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|Case Number:||Election Petition 8 of 2013|
|Parties:||Paul Gitenyi Mochorwa v Timothy Moseti E. Bosire,Fredrick Hezekiah Owino Odenge (Returning Officer) & Independent Electoral and Boundaries Commission|
|Date Delivered:||30 Sep 2013|
|Court:||High Court at Kisii|
|Judge(s):||Edward Muthoga Muriithi|
|Citation:||Paul Gitenyi Mochorwa v Timothy Moseti E. Bosire & 2 others  eKLR|
|Advocates:||Mr. Minda for Mr. Omwenga - for the Petitioner Mr. Ligunya with Mr. Juma - for the 1st Respondent Mr. Nyamorongi for Mr. Ojiambo - for the 2nd and 3rd Respondent|
|Advocates:||Mr. Minda for Mr. Omwenga - for the Petitioner Mr. Ligunya with Mr. Juma - for the 1st Respondent Mr. Nyamorongi for Mr. Ojiambo - for the 2nd and 3rd Respondent|
Irregularities attributed to an innocent mistake cannot constitute a reason for impeaching an election result
Paul Gitenyi Mochorwa v Timothy Moseti E Bosire & 2 others
Election Petition No 8 of 2013
High Court at Kisii
Edward M Muriithi J
September 30, 2013
Reported by Njeri Githang’a Kamau & Victor L Andande
This was a petition against the declaration of the 1st respondent (Timothy Moseti) as the Member of the National Assembly for Kitutu Masaba Constituency by the 2nd Respondent, who was the Returning Officer of the 3rd Respondent (Independent Electoral and Boundaries Commission), following the General Election of the 4th March 2013, whereupon the 2nd Respondent certified that the 1st Respondent had received the highest number of votes in the said parliamentary election. The Petition was premised on grounds which included bribery, misspelling of the petitioner’s names, deployment of relatives as polling clerks and alterations in form 35 among others.
i) What was the standard of proof for the offence of bribery in an election petition?
ii) Whether misspelling of a candidate’s name could lead to nullification of an election.
iii) Whether the deployment of relatives of a candidate as polling clerks could be said to affect the election outcome.
iv) Whether alterations in form 35 which were not countersigned could be said to have affected the accuracy of the election results.
Electoral law – election petition – standard of proof in election petitions – where there were allegations of bribery – testimony by witnesses that they witnessed bribery of voters – where the testimony was premised on the 1st respondent’s dress code on the voting day – whether in the circumstances the offence of voter bribery had been proved.
Electoral law – election results – accuracy in recording election results – where there had been alterations on form 35 which were not countersigned – claim by the petitioner that such alterations affected the accuracy of the results – whether alterations on form 35 could be said to affect the final result.
Electoral law – invalidation of elections – where there were allegations of breach of election law – whether non-compliance with election law could lead to invalidation of elections – the Constitution of Kenya, 2010, article 105; the Elections Act 2011, section 83.
Petition dismissed with costs to the respondents.
1.Amana, Rishad Hamid Ahmed v Independent Electoral and Boundaries Commission & 2 others Election Petition No 6 of 2013 –(Followed)
2.Besigye, Kizza v Yoweri Kaguta Museveni Election Petition No 1 of 2001 –(Explained)
3.Chedotum, Charles Maywa & another v Independent Electoral and Boundaries Commission & 2 Others Election Petition No 11 of 2013 –(Explained)
4.Jabane v Olenja  KLR 661
5.Joho v Nyange (No 4) (2008) 3 KLR (EP) 500 –(Explained)
6.Magara v Nyamweya and 2 others  1 KLR 136 –(Explained)
7.Maranga, Peter Kimori and another v Joel Omagwa Onyancha Election Petition No 7 of 2013 –(Explained)
8.Mbowe v Eliufoo  EA 240 –(Explained)
9.Odinga, Raila Amolo & 2 others v Independent Electoral and Boundaries Commission & 3 others Election Petition Nos 5, 3 & 4 of 2013 (Consolidated) –(Explained)
10.Ogari, Simon Nyaundi & another v Joel Omagwa Onyancha and 2 others Election Petition No 2 of 2008 –(Explained)
11.Republic v Nairobi Business Premises Rent Tribunal ex parte Karasha [1976-80] KLR 1263
1.John Fitch v Tom Stephenson & 3 others  EWHC 501 –(Explained)
2. Morgan v Simpson  3 All ER 722;  QB 151;  3 WLR 517 –(Explained)
Texts & Journals
1.Hogg, QM., (Lord Hailsham) et al (Eds) (1973-87) Halsbury’s Laws of England 4th Edn Vol 15 para 780
2.Hogg, QM., (Lord Hailsham) et al (Eds) (1973-87) Halsbury’s Laws of England 4th Edn Vol 17 para 310
1.Constitution of Kenya, 2010 articles 38, 81(1); 82(1)(d),(2); 83; 86; 99,105(2)(3) –(Interpreted)
2.Criminal Procedure Code (cap 75) section 29(a) –(Interpreted)
2.Elections Act, 2011 (Act No 24 of 2011) sections 64, 67(2); 83; 86–(Interpreted)
3.Elections (General) Regulations, 2012 (Act No 24 of 2011 Sub Leg) regulations 62(2); 79(2)(b)
4.Evidence Act (cap 80) section 165
5.National Assembly and Presidential Elections Act (cap 7) (Repealed) section 28
6.Presidential Elections Act [Uganda] section 58(6)
1.Representation of the People Act, 1949 [UK] section 37(1) –(Interpreted)
1.Mr Minda H/B for Mr Omwenga for the Petitioner
2.Mr Ligunya and Mr Juma for the 1st Respondent
3.Mr Nyamorongi H/B for Mr Ojiambo for the 2nd & 3rd Respondents
|History Advocates:||Both Parties Represented|
|Case Outcome:||Petition 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 HIGH COURT OF KENYA AT KISII
ELECTION PETITION NO. 8 OF 2013
IN THE MATTER OF THE CONSTITUTION OF KENYA
IN THE MATTER OF THE ELECTIONS ACT, NO. 24 OF 2011
IN THE MATTER OF THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISISON ACT NO. 9 OF 2011
IN THE MATTER OF THE ELECTION FOR THE MEMBER OF NATIONAL ASSEMBLY OF KITUTU MASABA CONSTITUENCY (NO. 270)
PAUL GITENYI MOCHORWA ……………………………..………..…..……...................…..… PETITIONER
TIMOTHY MOSETI E. BOSIRE ……………………..…………….........……..…............. 1ST RESPONDENT
FREDRICK HEZEKIAH OWINO ODENGE (RETURNING OFFICER) …………….......…2ND RESPONDENT
INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ………...…........... 3RD RESPONDENT
“6. THAT your petitioner states that the said parliamentary election for the said constituency was not conducted in accordance with the provisions of the Act and or Regulations and other provisions of the law nor in accordance with the principles laid down therein nor in any law relating to such election nor in accordance with the principles of natural justice and that as such the result of the said election was seriously affected to the detriment of your petitioner and your petitioner avers that the 1st respondent should not have been declared as duly elected on the following:
7. In the holding of the said elections diverse breaches of the statutory rules governing conduct of the election were committed by the 2nd respondent as the returning officer and his election officials including the presiding officers at each polling station their servants or any or some of them and thus prejudicing the election results against your petitioner in that among others:-
That, your petitioner says that by reason aforesaid, the elections for Kitutu Masaba Constituency were rigged, unfairly conducted, interfered with, unduly influenced and thereby became invalid elections and should be nullified.”
