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|Case Number:||Election Petition 10 of 2017|
|Parties:||Langat Donnie Kiptoo Arap v Sikuku Martin Simotwo, Constituency Returning Officer, Langata Constituency, Independent Electoral & Boundaries Commission & Abdi Osman Khali|
|Date Delivered:||31 Oct 2017|
|Court:||Election Petition in Magistrate Courts|
|Judge(s):||Hon. A.M. Obura (Mrs), SPM|
|Citation:||Langat Donnie Kiptoo Arap v Sikuku Martin Simotwo, Constituency Returning Officer, Langata Constituency & 2 others  eKLR|
|Case Outcome:||Petitioner’s Notice of Motion applications dated 5th October 2017 dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE'S COURT AT NAIROBI
MILIMANI COMMERCIAL COURTS
ELECTION PETITION NO. 10 OF 2017
LANGAT DONNIE KIPTOO ARAP................PETITIONER/ APPLICANT
1. SIKUKU MARTIN SIMOTWO, CONSTITUENCY RETURNING
OFFICER, LANGATA CONSTITUENCY.....................1ST RESPONDENT
2. THE INDEPENDENT ELECTORAL
& BOUNDARIES COMMISSION...................................2ND RESPONDENT
3. ABDI OSMAN KHALIF....................................................3RD RESPONDENT
1. On 6th October 2017 the Petitioner filed two applications dated 5th October 2017. The first application is the Notice of Motion application dated 5th October 2017 which is brought under Article 38(2) ,(a),50,81 (e) (iii) (iv) and (v) 86(a) (b) (c) and (d), 159 (2) (d) and (e) and 259(1) of the Constitution of Kenya , 2010 and Section 39,80(1) (d) and 63 and 82 of the Election Act 2011, Rule 29 of the Elections (Parliamentary and County Elections) Petitions Rules , 2017 and all enabling provisions of the Law. The prayers sought are :
b) That this Honourable Court do order a scrutiny and recount of votes in all polling stations in South C Ward, Langata Constituency within Nairobi County held in 8th August 2017.
c) That this Honourable Court upon granting of prayer 2 to direct that a scrutiny do include an examination of the following :-
d) THAT the Honourable Court do order costs of this Application to be paid by the Respondents.
2. This application is premised on the grounds set out on the face of the application and the Supporting Affidavit of the Petitioner, LANGAT DONNIE KIPTOO ARAP, sworn on 4th October 2017.
3. The Applicant contends that there was no declaration of results Forms 36A in all Polling Stations in South C Ward and therefore the results were either non-existent and/ or were illegally, wrongly and or fraudulently made after the event ; that the express admission by the Respondent clearly demonstrates this fact with regard to the elections for Member of County Assembly South C Ward Langata Constituency; and that in view of evidence of widespread electoral malpractices and irregularities in the elections held on 8th August 2017, it will be in the interest of justice to grant the orders for scrutiny of the election materials and recount of votes. The Applicant further contends that this will assist in verifying the aforementioned irregularities and / or malpractices. In the Supporting Affidavit, the Applicant states that the elections for MCA South C Ward Langata Constituency, in which he contested and lost as a Jubilee Party Candidate, was marred with Constitutional and Electoral Laws breaches in the tallying and transmission of the results. As such he depones that the credibility and legitimacy of the process was compromised and does not represent the will of the people. He cites the following incidents and posits that the elections were not free , fair ,transparent , accountable , credible and verifiable:
4. According to the Applicant, the Respondents have expressly admitted in their pleading s that these irregularities and inconsistencies occurred in various polling stations and that the Affidavits of LANGAT DONNIE KIPTOO ARAP , KEVIN BASIYE , EDWARD MWAKIMA and JACQUEILINE BASIYE further goes to show the Constitutional and legal violations which render the application herein justified.
5. In response to this application the 1st and 2nd Respondents rely on the Replying Affidavit sworn by SUKUKU MARTIN SIMOTWO, the Returning Officer, Langata Constituency and the 1st Respondent herein. According to the 1st and 2nd Respondents, the application is not only premature but an abuse of the Court process. The 1st and 2nd Respondents contend that the Applicant specified the nature and extent of scrutiny and recount and no proper basis for granting the orders sought has been established. In their view, the Applicant / Petitioner is on a fishing expedition and does not deserve the Court’s discretion. The 1st and 2nd Respondent further state that the failure to specify which polling stations that scrutiny or recount should be ordered opens the door for abuse of the court process as the Applicant will be on a fishing expedition and may attempt to amend the Petition through the back door outside the limitation period set by the law. The 1st and 2nd Respondents however undertake to avail the Form 36 As in Court at the main hearing of this Petition.
