An applicant must specify and particularize the basis on which scrutiny is sought with respect to each polling station and disclose that basis in the pleadings in the election petition.

Francis Mwangangi Kilonzo v Independent Electoral and Boundaries Commission & 2 others

Election Petition No 2 of 2017

High Court at Machakos

A O Muchelule, J

December 21, 2017

Reported by Beryl A Ikamari

Electoral Law-scrutiny and recount-grounds on which orders for scrutiny and recount could be sought-disclosure of the grounds for scrutiny through pleadings contained in the election petition-the need to lay a specific and particular basis for scrutiny and recount for each of the polling stations in which election results were disputed-Elections Act, No 24 of 2011, sections 82(1) & 82(2); Elections (Parliamentary and County Elections) Petitions Rules, 2017, rule 29.

Brief facts

The Petitioner sought to challenge the election of the 3^rd Respondent, Charles Mutavi Kilonzo, as the Member of the National Assembly for Yatta Constituency. He brought an application in which he sought scrutiny of various election materials distributed at all polling stations for Yatta Constituency. Although the petition filed sought orders of scrutiny and recount, the application only sought orders for scrutiny and not recount.

Issues

1. Whether, for purposes of an application for scrutiny, it was necessary to specify and particularize the basis on which scrutiny was sought with respect to each polling station and the election materials to be scrutinized.
2. Whether orders for scrutiny could be based on allegations which were not part of the pleadings contained in the election petition.

Held

1. Section 82(1) of the Elections Act provided for applications for scrutiny. Under section 82(2) of the Elections Act, during scrutiny only the following votes would be struck out: -

1. the vote of a person whose name was not on the register for the polling station;
2. the vote of a person whose vote was procured by bribery, treating or undue influence;
3. the vote of a person proved to have voted in more than one constituency;
4. the vote of a person, who by reason of conviction of an election offence or by reason of the report of the election Court, was disqualified from voting at the election; or
5. the vote cast for a disqualified candidate by a voter knowing that the candidate was disqualified or the facts causing the disqualification, or after sufficient public notice of the disqualification or when the facts causing it were notorious.

2. Neither the petition nor the application contained allegations which brought the application for scrutiny within the terms of section 82(2) of the Elections Act.
3. Under rule 29 of Elections (Parliamentary and County Elections) Petitions Rules, 2017, applications for scrutiny could be made for purposes of establishing the validity of the votes cast. Additionally, rule 29(4) of Elections (Parliamentary and County Elections) Petitions Rules, 2017 provided that scrutiny or recount of votes was confined to polling stations with disputed results. The election Court would have to be satisfied that there was sufficient reason to order scrutiny or recount of votes.
4. The law on scrutiny of votes was not settled. The right to scrutiny or recount would not lie as a matter of course. The party seeking scrutiny or recount had to lay a basis for seeking to invoke the right. That basis would have to be pleaded in the petition and evidence would have to be tendered, via affidavit or orally on oath to show the necessity for scrutiny or recount. The scrutiny or recount would confirm the truth of that evidence. It was clear that scrutiny or recount would have to relate to specific polling stations whose results were disputed and specific evidence was provided in that regard.
5. The Petitioner had to specify the polling stations for which scrutiny was sought and state the materials which he was asking the Court to scrutinize. Additionally, the reasons for scrutiny would have to be provided. Scrutiny or recount allowed the Court to determine contested facts and ought not to turn the Court into another tallying centre. The intention of the scrutiny process was to deal with disputed results and/or an impugned electoral process. It was necessary to provide a basis for scrutiny for each polling station in which scrutiny was sought.
6. The application made no reference to a recount. However, the Petitioner's submissions laid a basis for scrutiny and recount. Evidence was tendered to show that the Petitioner's agents were denied access to polling stations and an opportunity to confirm the results by signing Form 35A. Evidence was tendered to show that some Form 35A had not been signed by presiding officers and that some had not been signed by agents. It was shown that there were many irregularities and malpractices including alterations in the Forms which had not been countersigned. Additionally, the Petitioner sought access to the Kiems kits which contained evidence on the registered voters and results transmission, including evidence as to what time that was done.
7. The Form 35As which were not signed by the respective presiding officers and the Form 35As which were not signed by agents of the Petitioners were identified. During the concluding submissions, the Petitioner's counsel would have an opportunity to address the Court on the validity of the Forms and whether the results contained in them ought to have formed part of the final tally. However, orders for scrutiny would not be based on the Forms.
8. There were allegations of inflation and manipulation of election results in polling stations. The polling stations to which such allegations were applicable were not identified. The issue was not pleaded in the petition and evidence to that effect was not tendered.
9. There were claims that several Form 35As were filled and signed by one hand but no evidence was tendered to support the claim. Also, the Form 35As which were allegedly filled in that manner were not specified.
10. There was an issue raised to the effect that the number of people who voted exceeded the number of registered voters but it was not pleaded in the petition. The issue was material as access to the Kiems kits was sought to verify the number of registered voters and those who had voted.
11. The application contained allegations that some Form 35As had been forged and backdated. The allegation lacked specificity and was not pleaded in the petition.
12. There were allegations that agents were asked to sign blank Form 35As to enable presiding officers to change the votes that each candidate had received. No evidence was tendered to prove the allegations and the relevant Form 35As and the respective polling stations were not particularized.
13. The Petitioner alleged that results from six polling stations were not included in the final count and declaration. The allegation was not pursued when oral evidence was tendered and it did not form part of what was pleaded in the petition.
14. Electronic transmission and publication of results was only a requirement for presidential elections under section 39(1)(C) of the Elections Act. The provision was material as the Petitioner sought access to Kiems kits devices results transmission logs with respect to Yatta Constituency’s Member of the National Assembly elections.

Application dismissed.