“(a) THAT it be ordered that there be a scrutiny of the votes recorded as having been cast in the parliamentary elections in the constituency.
(b) THAT it be ordered that there be a recount of the ballot papers cast at the elections in the constituency.
(c) THAT the said parliamentary elections in Kitutu Masaba Constituency be determined and declared null and void.
(d) THAT the said election of the 1st respondent to the National Assembly be declared null and void.
(e) THAT the respondents be condemned to pay your petitioner’s costs of this petition.”
General constitutional principles
105. (1) The High Court shall hear and determine any question whether:-
(a) A person has been validly elected as a member of Parliament; or
(b) The seat of a member has become vacant.
(2) A question under clause (1) shall be heard and determined within six months of the date of lodging the petition.
(3) Parliament shall enact legislation to give full effect to this Article.
“38. (1) Every citizen is free to make political choices, which includes the right—
(a) To form, or participate in forming, a political party;
(b) To participate in the activities of, or recruit members for, a political party; or
(c) To campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for:-
(a) Any elective public body or office established under this Constitution; or
(b) Any office of any political party of which the citizen is a member.
(3) Every adult citizen has the right, without unreasonable restrictions:-
(a) To be registered as a voter;
(b) To vote by secret ballot in any election or referendum; and (c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.”
“81. The electoral system shall comply with the following principles––
(a) Freedom of citizens to exercise their political rights under Article 38;
(b) Not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) Fair representation of persons with disabilities;
(d) Universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) Free and fair elections, which are:
“86. At every election, the Independent Electoral and Boundaries Commission shall ensure that—
Criteria for validation or invalidation of Election
“83. No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.”
The primary object of the election Law
“(i) Under section 37 (1) an election court was required to declare an election invalid:
Accordingly, where breaches of the election rules, although trivial, had affected the result, that by itself was enough to compel the court to declare the election void even though it had been conducted substantially in accordance with the law as to elections. Conversely, if the election had been conducted so badly that it was not substantially in accordance with the election law it was vitiated irrespective of whether or not the result of the election had been affected.”
“No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of local election rules if it appears to the tribunal having cognizance of the question that the election was so conducted as to be substantially in accordance with the law as to elections and that the act or omission did not affect its result.”
“Collating all these cases together, I suggest that the law can be stated in these propositions:-
“Nothing that I can find in Woodward v. Sarsons touches on election which is affected in its result by errors which are not substantial but are all in the day’s work of fallible human beings inevitably prone to ordinary human mistakes. The judgment does not reveal what the court’s view was of such an election either at common law or under the Ballot Act 1872.
If substantial breaches of the law are, as I think, enough to invalidate an election though they do not affect its results, it follows that contrary to the opinion of the Division Court, trivial breaches which affect the result must also be enough. I cannot hold that both a substantial breach and an effect on the result must be found in conjunction before the court can declare an election void. There does not appear to be any decision which binds this court to hold so; and I am glad to find my view of the section confirmed by the opinions expressed by the editor of Halsbury’s Laws on Woodward v. Sarsons, and by the editors of Atkin’s Encyclopaedia of Court Forms on the law laid down by ss. 16(3) and 37(1).
I now answer my four main questions as follows: (1) (2). Any breach of the local election rules which affects the result of an election is by itself enough to compel the tribunal to declare the election void. It is not also necessary that the election should be conducted not substantially in accordance with the law as to local elections. As such a significant breach of rules is admitted, the appeal must be allowed on that ground. (3) and (4). For an election to be conducted substantially in accordance with the law there must be a real election by ballot and no such substantial departure from the procedure laid down by parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot. Instances of such a substantial departure would be allowing voters to vote for a person who was not in fact a candidate or refusing to accept a qualified candidate on some illegal ground or disfranchising a substantial proportion of qualified voters, but not such an irregularity as was committed in this case….”
“The decided cases, including those which Lord Denning considered in Morgan –vs- Simpson, established that the courts will strive to preserve an election as being in accordance with the law, even where there have been significant breaches of official duties and election rules, providing the results of the election was unaffected by those breaches. This is because where possible, the courts seek to give effect to the will of the people…”
“Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections.”
Burden and standard of proof
“195. There is, apparently, a common thread in the foregoing comparative jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the court to determine whether a firm and unanswered case has been made.”
“196. We find merit in such a judicial approach, as is well exemplified in the several cases from Nigeria. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.”
“203. The lesson to be drawn from the several authorities is, in our opinion, that this court should freely determine its standard of proof, on the basis of the principles of the constitution, and of its concern to give fulfillment to the safeguarded electoral rights. As the public body responsible for elections, like other public agencies, is subject to the “national values and principles of governance” declared in the constitution [Article 10], judicial practice must not make it burdensome to enforce the principles of properly-conducted elections which give fulfillment to the right of franchise. But at the same time, a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt- save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in Article 138(4) of the Constitution, for an outright win in the presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt.”
Validity of Forms Relied on by the Petitioner
“197. IEBC is a constitutional entity entrusted with specified obligations, to organize, manage and conduct elections, designed to give fulfillment to the people’s political rights [Article 38 of Constitution]. The execution of such a mandate is underpinned by specified constitutional principles and mechanisms, and by detailed provisions of the statute law. While it is conceivable the law of elections can be infringed, especially through incompetence, malpractices or fraud attributable to the responsible agency, it behoves the person who thus alleges, to produce the necessary evidence in the first place – and thereafter, the evidential burden shifts, and keeps shifting.””
The specific claims by the petitioner
The petitioner claimed as an act of intimidation that the respondents caused the arrest and detention in police custody at Keroka Police Station of the petitioner and the petitioner’s witness PW2 for varied periods between the 4/3/13 and 6/3/13. PW1 (the Petitioner) and PW2 who was one of the candidates for the Member of Parliament seat the subject of this petition were allegedly arrested by police at Omoti Road Junction in the Constituency where the two had met for the hand over by PW2 for distribution by the petitioner (PW1) of identification badges and oaths of secrecy for their party’s agents in the election to enable them participate in the election. The election materials for the agents had allegedly been brought from the petitioner’s party headquarters in Nairobi late in the night before the election and the PW2 required the assistance of the petitioner to distribute the materials to the agents in the constituency to enable them access the polling stations.
