Case Metadata |
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| Case Number: | Election Petition 3 of 2013 |
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| Parties: | John Okello Nagafwa v Independent Electoral and Boundaries Commission, Samson Ojiem Oriedo & Paul Otuoma Nyongesa |
| Date Delivered: | 26 Sep 2013 |
| Case Class: | Civil |
| Court: | High Court at Busia |
| Case Action: | Judgment |
| Judge(s): | Francis Tuiyott |
| Citation: | John Okello Nagafwa v Independent Electoral And Boundaries Commission & 2 others [2013] eKLR |
| Advocates: | Oundo for Petitioner Mutahi for 1st Respondent Mutahi for 2nd Respondent Orengo & Wangalwa for 3rd Respondent |
| Court Division: | Constitutional and Human Rights |
| County: | Busia |
| Advocates: | Oundo for Petitioner Mutahi for 1st Respondent Mutahi for 2nd Respondent Orengo & Wangalwa for 3rd Respondent |
| Case Summary: | Electoral law - election petition - parliamentary elections – elections irregularities and malpractices - petition to nullify elections results for the Member of National Assembly for Funyula Constituency – where the third Respondent was declared winner of the elections – claims of corruption, voter bribery and voter treating prior to the polling day – that violence was unleashed against the supporters and agents of other candidates at the polling stations – claim that the presiding officer maliciously mislead illiterate voters while assisting them to vote – claim that there were various alterations in the elections documents like forms 35 - claim that the political party agents were denied a chance to sign the elections declaration forms - where the reasons for that refusal was not given - whether the refusal or failure of a candidate or an agent to sign an elections declaration form could warrant the invalidation of elections results - Whether the elections for National Assembly for Funyula Constituency was conducted in a free and fair manner – whether the principles laid down in the Constitution and the written law relating to elections were complied with - Constitution of Kenya 2010 article 81, Elections Act 2011 section 65; 67(1)(b); 83 Elections (General) Regulations 2012, Regulations 79(1); 79(3); 79(4); 79(5); 79(6); 79(7)
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| Swahili Summary: | |
| History Advocates: | Both Parties Represented |
| 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 BUSIA
ELECTION PETITION NO.3 OF 2013
JOHN OKELLO NAGAFWA …………………………………PETITIONER
VERSUS
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ………………………...1ST RESPONDENT
SAMSON OJIEM ORIEDO ……………………………2ND RESPONDENT
PAUL OTUOMA NYONGESA ………………………...3RD RESPONDENT
JUDGEMENT
The Pleadings
handbills, placards or posters in a manner that contravened the provisions of Section 67(1)(b) of the Act.
“(a) Omitting to prepare accurate and complete election returns and statutory documents;
(b) Filing the result declaration forms by the Presiding Officers at the polling stations and the tallying centre in the absence or without the agents for the candidates or political parties.
(c) Misplacing or getting rid of the result declaration forms from the polling stations;
(d) Announcing and declaring results that were unlawful, fraudulent, fictitious and false;
(e) Using, accepting and manufacturing fake, forged, unlawful and fraudulent election returns, documents and results; and
(f) At several polling stations and the tallying centre the counting and tallying was done or undertaken using fake, incomplete, unsigned and unverified documents including Forms 35.”
Issues for Determination and Principles applicable
9) Article 81 of The Constitution provides for the General principles for the Electoral system and provides-
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—
(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient,
accurate and accountable manner.
Through the provisions of The Act and subsidiary legislation made thereunder, Parliament has made rules and regulations for the conduct and supervision of Elections. The duty of an Election Court is to inquire and examine whether a disputed Election complied with these Constitutional expectations and the Laws and Regulations governing the conduct, management and supervision of Elections. Upon carrying out that inquiry and examination, the Court must reach a decision on the basis of the provisions of Section 83 of the Act;
“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.”
10) It does not seem contested that in construing the provisions of Section 83 the Courts should take the approach proposed by Lord Denning in Morgan Vs Simpson [1974] 3ALL ER 722 where he said at page 728-
“Collating all these cases together, I suggest that the law can be stated in these propositions (1) If the Election was conducted so badly that it was not substantially in accordance with the law as to Elections, the Election is vitiated, irrespective of whether the result is affected, or not … (2) If the Election was so conducted that it was substantially in accordance with the law as to Elections, it is not vitiated by a breach of the rules or a mistake at the polls-provided that it did not affect the result of the Election. (3) But, even though the Election was conducted substantially in accordance with the law as to Elections, nevertheless if there was a breach of the rules or mistake at the polls and it did affect the result then the Election is vitiated.”
This Court will adopt that approach.
11) It has to be remembered that the Petitioner carries the burden of proving that an Election result is invalid and needs to be dislodged. That would be in keeping with the provisions of Section 107 and 108 of the Evidence Act which requires that a person asserting the existence of facts must prove that those facts exist. In terms of the standard of proof the Supreme Court has recently in Petition No. 5 of 2013 Raila Odinga and The Independent Electoral and Boundaries Commission & 2 Others cast it as follows-
“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.”
Clearly, a person who assails an Election bears a heavy responsibility.
12) A feature of this Petition is that a substantial amount of evidence was adduced by persons who were party agents in the Election. In fact, out of the 29 number of witnesses who gave oral testimony on behalf of the Petitioner 9 were party Agents. Two days ago this Court in Busia Election Petition No.2 of 2013 Henry Okello Nadimo –vs- 3 others
after setting out the roles, duties and rights of an Agent observed as follows;
“And as correctly stated by PW 8, who was a contestant herein, the Agent is the eye and ear of the candidate in the Election. It is through Agents that candidates participate in and observe the Election process. It is through these Agents that candidates and indeed the public can require that the Commission administers the Election in an impartial, neutral, efficient, accurate and accountable manner. And when Agents carry out their roles diligently, then pressure is put to bear on the Commission to carry out its mandate as expected by the Constitution and the Electoral Laws. As observed in NANA ADDO DANKWA AKUFO-ADDO & 2 OTHERS and JOHN DRAMANI MAHAMA & 2 OTHERS Agents are not merely exalted observers.
37) For those reasons, how the Agent carries out his duty, conducts himself, treats or is treated by the Polling officials is important. An Agent who accepts or acquiesces to an outcome but wishes to recant it must give plausible reasons for the change of heart where at the hearings an Agent raises complaints about the conduct of the Election the Agent must be asked questions about the action taken by him or her to seek intervention when the issues arose. Where the Agent is guilty of inaction, then the Agent will be hardput to explain the inaction. On the converse the Court may take a benign view of the evidence of an Agent who raises a legitimate complaint or query in a formal and timeously fashion. These are but a few instances on how the evidence of an Agent can assist the Court to assess the credibility of the Election process. The point to be made is that the evidence of Agents can turn out to be crucial in aiding the Court to get a true impression of how an Election was managed and conducted.”
The Evidence
13) These are the principles that will guide my survey and evaluation of the evidence herein and the eventual determination of these proceedings. The hearing of witnesses was lengthy and fairly involved. The Petitioner summoned some 29 witnesses, the Respondents 11 witnesses while there were 3 joint witnesses. The Court finds it orderly to consider the evidence under the themes of allegations made.
