REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

(CORAM: R. MWONGO, PRINCIPAL JUDGE)

ELECTION PETITION NO. 9 OF 2013

IN THE MATTER OF THE ELECTIONS ACT, LAWS OF KENYA

AND

IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY) ELECTIONS PETITION RULES

AND

IN THE MATTER OF THE ELECTION FOR THE MEMBER OF PARLIAMENT, EMBAKASI EAST CONSTITUENCY

MARY WANGARI MWANGI………….………………….……….. PETITIONER

VERSUS

JOHN OMONDI OGUTU………...……………….….….…….1^ST RESPONDENT

SYLVIA MARITIM, RETURNING OFFICER 

EMBAKASI EAST CONSTITUENCY…………………….…2^ND RESPONDENT

THE INDEPENDENT ELECTORAL &

BOUNDARIES COMMISSION (IEBC)……………..……….3^RD RESPONDENT

JUDGMENT

1. BACKGROUND AND HEARING PROCEDURES

1.  The election for Embakasi East Constituency in Nairobi County filled nine candidates against each other. John Omondi Ogutu, the 1^st Respondent, was declared the winner with 36,781 votes. His closest rival was the Petitioner, Mary Wangari Mwangi with 33,027 votes.  The outcome was published in the Kenya Gazette on 13^th March, 2013. 

2. Dissatisfied with the outcome, the Petitioner filed this Petition on 10^th April, 2013.  The 1^stRespondent filed his response to the Petition on 3^rd May, 2013 and the 2^nd and 3^rd Respondents filed their response on 25^th April, 2013. The petition was filed pursuant to the Sections 75,76 and 77 of the Constitution 9 (sic)); Section 19 (sic) of the Elections Act, 2011, and Rule 9(3)(b) of the Election (Parliamentary and County Elections ) Petitions Rules, 2013 (“the Elections Petitions Rules), 2013.

3. The Petition seeks the following prayers:

1. “There be declaration that the 1^st Respondent was not duly elected and so the elections was void;
2. There be a declaration of which candidate was validly elected;
3. There be an order as to whether a fresh election should be held or not.
4. There be a declaration of whether the process was fair, credible and reliable.
5. It be ordered that there be an examination of the elector’s register used in all the polling stations in Embakasi East Constituency in the General Elections held on 4^th .3.2013 to determine the exact number of electors who cast their votes.
6. It be determined and ordered that the election of the 1^st Respondent as Member of Parliament for Embakasi East Constituency was in any event null and void and he was, therefore, not duly elected.
7. It be ordered that the Respondents be condemned to pay costs of this Petition.
8. Such further or other relief of orders be made as may be just.”

4. The court convened a status conference on 10^th May, 2013 at which the parties indicated their state of readiness for pre-trial.  Various steps were agreed by the parties and requisite orders and directions were issued.  An interlocutory application to strike out the petition had been filed and written submissions were ordered to be filed ready for ruling at the Pre-trial conference.

5. A pre-trial conference was held on 4^th June, 2013 as scheduled pursuant to Rule 17 of the Elections Petitions Rules.  The Respondents’ application to strike out the petition for, inter alia, failure to serve the petition and to comply with the prescribed advertisement requirements, was dismissed.  Thereafter, the 1^st Respondent raised another application to expunge a document “MWM1” which had been indicated as exhibited to the petitioner’s affidavit, but had infact been omitted therefrom.  This application was subsequently also dismissed10^th June, 2013.

6. In the meantime, the parties agreed upon various processes at the pre-trial conference.  The Petitioner indicated she would call thirteen witnesses. The 1^stRespondent indicated he would call one witness other than himself. The 2^nd and 3^rdRespondent indicated they would call two witnesses.  The hearing was fixed by consent for 18^th, 19^th and 20^th June, 2013.  Parties agreed to a hearing programme commencing at 9.15 a.m. and ending at 4.00 p.m. daily.  Parties were directed to agree on narrowed down issues for determination, and on how the time for hearing the petition should be allocated as between them.  Other housekeeping directions were also issued. A mention for compliance was fixed for 13^thJune, 2013.

7. On 13^th June, 2013 the issues for determination were narrowed down and agreed.  All pleadings presented with depositions were paginated and marked as bundles.  The parties also agreed that depositions filed would stand as evidence-in-chief, with the deponent affirming the content andhisorher signature thereon. Such witness would thereafter be cross-examined and re-examined.  A time-bank sheet was also agreed by which each party was allotted and credited an agreed block of time. Over the duration of the hearing period, it would be utilized at that party’s behest in conducting its case. Whenever that party’s counsel was on his or her feet,the time spent would be clocked and debited on thatparty’s timesheet.

8. The hearing commenced on 18^th June 2013 and closed on 20^th June, 2013 as scheduled.  Ten witnesses in  support of the petition were called namely: Mary Wangari Mwangi, the Petitioner (PW1); Ricardo Nyantika, (PW2); Lucy Wanjiku Wachera, (PW3); Stephen Kagoiyo Mwangi, (PW4); Felix Murumba Isoka, (PW5); Eunice Gathigia, (PW6); Ann Muthoni Nganga (PW7); Samuel Ngomali Muema, (PW8); James Karigu Njoroge, (PW9) and James Ndungu Kinuthia, (PW10).

9. Five other witnesses for the Petitioner had sworn depositions, and werenot called by the Petitioner by the close of her case.  On application by the 1^st Respondent, supported by the 2^nd and 3^rd Respondents, the depositions of the uncalled witnesses were expunged from the court record. The expunged depositions were for Mercy Nyamai, Robert Kitheka, Gladys Waruguru Wanjohi, Robert Mageto Onsongo and Ongaya Shisanya.

10. The 1^st Respondent, RW1, gaveevidence and called Jane Nyamwitha Kagai, RW2, in support of his case.  The 2^nd and 3^rdRespondents’ evidence came throughthe Returning Officer for Embakasi East Constituency, Sylvia Maritim, RW3, and Daniel Mutemi, RW4, the Presiding Officer at Soweto Social Hall Stream 13.

11. The parties agreed that after close of the hearing, written closing submissions would be highlighted by counsel. The Petitioner was represented by Mr. Okatch and Mr. Munyororo. The 1st Respondent was represented by Mr. Kwach and Mr. Wakla. The 2^ndand 3^rd Respondents were represented by Ms. Mate and Mr. Munyu.

2. The Issues for Determination

12. Pursuant to the agreement of the parties and after narrowing down the disputed matters, the issues for determination were established by the parties to be the following:

1. “Whether there were serious electoral malpractices of omission or commission by the Respondents leading to an election that was neither credible free and fair thereby affecting the results of the election.
2. Whether the 2^nd& 3^rd Respondents used a different picture of the petitioner other than the one provided and as such made identification by voters difficult.
3. Whether the official results declared by the 2^nd& 3^rd Respondents for Embakasi East Constituency at the Constituency Tallying Centre and at the National Tallying Centre were authentic, reliable and accurate. 
4. Whether the1st Respondent was validly elected as MP for Embakasi East Constituency.
5. Who should bear the costs of this petition?”

3. THE PETITIONER’S CASE

13. In her petition the Petitioner alleges that numerous malpractices by the Respondents marred the integrity of the election.  These included: Treatment of voters and bribery by the 1^st Respondent; voter suppression in the constituency by the 2^nd& 3^rdRespondents including  misdirecting voters who had registered at Greenspan Polling Station to vote at Donholm Primary School, and later converting Greenspan into a polling station; that 1^st Respondent was engaged in undue influence through a scheme to vote twice.