So far as this court is aware, the matter is still pending trial before the criminal court at Kisii Law Courts.
“I blame the 2nd respondent because he caused my arrest. The 2nd respondent feared that I was going to stop the exercise. I consider that my name was missing. The name was misspelt. I was going to the tallying centre to tell the 2nd respondent that my name was missing. I called him with a complaint before the arrest after I finished voting.…
The person shown as Rueben Motari Okibo was not me. I was arrested at a road side. The fear was that I would stop the elections. I called the 2nd respondent because I knew he was the authorizing officer and I asked him to come to my rescue. I told him that I had been arrested and I did not know why I was being arrested. I sought for his assistance to have me released. I was confident that he would help me get released.”
The Petitioner’s witness No.2 Reuben Motari Okibo in his affidavit in support of the petition deponed as follows:
“7. THAT the third respondent without any colour of right unlawfully mispelt my name as Reuben Motari Okibo instead of Reuben Motari Okibo and this misled voters during election day.
He then testified that the 2nd and 3rd respondents failed to include his full names and photo in the ballot paper; that his first name Reuben had been misspelt as Rueben so that it appeared as Rueben Motari Okibo. PW2 complained that by failing to notify the electorate of the missing name and photo it gave the 1st respondent undue advantage over PW2 and other candidates and that the acts of the 2nd and 3rd respondents contravened the Elections act, the regulations and the Constitution of Kenya. It was not shown how the misspelling of a name could have given the 1st respondent an advantage over PW2. On cross examination the witness confirmed that his photograph, and his party symbol were shown on the ballot, that he voted for himself and, in reexamination, that his constituents were well educated. He said:
On cross-examination by counsel for the 2nd and 3rd respondents:
Before the election the candidates were gazetted. I saw the gazette and my name was clearly spelt. There was also the party symbol properly appearing and my photograph was correctly carrying my face. The ballot paper carried the passport size photo of me correctly. The party symbol was also correct but my names were not okay. I was called before I noted that my name was misspelled. I went to the polling station to confirm. I voted after confirming that they were in a mess. I confirm that I voted for myself.
On re-examination by counsel for the petitioner:
My names were misspelt. It created a good impact on the electorate. My constituents are well educated. When they came to the polling station, they found out the names on the ballots were not clear. I expect that arising from the misspelling; some voters may have been swayed to vote for my competitors.
“Most importantly, no evidence was provided by the petitioners that the mix-up of their names was a deliberate act by the first and second respondents with a view to aiding the third respondent or any other candidate unfairly. Most likely than not, the mixup was as a result of typographical or print error. In any event, the mixup could not have prevented the voters or the petitioners exercising their constitutional rights. This was because, the name of the candidate was not the only means of identification in a ballot paper. There were other means which included the candidates' political party's name, symbol and colour. In fact, in areas where a majority of voters are assisted voters they would more likely than not identify their preferred candidates by his party's symbol, colour or name. It cannot be true that voters at certain polling stations refrained from voting or voted for wrong candidates due to the alleged mixup of the petitioners' names in the ballot papers.”
The allegation was that the 2nd and 3rd respondents, their subordinate staff denied the duly appointed agents for one Reuben Motari Okibo PW2 and one Walter E. N. Osebe from accessing the polling station and or tallying hall. PW1 and PW2 testified that they were arrested before they could distribute identification badges and other documents to their party’s agents. If the purpose of the badges and letters of appointment and oaths of secrecy were for purposes, as conceded by the petitioner, of gaining access to the polling and or tallying station, how could their agents who did not have these documents be allowed in the polling stations and tallying hall?
“I voted in the morning. I did not participate as an agent. I was locked out. I was outside the polling station waiting for letter of appointment and badge to be able to participate as agent. I even spent the night and at the polling station. This information is not in the affidavit.”
Clearly, if person could not show his appointment as an agent by means of letter of appointment, badge and oath of secrecy as a means of demonstrating that he was an authorized agent under regulation 62 of the Elections (General) Regulations, 2012 he could not lawfully be admitted into the polling station or tallying centre. I therefore do not find any merit in this complaint.
It was submitted for the petitioner that -
“We submit that the persons who were not agents and or strangers and or unknown to candidates, political parties and or independent candidate unlawfully participated in the counting and announcement of the results and appended their signatures in form 35s. In fact the strangers participated in nearly all the polling stations and the 2nd and 3rd respondents have not given an explanation as why this took place. These unauthorized people affected the election result in favour of the 1st respondent.”
“The presiding officers were trained on whom to allow to the tallying station. They were supposed to record the agents in the poll day diary. The agents who were present at the polling station were supposed to participate in the full exercise. The list of agents shown as FH001. Those agents who were duly appointed by their parties or candidates and who came late may have been allowed into the polling station without their names being recorded in the poll day diary. I am not aware of any of the situations where this occurred. I am not aware that in 95 stations some strangers took over the process including declaration of results.”
Relying on Regulation 62 (2) which provides “notwithstanding sub regulation (1), the presiding officer shall admit to the polling station not more than one agent for each candidate or political party” it was contended for the petitioner that there should have been no more and no less than 14 agents signing Form 35s. It is true that at Nyamare SDA (084) six agents signed yet the polling station had not recorded any particulars of agents. In other stations more or fewer agents than the number of candidates participating in the parliamentary election signed the Form 35s and the respective presiding officers did not give any reasons as to why more or less agents signed the forms.
(6) The refusal or failure of a candidate or an agent to sign a declaration form under subregulation (4) or to record the reasons for their refusal to sign as required under this regulation shall not by itself invalidate the results announced under subregulation (2)(a).
(7) The absence of a candidate or an agent at the signing of a declaration form or the announcement of results under subregulation (2) shall not by itself invalidate the results announced.”
“Those agents who were duly appointed by their parties or candidates and who came late may have been allowed into the polling station without their names being recorded in the poll day diary….
There were 14 candidates, each party or candidate was supposed to include one agent at any given time because on the only one agent would be allowed to replace the other. At any given time, there were supposed to be more than 14 agents because of the various elective positions. It is not correct that the signing of form 35 was restricted to the 14 agents. Any agent present representing any party or any candidate present at the time of signing of form 35 could have been signed by any candidate or agreement in the elective positions without discriminating as to the elective post. If there was any reason for not signing form 35 the agents were allowed to give the reasons. It is the agent who would give the reason for refusal to sign….
The purpose of signing form 35 by agents is to authenticate the contents of the forms as agreed by all who have signed. It should be signed after all the entries have been made on the forms. The entries are made after the counting and tallying at the polling station. Those who sign are those who are present at the stage of concluding the exercise.”