6. The 3rd Respondent also opposes this application. In the Replying Affidavit of ABDI OSMAN KHALE sworn on 18th October 2017 and filed on 19th October 2017, he states that the ground that there was a failure to declare results was never pleaded in the Petition and amounts to a new cause of action which should be struck out in so far as it amounts to amending the Petition out of time. It is also submitted that no sufficient basis has been laid down to warrant the orders sought. The 3rd Respondent further submits that the Court can only permit an application for scrutiny of election materials and recount of votes when the Applicant has laid a basis for such orders in the pleadings , affidavits or at the hearing and specified the polling stations in which the results are disputed. He states that the allegations made in the Petition and the present application have no evidential backing and shows that the Applicant was seeking an election conducted with mathematical precision. The 3rd Respondent contends that the nullification of the Presidential election Results should not be the point of reference here as the alleged discrepancies in the present Petition do not warrant scrutiny. In rebuttal , it is stated that :
The 3rd Respondent avers that the Petitioner is raising new grounds which were never pleaded in the Petition but introduced in the Supplementary Affidavit sworn on 4th October 2017. The Court is urged to dismiss this application and the Petition with costs.
The 2nd Application dated 5th October 2017 hinges on the first application for scrutiny and recount. The Applicant seeks orders that the 1st and 2nd Respondents be ordered to avail to this Court the election materials stated on the face of the application and information in their custody for purposes of assisting the Court in hearing and determination of the Application for scrutiny and recount of votes filed herein. The Applicant cites various provisions of the law and states that the election materials requested will assist the Court in correctly and accurately carry out proper scrutiny of votes and recount exercise and thereby determine whether the election of the 3rd Respondent was conducted in a credible, transparent and fair manner. It will also assist the court to verify whether the irregularities and or malpractices highlighted above were indeed committed. This application is supported by the Applicant / Petitioner’s Affidavit in Support sworn on on the 4th October 2017.
This Application is also opposed by the 1st and 2nd Respondent who rely on the Replying Affidavit sworn by the 1st Respondent on 23rd October 2017 and filed on 23rd October 2017. The 1st and 2nd Respondent state that whereas they can avail the Register of Voters as prayed, the same would serve no useful purpose since voters were identified biometrically through the KIEMS system and not through the hard copy register. The siad KIEMS kits were allegedly re-configured in preparation for the repeat Presidential elections hence not available. In short, it is contended that the application is couched in general terms and no basis has been established for the information required . According to the 1st and 2nd Respondents, this application amounts to a fishing expedition and the court is being engaged in a wild goose chase which should not be entertained. The 1st and 2nd Respondents are also of the view that this application is anticipatory of the application for scrutiny and recount above hence to allow it would be in vain if the orders of scrutiny and recount are not granted.
7. Court’s Analysis
Having considered these two applications and the sentiments of all the parties, it is clear that the 2nd Application really depends on whether the 1st application for scrutiny and recount of votes is allowed. I will therefore proceed to consider the 1st application for scrutiny and recount. All parties were granted an opportunity to file written submissions with respect to all the applications before me. I note that only the Respondents filed written submissions . The Written submissions dated 23rd October 2017 were filed by 1st and 2nd Respondents, while the one dated 19th October 2017 were filed on behalf of the 3rd Respondent . I have considered the application as well as the opposing views and the legal position.
Section 80 (4) (a) and 82 of the Elections Act , 2011, as read with Rules 28 and 29 of the Elections ( Parliamentary and County Elections ) Petitions Rules, 2017 lays down the legal position with regard to scrutiny and recount of votes. A recount entails establishing the number of votes garnered by each candidate and then tallying those votes. It involves opening the ballot boxes for the disputed polling stations and physically recounting the votes cast. Scrutiny should be distinguished from the exercise of recounting of votes. Scrutiny involves not just recount but extends to determining the validity of such votes. (see JUSTUS GESITO MUGALI M’MBAYA –VS- IBBC & 2 OTHERS ELECTION PETITION NO. 6 OF 2013 KAKAMEGA). This Court is also alive to the fact that not every allegation of discrepancies or malpractice warrants scrutiny. To err is human. Elections involve laborious human activity and documentation and genuine mistakes are bound to occur. In the case of WAVINYA NDETI VS I.E.B.C. & 4 OTHERS MACHAKOS ELECTION PETITION No. 4 of 2013 Hon. Majanja J held:
“An election is a human endeavour and is not carried out by programmed machines. Perfection is an aspiration but allowance must be made for human error.”