Bribery and Treating
14) Section 64 of The Elections Act defines bribery in a most detailed manner and makes it an offence. In dealing with the allegation of bribery our Courts have embraced the following passage from Halsbury's Laws of England (4th Edition) at paragraph 780-
“Due proof of a single act of bribery by or with the knowledge and consent of the candidate or by his agents, however insignificant that act may be, is sufficient to invalidate the Election. The Judges are not at liberty to weigh its importance, nor can they allow any excuse, whatever the circumstances may be, such as 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. Suspicion is not
sufficient, and the confession of the person alleged to have been bribed is not conclusive In endorsing this approach, J.V.O Juma J. In Eustace Mbuba Ntwiga v Julius Musyoka & 3 others [1999] eKLR remarked;
“The burden of proof throughout rests on the Petitioner and the quality of the evidence that is preferred by him is to be considered with a thoroughness and gravity which is commensurate with the dire consequences to the Second Respondent that can follow by virtue of the provisions of Section 6 of the National Assembly and Presidential Elections Act (Cap 7) and Section 35 of the Constitution.” (my emphasis)
Juma J. was discussing the consequences in the past statutory framework. They are still dire consequences under Section 87 of the current Election Act. An Election Court is required at the conclusion of the hearing of a Petition to send to amongst others The Director of Public Prosecutions a written report indicating whether an Election offence has been committed and the names and descriptions of the persons who have been proved at the hearing to have been guilty of that Election offence. With this in mind the Court now turns to examine the allegations of bribery starting with those said to have been committed before the Polling Day.
15) James Oduor Rahedi (PW 11), Henry Barasa Okumu (PW 12), Douglas Wandera (PW 13) are all teachers. It was their evidence that on 20th October 2012 the teaching fraternity of Funyula Constituency attended a Consultative meeting with the 3rd Respondent then the area Member of Parliament. The meeting which was held at Nangina Girls Secondary School was graced by the presence of Hon James Orengo. It is said that the meeting turned out to be a purely political matter in which teachers were given ksh.700/= each as a bribe to entice them to support the candidature of the 3rd Respondent.
16) In cross-examination Counsel for the 3rd Respondent emphasized the date of the meeting. It was on 20th October 2012. The significance of the date, as I understood it, was that it fell outside the Election period. The Election period is defined by Section 2 of The Act to mean,
“The period between the publication of a Notice by the Commission for Presidential, Parliamentary or County Election under Sections 14,16,17 and 19 and the Gazettement of Election Results.”
It is public knowledge that the Commission published the Notice of Election on 27th December 2012. That was about two months after the date of the Teachers Consultative meeting.
17) The posture of Counsel for the 3rd Respondent suggested that the Court should not detain itself in inquiring into allegations of a corrupt Act said to have been committed outside the campaign period. So should I dismiss those allegations offhand?
18) It is true that Bribery under Section 64 of The Act makes reference to the conduct of a “candidate”. Under Section 2 of The Act a candidate means a person contesting for an Elective post. Technically, there can be no contestant for an Elective post under the Act before the commencement of The Election period. For that reason any corrupt act akin to Voter Bribery committed before the Election period would not amount to bribery under The Elections Act. But that is not the end of the matter.
19) What this Court must consider is whether as an Election Court it should censure a Respondent for Electoral malpractice in the nature of bribery, treating, violence or undue influence which is committed prior to the Election period. Counsel did not address me on this important question. I venture an opinion. Under Article 81 of the Constitution an Integral element of a free and fair Election is that it is free from violence, intimidation, improper influence or corruption. Any Act or conduct that subverts free and fair Election affronts not only the Constitution but Electoral Laws. The timing of the Act and conduct may be immaterial as long as it has the effect of perverting the course of an Election. Even if committed prior to the Election period that act or conduct will amount to an Electoral malpractice as long as it remains operative and capable of subverting a free and fair Election. The question is whether if committed outside the Election period the effects of the malpractice pervades into the Election period. They are lessons to be learnt from the following short passages in Halburys Laws of England (4th Edition) “Paragraph 276. Time of bribe. In order to Constitute the offence of bribery it does not matter how long before an Election a bribe is given provided the bribe is operative at the time of the Election.” (my emphasis)
Elsewhere at paragraph 782;
“A candidate at the General Election may be guilty of treating even though the treating took place before the dissolution of Parliament and consequently before he came within the statutory definition of “candidate”. A corrupt act is not the less corrupt because it is done a long time before the election, but in determining whether it is reasonable to conclude that an act is done with a view to influence votes, the element of time becomes a very material one.”
What is of significance is whether the act is done with a view of influencing votes or the outcome of an Election.
20) And there is a real importance about this. Barring the circumstances contemplated is Article 146, the dates of Elections are known given the provisions of Article 136 2(1) of The Constitution. The Article provides;
“(2) An election of the President shall be held
(a) On the same day as a General Election of Members of Parliament being the second Tuesday in August.” Unscrupulous politicians should not be afforded the luxury of engaging in malpractices that are intended and capable of unlawfully influencing an impending Election in the comfort that acts done are outside Election period and therefore outside the ambit of the Election Act. There is therefore a basis for me to inquire as to whether there was bribery at Nangina.
21) The 3rd Respondent accepts that there was a teachers meeting held at Nangina. It was his position that it brought together 700 teachers and was held in the full glare of the media. He denied that Elections was an agenda and that he bribed the teachers.
22) In his affidavit evidence Rahedi (PW11) does not state who gave him the ksh.700/=. In his oral evidence he says,
“I have not said that the money came from Hon Otuoma.”
If it was to be believed that he was bribed then he would deserve just as much censure as the giver. But the confession of an alleged receiver is not enough proof that he was indeed bribed. Even without a further probe into the other aspects of the evidence of this witness, it does not pointedly implicate the 3rd Respondent. He did not see Hon Otuoma give the bribe and he does not name the giver or say that it was done with the authority, consent and approval of Hon Otuoma.
23) In his oral evidence Okumu (PW 12) says that he attended the meeting. But he does not say that he or other teachers were bribed by the 3rd Respondent. That may explain why he never mentioned this meeting at all in his written affidavit. His evidence is not adverse to the 3rd Respondent.
24) The account of Wandera (PW 13) was as follows:-
“In the first meeting it was headteachers and teacher leaders distributing the money. Hon Otuoma did not personally give us the money but he supervised it. After I was given 700/=, Hon Otuoma told us to remember him and the ODM Team then I realized it was a bribe.” (my emphasis)
That contradicts paragraph 5 of his affidavit when he says,
“The agenda of the meeting turned purely political and after seeking our support we were given ksh.700/= each as a bribe to entice us support his candidature.”
So, was the money given before or after the 3rd Respondent had sought for their support? That contradiction weakens the probative value of that evidence. That inconsistency would have been inconsequential if there was other evidence to corroborate this account. None was forthcoming. The Petitioner has failed to prove that there was bribery at Nangina.
25) This Court turns to give attention to the meeting said to have taken place on 23rd February 2013 at the Bunandi home of the 3rd Respondent. The affidavit evidence of three of the four witnesses is word for word a mirror of the other in its substantive content. PW11, P13 and P14 all state that Hon. Otuoma was due to host a meeting for teachers at his Bunandi residence on 8th February 2013 but it was rescheduled to 23rd February 2013. On that day, it was alleged, the 3rd Respondent personally gave Kshs. 1,000/- to each teacher in attendance.
26) The different affidavit testimony of PW12 was more detailed. He says that the meeting was attended by about 300 teachers from both primary and secondary and were addressed by Kenya National Union of Teachers (KNUT) officials and some Politicians including the 3rd Respondent. That the meeting then ended at 5.30pm and the 3rd Respondent stood at the main gate to his home and gave out Kshs. 1,000/- to each teacher as they left. He was among those who received money.
27) The witness had said that it had been explained to them that the occasion was to celebrate the good performance of Samia District in the past Kenya Certificate Primary Examinations (KCPE). But the meeting turned out to be something else because, “other than a few congratulatory messages for teachers, the speeches were heavy with campaign messages and pleas for the teachers votes in the 4th March 2013 General Election.”
28) On his part the 3rd Respondent conceded that he had previously invited teachers to his home to celebrate their good performance. He further conceded that in some of those past occasions, teachers were given monetary rewards contributed by parents. He however denied that any such meeting took place in February 2013.
29) Save for PW12, the other three teachers did not explicitly say why the money was given to them. Was it as a reward for the good performance or was it to influence them to vote for the 3rd Respondent. As for PW12, he stated-
“The 2nd meeting was on 23rd February 2013. I confess I was given Kshs. 1,000/-. When Hon. Otuoma was giving the money he asked us to remember him.”
