there were alterations the petitioner was unable to demonstrate how these affected the results.

91. The following polling stations had alterations or discrepancies in the Form 35 and merit scrutiny and recount:-

(1)       KUYWA FYM stream 2 (020)

(2)       WEBUYE SA stream 4 (034) which has a strange Form 35 and the number of registered voters is not indicated.

(3)       SITIKHO ELGON RSF PRIMARY SCHOOL (019)– where there is an alteration in the 3rd respondent’s results, in the number of rejected votes, and valid votes cast, yet no countersigning by the Presiding Officer.

(4)       CHEBOSI SA PRIMARY SCHOOL (041) where the number of registered voters shown in the Principal Register supplied to the petitioner is lower than total number of registered voters in Form 35.

(5)       YALUSI FYM (022) – the distribution of total valid votes garnered by candidate differs from the total valid votes cast.

(6)       WITI CHENG\\\\\\\'OLI – where 3rd respondent’s votes seem inflated by 30 votes.

The application for scrutiny shall be limited to the named polling stations.

92. The materials to be scrutinized are:-

(1)       Copies of the principal register for each listed polling station, used during the 4th March 2013 elections.

(2)       The packets of spoilt ballot papers.

(3)       Copies of results of each polling station.

(4)       The packets of counterfoils of used and un-used ballot papers.

(5)       The packets of rejected ballot papers.

(6)        The statement showing the number of rejected ballot papers.

The costs of this application shall abide the determination of this petition.

Delivered and dated this 18th day of June, 2013 at Bungoma.

H.A. OMONDI
JUDGE
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