Another important consideration is margin of victory or loss. It has been held that the narrower the margin of victory or loss the higher the chances that the Court will order scrutiny or recount even without the Applicant demonstrating a basis for the orders.( see CHARLES ONG’ONDO WERE –VS- JOSEPH OYUGI MAGWANGA & 3 OTHERS HOMA BAY ELECTION PETITION NO. 1 OF 2013) .
The Election Court should also guard against applications for scrutiny or recount where the sole purpose is to assist the Petitioner to build their case and engage the Court in its fishing expedition. As was held in the case of PETER GICHUKI KINGARA –VS- IEBC & 2 OTHERS NYERI ELECTION PETITION NO. 3 OF 2013, if the Petition is premised on alleged electoral malpractice or irrregularity then such malpractice or irregularity must be pleaded and the evidence of malpractice established to the satisfaction of the Court before the order for scrutiny or recount is allowed. The question is therefore whether the Applicant has demonstrated sufficient grounds to warrant orders for either scrutiny or recount of the votes. In the Election Petition case of RISHAD H. A. AMANA V IEBC & 2 OTHERS MALINDI ELECTION PETITION NO. 6 OF 2013 the High Court had this to say on applications for scrutiny and the duty of the Petitioner to demonstrate sufficient basis for the orders and the appropriate time to order scrutiny , if at all:
“…..the recent trend is that scrutiny can only be ordered where a Petitioner lays sufficient basis. Such basis can only be laid after the Petitioner has adduced evidence during the actual hearing of the petition. The Petitioner cannot therefore demand that there be scrutiny and recount of the votes before the commencement of the trial. The Petitioner may do so after his or her witnesses have testified. The ideal situation, however, is that such an application for scrutiny should be considered by the Court after all the witnesses of the Petitioner and the Respondents have testified. At that stage of the proceedings, the Court will be in a position to properly assess the veracity of the allegations made by the Petitioner that there is need for scrutiny”.
8. I have considered the legal precedents which are binding on this Court and the guiding principles on an application for scrutiny and recount as was set out by the Supreme Court in GATIRAU PETER MUNYA –VS- DICKSON MWENDA KITHINJI & 2 OTHERS. The Court held inter alia that an application for scrutiny and recount ought to be couched in specific terms clearly stating the polling stations where scrutiny is to be done. Otherwise the Court should not entertain such an application. The Court’s discretion to order scrutiny or recount is not automatic or a matter of right . It should be exercised logically and judiciously based on the evidence placed before it.
In the case before me, the Petitioner prays for scrutiny and recount of votes in all polling stations in South C Ward , Langata Constituency within Nairobi. He does not specify which particular polling stations should attract scrutiny or recount on the face of the application. However, in the Supporting Affidavit, he mentions alleged irregularities in several polling stations. These claims have been disputed by the Respondents and thus there will be need for evidence to establish the credibility of the Petitioner’s claims. I have also looked at the Declaration of Member of County Assembly Election Results at the Constituency Tallying Centre exhibited by the 3rd Respondent in the Replying Affidavit in Response to the Petition ( annexture AOK-5). This document is not disputed. It shows that the 3rd Respondent garnered 7065 votes while the Petitioner garnered 6820 votes of the total votes cast. The difference is 245 votes as between the two. There were other candidates who also participated in this election where 17827 voters participated. There were 41 Polling stations. The Petitioner refers to a electoral malpractices in the Polling stations aforementioned but has failed to specifically show existence of such malpractices if any, in all 41 polling stations or in the few polling stations above. To allow the application as couched would be tantamount to engaging on a fishing expedition and which this court frowns upon .I am not satisfied that the Petitioner has established sufficient grounds to warrant either scrutiny or recount at this stage. Having found so , there is no basis for considering the 2nd Application dated 5th October 2017. In any event the 1st and 2nd Respondents have undertaken to avail relevant documents pertaining to this Petition at the main hearing of the Petition. The Petitioner is at liberty to re-visit the application at a later stage in the Petition.
Reasons Wherefore, I hereby dismiss both the Petitioner’s Notice of Motion applications dated 5th October 2017.
Costs shall be in the cause.
Before Hon. A.M. Obura (Mrs), SPM
Parties:........................................................................for Petitioner / Applicant
….....................................................................for 1st and 2nd Respondents
.....................................................................................for 3rd Respondent
Ruling delivered in open court this 31st Day of October 2017.