14. The Petitioner further alleged that the 3^rd Respondent allowed double voting by voters; that there was failure of the electronic voter identification devices, leaving room for manipulation of the voting process; that there were discrepancies between the results announced by the 2^nd Respondent and 3^rdRespondent; that the Presiding Officers of the 3^rdRespondent fell asleep during counting and  tallying of votes; and that the 3^rdRespondent used a photograph of the Petitioner other  than the one  officially  submitted by the petitioner leading to voters  failing to recognize or identify her.

15. By consent the parties had agreed that the Petitioner may file replies to the Respondent’s Answers to the Petition.  These were filed by the Petitioner on 20^th May, 2013, together with further supporting affidavits of the Petitioner.

16.  In her testimony, PW1 stated that ballot papers were transported without security. She made particular reference to Donholm Polling Station where she said that the boxes were left without security and seals. However, when asked whether she offered her own seals for purposes of sealing the boxes, PW1 said that she did not.  She further stated that she did not know who accompanied the boxes only saying that she saw the clerks and the presiding officers in a matatu. She also did not know of any agents who accompanied the ballot boxes

17. PW1 further testified that the 1^st Respondent set up a meeting prior to election dayon the 3^rd March, 2013 which, according to PW1 was an offence. However, she stated that she did not make a formal complaint on this.

18. Ricardo Nyantika, the Petitioner’s Chief agent testified as PW2. He stated that Donholm polling station was opened at 8.00 a.m. whilst voting started between 8.00a.m. and 9.00 a.m. However, in his affidavit, he stated that voting started at about 6.30 a.m.-7.00 a.m. He also testified that there were voters at Donholm polling station who were sent to Greenspan polling station because their names were not in the Donholm polling station Register. PW2 stated that the voters were about 20 in number. He also testified that he did not get a chance to check the register, and that he was also aware that one can only vote where they have registered as voters.

19. PW2 testified that at Greenspan, some of the voters were referred back to Donholm polling station. However, it was PW2’s testimony that he did not note these voters’ names. According to PW2, Greenspan polling station was closed 5p.m. whilst some voters were still in the queue.  In his estimation, 1,200 people did not vote; however, PW2 did not count them.

20. It was PW2’s testimony that at Donholm Polling station, he saw agents counting votes. Further, he also saw them counting votes at Greenspan Polling station. He also testified that all the agents were counting the votes. However, agents for, The National Alliance Party (TNA) stopped counting the ballots when he complained. According to PW2, there were agents who did not sign the Form 35, and further, that they were not given these forms.

21.  Lucy Wanjiku Wacera testified as PW3.  She was an observer appointed by Centre for Multi-Party Democracy (CMD). In her testimony she stated that she remembered incidences of people being asked to go to Greenspan Polling station from Donholm Polling station. At Donholm polling station, she said the gates were broken down at 6.30 a.m., and further that voting began between 7.30 a.m. and 8.00 a.m.

22. According to PW3, who testified that she had checked the voters card of about 4 voters which indicated that they had registered at Donholm Polling station, and yet they were being referred to Greenspan polling station. She further stated that she took a look at the Register of one of the streams at Donholm, however, she could not ascertain whether any of the voters were registered there or not.

23. PW3 stated that at Greenspan polling station, the gates were closed at 5p.m. and that there were about 1000 people outside the mall. As regards the closing of the polling stations, PW3 stated that they were meant to close 12 hours from the time of opening, thus regardless of what time it was, the polling stations should have closed after 12 hours.

24. As regards the allegation that the 3^rd Respondent’s officials were dozing off during the counting of the votes, PW3 testified that she saw this at Donholm polling station. There, party agents took over counting of the ballot papers.  It was also PW3’s testimony that some ballot boxes were open as counting of other ballots was going on.  Further, that she did not see anyone stuffing a box with ballot papers; however, she did see the Presiding Officer interfering with the open box. She also stated that he did not do anything with the ballot papers. These allegations however, were not included in her affidavit.

25. It was PW3’s testimony that there were some Form 35s that did not have stream numbers and others were not signed. She did not verify with the 3^rd Respondent whether the forms they had had been signed. When PW3 was shown the Respondent’s documents, she stated that they had been signed.

26.  Stephen Kagoiyo Mwangi testified as PW4. He was an agent stationed at Soweto Social Hall Stream 13. He testified that he had observed unusual behavior by the 3^rd Respondents’ Officials during the morning hours of polling day. He stated that later on, they found a man who was just about to put the ballot papers in the ballot box. Among the ballot papers that the man was found with, none of them belonged to the position of Member of National Assembly. He further said that clerk number 5 was giving the ballot papers for the position of County Governor was arrested.  PW4 said that he also testified in the case against the voter for double voting.

27. It was PW4’s testimony that there was also another lady who was given two ballot papers and that the presiding officer said that that was a mistake. According to PW4, they did not catch anyone else with double voting.  

28. PW4 also testified that he took part in the counting of the votes as the 3^rd Respondents’ officials were dozing. He said that he did the voting faithfully. Further, PW4 stated that he did not sign the form 35, although other agents signed it. Others, he stated left before signing.

29. Felix Murumba Isoka, PW5 and Eunice Gathigia, PW6 in their testimony stated that agents were asked to count the ballot papers by the 3^rd Respondents’ Official. Further, that the 3^rd Respondents’ Officials were dozing during the counting of the votes.

30. Samuel Ngomali Muema testified as PW8. In his testimony, he stated that he saw Ann Mbula going to his mother Anna Wanza’s house. He saw about 50 people gathering at Ann Mbula’s house on the 3^rd March, 2013. PW8 was also present at the house where they were given food and drinks. They were also given alcohol and in particular, chang’aa. The gathering was also told that after voting they would be given money. At first they were given Kshs. 200 by Anna Mbula as down payment before the voting; the balance was to be collected after voting. However, on further cross-examination, PW8 stated that it was his mother, Anna Wanza who gave him the Kshs. 200. It was PW8’s testimony that he did not know who gave Ann Mbula the money. Further, he testified that he did not see other people being given money at Ann Mbula’s house.

31. It was PW8’s testimony that they ate and drank the whole night and by the time he went to vote, he was still drunk. At the polling station, he testified that he was not asked about his condition.

32. However, PW8 stated that when he was asked why he was drunk he stated what was expected.He was then quickly taken through the process.

33. PW8 testified that the problem begun when he was voting, when he was arrested for having excess votes by two. When asked why he had excess ballot papers, PW8 stated that they were given to him, but he did not know they were excess.  He was thus arrested and charged at the Milimani Law courts with the offence of having excess of two ballot papers; he pleaded guilty and was convicted for 4 years.

34. In re-examination, PW8 testified that at Ann Mbula’s house, they were told to vote for the CORD Party. Further, he stated that he was too drunk to understand who he was voting for.

35. James Karigu Njoroge a registered voter at Soweto Social Hall testified as PW9. In his evidence, he stated that on the 1^st March 2013, he was called by one, Jane Kagai for a meeting at her house where he found around 40 or 50 people. Further, that Jane Kagai told them that she had received money from the 1^st Respondent. However, PW9 testified that the guest they were awaiting did not show up.

36. It was PW9’s testimony that Jane Kagai had said that her candidate had sent her Kshs. 5,000 via Mpesa. He was however not able to ascertain this. Further that he was given Kshs. 100 in cash by Jane Kagai.