An inference to be made is that the purpose of the money was to influence PW12 to vote for the 1st Respondent. So is bribery at Bunandi sufficiently proved?
30) As observed earlier, the substance of the affidavit evidence of PW11, PW13 and PW14 was deposed in words that are a carbon copy of the other. Is this an unusual mark of consistency or an attempt to fabricate a story? This Court finds it bizarre that three (3) witnesses would narrate an incident using the exact words and in the same sequence. That raises suspicion as to the credibility of the narration.
31) And it would not be lost that of the four witnesses only one explicitly says that the money given was a bribe. It was also not explained how bribery on such a scale, involving 300 teachers , would go unreported either to commission or the police. These put together does not sufficiently assure me that the alleged meeting took place and that there was bribery.
32) Musa Suleiman Musa (PW2) is the Imam for Jamia Mosque at Sio-Port. He swore an affidavit herein on 24th May 2013. He testified how he arranged a meeting on 24th February 2013 on behalf of the 1st Respondent. He ushered his visitor to his office which is within the Mosque. There the 1st Respondents met the Mosque’s Committee and the Council of Elders. Those comprised a total of 29 persons.
33) That after imploring on them to vote for him in the upcoming Elections, the 1st Respondent offered them a token of Kshs. 29,000/- to be shared equally amongst them. If that was true then the Candidate would not only be guilty of the offence of bribery but would also have contravened the Electoral Code Of Conduct by campaigning in a place of worship(paragraph 6 (d) of the Code)
34) Then there was a second incident. That after the meeting, the 1st Respondent proceeded to the front door of the Mosque where he addressed a crowd. He asked them to vote for him. He then openly proceeded to give money in denominations of Kshs. 100/- to the people present at the front door of the Mosque.
35) Answering questions fielded in cross-examination, the Imam stated-
“As a religious Elder I was not happy about this but I took the money. Buying votes is Unconstitutional. I spent the money that I was given. I never reported this incident to the Police.”
36) What did the 3rd Respondent have to say in answer? He denied visiting the Mosque on that day. He denied meeting his constituents in the Mosque on that day. He however admitted visiting the Mosque on several occasions in the past, but that he did not know the Imam well.
37) This is the word of one person against the other without more. I am asked to believe the Imam because in the words of Counsel for the Petitioner “It is doubtful that PW2 an Imam would without good reasons confess to having received a bribe notwithstanding the dire consequences that might ensue?” I think I require more than just the assurance that a man of cloth is unlikely to tell an untruth. At any rate a confession of an alleged receiver is not conclusive evidence. An allegation of bribery is a serious allegation imputing criminal conduct on a person. Before such an adverse finding is made, the evidence implicating the wrongdoing must be crystal clear for all to see. Can this be said of this evidence? I am afraid not, the Imam had put together not only a Council of Elders but also the Mosque Committee. These are the people who are said to have received Kshs. 1,000/- each. These are people who are known to him. There has been no reason put forward why none of these 29 people was mentioned by name and secondly why there would be only one single person willing to come forward in evidence. Without more, the allegations of the Imam remain his word against that of the 1st Respondent. There is no reason for this Court either to believe or disbelieve one side. When this happens, then the threshold of prove is not reached.
38) What about bribery on the Polling Day itself? In the affidavit in support of the Petition, the Petitioner states that he saw one Philip Masiga bribe voters at Lugala Primary School Polling Station at 7.00am on the Polling day. It was his testimony that Masiga was a campaigner of the 3rd Respondent and was bribing voters with 'lessos', calendars and money. That he was determined to arrest Masiga but he (Masiga) fled on a “boda boda” motorcycle. He said that he also saw Masiga bribe voters at Nambuku Primary School.
39) Responding to questions in cross-examination, he stated that could not tell where, when and how the lesso which had the words “ODM Tuko Tayari” imprinted was manufactured. He failed to give the name of any voter who had been bribed.
40) In answering these charges, the 3rd Respondent told Court as follows-
“I know Philip Masiga. I heard allegations against him in the Court. Mr. Masiga is Chairman of ODM Party. I stood in ODM … Mr. Masiga was campaigning for Party candidates. He was not my particular agent. No one in authority has asked me about Masigas conduct.”
41) Masiga admitted visiting Lugala Primary School Polling Station and Nambuku Primary School Polling Station on the voting day. He however denied bribing voters. He stated that he did not have any campaign materials with him. He denied that anything on the calendar (P Exhibit 3) connected it to him.
42) The evidence is a claim by one side and a denial by the other. It is the word of one against the other. It is true that the lesso that was produced in Court had the words “ODM tuko tayari” printed on it, while the calendar had the portrait of the 3rd Respondent. That said there was no evidence, cogent or otherwise, to connect these materials to the 3rd Respondent. There was no proof that these were made or manufactured by him or with his consent or approval. Further, even if it was accepted that Masiga misconducted himself, no evidence was led to demonstrate that he did so on behalf or with the approval of the 3rd Respondent. This Court is of the view that the evidence was too tenuous to successful prove a charge as serious as bribery. Not a single receiver of the bribe was named nor was there an attempt to prove that the persons bribed were in fact voters.
43) Dishon Barasa Adala (PW4) and Josephine Nabwire Were (PW25) voted at Kabwodo Primary School Polling Station. They claimed that there were incidents of bribery there. PW4 alleges that on the morning of 4th March 2013, at around 9.00am, he found Petronila Odinga, Pius Wanyama and Basil Wandera at the entrance to the Polling Station. They attempted to bribe his wife but she declined. PW4 later reported the matter to a Police Officer who was present at the Polling Station. That Officer interrogated Petronilla but that she was later released after he had bribed the Officer with Kshs. 500/-.
44) It was the evidence of PW4 that the persons had argued voters to vote for the 3rd Respondent. But on cross- examination he stated-
“I have seen Hon. Otuoma for the first time here in Court. I have not seen these three (3) people with Hon. Otuoma.”
45) I am afraid that the evidence on record cannot prove the allegations. For one, the Court was not told why the primary target of the bribe, that is, the wife of PW4 did not testify to corroborate the account of her husband. Secondly, although it is said that the three were asking voters to vote for the 3rd Respondent, there is no evidence to connect the three persons to the 3rd Respondent. Even if it had been proved that they had bribed voters, the Court would not have a basis to hold that they had done so with the knowledge and consent or approval of the candidate.
46) And I think that the evidence of PW25 is even weaker. Her evidence was-
“I found Millicent and Petronilla at the Station. I saw them call only these 2 voters. They were told to vote ODM 6 piece.”
She later says-
“I never saw the voters cards of the two bribed women.”
This evidence fails to link the alleged bribery with the 3rd Respondent and just as critical fails to establish that the persons allegedly bribed were voters or were given money to influence or alter the course of the Election.
47) This Court disagrees with the following submissions by the Petitioners Advocate-
“… That apart for (sic) the general denies (sic) by the third Respondent in his affidavits, the evidence of PW4 and PW25 have not been rebutted. No affidavit was sworn by either Petronila Odinga, Basil Wandera or Millicent Odika.”
Once the 3rd Respondent denied the claim, albeit generally, then it was an issue that required the Petitioner to prove on the standard required by the law. On evaluation, the Petitioner failed to do so even in the absence of specific rebuttal by the three.
48) Alice Nafula Oduori (PW5) told Court that as she went to vote on 4th March 2013 she saw a group of people campaigning for Hon. Otuoma and dishing out money. One of those who was bribed, she says, was her nephew Kennedy. That he received a bribe of Kshs. 200/-. It was her further testimony that a “tea kiosk” had been set up outside the Polling Station where voters were treated to free tea and “mandazi” and urged to vote ODM candidates.
