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|Case Number:||Election Petition 3 of 2017|
|Parties:||John Munuve Mati v Returning Officer Mwingi North Constituency, Independent Electoral & Boundaries Commission & Paul Musyimi Nzengu|
|Date Delivered:||06 Dec 2017|
|Court:||High Court at Kitui|
|Judge(s):||Lilian Nabwire Mutende|
|Citation:||John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others  eKLR|
|Case Outcome:||Application Allowed.|
|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 HIGH COURT OF KENYA AT KITUI
ELECTION PETITION NO. 3 OF 2017
JOHN MUNUVE MATI……………………………………PETITIONER
1. THE RETURNING OFFICER MWINGI
2. INDEPENDENT ELECTORAL & BOUNDARIES
3. PAUL MUSYIMI NZENGU…….………………3RD RESPONDENT
1. In the Ruling dated the 9th day of November 2017, I held in abeyance orders regarding Prayer 2 of the application dated 26th September 2017 where the Petitioner/Applicant sought scrutiny and recount of all the ballots cast at the election held on the 8th August 2017 in respect of Member of National Assembly Mwingi North Constituency.
2. In the case of Gideon Mwangangi Wambua & Another -VS- IEBC & 2 others, Mombasa Election Petition NO. 4 of 2013 it was stated that:
“The aim of conducting scrutiny and recount is not to enable the court to unearth new evidence on the basis of which the Petition could be sustained. Its aim is to assist the court to verify the allegations made by the parties to the petition, which allegations themselves must be hinged on pleadings’’.
3. The Petitioner has called evidence of fourteen (14) witnesses in support of his case. As pleaded, it has been established; that Motor–Vehicle Registration Number KCK 585C was intercepted. A ballot box was found in the stated Motor-vehicle and a complaint made at the Kyuso Police Station. There was no authorized person accompanying it at the time. Some form 35As are illegible while others have no signatures of some agents. Evidence was called to explain circumstances that prevailed which resulted into the stated agents not signing the forms. Further, it is admitted that in one of the Polling Stations the Biometric Voter Registration Kit failed to function such that people were called to go and vote again and some seals used on ballot boxes seemed questionable. These are irregularities that call for investigation for purposes of determining if votes cast were valid.
4. In the premises I am satisfied that there is sufficient reason for ordering scrutiny of some of the votes in some polling stations for purposes of establishing the validity of votes cast. In that regard, scrutiny will be done in the following (103) polling stations;
5. The scrutiny shall include examination of :
-Written statements by the Returning Officer.
-Copies of the register of voters used
-Counted ballot papers
-Spoilt Ballot papers
-Rejected Ballot Papers
-The Polling day diary.
6. The Exercise shall be carried out under the Supervision of the Deputy Registrar who shall prepare a report to be filed in court on the 15th day of December, 2017.
Costs shall be in the cause.
Dated, read and delivered this 6th day of December 2017
L. N. MUTENDE