37. PW9 further testified that on the 3^rd March, 2013, he was called again by Jane Kagai. He went and again met about 40 to 50 people. This time round, the 1^st Respondent was present. On this day, PW9 testified that the 1^st Respondent gave Kshs. 50,000 to Jane Kagai which he announced to the gathering. PW9 stated that the 1^st Respondent said that he was giving them ‘chai’ so that they could do politics for him and ‘look’ for votes for him.

38. PW9 stated that he was given Kshs.1, 000 by Jane Kagai. He further stated that there was no problem in Jane Kagai giving him money. It was PW9’s testimony that the 1^st Respondent stated if there were people who were able to vote twice, they should do so. He also testified that the 1^st Respondent told them that they could ask for anything else they wanted from Jane Kagai. However, he said that the 1^st Respondent did not tell them of any plans or schemes to vote twice.

39. In reference to paragraph 11 of his affidavit, PW9 stated that it was not the 1^st Respondent who told them to vote twice, but that it was Jane Kagai.PW9 testified that he did not report to the police that he was being bribed.

40. As regards the assertion that PW9 had problems with Jane Kagai, the same were denied by him.

41. James Ndung’u Kinuthia, also a registered voter at Soweto Social Hall, testified as PW10. In his testimony, he stated that Jane Kagai sent her son to him with an invitation at about 10a.m. His evidence was similar to that of PW9. He stated that when he arrived at her house, therewere about 40 other people. At around 11 a.m. the 1^stRespondent arrived and was introduced to the gathered people. He testified that he also saw the 1^st Respondent give Jane Kagai Kshs. 50,000. However, when asked whether he was sure about the amount, he stated that he was not very sure. From this money, he testified that he received Kshs. 1, 500.

THE 1^ST RESPONDENT’S CASE

42. The Respondents deny the allegations made in the Petition and instead aver that the election in which the 1^st Respondent was returned as the Member of National Assembly was held in compliance with the electoral laws, devoid of any irregularities; but in the alternative, that in the event that there was any non–compliance with the electoral laws, this never affected the outcome of the election. 
43. The 1^st Respondent testified as RW1. He stated that voting was conducted properly and fairly. He further stated that he had agents all over who did not tell him of any irregularities.

44. As regards Greenspan polling station, RW1 testified that the long queues were justified as it was a new polling station. Further that it was not unusual for voters to be sent to other stations.  He attributed it to a redirection problem.  RW1 also testified that the people at Greenspan polling station were denied access into the station, further stating that they had reached the station after gates had been closed. It was RW1’s testimony that the polling station was supposed to be closed at 6.00p.m., however, it was closed at 5.00 p.m. As regards Donholm, RW1 stated that voters were being re-directed.

45. With regard to the voter who voted twice, RW1 stated that he was not present at that polling station.

46. It was also RW1’s testimony that the he did not see any agents counting votes; that he was able to recognize all the photographs on the ballot paper; that he was present at the East African School of Aviation which was a tallying Centre, and that the agents were allowed to witness the tallying. 

47. Jane Nyamwitha Kagai testified as RW2. In her testimony, she stated that she runs a rescue centre and is a community peace builder. As such, she did not support anyone politically.

48. Ms.Kagai denied holding any meetings at her home. When asked whether she knew PW10, it was Ms. Kagai’s testimony that the two never saw eye to eye. She also denied the assertions that she had received any money via Mpesa or elsehow from the 1^st Respondent.

THE 2^ND &3^RD RESPONDENTS’ CASE

49. Sylvia Maritim, the 2^nd Respondent and the Returning Officer for Embakasi East Constituency testified as RW3. In her testimony she stated that polling stations were opened at 6.00 a.m. and were closed at 5.00 p.m. When the Presiding officer would open a station, they would send her a text message.

50. As regards the incident at Soweto Polling station, it was RW3’s testimony that she was informed of the incident at about 3.30 to 4.00 p.m. She was informed that someone had been found with two ballot papers. However, she stated that the ballot papers had been stamped as spoilt.

51. It was RW3’s testimony that she declared the results for the winner as contained at page 3 of her affidavit which returned the 1^st Respondent as the winner; further stating that there were no other results.As regards the disparity in votes she stated that the presiding officers had not slept in days, thus when they got some rest and did a tabulation of the results as contained in the Form 35, they found that the results were similar and that the winner had more or less the same votes as had been attributed to him. The errors were further attributed to arithmetic errors.

52. Thus, the final results were that the Petitioner garnered 35,545 whereas the 1^st Respondent got 36, 308. As regards the question of whether the form 36 was signed by agents from the Petitioners’ party, RW3 in her testimony stated that the form was signed by the agents who were present at the tallying center.

53. With regard to the photograph, it was RW3’s testimony that the candidates were required to put their photograph in a Compaq Disc (CD) to be given to her for purposes of helping the electorate to identify the candidates on the ballot paper.  According to RW3, the picture on the ballot paper and the one on the CD were the same.

54. As regards the alleged electoral malpractices, RW3 testified that she told the Petitioner to report the same to the Presiding Officer and further lodge a formal complaint. On the issue of Samuel Ngomali, RW3 testified that he together with a clerk were arrested and that the ballot papers that were found in his possession were stamped as ‘spoilt’ which action she said was fast.

55. It was RW3’s testimony that she did not receive any complaints on irregularities.

56. RW3 also testified that copies of the Form 35 were given to the agents on request.

57. As Regards Greenspan and Donholm Polling stations, RW3 testified that there was a lady who went to Donholm and was told to go to Greenspan; when she went there, she was referred back to Donholm. While at Greenspan, the lady called RW3 and her name was traced. She further stated that a voter cannot vote where he/ she has not registered. According to her both Greenspan and Donholm were gazetted as polling stations. It was also RW3’s testimony that she got many complaints as regards the long queues wherein voters were asking for the creation of new streams.

58. As regards the allegation of the agents counting votes, it was RW3’s testimony that she neither received such a complaint from the Petitioner nor from the Chief Agent.
59. With regards to the allegation of unsealed ballot boxes or mishandling of ballot boxes it was RW3’s testimony that she did not receive any complaint on this.

60. Daniel Mutemi, the Presiding Officer at Soweto Social Hall testified as RW4. In his testimony, he stated that voting went on well save for one incident. He said that clerk no. 6 noticed an anomaly and called him. He also testified that he recorded the incident in the Daily Diary. It was his testimony that no one else was caught voting twice.

61. According to RW3, the votes that were found with the Samuel Ngomali were stamped as ‘spoilt’ being for the position of Governor. They were of the Serial Numbers GV 47 01274047, GV 47 01274048 and both were marked in favour of Evans Kidero, and for the position of County Representative with serial number CA 1422 0017697 and CA 1422 0017698 both marked in favour of Alfred Muhindi.

62. It was RW4’s testimony that the clerks were awake during the counting of the ballot papers and that the counting of votes was done by the 3^rd Respondents’ officials and not by the agents as alleged.

THE PRINCIPLES APPLICABLE TO DETERMINATION OF ELECTIONS PETITIONS

63. This court has stated five principles applicable to the determination of electoral disputesin two previous petitions. These are the cases of Ferdinand Waititu v IEBC and 8 Others, Milimani High Court EP No 1 of 2013 [2013] eKLR and George Omweri Aladwa v Benson Mutura Kangara and 2 Others, Milimani High Court EP No. 4 of 2013.
64. Principle 1: is on the sovereignty of the will of the people. Under this principle the court seeks to determine whether the election result is a reflection of the intent and will of the voters. See Richard Kale be Ndile vs. Patrick Musimba Musau & Others, Petition No. 7/2013 [2013] eKLR.