The petitioner has proved that there were alterations in the Form 35s, the primary result documents in some polling station, some of which were not countersigned by the presiding officers and or the agents. The petitioner submitted that the form 35s should not have been interfered with since they were the primary documents. DW3 Jones Bitange Nyabio, the presiding officer in charge of receiving the Form 35s from the presiding officers in the polling stations admitted that there were alterations in 39 polling stations, 14 of which were counter-signed.
“Although there is no legal requirement for the countersigning, DW3 Returning officer confirmed that the residing officers were trained that they should countersign against every change or alteration that they made. I agree with Kimaru, J in William Kabogo Gitau v George Thuo & 2 Ors Nairobi Election Petition no. 10 of 2008, that common sense approach requires the counter-signing of alterations and cancellations especially in electoral documents in view of the need for verification of the results. The counter-signing works in two ways to assure the reader of the authenticity of the figures in the documents and as confirmation by the author that the changes in the document are intended and his, and not subsequent changes made by other persons after his signature. I do not however agree, in view of human fallibility in the circumstances of elections which do not afford much time for meticulous preparation of numerous documentation, that the statutory forms invariably be required to be written without any alterations.The test, in my view and in keeping with the terms of section 83 of the Elections Act, must always be the effect of the changes on the results of the candidates and therefore on the outcome of the election.”
The over writing and alterations show the votes cast as 396 and the valid votes as 393. The number of valid votes cast in favor of each candidate correctly adds up to 393. But when you calculate for the votes cast, that is the valid votes cast added to the rejected votes 02 the figure is (393 + 02) 395 whereas it is shown with alteration as 396, a difference of 1 vote.
The overwriting and alteration do not have an effect on the total number of valid votes cast 507-1=506. This figure is the same as the totals of the number of valid votes cast in favor of each candidate and will not affect the results.
The overwriting of the figure 5 on the valid votes cast in favor of WALTER ENOCH NYAMBATI OSEBE does not affect the total number of valid votes cast which is equivalent to the total number of valid votes cast in favor of each candidate and will not affect the results.
The cancellation on number of rejected votes and the cancellation on number of valid votes cast in figures and in words does not affect the total number of valid votes cast which is equivalent to the total number of valid votes cast in favor of each candidate.
The cancellation on the total number of votes cast does not affect the total number of valid votes cast which is 453-1= 452. 452 is the same figure you find after adding the totals of valid votes cast in favor of each candidate.
There is an alteration on the figure 6 on the total number of votes cast and figure 5 on the total number of valid votes cast which does not affect the total number of valid votes cast 662-9=653 which is equivalent to the total valid votes in favor of each candidate.
The cancellation on the figure 433 and the words therein do not affect the total number of valid votes cast which is 433. When you subtract the rejected votes from total number of votes cast you get 434-2 =432 but calculating the total valid votes cast in favor of each candidate you find 433 votes in this polling station 1 vote is not accounted for.
Overwriting of figure 2 on total number of votes cast and figure 7 on number of rejected votes does not affect the total number of valid votes cast 822-7=815 which is equivalent to the total of valid votes cast and is the same as the total of valid votes cast in favor of each candidate.
The overwriting of figure 6 and 8 and the overwriting of the words eight on the total number of valid votes cast does not affect the number of valid votes cast when you subtract number of rejected votes from total number of votes cast 649-1=648 which is equivalent to the total number of valid votes cast for each candidate.
Overwriting of figures for SHADRACK JOHN MOSE, TIMOTHY MOSETI BOSIRE, TOM NYAYIEMI MOGAKA and VICTOR SWANYA does not affect the total number of votes cast which is 410-3=407 same as the total number of valid votes cast for each candidate.
The alteration of figure 8 on number of rejected votes and the overwriting of figure 8 on the total number of valid votes cast does not affect the total number of votes cast which remains as 606-8=598 which is less by 1 vote to the number of votes cast in favor of each candidate which comes to 597.
The overwriting of figure 8 on total number of votes cast does not affect the total number of valid votes cast 518-32=486 which is equivalent to the number of votes cast in favor of each candidate.
The cancellation on number of rejected votes and overwriting on the figure on total number of valid votes cast does not affect the number of valid votes cast which is 600-7=593 which is equivalent to the total number of valid votes cast in favor of each candidate.
The overwriting of figure 4 in number of rejected votes does not affect the total number of valid votes cast which is 424-4=420 equivalent to the number of valid votes cast in favor of each candidate.
The alteration on total number of votes cast and number of rejected votes does not affect the total number of valid votes cast 454-5=449. 449 is equivalent to the number of valid votes cast in favour of each candidate.
The overwriting of figure 7 on total number of votes cast does not affect the total number of valid votes cast which is 467-10=457 equivalent to the total number of votes cast for in favour of each candidate
The cancellation on the figures of total number of votes cast does not affect the total number of valid votes cast 559-5=554 which is equivalent to the number of valid votes cast in favor of each candidate.
The alterations on total number of votes cast and number of rejected does not affect the total number of valid votes cast 584-20=562 which is equivalent to the number of valid votes cast in favour of each candidate.
The alteration of figures on total number of votes cast and number of rejected votes does not affect the total number of valid votes cast which is 345-4=341 which is equivalent to the number of valid votes cast in favor of each candidate.
The cancellation of nil and altering with figure 0 does not affect the total number of valid votes cast which is 673-11=662. The overwriting on figure 4 of PHILIP NYAUNCHO BOSIRE and figure 1 on VICTOR SWANYA OGETO does not affect the total number of valid votes cast in favor of each candidate which is 662.
Overwriting of figure 8 on total number of votes cast and figure 2 on number of rejected vote does not affect the total number of valid votes cast which is 428-2 =426 equivalent to the total of number of valid votes cast for each candidate.
The cancellation on the total of valid votes cast does not affect the total number of valid votes cast which is 495-4=491which is equivalent to the number of valid votes cast in favor of each candidate.
There is overwriting of figure 2 on the number of rejected votes and cancellations on both the words and figures on the total number of number of valid cast but the said cancellation do not affect the total number of valid votes cast 431-2=429. The alteration of figure 7 of SHADRACK JOHN MOSE's votes does not affect the total of number of valid votes cast in favor of each candidate. The total number of votes cast is equivalent to the total number of votes cast in favor of each candidate which is 429
The alteration of figure 3 on the number of rejected votes has not affected the total number of valid votes cast 599-3=596 which is equivalent to the total number of valid votes cast in favour of each candidate.
The alteration on figures in total number of valid votes cast does not affect the total number of valid votes cast which is 315-4=311 which is equivalent to the number of valid votes cast in favour of each candidate.
The alteration of figure 2 on the total number of votes cast does not affect the total number of valid votes cast 632-2=630 which is equivalent to the total of number of valid votes cast in favor of each candidate.
The overwriting of the word EIGHT on the total number of valid votes cast SIX HUNDRED AND EIGHTEEN has not affected the total therein 625-6=619 which is equal to the total of the number of valid votes cast in favor of each candidate.