49) The witness does not say that the givers are unknown to her, yet she gave no names. The seriousness of the charge of bribery calls for some firmness in the evidence. The name of the giver is an important as the receiver and when the witness does not know the names then that too must be stated and other cogent evidence tendered. I am afraid that the evidence of PW5 lacks this firmness and falls short of the standards required by the Law. In addition, no nexus is established between the alleged misconduct and the 3rd Respondent.
50) Kizito Oucha Otuoma (RW14) is the uncle of the 3rd Respondent. He visited both Wakhungu Primary School Polling Station (030) and Wakhungu Secondary School Polling Station (031) on the Polling Day. He was using motor vehicle KBJ 032A. It is the evidence of James Ogallo Oketch (PW7) that he saw Kizito at Wakhungu Secondary and that he (Kizito) was bribing voters.
51) It was also the testimony of the witness that Festus Okumu and David Oramisi were bribing voters on behalf of Hon. Otuoma. Okumu presented himself to Court and denied these allegations. He testified that Hon. Otuoma (3rd Respondent) does not know him. His evidence in cross- examination was not shaken at all. All there is to the evidence is the word of PW7 which is uncorroborated. Nothing much can turn on this unsupported evidence. On record are two conflicting accounts of equal strength or is it equal weakness? The evidence is too faint.
52) The same can be said about the evidence against Kizito (RW14). He too, while admitting to being present outside Wakhungu Secondary Polling Station denied engaging in bribery. There is his word against that of PW 7and nothing more. As always it was incumbent upon the Petitioner to prove the allegations he made. It does not help his case when the Police Officer who was said to have witnessed the bribery was not named nor called to testify. That police officer may have provided invaluable corroborative evidence. Even if the offence took place, save for family and business relationship, there was no evidence connecting the 3rd Respondent to the alleged malpractice.
53) Francis Majoni Oguta (PW15) voted at Wakhungu Primary School Polling Station. It was his affidavit evidence, and repeated orally, that Timothy Achoka (RW10) “was giving out money just outside the fence and prevailing upon votes to vote for Dr. Paul Otuoma.” Not unexpectedly Achoka (RW10) denied having bribed any voter. Both the accuser and the accused were steady under cross-examination and stood their ground.
54) It bears repetition that for a charge of bribery to be sustained against a candidate it needs to be proved to the
required standard that he personally bribed or that a bribe was given with his knowledge and consent or approval or by his agents. This critical element lacks in the evidence before Court. Achoka denied bribing voters at all. He further denied knowing the 1st Respondent as at 4th March 2013 when the incident was said to have taken place. As for the candidate, he said-
“I do not know Timothy Achoka. I am not aware about the allegations made against him. I just heard the allegations here in Court.”
On his part the accuser said-
“I have never seen Timothy with Hon. Otuoma.”
And he makes no further attempt to link Achoka with the 3rd Respondent. The witness having failed to make this nexus has failed to establish the charge against the 1st Respondent.
55) Were Ouma Eliud (PW16) says that he was an agent of UDF Party at Bujwanga Secondary School Polling Station. He deposed that-
“ODM Agents bribed old men.
I saw an ODM agent named Karen bribing voters and prevailing them to vote Hon. Otuoma.”
It was said that the briber was going on in the voting room in the full view of other party agents. That surely would be courageous!
56) In the face of these accusation, the 3rd Respondent testified-
“I am not aware of bribery at Bujwanga Secondary School. I know Karen but I am not aware of the allegations made against her. She could have been a party agent. My party had candidates for each slots. The 6 positions.”
57) I find it incredible that only one witness could be available to tell this fantastic story of bribing going on inside a voting room in the full view of agents from different political parties. It is surprising that no other agent complained about this blatant act. It is also incredible that PW16 who was a party agent never put this complaint in writing to the commission or the police and that would only raise it with his party two months after the Election. An Agent is not an elevated observer. He is a participant in the Election. I am not persuaded that such a participant would allow the defilement of an Election process in such an overt manner without raising an immediate and formal complaint. This Court does not accept the uncorroborated account of PW16.
58) It is said that Cornel Ogoa is an ODM Delegate and bribed voters at Odiado Primary School Polling Station as they queued to vote. James Ouma Mediani (PW21) says that he turned down Cornels overture to bribe him. Nowhere in the written or oral evidence does PW21 say that the bribery or attempt at bribery was prompted or at the instance of or blessed by the 1st Respondent. Even though this Court is urged to believe that evidence as it is unchallenged it fails to implicate the 1st Respondent. At any rate, the Petitioner is under duty to prove all elements of his case that are not expressly admitted. These incidents of bribery were not admitted by the 1st Respondent.
59) It was alleged by Nelson Odwuor(PW22) that Irine Iduwa, an official of ODM party, was bribing voters with‘lessos’ at this Polling Station. That the lessos had the portrait of the 1st Respondent. That the giving of lessos was in the Polling Station. Alarmed by this, says PW22, he requested the security officer to remove her from the Polling Station. He also reported this misconduct to his campaign manager, a Mr. Ouma.
60) Irine Iduwa (RW6) is the Treasurer of ODM is Busia County. She says that she voted at Busibi at 7.30am and left. She denied giving money or a lesso to anyone. In the course of her oral testimony she was taken to task on two issues. One was in respect to paragraph 9 of her affidavit of 7th May 2013 in which she said-
“That I never went to Busibi Primary School Polling Station on the 4th March 2013 and I could not therefore have talked to the Polling Officials.”
This would directly contradict what she said in paragraph 3 of her affidavit and also her oral testimony that she voted at Busibi Primary School. She explained this as a mistake, that paragraph 9 should have read to Buribi not Busibi. Is this explanation plausible?
61) There is a context in which paragraph 9 was made. That paragraph and the two preceding paragraphs was a response to allegations contained in the affidavit of Benson Wandaa Okuku to the effect that the witness (RW6) was present irregularly in the polling room at Buribi Primary School. It seems plausible that in attempting to answer this allegation she mistakenly said that she did not visit Busibi when she meant Buribi. And such mistakes do happen. Notice for instance that the Petitioners own witness (PW9) admitted an error in his affidavit when in cross- examination he said that there is no such station as Buribi. What is good for the Petitioner must be good for the Respondents. This mistake is not enough to impeach the credibility of Irine.
62) The other issue taken against her was that in her affidavit denied knowing PW9. This is how she explained herself-
“I do not know Benson Wandera Okumu. I have known him since he came to give evidence in Court. I saw him in Court. I got to know that he is the Benson Wandera Okuku who comes from our home (paragraph 8 of the affidavit). As at the time of making this affidavit, he had stated that he hails from Buribi (refers Court to paragraph 2 of affidavit of Benson Wandera Okuku (PW9). I now realize I know him.”
This Court accepts this explanation because PW9 himself in his oral testimony made reference to Busibi and not Buribi.
63) The Court will now evaluate the rival evidence given by PW22 and RW6. And this evaluation must necessarily include the evidence of PW9 who was a party agent for Ford Kenya at Busibi. It was his evidence that RW6 sat throughout the day in the Polling room of the Polling Station. This is in contrast with what was said by PW22 where the bribery took place. PW22 in re-examination stated-
“I visited Busibi only once at about 12.00noon. Irine was inside the Polling Station but outside the classroom.”
The classroom was the polling room. So did the bribery happen inside or outside the polling room? The Petitioners own witnesses give conflicting accounts.
64) Then there is this statement by PW9 which would not be consistent with the evidence about bribery-
“Voting went on well and I voted.”
The significance of this statement is that it was made by a person who was not an ordinary voter, he was a party agent
in that polling station. He was in the locus where bribery is said to have taken place. On its assessment of the evidence, this Court is unable to find that there was bribery at Busibi.
65) The evidence of bribery at Sigulu came from Vincent Ochieng Ongondo (PW28). It was his testimony that-
“I saw one Mwalimu George who is known to me bribing voters mostly in Kshs. Notes currency. When I confronted him he took off on a motor cycle.”