65. Principle 2: Election Petitions are in their own category of litigation, neither controlled by the Civil Procedure Act and Rules or the Criminal Procedure Rules.  See Benjamin Ogunyo Andama vs. Benjamin Andola Andaji, Civil Application No. 24 of 2013 (UR). As such they must be proved by cogent, credible and consistent evidence (Joho vs. Nyange & Another (2008) 3 KLR EP. 500.

66. Principle 3: A Petitioner is bound by his pleadings, Mohammed Mohamed Sirat vs. Ali Hassan Abdirahman&2 Others, Nairobi Election Petition No.  15. 2008 [2010] eKLR; see also TH Musthaffa vs. MP Varghese, AIR 2000 SC 153 where the Supreme Court of India held in  an election petition that if pleadings did not contain the necessary foundation for raising an appropriate issue, the same cannot go to trial. Thus, any amount of evidence in that regard, however excellent the same may be, will be futile.

67. Principle 4: Irregularities and non compliance with the electoral law will not necessarily lead to invalidity of an election unless they affect the result of the election, or constitutional principles were breached.  See Section 83 Elections Act. See also Morgan v. Simpson (1974) 3 ALL ER 722 at 728 where Denning LJ stated: 

         “I suggest that the law can be stated in these prepositions:

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 was affected or not. That is shown by Hackney case (1874) 2 O’M & H 77, where 2 out of 19 polling stations were closed all day and 5,000 voters were unable to vote.
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. That is shown by the Ishington case (1901) 17 TLR 210 where 14 ballot papers were issued after 8.00 pm.
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 a mistake at the polls – and it did affect the result – then the election is vitiated. That is shown by Gunn vs. Sharpe (1974) 2 All ER 1058 where the mistake in not stamping 102 ballot papers did affect the result.”

68. Principle 5: The burden of proof lies on the Petitioner (Mbowe vs. Eliufoo (1967) EA 240). The standard of proof is higher than a balance of probabilities and where there are allegations of fraud or election offences, a very high degree of proof is required. See Joho v. Nyange & Another (2008) 3 KLR (EP) 500; See also Bernard Shinali Masaka vs. Boni Khalwale & 2 Others [2011] eKLR where Lenaola, J said:

“I agree with the proposition grounded on the decision in Mbowe vs Eliufoo [1967] E.A. 240 that any allegations made in an election petition have to be proved to the “satisfaction of the court”. Like Rawal J. in Onalo, I am certain that the standard of proof, save in matters where electoral offences are alleged, cannot be generally beyond reasonable doubt, but because of the quasi – criminal nature of some election petitions, it is almost certainly on a higher degree than merely on a balance of probabilities, the latter being the standard in civil cases.”

ANALYSIS AND CONCLUSIONS

69. I have considered the oral and documentary evidence, the parties submissions and authorities availed by the parties. I have also set out above the principles that I consider relevant to the determination of electoral disputes.

70. I will now deal with each of the allegations in the petition. Thereafter, I will answer the issues framed for determination by the parties.

The Petitioner’s Photograph

71. The Petitioner’s complaint here was contained in paragraph 35 of the Petition, where the Petitioner asserted:

“On the ballot papers for Member of National Assembly, the 3^rd Respondent used a different picture of the Petitioner from the one the Petitioner submitted.  This made it difficult for the voters to identify/recognize the Petitioner as the picture used was the one the petitioner used for campaigning and on her posters.”

72. In her deponed evidence, the petitioner said she submitted to IEBC the photograph she intended to be used in the ballot papers.  Similar copies were annexed to her affidavit as ‘MMM4’ and ‘MMM5’.  She also exhibited a copy of hercampaignposter as ‘MMM6’, which contained the same photograph.

73. The 1^st Respondent said in his evidence that the pictures of thePetitioner in the ballot papers resembled her.  Those annexed to the Petitioner’s affidavit and those in the ballot papers were similar.

74. The 2nd& 3^rdRespondents answered simply that the photograph which they used on the ballot papers was in factsupplied by the Petitioner.  They also attached a computer disk containing the photograph which they allegedly received from the Petitioner and used in the ballots.

75. In her testimony, Sylvia Maritim said that there was no reason for her to change the petitioner’s photograph as she did not know her. In re-examination she said that the petitioner did not complain on election day that the wrong picture had been used.

76. In cross-examination by Mr.  Wakla, the Petitioner said that the photograph she gave IEBC is not the one that they used on the ballot paper.  When shown page 255 of the 2^nd Respondent’s documents where there was a picture, she admitted it was the one she gave to IEBC.  She agreed that it was also the one she had annexed in her bundle at page 12.  She further said that only two ladies vied for the Embakasi seat: herself and Rose Ndunge Kisia.  She admitted that IEBC did not take or engage anyone to take any photographs of her.

77. In cross examination by Ms. Mate for the 2 & 3^rd Respondents, the Petitioner said she did not have a copy of the allegedly ten year old photograph that she claimed was used by IEBC.

78. The evidence given by the Petitioner on this allegation is highly insufficient to enable this court declare that there was an irregularity in that regard.  Her real complaint is that the photograph used by IEBC in the ballot paper was not truly representative of her and confused her identity to the majority of voters. Other than her Chief Agent, she did not bring a single witness to testify as to the confusion caused by the photograph. No voter testified that they could not recognize her.

79. She did notproduce a photograph or copy of the ballot paper she said contained an old picture of her.  She did not explain where IEBC could have obtained an old picture of her. She denied giving them any such old photograph. She did not apply in court for production of the ballot papers for comparison of the pictures. Yet, she did produce photocopies of ballot papers for Governor Election and County Assembly elections at pages 14 – 17 of her bundle.  The burden of proof lay upon her.  She did not discharge it.  I am unable to accept her allegation without proof. It remains a mere allegation. This ground cannot stand in favour of the petitioner’s case.

Malpractices

80. The Petitioner’s case revolved around alleged malpractices committed during the elections.  In the petition they are highlighted as follows:

1. At paragraph 14 of the petition there is an allegation ofTreatment. This is an election offence under Part VI of the Elections Act,section 62.

2. At paragraph 15 of the Petitionthere is an allegation ofBribery.  This is also an election offence under section 64 of the Elections Act.

3. At paragraph 16 of the Petition there is an allegation of Voter Suppression.

4. At paragraph 19 of the Petition there is an allegation ofUndue influence. This is an offence under section 63 of the Elections Act.

5. At paragraph 18 of the petitionthere is an allegation of Failure of Electronic Voter Identification Devices.

6. At paragraph 19 of the petition there is an allegation of Double voting. This is an offence under section 58 (m) of the Elections Act.

7. At paragraph 20 of the Petitionthere is an allegation that there werediscrepancies between results announced by the 2^nd Respondent and those announced by the 3^rd Respondent.

8. At paragraph 26 there is an allegation ofTransporting ballot boxes without security and unsealed, Election officials falling asleep during counting and incorporating candidates’ agents  as counting officials

81. I discuss hereunder each of the alleged malpractices in light of the evidence availed.

Treatment

82. The Petitioner alleged that on 3^rd March, 2013 at Soweto Social Hall, the 1^stRespondent directly, and through his agents,treated voters immediately before the elections. The offence of treatment set out inSection 62 of the Elections Act provides as follows:

“62. (1) A candidate who corruptly, for the purpose of influencing a voter to vote or refrain from voting for a particular candidate or for any political party at an election—
(a)  before or during an election—
(i)  undertakes or promises to reward a voter to refrain fromvoting;

(ii)  gives, causes to be given to a voter or pays, undertakes or promises to pay wholly or in part to or for any voter, expenses for giving or providing any food, drinks refreshment or provision of any money, ticket or other means or device to enable the procurement of any food, drink or refreshment or provision to or for any person for the purpose of corruptly influencing that person or any other person to vote or refrain from voting for a particular candidate at the election or being about to vote or  refrain from voting, for a particular candidate, at the election;or

(b)  after an election, gives, provides or pays any expense wholly or in part to or for any particular voter or any other voter for having voted or refrained from voting asaforesaid,commits the offence of treating.