The alterations on the number of rejected votes figure 10 and the total number of valid votes cast figure 2 does not affect the total number of valid votes cast which is 629-10=619 which is equivalent to the number of valid votes cast in favor of each candidate.
The overwriting of the figure 0 on the number of spoilt votes does not affect the total number of valid votes 446-3=443 which is equal to the number of valid votes cast in favor of each candidate.
The overwriting of the figures has not affected the number of valid votes cast which is 597-7=590 which is equivalent to the number of valid votes cast in favor of each candidate.
The overwriting of figures for TIMOTHY MOSETI E. BOSIRE and TOM NYAYIEMI MOGAKA does not affect the total number of votes cast which is 474 which is equivalent to the number of valid votes cast in favor of each candidate.
The alterations on the total number of votes cast which figure in words is different does not affect the total number of votes cast which is 669-16=653 which is equivalent to the number of valid votes cast in favor of each candidate.
The overwriting of figure 3 on the number of rejected votes does not affect the total number of valid votes cast 202-3=199 which is equivalent to the total number of valid votes cast in favor of each candidate.
The alteration of figure 1 on the total number of votes cast does not affect the total number of valid votes cast 591-5=586 which is equivalent to the total number of valid votes cast in favor of each candidate.
The alterations on total number of votes cast does not affect the figure on total number of valid votes cast which is 644-3=641 which is equivalent to the number of valid votes cast in favor of each candidate.
The alteration on the number of rejected votes does not affect the total number of valid votes cast which is 583-11=572 which is equivalent to the number of valid votes cast in favour of each candidate.
The alteration of figure 1 on the number of rejected votes does not affect the total number of valid votes cast which is 343-1=342 which is equivalent to the number of valid votes cast in favor of each candidate.
The alteration on the number of rejected votes figure 0 does not affect the total number of valid votes cast which is 369-05=364 which is equivalent to the number of valid votes cast in favor of each candidate.
The overwriting on the number of disputed votes does not affect the total number of valid votes cast which is 468-05=463 which is equivalent to the number of valid votes cast in favor of each candidate.
There are only 39 polling stations where there are alterations, cancellations or overwriting. They do not affect the total number of valid votes cast which are equivalent with the number of valid votes cast in favor of each candidate.
All the Form 35s presented by the 2nd and 3rd Respondents were duly signed dated and stamped by the Presiding Officers. However, not all contained comments in the space reserved for “statutory comments”. Save that there is provision on the Form 35, which records the results of an election, for a space for inserting ‘statutory comments’, there is no statutory requirement that the presiding officers must make comments on the form. It is of course a useful provision for the presiding officer to state his view on the polling exercise general or in particular references to notable occurrences at polling station that may explain the vote, turnout or other matter relevant to the election. The failure to give statutory comments cannot affect the election, the result of which is already captured in the foregoing sections of the Form 35. Indeed in many of the Forms 35 where the presiding officers have made comments entries like ‘free and fair’, ‘high turnout’, ‘results accepted by candidates and agents’, ‘N/A’, ‘voting went well’, ‘well done,’ ‘ agents left early’. Such comments, while giving some subjective perspective on the election exercise cannot be taken influence the result of the election. It would not stop a petitioner from challenging an election merely because the presiding officer gave it a clean bill of health in his statutory comments, and the court is never bound by the ‘statutory comments’. I do not therefore find that the failure by the presiding officers to give statutory comments in some named stations is an irregularity that amount to substantial non compliance with the constitution and law or one that affects the result of the election.
It was contended, indeed an exaggeration, that the 2nd and 3rd respondents contravened regulation 79 (2) (b) of election (general) regulations, 2012 in that they failed to use the standard and prescribed Form 35 at three named polling stations. The correct position is that for some three stations the forms had cancellation of the original name of the polling station to enable them be used by another station. The form remained the same Form 35 with the same particulars only the name and code of the station was changed to correspond with the polling station for which the details were inserted. There was however no countersignature either by the respective presiding officers or the agents.
“[the witness is referred stations 28, 33 and 77]
028 – Miriri DOK Primary School: My officers at Miriri DOK ran out of form s 35 so they had to source for the form from Guja which is a nearby station. The stations are about 5-8 minutes. The station is shown as station no. 28. Form 36 shows that 028 is the Guja DOK Primary not Miriri. Miriri is 026 and it s attached to my affidavit.
033 – Kiomoso Primary School: It is true that the form 35 is canceled to read Kiomoso Primary School and the code cancelled to read 33 instead of 032. In Miriri the officers omitted to cancel the code 028.
077 Ogango DEB: The original station is cancelled to read Ogango and the code changed from 029 to read 077.”
No explanation was given for the two other stations. The court notes, however, that the Forms used are not different from the prescribed form; it is only that they had been pre-printed and issued in the names of other station in the constituency which are crossed out and substituted the names of the stations in question. The stations for which the forms were preprinted have their Form 35s used intact as preprinted.
Bribery by the 1st respondent
“64. (1) A candidate who—
(a) directly or indirectly in person or by any other person on his behalf gives, lends or agrees to give or lend, or offers, promises or promises to procure or to endeavour to procure any money or valuable consideration to or for any voter, or to or for any person on behalf of any voter or to or for any other person in order to induce any voter—
(i) To vote or refrain from voting for a particular candidate; …. commits the offence of bribery.”
67. (1) A person who— (a) commits the offence of personation, treating, undue influence or bribery; commits an offence and is liable on conviction, in the cases specified in paragraph
(a), to a fine not exceeding one million shillings or to imprisonment for a term not exceeding six years or to both, and in any other case, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding five years or to both.
(2) The offences specified in subsection (1) (a) shall be cognizable.
“Clear and unequivocal proof is required to prove an allegation of bribery. Mere suspicion is not sufficient. It is true that it is not easy to prove bribery, more especially where it is done in secrecy. In such cases, perhaps bribery may be inferred from some peculiar aspects of the case but when it is alleged that bribery took place publicly and in the presence of many people, the court cannot be satisfied by anything less than the best evidence which is always direct evidence given first hand”.
“One proof of a single act of bribery or with the knowledge of the candidate or by his agents, however insignificant that act may be, is sufficient to invalidate an election. The judges are not at liberty to weigh its importance nor can they allow any excuse. Whatever the circumstances may be, as such they can allow in certain conditions in cases of treating or undue influence by agents. For this reason clear and unequivocal proof is required before a case of bribery will be held to have been established.”
PW1 Affidavit of Paul Gitenyi Mochorwa:
“10. That the 1st respondent himself and his agents were openly bribing voters with Ksh 50 and Ksh 100 notes in denominations in Rigoma Market.
11. That at Mosobeti and Riakwaro area, the 1st respondent and his agent one Charles Ondari Bernado bribed voters with Ksh. 100 to vote for the 1st respondnet”.