66) Mwalimu George would turn out to be George William Oduor Odhiambo (RW5). He denied visiting Sigulu and refuted the claim of bribery.
67) The evidence here is almost typical of the other evidence that this Court heard on bribery. It is the word of one witness against the other. And the evidence of the Petitioners case lacks the firmness required to prove this serious allegation. The witness does not say the quantum of the bribe and does not name the receivers. But what deals
the Petitioners case a body blow on this incident is the following response given by the witness in cross- examination-
“I have not stated who George was supporting or representing.”
That evidence does not implicate the 3rd Respondent at all.
68) Rumbiye Primary School Polling Station must go down as the most talked about Polling Station in these proceedings. Indeed the Petitioner sees what is said to have happened there as a central plank to his case. The Petitioner submits-
“The happenings or the events at Rumbiye Primary School Polling Station epitomizes the corruption and bribery which had bedeviled the Election in question. Here, bribery trigged (sic) violence …”
For now the Court concentrates on the allegations on bribery.
69) Emmanuel Wandera Egesa (PW3) is said to be a resident of Nasiroyo Village in Rumbiya Sub-Location. He set out at 12.00 noon on 4th March 2013 to vote at Rumbiye Primary School Polling Station. That on reaching the gate of the Polling Station he met David Erulu, who is known to him, giving out money to voters in denomination of Kshs. 100, 200 and 500/-.
70) That Erulu attempted to bribe him but he declined. Displeased with what he saw, PW3 told Court that he reported the matter to the Security Officer who was present. He was advised by the Officer to effect a Citizens’ arrest. That PW3 put together 5 people who arrested Erulu. Erulu it is said was rescued later in violent circumstances. That will be discussed in some detail later in this decision.
71) David Lidbury Awille (RW15) is also known as David Erulu. He denied visiting Rumbiye Polling Station or being arrested on 4th March 2013. He also denied bribing voters. It was his testimony that on that day he visited Rumbiye Catholic Church which is about 11/2 – 2km from the polling station. There he found young men in animated debate about their favourite candidates. That he then called Wilberforce Oundo (PW23) to ask him why his (Oundo’s) young men were excited inspite of the poll regulations.
72) It was submitted by the Petitioner’s Counsel that this Court finds corroboration of the evidence of PW3 in the evidence of PW1, PW6, PW23 and Milka Anyango Andiega. Let me look at that evidence.
73) PW1’s evidence is not direct in that he stated in paragraph
14 of his affidavit in support of the Petition that he was informed that Erulu was bribing voters in Rumbiye. He does not say who gave him this information. But he says that on the following day, he lodged a complaint with the Police about the incident at Rumbiye but never lodged one with the Commission.
74) PW6 gave lengthy testimony in Court. It was substantially, almost entirely, on the violent aspect of Rumbiye complaint. Not once either in his oral or written testimony does he say that he saw Erulu bribe voters. This is how he makes reference to the issue of the bribery-
“10) … there was a commotion between the group of youth and the said David Erulu. The youth alleged that he was bribing voters at the Polling Station.”
75) On the part of PW23, he states-
“I know Emmanuel Junior (PW3) he was one of my supporters and within Rumbiye wailing to vote … He called me earlier that he was under pressure to receive a bribe from Erulu.”
He later went on to say-
“I did not personally witness acts of bribery. I spoke to Emmanuel Junior after the incident had happened.
Emmanuel Junior is PW3.
76) Milka Anyango Analiega swore an affidavit on 8th April 2013 in support of the Petition. She was however not called to testify. She deposed that she was a duly appointed agent for New Ford Kenya Party assigned to Rumbiye Primary School Polling Station. She then states this in paragraph 11 of her affidavit-
“I went outside and found one David Erulu known to me dishing out money to voters persuading them to vote for Dr. Paul Otuoma. It was then that he was beaten thoroughly. His clothes were torn off.”
77) My survey of this evidence is that only two witnesses allege to have directly seen Erulu bribe voters. Milka’s evidence was untested by cross-examination as she did not testify. The other was PW3.
78) In cross-examination PW3 deviated on an aspect of the incident. That deviation must turn out to be important. The substance of his evidence in chief is that he saw Erulu bribe voters and that Erulu infact attempted to bribe him. But in cross-examination he says-
“I never saw David bribe or attempt to bribe any other person.”(my emphasis)
This would be a substantial deviation because there was an earlier attempt by the witness to exaggerate.
79) Is it safe to rely on the evidence of a witness who was willing to exaggerate? Perhaps not in view of this other part of his evidence
“I informed the Police Officer. The Officer had not seen David bribe voters, it was a distance. The IEBC officials had not seen David bribe voters.”
The picture painted is that it was only he and Milka who witnessed the corrupt practice.
80) It needs to be underscored that evidence of bribery needs to be sharp, cogent and firm. In this instance Milka does not state that she does not know the names of the receivers yet she does not name them. Milka does not state the amount of bribe that was given. For Erulu his evidence was been exaggerated. It is also noteworthy that Christine Juma who was an agent working under the Petitioner signed From 35 for Rumbiye Primary School Polling station without any protest or reservation on the process or outcome.
Violence
81)
Section 65 of The Election Act criminalizes the use of force or violence during the Election. It is the Petitioners case that the 2nd Respondent is guilty of this offence. In paragraph 21 of the Petition it is averred that-
“In several Polling Stations the Third Respondent by himself and/or through his agents and supporters created violence, .....that undermined the integrity of the whole process. “
The only evidence in respect to Election violence was that involving an incident at Rumbiye.
82) I have no difficulty accepting that Egesa (PW3), the star witness in this incident, visited Sio Port Police Station on 5th March 2013 and lodged a complaint of assault. Details of that report will be revisited shortly. That report was received by P.C John Ngetich (RW8) who entered it as OB No. 4 of 5th March 2013.
83) Thereafter P.C Levy Namai (RW9) issued him a P3 form and the same was duly completed by James Wandera (RW3), a Clinical Officer at Sio Port District Hospital who also treated him. Although there was much furore made about an unstamped copy of the P3 this Court thinks that it was needless. I say this because the P3 form produced as an Exhibit (PExhibit 9B) had the mark of the O.C.S Sio Port affixed on it and was recognized as authentic by RW9. That witness also confirmed that it was the one he had issued to Egesa. Any controversy around it would rest when RW3, the Clinical Officer, confirmed that the Exhibit was the P3 form brought to him by Pw3 and which he duly completed in its Part II.
84) The Clinical Officer examined PW3 on 8th March 2013 and found that he had a four day old injury to his lower limbs. The nature of injuries being tenderness to his buttock but with no obvious injury. The question to be answered is whether this injury was caused by the 3rd Respondent or his agents or supporters on 4th March 2013 at Rumbiye.
85) The evidence of PW3 is that after the arrest of Erulu, the 3rd Respondent arrived at the scene in two vehicles and accompanied by his youth. That the youth attacked the 5 people who had assisted in the arrest of Erulu. In the process they beat PW3 and snatched his telephone.
86) Knowles Tabu Khadali (PW6) says that he was outside Rumbiye Polling Station when the violence erupted and that he witnessed the commotion. He stated as follows in his affidavit-
“That I moved closer and I saw Dr. Otuoma’s youth descend in one Emmanuel Egesa who is known to me. They beat him up and took his cellpone because he had been take (sic) photos of the event including the chaos that had erupted.”
87) PW6 took photographs of the scene using his mobile phone handset. Eleven (11) photographs were exhibited.
88) The 3rd Respondent admits that he visited Rumbiye Primary School Polling Station. He had intended to visit as many polling stations as possible. He explained that he commenced his visits with Rumbiye because it was at the extreme end of the Constituency. Although it was his view that the pictures taken by PW6 were blurred and unclear, he thought that he appeared in some of them. Listen to this-
“[Shown pictures PExhibit 5.1-5.11] some faces are familiar. I can see my brother Peter (PExhibit 5.1] he is on the foreground. There is no violence on his part. I see him again and myself here [PExhibit 5.7]. I can see advocate Oundo [PExhibit 5.10]. I can see myself, my security detail (Bwire), he is behind me. I cannot remember seeing Oundo Advocate on that day. But I now see him in the photograph. The photos are not very clear. I see a vehicle that looks like mine [PExhibit 5.2]. In the background is a car which I do not know.”