(2)  A voter who accepts or takes any food, drink, refreshment, provision, any money or ticket, or adopts other means or devices to enable the procuring of food, drink, refreshment or provision knowing that it is intended to influence them commits the offence of treating.”

83. The offence is committed if the person accused, namely the  candidate,  does any of the following before or during an election: he undertakes or  promises to reward, or gives or causes to be given or pays or promises to pay any expenses or provides  food, drinks or refreshments to influence a voter to vote or not to vote.

84. The Petitioner’s evidence on this allegation came through Samuel Ngomali Muema, PW 8; James Karigu, PW9 and James Ndungu Kinuthia PW10.

85. James Kinuthia Ndungu, (PW10) stated in his affidavit that on 3^rd March, 2013, he was called by Jane Kagai for a meeting and for food.  When he got to her home at about 10.00 a.m., he found about sixty people there. At around 11.00 a.m. the 1^st Respondent arrived accompanied by some people.  The 1^st Respondent allegedly  told the  gathering in his own voice that he had made arrangements to facilitate double voting in streams  ‘M’ and ‘O’ in Soweto.  This would be by rubbing off ink from the small finger using coca cola.  He said that the 1^st Respondent then gave Kshs.50,000/- cash to Jane Kagai, of which he received 1,500/-.

86. Ndungu, said he knew Jane Kagai for many years. According to him, they lived in the same village atsome stage.  In cross examination, he said that the 1^st Respondent came to a meeting at Jane Kagai’s house.  That there were about 40 people in the house.  1^st Respondent said he had come to seek their support, and said he had left Kshs.50,000/- as chai for them.  He saw the money but did not count it.  Jane Kagai counted it, and gave him 1,500/-.  Everyone was given some money. 

In re-examination, Ndungu said he saw Omondi give the money and that he was sitting about 15 feet away.

87. The evidence of James Karigu (PW9), was, like Ndungu’s, that he was called on phone by Jane Kagai on 1^st March, 2013. Jane told him that they were campaigning for the 1^st Respondent. That she received money via Mpesa on her phone from the 1^st Respondent, and each person was given Ksh.100/-.  Then on 3^rdMarch, 2013, he was again called by Jane Kagai at about 9.00 a.m, and invited to her home.  On getting there he found around 20 people gathered.  At around 11.00 a.m. he saw the 1^st Respondent arrive, at which time there were about 50 people present.  The 1^st Respondent then allegedly told them “by his own voice” that he had organized his people in Soweto to facilitate double voting in streams ‘M’ and ‘O’.  Thereafter, the 1^st Respondent allegedly gave Kshs. 50,000/- to Jane Kagai to give to the assembled group.  Karigu said he received Kshs. 1,000/-.

88. In cross examination, Karigu said he and Jane Kagai were brought up together, and stay in the same village.  That Jane Kagai told him that she received Kshs.5,000 from Omondi, through Mpesa.  Kagai, however did not show him the Mpesa acknowledgment. He was given Kshs.100 in a single note.  This was on 1^st March, 2013.

89. In further cross-examination, he said he went to Kagai’s house on 3^rd March, 2013.  There, 1^st Respondent was introduced to the gathering of about 50 people.  He saw Omondi give Kagai Kshs.50,000/-.  He did not count the money. Nor did Kagai count it.  He said:

“Omondi announced he gave us Kshs.50,000/-.  He said he was giving us ‘chai’ so we could do politics for him and look for voters for him.”

Karigu said he was then given Kshs.1, 000 by Jane Kagai, for tea.  She did not explain any plans or schemes on how to vote.  He did not report to the police that he was bringbribed.

90. Mr. Wakla put it to Karigu that he was avenging disagreements he had with Jane Kagai concerning her report to the police that he had taken her building sand and stolen her potatoes and a goat. Karigu denied this, and said he was not angry.

91. Jane Nyamwitha Kagai, RW2 gave evidence on this issue. She said she is the proprietor of an orphanage known as Emmanuel New Hope Rescue Centre in Soweto village.   She denied holding a meeting for or to which the 1^stRespondent was invited.  She said she had met the 1^st Respondent only once during a meet the people tour in February, 2013.  She said she is enemies with James Karigu against whom she has many cases.  According to her James Karigu is a drunkard. She denied ever receiving money from 1^st Respondent on Mpesa.

92. The 1^stRespondentdeponed on this issue that Jane Kagai was not his agent, that he did not either attend any meeting at her house or organize for any money to be distributed there.  He stated his alibi for the day, in that on 3^rdMarch, 2013, he first attended church at Christ the King at 9.00 a.m.  Thereafter, from 11.00 a.m. he proceeded to St. James Church in Imara Daima where he joined an entourage of the ODM Presidential candidate for the rest of the day,returning home in the evening.  He was unshaken during cross-examination.

93. A close perusal of the affidavits of Karigu and Kinuthia Ndungu on this issue reveals that they are identical in every respect.  Paragraphs 9, 11, 12 and 13 of Karigu’s affidavit are a replica of Kinuthia Ndungu’s paragraphs 6,7,8 and 9. How likely is it for two people to testify in exactly the same words?

94. Further in cross-examination Karigu denied the accuracy of paragraphs 11 and 12 of his affidavit.  He said that it was Jane Kagai not Omondi who spoke concerning the plans for double voting.  He said the advocate drafting the affidavit got it wrong. In addition, Karigu admitted in re-examination that he had problems with Jane Kagai about a year ago.

95. The offence of treatment is completed when it is shown that the candidate gave or undertook a promise, or offered the reward, or caused the same to be given, undertaken or offered to the voter.

96. Even if the 1^st Respondent’s alibi were not to be taken into account, there are still niggling doubts about what actually happened at Jane Kagai’s house, if at all anything did. She has denied inviting anyone there. She has denied being the 1^stRespondent’s agent, who she says she met only once during a meet the people tour. Karigu and Ndungu have contradicted one another about what they heard and saw there.

97. Ndungu, when asked about the money given by Omondi, said:

“I saw Jane counting. I don’t know the amount exactly”

On the other hand, Karigu said regarding the same incident of counting money:

“Jane did not count it in front of us”

98. There is also uncertainty emanating from the differences in evidence as to the time when the alleged meeting started and ended. In cross-examination Ndungu said:

“I was at the meeting until Omondi left, until about 12.00pm”

In re-examination, Karigu said:

“The second meeting was 2.00pm. I was telephoned at about 10.00 am on 3^rd March”

99. In this case, I find the evidence of the two witnesses not credible in regards to treatment.  It is uncertain whether the advocates drafting the affidavits were accurate in identifying the witnesses’ roles.  In this uncertainty, they attributed to both witnesses the same words.  This, in real life, is an unlikely scenario.  I cannot rely on this evidence.  It cannot stand the high standard of scrutiny and proof beyond reasonable doubt for an offence such as contemplated in section 62 of the Election Act.  I therefore reject it.