PW2 Affidavit of Reuben Motari Okibo
“26. THAT I also learnt that the 1st respondent spent money in buying votes and or bribing voters to vote for him for instance at Mosobeti, Riamoni, Iranya and Nyaikuro.”
PW4 Affidavit of James Bundi Nyakeri
“3. THAT I know that the 1st respondent and his agents bribed voters at Nyatieno.”
4. THAT the 1st respondent was giving out 50 to kshs. 100 to people to vote for him.”
PW5 Affidavit of Reuben Mokaya Kebaso
“4. THAT I realized the bribery issue when I saw a group of about 20-30 people gathered together and when I ran towards them I found it was the 1st respondent dishing out money.”
PW6 Affidavit of Douglas Nyachieo Omwenga
“3. THAT I was a voter at Nyambaria DEB Primary School polling station.”
4. THAT I saw the 1st respondent and his agents bribe voters with kshs. 50 to kshs. 100.”
PW7 Affidavit of David Okero Obonyo
“3. THAT I was a voter at Kenyerere DOK Primary School polling station.”
4. THAT I saw the 1st respondent and his agents bribe voters with kshs. 50 to kshs. 100.”
“165. In order to show that the testimony of a witness is consistent any former statement made by such witness, whether written or oral, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”
PW1 Paul Gitenyi Mochorwa
“At paragraph 9-11 of the affidavit alleges bribery at Rigoma and Mosobeti and Riakumo. The affidavit does not state the source of the information. I do not have anything to show that the person named in paragraph 11 one Charles Ondari Bernado was an agent for the 1st respondent.”
PW2 Reuben Motari Okibo
“Paragraph 26 of my affidavit on bribery. I was not present. I did not indicate the source of the information. When I voted, I went home to prepare, I then called the petitioner and asked him to meet at Omoti Junction. The petitioner told me that he was at his home. I do not know where the 1st respondent was.”
PW4 James Bundi Nyakeri
I saw the 1st Respondent at the station at about 4.00-4.10pm on 4/3/13. He was inside the polling station, and he even entered the polling room. He was in the company of a small group of people of about 8 people including the 1st respondent. He entered the polling room leaving the rest outside. He was dressed in a rain coat which was grey in colour. He left the polling room by a water tank and some people went to him, and I was told by one young man named Richard Omari that the 1st respondent was giving out money. I saw the 1st respondent giving out the money in denominations of 50 and 100 shillings and I asked him what he was doing. He did not answer and he ran away. I told the presiding officer and the police officer at the station. [paragraph 4 of this affidavit is read out to him in Kiswahili]. I confirm the statement in paragraph 4. I did not include the detail that I have given today in court. I only wrote the affidavit in swearing. I also did not write out my complaint. I only made report to the presiding officer and the Askari verbally. The water tank was outside the polling room about one metre [witness demonstrates one metre distance correctly]. We had more than 10 agents from the different parties at the polling station. I am not aware that anybody else saw the incident of bribery….
The police officer was armed. [It is put to the witness that the police officer should have been able to arrest the 1st respondent]. By the time I reported the matter to the presiding officer and police officer, the 1st respondent had left the station….
[Court enquires as to the time taken between witnessing the incident and reporting it]. I took about 2 minutes from the time that I spoke to the 1st respondent to the time that I reported the issue to the presiding officer because he was assisting a voter. I admit that I reported the incident to the police officer about 3-4 minutes after speaking with the 1st respondent. The whole incident between the time I witnessed and reported to the presiding officer and the police officer took about 04 (four) minutes.”
PW5 Reuben Mokaya Kebaso
"I saw the 1st respondent followed by the supporters. At 9.15am there were queues. The people who followed him were hanging around the polling station. I cannot tell whether the people were voters or whether they voted. The 1st respondent and his followers left the station and proceeded to Manga Shopping Centre. From the station to Manga Shopping centre is 50 metres. The 1st respondent and the group of followers stopped at a shop belonging to Mr. Atambo Maina which is about 20 metres from the polling station. The shop is half-way the distance from the polling station to the shopping centre. It was in the same direction I was heading. The 1st respondent was with a certain man. I do not know whether he was his body guard. I reported the incident to the presiding officer and since he did not take action as I waited, I went to the office of the second respondent which is within Manga. I did not find the second respondent but I found the secretary who informed us that the 2nd respondent had gone to Nyambaria Tallying Centre. I did not make a report because the 2nd respondent was not in the office. My party had a chief party agent. He did not come to Manga. I did not know the name of the party’s chief agent. I am not able to tell whether he came to Manga. I state that the presiding officer did not listen to any complaint. I did not tell anyone else. In my affidavit, I have not stated that I reported the matter to anyone at all. I reported to my lawyer. I did not report the matter in writing to anyone.”
PW6 Douglas Nyachieo Omwenga
“I saw the 1st respondent bribing voters. I reported to the police officer inside the polling station outside the polling room. My affidavit does not show that I reported to anyone. I did not report to the presiding officer. The affidavit does not state where the bribery occurred. I was not near them and I did not recognize the agents. I was about 15 metres away. I was not close enough [witness estimates 15 metres to be from the witness box to the end of the court at the entrance]. The people ran way as they saw me. The people who were with the 1st respondent told me they were given 50 and 100 shillings. The people who told me this are not before the court and will not be witnesses.”
PW7 David Okero Obonyo
“I saw the 1st respondent at the polling station at about 2-3pm. The affidavit does not state where the 1st respondent was bribing voters. The affidavit does not state the time when the bribery happened. The affidavit does also not state the agents who were bribing voters. It also does not give the names. I reported the matter. The affidavit does not state that I reported the matter.”
“19. THAT further I have been informed by the officer in charge of Gesima AP Division, Officer in charge Rigoma AP Division and Officer in charge of Magombo AP division, which information I take as true that no report was made to the said stations whether by the petitioner nor any member of the public regarding any alleged voter bribery nor commission of election officers by myself and as such, no such incidences occurred. (1 annex hereto and mark as TMB4 copies of letters from the said police stations).”
The petitioner relied on Annexture marked PG4 which showed that valid votes cast as 1808 against a registered voter figure of 993 to support a claim at paragraph 22 of his affidavit and his testimony in court that those who voted were more than those registered at the station, that there was over-voting at Rigoma DEB Primary School. The presiding officer for the polling station DW2, however, testified that the Form 35 in the annexture PG4 was not his document. The court has already ruled as invalid the Form 35s in the petition having been disowned by the 3rd respondent as the body constitutionally mandated to oversee the elections and the petitioner not being able to point to a lawful source of the documents.
“The petitioner’s wife had access to the rubber stamp since the polling station opened as the stamps were on my desk and the wife was in charge of my desk. She was also in charge of my bag at the time of counting of the votes. [witness is referred to paragraph 8 of his affidavit]. It shows that I assigned the petitioners wife duties. Assignment of duties is done before the polling station starts. I said I was not aware of any theft of the materials….