89) As for Erulu (RW15), he categorically denies that he visited Rumbiye Polling Station. That after casting his vote at Buburi Polling Station he visited Rumbiye Catholic Church. That the Church and the Polling Station are on separate locations. He further denied that he was in the photographs [PExhibit 5.1-5.11]. He thought that the photographs were unclear. This Court noted that the witness was hesitant on this aspect of his evidence.
90) There is clear evidence that places the 3rd Respondent at Rumbiye Primary School Polling Station some time on 4th March 2013. He admits this. And although he denies being involved in any violence he said this-
“To the best of my knowledge, I did not get any commotion at Rumbiye. I spoke to the Police Officer because he was the first person I met, he told me that there was some small commotion outside the Polling Station. Once I was told that all was fine I left for my home.”
91) So whose version is to be believed bearing in mind that it is the Petitioners responsibility to prove the allegations he makes. The evidence of PW6 was that it was the youth of
the 3rd Respondent who beat Egesa. As for the victim himself, he was not quite consistent. In his affidavit evidence he says that it was the youth who beat him. And in his oral evidence he named one of them as Dennis Mugwanga.That story changes in cross-examination when he says-
“Hon. Otuoma poked my upper back with the fimbo … I was hit by blows and kicks. Otuoma’s bodyguard beat me.”
For the first time he introduced Hon. Otuoma and his bodyguard.
92) Still on the identity of his assailants, the witness told Court that he gave the following names to the Police, Robert, Dennis, Otuoma’s bodyguard John and Thadeus. Notice that the 1st Respondents name does not feature. Anyhow, the point to be made here is that the Police Officer (RW8) who received the report was adamant that the victim did not name his assailants. It would be for this reason that in both the OB 4 of 5th March 2013 and the P3, it is only indicated that the victim was assaulted by persons well known to him but without names. To demonstrate that he faithfully captured the names of suspects as given by complainants, RW8 gave the example of OB entry 2 of the same day were a complainant gave the names of his assailants as Leonard Odongo, Jacob Malingu, Beston Juma, Ochieng Mabuta and Moses Luande. I found RW8 to be truthful and I believe him.
93) The evidence of RW8 is fortified because even the Clinical Officer (RW3) who treated Egesa stated that the patient did not disclose to him the names of the five persons who assaulted him.
94) Attention turns to the other aspects of the attack. PW3 reported to the Police that he suffered from blows and kicks. He never mentioned the stab of a “fimbo”. The medical documents show that he sustained injuries to his lower limbs. No injuries were detected on his upper back where he said the 3rd Respondent had poked him with the fimbo.
95) A short observation on the photographs produced. The Court was quick to notice that there are not the clearest of photographs. But one can make out that there are images of people in those photographs. What this Court was unable to make out was the image of a person being beaten using blows and kicks, or being beaten at all.
96) This Court has pointed out the inconsistencies on the assault incident surrounding Egesa. That does not help the Petitioners argument that there was violence at Rumbiye. The allegation of violence has not been proved adequately.
Of campaign posters
97) Section 67 1(b) of The Elections Act creates an electoral
offence in the following manner;
“A person who-
(a) …
(b) Prints, publishes, distributes or posts up
or causes to be printed, published, distributed or posted up, any advertisement, handbill, placard or poster which refers to any Election and which does not upon its face the names and addresses of the printer and publisher; ….
Commits an offence …”
Under Section 67(a) that offence is a cognizable offence. A cognizable offence being one for which a police officer may arrest without a warrant (see Section 2 of The Criminal Procedure Code).
98) In paragraph 13 of the Petition the Petitioner avers that the 3rd Respondent committed an offence under Section 67(1) (b) of The Elections Act. In support of that averment the Petitioner produced in Court a poster [PExhibit 2] with the portrait of the 3rd Respondent and the ODM slogan. There are no names and address of the printer on the face of the poster. Prima facie, the poster breaches provisions of statute.
99) The 3rd Respondent denied that PExhibit 2 was his poster. He further states that the posters he used in the campaigns were glossy and of better material. He found support in the evidence of RW12 who is the Chairman of ODM party in Funyula Constituency and the organizing Secretary of ODM party in Busia County. In cross examination RW12 was invited to comment on PExhibit 3 and he said-
“It is a campaign poster. This is portrait but it is not clear. But this was not the material. The slogan for ODM was “Tuko Tayari”. I see the words “Eifumbuhe Siity Olume” I do not know the meaning. This does not look like ODM material. We had posters for Dr. Otuoma from ODM Headquarters. I saw several of his posters. I have not availed a sample of our posters. Exhibit 2 is not the kind of material we used.”
100) I am urged by the Petitioner to find in his favour because neither the 3rd Respondent nor his witnesses supplied to Court their Election materials for examination. But to do so would be to shift the burden of proof to the 3rd Respondent. This would be to violate the law in respect of the burden of proof which places the Petitioner with the onus of proving all allegations he has made in the Petition (see Raila Odinga case above, Joho –Vs- Nyange & Another (2008)3 KLR EP and Machakos Election Petition No. 1 of 2013 Richard Kalembe Ndile & Another –Vs- Dr. Patrick Musimba Mwei & 2 Others.
101) Even though the Petitioner can be credited for exhibiting the poster, he does not tell Court where he found or recovered it from and save for the portrait on it, why this Court must believe that it is the work of the 3rd Respondent or his agents. To that extent the evidence is thin and insufficient to prove an allegation which is criminalized by The Election Act.
102) And it has to be said that the commission of an offence under Section 67(1) (b) is an Election malpractice but that alone would not be sufficient reason for an Election Court to a null the Election. I share the same view as Kimaru J. in Election Petition 10 of 2008 William Kabogo Gitau v George Thuo & 2 others [2010] eKLR. Discussing the provisions of Section 11 (1) of the Repealed Election Offences Act which had similar wording as the current Section 67 (1) (b) the Judge held;
“This court has carefully considered the evidence adduced by the petitioner and the 1st respondent in regard to this alleged election offence. Having perused the election posters of the petitioner and the 1st respondent, it was clear to this court that both the petitioner’s and the 1st respondents posters did not bear on its face the names and addresses of its printers and publishers. Section 11(1) of the Election Offences Act provides that in the event it is established that any person had committed the election offence specified in the Section, such a person shall be liable to imprisonment for a term not exceeding four (4) years. It is therefore evident that where any person is aggrieved by any election poster that does not bear on its face the name and address of its printer or publisher, such a person is required to lodge a criminal complaint with the police. The fact that a party to an election petition did not specify on the face of his election poster the name and the address of the printer or publisher cannot result in the nullification of an election.”
Use of Public Resources
103) Although a matter arose in the course of the hearing as to whether the 3rd Respondent committed an offence under Section 68 of the Election Act the same was not pleaded. That provision of the Law bars and criminalizes the use of public resources for the purpose of campaign during an Election or referendum.
104) It is often said that parties to any litigation are bound by their pleadings, and there is no reason why an Election proceeding should be an exception. Admittedly, the duty of an Election Court is to inquire whether an Election under dispute complied with the principles laid down in the Constitution and Electoral laws. But that inquiry is not open ended and must be carried out within the context of the pleadings. Kimaru J. had this to say in Mahamud Abdirahman and 2 others Nairobi Petition No.15 of 2008,
“From the outset, this Court wishes to state that the Petitioner adduced evidence, and even made submissions in respect of matters that he had not specifically pleaded in his petition. It is trite law that a decision rendered by a Court of law shall only be on the basis of the pleadings that have been filed by the party moving the Court for appropriate relief. In the present petition, this Court declined the invitation offered by the Petitioner that required of it to make decisions in respect of matters that were not specifically pleaded. This Court will therefore not render any opinion in respect of aspects of the Petitioner’s case which he adduced evidence but which were not based on the pleadings that he had filed in Court, and in particular, the Petition.”