100. On the offence of treating, I concur with Gikonyo J, where he stated as follows in Musikari Nazi Kombo v Moses Masika Wetangula and 2 Others, EP No. 3 of 2013 :

“The court takes the position that where the candidate is the one who has been found to have committed an election offence of Bribery of Voters and Treating of Voters, his election becomes void. In that case, a single incident of commission of these offences by the candidate is sufficient to invalidate an election and it will not be necessary to prove a series of bribery and treating of voters for such an election to be declared void. See Halsbury’s Laws of England, Vole 15 pares 113 and 114. My own view is that, the rationale for that position of the law is, on one hand, drawn from the fact that electoral process is quite a sensitive process, and bribery and treating of voters, by their very nature, attacks the very integrity of the electoral process as a democratic process, and the process is thus, completely unravelled by such illegal acts. On the other hand, the rationale is drawn from the fact that the offences of bribery and treating of voters compromises the integrity of the offending candidate to claim any victory in the election obtained in those circumstances. The law is so designed to prevent a person from reaping leadership procured through illegal means. The Constitution has sculptured political leadership into a Public Trust under Article 73, and so leadership must be procured in accordance with the Constitution; to wit by observing the national values and principles of Governance (Chapter One), principles of leadership and integrity (Chapter Six), respect for Human Rights (Chapter Four) only to mention but a few. The use by the Constitution of the enterprise of Public Trust in relation to leadership was deliberate; it was to emphasize integrity in the development of leaders who will shoulder responsibility to serve the people; the beneficial owners of the trust. Thus, as I stated earlier, elections are sensitive to electoral malpractices and offences, and more so, when they are committed by those who are aspiring or claim to be the leaders of the people.

[174] But in cases where the offence of bribery and treating of voters is committed by the agents of the candidate, the law affords the affected candidate an opportunity to claim exoneration from the acts of his agents. Equally, a claim based on bribery and treating of voters by agents or other persons, may require to be shown that the acts of bribery and treating of voters were so extensive that they affected the results.

[175]In sum, the commission of the electoral offences of bribery and treating of voters by the Respondent completely alters and affects the results to the extent that the election is void”

Bribery

101. The evidence for this offence is that which has been re-hashed in respect of the offence of Treatment.  The offence is provided for undersection 64 of the Elections Act. 

“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 orderto induce any voter—

(I)  to vote or refrain from voting for a particular candidate;

(ii) to attend or participate in or refrain from attending or participating in any political meeting, march, demonstration or other event of a political nature or in some other manner lending support to or for an political party or candidate;

(iii) corruptly does any such act on account of such voter having voted for or refrained from voting at any election, for a particular candidate; or

(b)  directly or indirectly, in person or by any other person on his behalf, gives or procures or agrees to give or procure, or offers, promises, or promises to procure or to endeavour to procure, any office, place, or employment 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 for or refrain from voting for a particular candidate; or
(ii) corruptly does any such act on account of such voter having voted for or refrained from voting;

(c)in any manner unlawfully influences the result of an election;

(d) directly or indirectly, in person or by any other person on his behalf, makes any gift, loan, offer, promise, procurement, or agreement to or for any person in order to induce that personto—

(i)  procure or endeavour to procure the election of any person;or

(ii)  procure the vote of any voter at any election;

(e)upon or in consequence of any gift, loan, offer, promise, procurement or agreement, procures or engages, promises or endeavours to procure, the election of any person, or the vote of any voter at an election;

6. advances, pays or causes to be paid any money to, or to the use of any other person with the intent that such money or any part thereof shall be used in bribery at any election, or who knowingly pays or causes to be paid any money to any person in discharge or repayment of any money wholly or in part used in bribery at any election;
7. being a voter, before or during any election directly or indirectly, in person or by any other person on his behalf receives, agrees or contracts for any money, gift, loan, or valuable consideration, office, place or employment for himself or for any other person, for voting or agreeing to vote or for refraining or agreeing to refrain from voting for a particular candidate at any election;

(h) after any election, directly or indirectly in person or by any other person on his behalf, receives any money or valuable consideration on account of any person having voted or refrained from voting or having induced any other person to vote or to refrain from voting for a particular candidate at the election;
(i)  directly or indirectly, in person or by any other person on his behalf, on account of and as payment for voting or for having voted or for agreeing or having agreed to vote for any candidate at an election, or an account of and as payment for his having assisted or agreed to assist any candidate at an election, applies to the candidate or to the agent of the candidate for a gift or loan of any money or valuable consideration, or for the promises of the gift or loan of any money or valuable consideration or for any office, place or employment or for the promise of any office, place or employment; or
(j)  directly or indirectly, in person or by any person on his behalf, in order to induce any other person to agree to be nominated as a candidate or to refrain from becoming a candidate or to withdraw if they have become candidates, gives or procures any office, place or employment to endeavour to procure any office, place or employment, to or for such other person, or gives or lends or agrees to give or lend, or offers or promises to procure or to endeavour to procure any money or valuable consideration to or for any person or to or for such other person on behalf of such other or to or for any person, commits the offence of bribery.

(2) Any person who in consequence of that person’s acceptance of any consideration votes or refrains from voting commits an offence.”

102. The ingredients of the offence include a candidate directly or indirectly giving, lending or agreeing to give or lend or offering or promisingto procure money or valuable consideration to or for a voter.  The object is to induce the voter to vote or refrain from voting, or attend or refrain from attending a political meeting or lending support to or for a candidate or politicalparty.  Indeed, the offence of bribery is extremely broad, characterized by over ten categories of actus reus.

103. In Mohamed Ali Mursal v Saadia Mohamed and Others Garissa EP No. 1 of 2013 (Unreported), Mutuku J., described bribery in the context of an election petition as follows:

“Bribery is an electoral offence. It is also a criminal offence in ordinary life. Being such, proof of the same must be by credible evidence and in my view, nothing short of proving this offence beyond reasonable doubt will suffice. There is no distinction as far as I am concerned, and rightly so, between bribery in a criminal case and one in an election petition. Bribery involves offering, giving, receiving, or soliciting of something of value for the purpose of influencing the action of the person receiving. Under the Act, bribery is an election offence under Section 64 and both the giver and the taker of a bribe in order to influence voting are guilty of this offence upon proof. The penalty found under Part VIII – General Provisions of the Act, specifically Section 106 (1)of the Act is a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.”

104. Although this ground was raised specifically in the petition, it appears that the petitioner did not follow through on it as an offence.  Indeed, it is not dealt with in her submissions.  There, no mention of the offence or the evidence in that regard, nor an analysis of the same.  That notwithstanding, I must make a finding and deal with the allegation as a ground which was not expressly withdrawn or abandoned. In my view, I am unable to connect the evidence availed with the offence at the standard of proof required. This allegation therefore fails.

Undue influence occurs when a person interferes with the free electoral right of another through any of the acts set out in the Section 62. In respect of undue influence, the Supreme Court in India held in Shiv Kripal Singh v VVGiri, AIR 1970 SC 2097as follows on the point:

“....free exercise of electoral right does not mean that the voter is not to be influenced. This expression has to be read in the context of an election in a democratic society, and the candidates and their supporters must naturally be allowed to canvass support by all legitimate and legal means. This exercise of the right by a candidate does not interfere or attempt to interfere with the free exercise of the electoral right by the voter. What amounts to interference with the exercise of an electoral right is “tyranny over the mind” 

Undue Influence

105. This is also is an offence under the Elections Act at Section 63 which provides as follows:

“63.  (1) A person who, directly or indirectly in person or through another person on his behalf uses or threatens to use any force, violence including sexual violence, restraint, or material, physical or spiritual injury, harmful cultural practices, damage or loss, or any fraudulent device, trick or deception for the purpose of or on account of—

1. inducing or compelling a person to vote or  not to vote for a particular candidate or political party at an election;
2. impeding or preventing the free exercise of the franchise of a voter;
3. inducing or compelling a person to refrain from becoming a candidate or to withdraw if he has become a candidate; or
4. impeding or preventing a person from being nominated as a candidate or from being registered as a voter,

commits the offence of undue influence.