The form 35 papers were under my table and we waited until we started using them. I had given the clerk my bag containing the forms and the rubber stamps while I sorted and counted the votes cast. My deputy assisted me in the counting and sorting the votes. After I finished counting I ask the clerk who had the custody of my forms to give me a form 35 where I would fill it with the details required and then give to the agents to verify as they write their names and sign. I was then to sign and rubber stamp, give my deputy to sign and then make the comments at the bottom back of the form. I would then ask the deputy to assist in making other copies for the signed original. I would then give the copies to the agents to sign and retain some copies and give the rest to the agents. I also posted them on the door to the polling room….
I do not know how many form 35s that I received from the returning officer. Some of them were sealed and other were loose. There were many forms. I could not easily tell if any of them disappeared. The clerk who carried the forms also had the rubber stamp in the bag that she carried for me….
The person who held my bag while I counted the votes was clerk no. 7 Agnes Ondege who is the wife of the petitioner.”
It was alleged by the Petitioner (PW1) and PW2 that the 2nd and 3rd respondents employed relatives of DW1 Moses Ongera, Nancy Ongera, Eunice Okinyi and Maureen Okinyi as poll clerks. PW1 had deponed in his affidavit sworn on 9/4/13 at paragraph 43:
“43. THAT the 3rd respondent employed four relatives and supporters of Timothy M. E Bosire at Nyambogo SDA Primary School (064) namely, Moses Ongera, Nancy Ongera, Euniah Okinyi and Maureen Okinyi. Further Nancy Ongera and Euniah Okinyi did not apply and or altered interview and or were not trained by the 3rd respondent.”
“At paragraph 6(x) of the petition, it alleges relatives were hired for the IEBC. It was the relatives of the 1st respondent. I was not party to the hiring of staff by the IEBC. I do not know in what capacity the relatives of the 1st respondent were hired. It was Nancy and Moses Ongera, Eunia and Maureen Okinyi, respectively are brother and sister of the 1st respondent and cousins of the 1st respondent. I need to amend the information to state that I am aware that the four are relatives to the 1st respondent but I do not know of the nature of the relationship. My witnesses will clarify. At paragraph 43, I give the particulars of the hiring of the staff of IEBC. I do not have information to support the allegation in paragraph 43 of the affidavit.”
“I have deponed on certain relatives of the 1st respondent who were hired by IEBC. I was not involved in the hiring process of the IEBC. I was aware of the process of hiring agents. Moses Ongera was deployed at Nyambogo SDA primary no. 064 together with the other three agents as deponed in the paragraph 22 of my affidavit. I do not recall when the IEBC conducted training of clerks but it was before the elections. I did not attend the training of the clerks by IEBC. [witness referred to paragraph 23 of his affidavit of 9/4/13]. The affidavit does not state the source of the assertion that the named clerks did not apply and they were not trained as clerks. I do not have the list of the trained clerks. [The witness is shown the list of polling clerks]. One of the polling clerks named Moses Ongera appears on the list. There is no other document before the court showing the said polling clerks as alleged in my affidavit. I do not have anything to show that the said Moses Ongera is related to the 1st respondent.”
“At paragraphs 23 and 24 of my affidavit, Nancy and Moses Ongera are brothers and sister and Euniah and Maureen Okinyi are sisters. The four are cousins. A sister to Okinyi and Ongera, the fathers of the four is married to the 1st cousin of the first respondent. I do not have the name. I do not have documents to prove this.”
Looking at this relation, even if it is accepted to exist, the said clerks would be distant nephew- and nieces-in-law related to the 1st respondent only the 1st through their auntie who has married the 1st cousin of the 1st respondent! I do not think that it could very strongly argued that on the basis only of this distant degree of consanguinity, the said clerks could presumed to carry out their duties in a manner to favour the 1st Respondent or otherwise result in a conflict of interest between carrying out their statutory duties and any loyalty to their uncle. More importantly, no allegation is made and proved that the 1st Respondent benefitted in any way from the deployment of the said clerks at the Polling station. No matter how close the affinity or relationship of itself is not sufficient; it must be shown that it had an effect on the election, that the relative of the candidate was in a position to and did alter or otherwise influence the outcome of the election. This was not the case here.
The Petitioner’s submission is that the affidavits of PW1 and PW2 at paragraphs 42 and 25 respectively aver that Nimrod Obwocha Igenda was caught rigging and instructing voters to vote for the 1st respondent and that the 2nd respondent intervened and sacked him, and that the 2nd respondent in his affidavit at paragraph 34 admits that he relieved the clerk of his duties for the reason that the clerk was colour blind.
Affidavit of PW1 Petitioner (Paul Gitenyi Mochorwa):
“42. THAT at Riegechure DEB Primary School (073) the clerk employed by the 3rd respondent was found instructing voters to vote for Timothy M. E. Bosire but the returning officer intervened and sacked the clerk whose name was Nimrod Obwocha Igendia and replaced him with another clerk who was based at Nyagecheche DOK Primary School (049).”
Affidavit of PW2 Reuben Motari Okibo
“25. THAT at Riegechure D.E.B Primary School (073) the clerk employed by the 3rd respondent Nimrod Obwocha Igendia was caught rigging and or instructing voters to vote for 1st respondent and was transferred and or sacked by the 2nd respondent.
“I relieved the clerk at Riegechure (073) because I received an anonymous call that there was a clerk who appeared to be campaigning for one of the county representative candidates. I reported to the station to find out what was happening. On arriving, I inquired and it was shown clerk no. 7 Nimrod Obucha whose assignment was to direct the voters to cast or put the ballot papers in the ballot boxes. When I spoke to him he said he was colour blind and he was unwell and on some occasion he had been unable to correctly identify the colour of the ballot papers vis a vis the ballot boxes. It was corrected by agents who pointed out the anomaly. As the agents did not have confidence in him. I relieved him of his duties. I took his confession by his word. I did not get any medical certificate.”
It was contended for the petitioner that the 2nd and 3rd respondents together with their agents and or subordinate officers, failed in their mandate under Article 86 of the Constitution by wrongly posting the votes announced at the polling stations (Form 35) into the tallying sheet for the Constituency (known as Form 36). Consequently, the announcement of results made was incorrect in that the 2nd respondent announced results which were not reflective of the presiding officers in their respective stations.
“I am encouraged by the position in England with respect to cross-examination of deponents of affidavits as set out in paragraph 310 of Volume 17 of the Halsbury’s Laws of England, 4th Edition, emphasizing the discretionary nature of the court’s power as follows:
“Cross examination of deponents
A deponent may be ordered to attend for cross-examination on his affidavit before a judge, master or examiner of the court, and the court may refuse to act on an affidavit where the deponent cannot be cross examined; but an affidavit may be allowed to be used in court where the cross examination is pending. Where the deponent’s good faith or motive is in issue, however, the court should not be asked to act without hearing cross-examination, leave to cross-examine will not be granted until evidence by affidavit is complete. A person, whether a party to the proceedings or not, who has made and filed an affidavit cannot withdraw the affidavit when cross-examination is threatened, and a deponent can be cross-examined even where the affidavit has not been used by the party filing it.