A danger of unbounded and run-away proceedings is demonstrated in the matter before me. The issue as to whether or not the 3rd Respondent was guilty of use of public resources first arose during the hearing of the Respondent’s case and when the 3rd Respondent was testifying. It cannot be said that the 3rd Respondent had a fair opportunity to answer to this charge and prepare his defence. It would be unjust for this Court to consider or make a finding in respect to an issue that was introduced so late in the day.
Misdirection of assisted voters
105) There are voters who by reason of disability or being unable to read or write need the assistance or support of another person to cast their votes. Regulations 72 is the legal framework for this assistance and support and Regulation 72(1) reads-
“On the application of a voter who is, by reason of a disability or being unable to read or write, and therefore unable to vote in the manner prescribed in these Regulations, the Presiding Officer shall permit the voter to be assisted or supported by a person of the voter’s own free choice, and who shall not be a candidate or an agent.”
To mismark a vote of an assisted voter is an assault to the voters right to vote and a direct defilement of the voters will. No doubt a serious issue. It also is, agreed that where a charge is in the nature of a criminal allegation then it must be proved with cogent evidence. So is it a criminal offence for a person authorized to assist a voter to deliberately mismark the vote?
“5) The following shall apply in respect to
a person who assists a voter under this
Regulation-
Form 32 requires an assistor to declare that he or she shall assist the voter in strict obedience of those the requirements, one being, that;
“1. ….
2. That I shall mark the role of the voter I
am assisting for the candidate of the
voters choice and for no other person.”
To Act against this declaration is to commit a crime.
“59(1) A member of the Commission, staff or other person having any duty to perform pursuant to any written law relating to any Election who …………………..”
(a) makes, in any record, return or other document which they are required to keep or make under such written law, an entry which they know or have reasonable cause to believe to be false, or do not believe to be true;…
(l) willfully contravenes the Law to give undue advantage to a candidate or a political party on partisan, ethnic, religious, gender or any other unlawful consideration
“I voted without a problem, I also assisted my mother vote without a problem, I took an oath first then I assisted her vote. I marked on her behalf. She chose me. The agents observed.”
There was compliance with the law.
“I am surprised that the agents signed that voting went on smoothly.”
“I did not want to have my vote spoilt so I asked for assistance.”
It was then his testimony that, against his wish, the Presiding Officer marked the ballots in favour of ODM candidates. That when he queried this, the Presiding Officer issued him with new ballot papers.
“I do not understand English well but I can read it.”
A voter does not speak to a ballot paper, he reads it.On the ballot paper are names of candidates, their pictures and their party symbols. The instruction on how to mark the ballot papers were both in English and Kiswahili languages.
“Despite raising objection, illiterate people were assisted by the Presiding Officer only and without supervision or assistance of the party agents and they were misguided and or misled. It is only later on after 10.00am when the majority of the electorate had cast their votes that the Presiding Officer allowed the party agents to supervise with the illiterate who were a majority at the polling station.”
In cross examination he admits that he does not name any of the illiterate voters whose ballots were wrongly marked or marked against their wishes.
assisted voter complain that marking of his/her ballot was done against his/her wish. Further there was no evidence on how many assisted voters were aggrieved. That evidence would have been critical in helping the Court assess the gravity or otherwise of the alleged malpractice at Bwangangi.
Sijowa Primary School Polling Station. He noticed that some people were assisting or supporting more than one assisted voter. That would contravene Regulation 72 5(c) of The Regulations. On complaining to the poll officials, it was agreed that assistance or support be left to the Presiding Officer. Although he says that the irregularity was rampant, he does not give the number of assistors who were involved. He also told Court that none of the assisted or supported voters complained about the marking of their ballots. This witness was a party Agent at the Polling Station. He did not explain to Court why he did not raise this issue at the time of Polling or counting of the Ballots. And what is this Court to make of the fact that at the close of polls this witness was one of the three Agents who signed Form 35? This Court is unable to make much of this complaint.
Station is even weaker. The complaint was that the Presiding Officer did not allow party agents to witness how he marked the ballots of assisted voters. But in cross-examination Jane Nora Bwibo Okisa (PW26) who had raised the issue did not think it to be serious. She stated that her only gripe was that the Presiding Officer did not allow her to sign Form 35. On her own evidence, there is no proof at all that the assistance or support given to voters who required it was fouled.
Signing of Forms 35 by candidates or their agents.
“79(3) Where any candidate or agent refuses or otherwise fails to sign the declaration form, the candidate or agents shall be required to record the reasons for the refusal or failure to sign.
Alterations to Forms 35 & 36
Counsel then pressed the argument that-
“It is difficult to tell the effect of alteration as the initial figure is not clearly visible. Being a closely contested election, any vote lost or gained would definitely affect the final result.”
(I) Part 1 – The Heading and Particulars of the Polling Station, stream and constituency.
(II) Part 2 – captures the Numbers of registered voters, spoilt ballot papers, votes cast, reject votes, disputed votes, rejected objected votes and valid votes cast.
(III) Part 3 –the number of valid votes cast in favour of each candidate.
(IV) Part 4 – The Declaration.
(V) Part 5 – The Presiding Officers Statutory
comments.
138) The Petitioner pointed out six (6) inaccurate entries on Form 36. The entries were not an accurate transfer of some Form 35 figures to Form 36. I have looked at those entries and sought to examine whether they could affect the result of the Election. The inaccurate entries are captured in the table below;
Namboboto Girls Primary School Polling Station (018)
|
Entry |
Form 35 |
Form 36 |
Effect on Votes |
|
Rejected Vote |
1 |
0 |
-1 |
|
Votes Cast |
51 |
50 |
-1 |
Sichekhe Primary School Polling Station (026)
|
Entry |
Form 35 |
Form 36 |
Effect on Votes |
|
Votes Cast |
182 |
144 |
- 38 |
Rumbiye Primary School Polling Station (062)
|
Entry |
Form 35 |
Form 36 |
Effect on Votes |
|
Votes Cast |
376 |
378 |
+2 |
|
Valid Votes |
373 |
375 |
+2 |
Ganga Youth Polytechnic Polling Station (071) Stream 2
|
Entry |
Form 35 |
Form 36 |
Effect on Votes |
|
Votes Cast |
385 |
387 |
+2 |
From this table, it is clear that there were no errors whatsoever in the transposition of the votes garnered by each individual candidate Forms 35 to Form 36. The disparity is in respect to either the numbers of total votes cast or rejected votes. There has been no proof that there was over- voting in any of this impugned Polling Station. Neither has it been proved or indeed alleged that any rejected votes were cast in favour of the 3rd Respondent. In respect to Sibale Primary School Polling Station, on summation, I found that the correct total number of valid votes was transposed from Form 35 to Form 36. There was no error. The errors I have found are incapable of affecting the final result. In addition, mistakes in only six entries out of over nine hundred entries made in the Form 36 cannot move this Court to rebuke the declaration.
Of other irregularities raised against IEBC
139) The Commission, as in other parts of the country, conducted,managed and supervised a fairly intricate and involved Election in Funyula. There are myriad of other allegations raised by the Petitioner against the Commission. Of concern to an Election Court is whether if proved, those allegations amount to a substantial departure of the law or whether the departures affected the outcome.
140) Of some allegations, this Court was unable to find wrong doing whatsoever on the part of the allegations. The Commission was able to stop a voter from voting for a second time at Wakhungu Primary Polling Station. On this occasion the Commission deserves commendation not condemnation. Then there is the accusation that the Presiding Officer left the polling station at Sijowa Polling Station And left his Deputy to manage it. Surely, given the long hours that polling took it cannot be humanly possible for the officials not to seek temporary relieve or refreshment. There is nothing irregular about this as long as the station is at all times either attended by the Presiding Officer or his Deputy.