(2) A person who induces, influences or procures any other person to vote in an election knowing that the person is not entitled to vote in that election commits an offence.

(3)  A person who directly or indirectly by duress or intimidation—

(a)  impedes, prevents or threatens to impede or prevent a voter from voting; or

(b)  in any manner influences the result of an election,

commits an offence.

(4)  A person who directly or indirectly by duress, intimidation or otherwise compels or induces any voter who has already voted at an election—

(a)  to inform that person or any other person of the name of the candidate or political party for which the voter has voted; or
(b)  to display the ballot paper on which the voter has marked his vote,

commits an offence”(underlining for emphasis)

106. In her submissions the closest the Petitioner came in her reference to theseoffences is at page 4. She referred to a number of what she called “malpractices”, and elsewhere called them schemes.  Amongst these,were those in  the evidenceof PW8, PW 9 and PW 10, who alleged that the Petitioner gave voters money, hatched a plan to vote twice, and gave voters illicit liquor, food and money.  However,the Petitioner did not isolate the ingredients of the offences, or compare the evidence availed with the requirements for proof of the specific offences.

107. Section 63 describes undue influence as direct or indirect or through a third person, using or threatening to use any force, physical or spiritual injury, harmful practice, damage or loss or fraudulent device trick or deception to induce, impede or compel a person not to vote, or to freely exercise his franchise as a voter, or to compel withdrawal from candidacy.

108. No evidence was in fact availed in respect of this offence, except the evidence alleging that the 1^st Respondent came up with a scheme to enable some voters to vote twice.  As indicated, thatevidence was by PW9 and PW10.

109. The evidence of James Karigu, PW9 and James Kinuthia Ndungu, PW10 specific to the offence of undue influence was that set out in paragraphs 11 and 12 of PW9 affidavit, and paragraphs 7 and 8 of PW10s affidavit.  In both affidavits, the paragraphs are identical.  First of these paragraphs states as follows:

“That he (the 1^stRespondent) told us by his own voice that he had his people in Soweto and that he had organized with them to facilitate us to vote twice especially in streams  m and o”

The other paragraph stated as follows:

“That Omondi told us that the ink will not be placed on the small finger and so we should change the T-shirts and join the queue again and vote.  He insisted that this be in the morning.  He also said that if placed of [sic; on] the small finger this guy would be outside ready to rub the ink off using coca cola soft drink”.

110. The above evidence was given by the two witnesses in respect of a meeting allegedly held at Jane Kagai’s home and attended by the 1^stRespondent.   In cross-examination by Mr. Wakla, James Karigu was shown paragraphs 11 and 12 of his affidavit.  The words are set out above.  Asked who spoke the said words, Karigu said:

“He did not tell us any plans or schemes for how to vote……

Omondi did not tell me or us those words.  It was Jane who told us those words.  That is a mistake in the writing of the affidavit.”

Shown paragraph 12 of his affidavit, he again said:

“I heard that from Jane not Omondi.”

(See page 62 Record)

111. When it came to Kinuthia Ndungu’s turn for cross-examination on the same two statements in his affidavit, he said:

“I heard Omondi speak the words in paragraph 7.  Omondi said when we vote we will be inked one small finger then change our shirts.

There are some things Jane said like the one about coca-cola. Omondi said about stream ‘m’ and ‘o’ ….” (see page 66Record).

112. It is clear from the cross-examination that one or both of the two witnesses was untruthful.They were both testifying about the alleged meeting held on 3^rd March, 2013 at Jane Kagai’s home. Their contradictions are clear and critical as to the alleged scheme. That they do not agree on who spoke and who said what and when leaves me with the sense that I cannot rely on their evidence.  It is unsafein any event.  The alleged scheme to rig the election by a scheme to vote twice is put into serious doubt.

113. To prove the offence of undue influence by a fraudulent device, trick or deception to vote or to prevent the free exercise of the franchise of a voter, the evidence must be of very high probative value.  That standard has not been achieved. There are grave doubts in my mind whether the alleged scheme was ever spoken of or hatched.  I therefore reject the allegation of undue influence.

Double Voting

114. The allegation of double voting involves the offence under Section 58 (m) of the Elections Act, which provides as follows:

“58. A person who –

……(m) votes more than once in any election;

Commits an offence and is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding six years or to both”

115. The Petitioneralleged there was a scheme to enable the 1^stRespondent’s voters to vote twice.  The evidence was again that of Karigu and Kinuthia Ndungu.  As stated above,however, I have already rejected their evidence as unreliable or shaky.

116. Beyond those two witnesses there were allegations that at several polling stations the officers were coughing suspiciously. In addition, there was the case of a voter, Samuel Ngomali, who was caught red-handed allegedly voting twice.He was charged and convicted of an election offence.

117. Samuel Ngomali, was called as witness PW8 on this issue.He swore an affidavit on 6^th June, 2013.  He deponed that on 3^rd March, 2013, he went, on his mother’s suggestion, to one Ann Mbula’s house.  He got there around 9.00 a.m. and found about 50 people there. They were given illicit alcohol (chang’aa) brought from one mama Akinyi. At around 1.00 a.m. on 4^th March,2013, Mbula told the gathering of an elaborate and widespread plan to ensure that Amani and CORD alliance won the elections.

118. The plan involved their voting twice for payment of Kshs.1,500/-.  They were given an advance ofKshs.200/-.The balance was to be given after voting.  Their small finger would not be inked, but even if it was, someone outside the polling station would easily remove it using coca-cola.  They would then change their T-shirts and return to vote again.  If they arrived in following station after 11.00, they would receive two ballot papers. He said that the people present at the gathering were given Kshs.1, 000/- as part of the scheme.  They were also advised to say that they were drunk but wanted to exercise their democratic right.

119. Ngomali said he was given two ballot papers and voted.  He was arrested when left with ballots for the election of County representative and Governor.

120. In cross-examination by Mr. Kwach, Ngomali said he and the others in the gathering ate and drank the whole night.  He did not know where the Chang’aa came from.  Shown paragraph 8 of his affidavit he said it was supplied by Mama Akinyi. He said he was given Kshs.200/-down payment by Mbula.  That he was drunk when he went to vote, but was not asked about his condition. He said he was given only two ballots. He was arrested for having an excess of two ballots.

121. In cross-examination by Mr. Wakla, he contradicted himself when he said he was paid Kshs.200/- by his mother Ann Wanja, not by Mbula.  It was given to him at Mbula’s house.  He did not see other people being given money at Mbula’s house.

122. In cross-examination by Ms. Mate, Ngomali said he was drunk when he went to vote at about 3.00 p.m.  Whilst at Mbula’s house, she did not tell them anything about IEBC officials.  When he went to vote he did not recognize or know any of the IEBC officials.  Whilst voting, it was when he reached the end of the voting boxes that he realized he had two extra ballots.

123. In re-examination he said:

“I was too drunk to understand who I was voting for at the ballot booth……..

We drank chang’aa.  I don’t know when we stopped drinking.  We were drunk on election day.  I reached the polling station….. I followed a queue and stayed in it for long, about five hours.”