Where, after an order has been made for the attendance of a deponent for cross-examination, he fails to attend, his affidavit will not be admissible except by leave, but the fact that a deponent does not appear before an examiner for the purpose of being cross-examined is no ground for taking his evidence off the file before the hearing.”
“The discrepancies between form 35 and form 36. The total votes cast under form 36 63,454. The total votes cast under form 35 exceed the form 36 tallying by 200 votes. The total votes cast under form 35 was 63654. Ikonge polling station (048) total votes cast under form 35 is 673. Form 36 Ikonge SDA indicates 473 votes cast. The difference is 200 votes. Form 36 appears to have denied 200 cast votes. A comparison on form 36 and form 35 from individual candidates indicates:
Form 35 Form 36
Samson Atati Mose Kengere 14 14
Daniel Mogesi Otero 2 2
Hezron Nyangau Omwenga 6 6
Joash Okinyi Longisha Onyonka 9 1
Mark Nyaberi 1 1
Meshack Ngare Ondieki 4 4
Philip Nyauncho Bosire 46 46
Rueben Motari Okibo 1 1
Shadrack John Mose 42 42
Timothy Moseti E. Bosire 207 207
Tom Nyayiemi Mogaka 2 2
Victor Swanya Ogeto 141 141
Walter Enock Nyambati Osebe 187 187
Zachary Mumbo Mosoti 00 00
The transcription was exact from the form 35 to 36. No candidate was denied their rightful votes. The difference between form 36 and form 35 totals did not affect any candidate. The correct total ought to have been 63,654. The total of rejected votes together with the individual votes for all the candidates was 63,627. This total ought to have been the same as the total in column no. 2 on total votes cast.
The difference between 63627 and 63454 on the form 36 is 173 votes. The correct figure of 63654 reduced by 63627 is 27 votes. The difference of 27 votes is in the tallying of form 35 against the reflection in form 36.
At Riabore 014, Victor Sagwe Ogeto in form 35 got 23 and Victor Sagwe Ogeto in form 36 got 02, a difference of 21 votes.
The 21 votes are a loss on form 36.
At Sirate 070, the figure for rejected votes is 06 votes. The figure of 06 on form 35 is not clearly written. I was not asked to cross reference with form 36. The indicated rejected votes under the station in form 36 is 02 votes.
The votes cast is 346 votes. The total number of valid votes is 344 votes. There is no cancellation on the signing. The total votes of rejected is 02 not 06 as I had read out earlier. The totals under form 35 had 4 more votes because of using the figure of 06 votes. The form 35 tallying is 4 votes. The totals for Walter Nyambati was stated by counsel for the petitioner as 1 less. 061 Nyamwanga – form 35 indicated votes as rejected votes is 01 votes. The figure on form 36 for the station is 00. This analysis accounts for 27 votes. 23 votes under Sirate (070); Nyamwanga rejected vote 1.
Riabore 014: The figure of candidates under form 35 against the form 36. The correct score for the candidates under form 35 is 275 votes. Under form 36 the total is 252. The difference is 23 votes. There are the votes for Victor Swaya under form 35 which were not captured under form 36.
The correct analysis therefore is as follows:
Victor Swaya Ogeto – lost 23 votes on the form 36; at Sirate (070) total taken in court exceeded by 4 because of the figure of rejected votes taken as 6 which should have been 02 votes; at Nyamwanga there was a missing vote under form 36 for rejected votes; and Walter Nyambati has an excess of 1 vote under form 36. The net difference is 27 votes on form 35. The difference between the 1st candidate and the 2nd candidate under form 36 is 8,640. The addition of the 200 votes would not have altered the gap between the two candidates.”
Candidate Form 36 Form 35 Difference
The transposition errors have therefore no effect on the eventual outcome of the election even though they do affect the results in the final figures of votes scored by the respective candidates.
“In my view in the phrase “affected the result”, the word ‘result’ means not only the result in the sense that a certain candidate won and another candidate lost. The result may be said to be affected if after making adjustments for the effect of proved irregularities the contest seems much closer than it appeared to be when first determined. But when the winning majority is so large that even a substantial reduction still leaves the successful candidate a wide margin, then it cannot be said that the result of the election would be affected by any particular non-compliance of the rules.
This was the situation in this case where the winning majority is so large that the errors shown to exist in the figures in the constituency Form 36 still leaves a wide margin of over 8000 votes between the declared winner and the runner-up.
“Our Section 83 of the Elections Act does not contain the words “substantial manner” like the Ugandan Act. However, this fact does not lessen the significance of what the Learned Supreme Court Judge stated in the above decision. A petitioner is not only required to establish that there were irregularities which were committed during the elections, he must also establish that such irregularities (non-compliance with the law) were of such magnitude that it affected the outcome of the results. This is what is referred as the materiality test.”
“The scrutiny and recount of the votes by the learned judge disclosed numerous irregularities, among them unsigned and, therefore, authenticated forms 16A, three missing ballot boxes, broken ballot seals and many others set out in the learned judge’s judgment. In my view these irregularities could not be been cured under section 28 of the National Assembly and Presidential Election Act. That section cannot be used to cover a situation where even the source of the votes in the ballot boxes cannot be conclusively determined. Again to use that section to cover the disappearance of ballot boxes, irrespective of the number of the ballot papers in the missing boxes, would simply amount to encouraging vandalism in the electoral process.”
With respect, my interpretation of the majority decision is not that the Court would ignore section 28 of the National Assembly and Presidential Act cap. 7 (now repealed by Elections Act but save for reference to the Constitution in pari materia with section 83 of the latter Act) but that unsigned statutory forms and three missing ballot boxes in that case were grave irregularities which could not be ignored. In effect, the majority of the Court (Omolo and Tunoi, JJA.) was saying that the irregularities must have affected the result.
“On analysis, I have come to the conclusion that the election was conducted in accordance with principles laid down by the electoral law and that the anomalies found in some form 16A and 17A were not so pervasive or so serious as to affect the entire election. I am satisfied that those were post election procedural anomalies and were cured by both scrutiny and counting and by section 28 of the Act. I find, indeed that the election court misconstrued section 28 of the Act.”
“Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections.”
That is the only way the court could be said to be giving effect to the will of the electors.
Dated, signed and delivered this 30TH day of SEPTEMBER 2013.
EDWARD M. MURIITHI
In the presence of: -
Mr. Minda for Mr. Omwenga - for the Petitioner
Mr. Ligunya with Mr. Juma - for the 1st Respondent
Mr. Nyamorongi for Mr. Ojiambo - for the 2nd and 3rd Respondent
Mr. Edwin Mongare - Court Clerk