141) There is then a category, of complaints where the Commission may have got it wrong in the first instance. It was alleged that the Presiding Officer at Namboboto Boys Primary School Polling Station had initially refused to allow agents to inspect the condition of the Election materials at the commencement of polling. He however obliged after some insistence from agents. And on inspection the materials and ballot boxes were found to be in good order. Similarly Pauline Nabwire Ouma whose name was wrongly marked as having been issued with a ballot paper was allowed to vote. These are isolated and insignificant transgressions which were in any event corrected.
142) PW23 who was an aspirant and the eventual runners up in the declared outcome felt disadvantaged because of the manner in which his name appeared in the ballot paper. He claims to be popularly known as Dr. Oundo Mudenyo and it was his wish that this popular name appeared as his name in the ballot paper. Instead the names used were Wilberforce Ojiambo Oundo. The witness sought to demonstrate that the Election was skewed in favour of the 3rd Respondent. The however witness was to concede that his official name is Wilberforce Ojiambo Oundo. That is the name that appears on both his National Identity Card and Passport. Critically, it is the name that appears in the Register of voters
143) PW23 was a UDF Party Candidate. Regulation 38(a) of the of the Regulations requires that a Nomination paper submitted by a Political party should bear the name of the candidate as it appears in the Register of voters. The words of that Regulation are in mandatory terms. A validly nominated candidate is issued with a Certificate of Nomination (Regulation 51(2)). An essential of a ballot paper is that it shall contain the name and Party symbol of the person validly nominated (Regulation 68). The only logical inference is that the name of the candidate in the ballot paper shall be as it appears in the Nomination Certificate and the name in the Certificate shall be as it appears in the Nomination paper submitted by the Political Party. In obedience to Regulation 38(a) the Nomination paper must bear the name of the candidate as it appears in the Register of voters. The name of PW23 appearing in the Register of voters is Wilberforce Ojiambo Oundo. And in compliance with the law the name that appeared in the ballot paper was that name. PW23 cannot be heard t accuse the Commission of bias when the Commission had complied with the law. There is no merit in this complaint.
The Court renders itself
144) In my humble view, this Petition was a tale of many allegations with little proof. It does not require an alchemy to turn allegations into fact. What is required is the quality of evidence set by the Law. The Petitioner, I am afraid has failed to discharge the onus placed on him by the Law. This Court must at all times keep in view the provisions of Section 83 of the Act which are significant enough to deserve recalling.
“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.”
There was evidence of some minor transgressions committed by the Commission. Those did not constitute substantial non-compliance with Electoral Laws. And they did not affect the result. This Court finds that the Election for the National Assembly for Funyula Constituency was free and fair and complied with the principles laid down in the Constitution and the written Law relating to Elections. The win by the 3rd Respondent was not a close call. The people of Funyula spoke clearly and loudly. The primary duty of an Election Court is to give effect to the will of the people. This Court finds that Hon Paul Otuoma Nyongesa was validly declared as the elected member for the National Assembly for Funyula Constituency in Election held on the 4th of March 2013. Let “Eifumbuhe Siitya Olume” prevail for now. This Petition is dismissed with costs.
A proxy Petition?
145) Throughout the proceedings the Court sensed that the Respondents blamed this Petition on one Eugene Victor Wandera and Dr Wilberforce Ojambo Oundo (PW 23). That became more the clearer when I was urged by Counsel for 3rd Respondent, in his closing arguments, that I should order that the costs of this Petition be borne by the two. The 3rd Respondent is saying that this is a Proxy Petition brought by the Petitioner on behalf of the two losers.
146) I have, elsewhere, in Busia Election Petition No. 2 of 2013, Henry Okello Nadimo –Vs IEBC & 2 Others reflected on how to deal with such an assertion and I stated-
“The 3rd Respondent has repeatedly asserted that this Petition is brought by the Petitioner as a proxy of some named principals. The 3rd Respondent will have to prove those allegations. Needless to say no adverse finding can be made against the so called principals without affording them an opportunity of answering the allegations. But in the event that the proxy arrangement were to be proved and
the Petition fails, then a fair question would be whether the Respondent should have a remedy of costs against the “principles”. It is the suggest of this Court, without pretending to provide a final answer, that Rule 36(1) of 36(1) of The Election (Parliamentary & County Elections) Petition Rules 2013 is wide enough to enable a Court direct an order of costs against such persons. The Rule provides-
‘36(1) The Court shall, at the conclusion of an Election Petition, make an order specifying-
(a) The total amount of costs payable;
and
(b) The persons by and to whom the costs
shall be paid (my emphasis)
The use of the word “persons” and not “party” is, in my view, deliberate. In appropriate circumstances, persons other than the Petitioner/s or the Respondents
may be subjected to costs. There is no reason why the actual owner of a failed petition should be left unpunished.”
147) An allegation that a Petitioner is an “Agent Petitioner” is indeed serious. That label discredits both the Petitioner and his supposed principles. The Petitioner and Dr Oundo took to the witness stand. But I saw no serious effort by the Respondents to demonstrate that the Petitioner was a shadow of Dr Oundo or Wandera. I decline to return a verdict condemning them.
Costs
148) I was urged by Counsel for both sides to grant a certificate of costs for two Advocates as the case was omplex and involving. Paragraph 59 of the Advocates Remuneration Order gives discretion to a Judge to certify for costs for more than one Advocate in certain matters. Confronted with a similar question Leonala J. in Election Petition 2 of 2008 Francis Mwanzia Nyenze –vs- Charles Mutisya Nyamai & 2 others stated;
“Granted, election petitions are a matter of public interest but I take the firm view that the fact of being political in contents should not increase their importance in the eyes of the court. Neither do I take the view that there is anything spectacularly technical about them save for political emotions which are in no way a measure of technicality.”
Given the number of witnesses and the lengthy hearings the task of Counsels was without doubt involving. That said this matter cannot be said to be complex. True the case involved a discussion of the provisions of a new Election Statute and Regulations. It also involved a discussion of Electoral principles against the backdrop of the 2010 Constitution. That said the discussions were within fairly well settled legal principles that have governed Electoral disputes in the past.
149) The answer to the laborious nature this Petition is not in granting a certificate for two Advocates but in remunerating the effort made by Counsel in attending to this matter both in and outside Court. The Respondents will have to persuade the taxing officer as to what is a fair and just remuneration. On my part, I shall give the taxing officer that latitude but being mindful the costs should not be used to punish and hurt a losing party. I use the powers granted to me by Rules 36 of the Rules to cap the total amount that shall be payable. The total amount payable shall be the sum of kshs.4, 000,000/= to be shared equally between the 1st and 2nd Respondents on the one hand and the 3rd Respondent on the other. Whatever sum shall be arrived at by the taxing officer shall be shared on that basis.
150) Finally, I owe a gratitude to the people of Funyula for the patience shown during the hearing and disposal of this matter. To Counsel, their outstanding contribution through arguments and research made the task of preparing the decision the lighter. Thank you. I also thank the entire staff of Busia Law Court for the invaluable support I received in the course of this long hearing. My special gratitude, as always, to the Deputy Registrar of this Court Madam Mildred Munyekenye.
F. TUIYOTT
J U D G
DATED, SIGNED AND DELIVERED AT BUSIA THIS 26TH
DAY OF SEPTEMBER 2013
IN THE PRESENCE OF:
KADENYI……………………………………………….COURT CLERK
OUNDO………………………………………………FOR PETITIONER
MUTAHI………………………………………….FOR 1ST RESPONDENT
MUTAHI…………………………………………FOR 2ND RESPONDENT
HON ORENGO & WANGALWA……….…… FOR 3RD RESPONDENT
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