124. I found the evidence of Ngomali rather disjointed and ambivalent.  But that is wholly in character with evidence of a person who had been in a drunken stupor, having drunk chang’aa, as he said, “the whole night”.  He said he did not evenknow when he stopped drinking. He was allegedly given Kshs.200/- down payment by either Mbula or his mother, Ann Wanja. In the affidavit he said they were all given Kshs.200/-. But in cross-examination he said he did not see other people being given money.  In his deposition he said that he was told IEBC clerks would facilitate their voting twice.  In cross-examination he said he was told nothing about the IEBC officials.

125. This is evidence of a most inconsistent nature; hardly believable as authentic and wholly unreliable in relation to the standard of proof required. I doubt the evidence would avail to prove anything on the civil balance of probabilities.  It is of course true that he pleaded guilty to the offence of double voting, being in possession of two ballot papers for Governor and CountyAssembly each. He was convicted on his own plea of guilty.  Indeed, he came to give evidence from prison and under escort.  However, because his evidence is so inconsistent in material respects, I do not believe him when he says he voted twice.

126. It is now in the public domain, that in the election petition of Ferdinand Waititu vs. IEBC 8 Others, EP No. 1 of 2013, [2013]eKLR, this witness was alleged to have engaged in double voting.  There, (in paragraph 121 of the judgment) this court found that the allegation of double voting was unfounded as he had not voted twice.  Likewise, in this case, the Petitioner’s annexures of the charge sheet at page 18 and 19 of the petition show that Ngomali was charged with the offence of being in possession of two votes contrary to section 58 (d) of the Elections Act.

127. In the circumstances, there is no proof  of double voting or a scheme for the same, contrary to section 58 (m), and I dismiss the allegation.

Discrepancies in votes announced

128. The Petitioners’ case on this issue was that the results announced by the 2^nd Respondent at the constituency tallying centre and those declared by the 3^rd Respondent at the National Tallying centre were different.

129. According to the Petitioner, no explanation was given, and this was evidence of gross irregularities and lack of credibility of the election.  This was exacerbated by the fact that many form 35s were not signed by the Petitioner’s agents.

130. The table below (Table 1) shows the names of each of the candidates and the differing results as announced by both respondents.

Table 1

131. Sylvia Maritim, RW3, was the Returning Officer for Embakasi East Constituency.  In her response to the Petition she said results were first announced by the Presiding Officer pursuant to Regulation 79 of the Elections (General) Regulations.  The results announced for the 1^st Respondent and the Petitioner for each of the twelve polling stations were 36,791 and 33,011, respectively. The party’s agents then signed the forms 35 as required by law.  She exhibited as bundle “SM1” all the forms 35 for Embakasi East Constituency.

132. At the tallying centre where Sylvia Maritim was in charge, verification was done of the results announced by the presiding officers.  Arithmetic errors in the calculation of final results were then discovered.  The corrected results for the two candidates were 36,781 for John Omondi and 33,027 for Mary Angara. These are the Final results which she announced and the 1^st Respondent still emerged the winner.  The final form 36 is as annexed at page 26 of the Petitioner’s bundle.

133. Sylvia Maritim explained the form 36 annexed at page 1 of her bundle which shows the results for Omondi as 36,308 and for Mary Wangari as 35,545. She said this form was filled in by hand by the Presiding Officer in her presence. This was done prior to the verification exercise. The verification exercise was based on the figures recorded as garnered in form 35.  She said she was not allowed to amend a form 35 after it was signed by a presiding officer.

134. The question that arises is whether these discrepancies in announced votes resulted from or into an illegality rendering the election result void. Under the Elections (General) Regulations, thereare different stages at which the elections may be announced. The first stage is at Regulation 79.  This is where the Presiding Officer incharge of a polling station announces the  results of the voting at that polling station pursuant to Regulation 79 (2) (a).  At this point, the party’s agents will sign form 35, and are entitled to a copy of that form 35 containing the declaration of the results.

135. The next stage is under Regulation 82; at the time of transmission of those results in electronic form to the Returning Officer.  In this case, the exercise failed because the electronic transmission system collapsed.  In any event such results areprovisional,according to Regulation 82 (2).

136. The Presiding Officer is then required to avail the results to the Returning Officer at the tallying centre – Regulation 83 (1). The Returning Officer tallies the results without recounting the ballots that were not in a dispute.  These are the aggregate or valid votes set out in part B of the form 35, and which part cannot be corrected or amended.  These valid votes cast for each candidate are then announced by the Returning Officer – seeRegulation 83 (1) (b).  The Retuning Officer then completes forms 35 and prepares form 36.

137. Clearly, then, the tallying exercise is not one where recounting the votes garnered in the polling stations is conducted. That is expressly prohibited by Regulation 83 (1) (a).  It is an exercise of accounting for and corresponding the records from the polling stations; it is an arithmetic and verification exercise. It is an exercise of matching, not counting the results presented to the returning officer to verify their accuracy.  At tallying stage, if the total valid votes in a station exceed the number of registered voters, the results of that station shall be disregarded.  The aim is to complete the aggregation parts in form 35 and complete a form 36 that summarizes the Constituency’s voting results.

138. In Bernard Shinali Masaka vs. Boni Khalwale & 2 Others [2011] eKLR, Lenaola, J explained tallying in his observations as follows:

“Tally is defined in Osborn’s Concise Law Dictionary as:

‘…. a stick of rectangular section across one side of which were cut notches denoting payments.  The stick being split lengthwise so that on each half there was half of each notch, the debtor retained one half of the stick as evidence of the payment and the creditor kept the other half as  a record.’

This simple definition is graphic and attractive to me in the context of this matter.  I have shown elsewhere that the 3^rd Respondent inserted some votes in Form 17 A which had no basis in form 16A.  How can that be called a tally?  Once the form 16As were discredited, as they were in this case, there was no tally and the whole election rendered a sham. …. Tallying denotes the form 16A and form 17A each having a similar notches, and where one is not similar to the other, the deal has been broken?”

139. Article 86 (b) and (c)of the Constitution enjoin the 3^rdRespondent to ensure that  the following minimum constitutional parameters are achieved:

“….(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;

(c) the results from the polling  stations are openly and accurately collated and promptly announced by the retuning officer.”

140. I do not doubt that discrepancies were disclosed by the tallying process in this case. However, I do not consider, and it has not been shown to me, how that resulted in undermining or altering the ultimate will of the people, so as to underpin a sufficient reason to declare the election invalid or void.  In this case, the valid votes garnered by each candidate as shown in forms 35, were not impugned.  In particular, there was no allegation of tampering with part B of Form 35, the sacrosanct part of the form which contains the votes garnered by each candidate. Nor was it shown that the discrepancies led to a different result other than that the 1^st Respondent had,in any event, garnered more valid votes than the Petitioner.  Further, it was not shown that the discrepancies affected the sanctity of the ballot.

Discrepancies in votes announced & other irregularities

141. The Petitioner gave evidence that during the elections, she received numerous calls from agents concerning irregularities.  She then complained to the Returning Officer who responded only in one case.  She said the complaints concerned many different irregularities.  These  included closure of a stream in a polling centre, double voting, transporting of ballot boxes without security; the polling clerks falling asleep and party agents counting votes; voters being turned  away from polling stations at Greenspan and Donholm; allegations of bribery; and finally, that the results read out had discrepancies.

142. In cross-examination the Petitioner made certain admissions.That in respect of the double voting incident, the Returning Officer stamped the extra ballots as spoilt; that she did not accompany ballot boxes to the tallying  centre and did not know who did; that she had not submitted a list of voters allegedly  turned away from Greenspan station; that some of her agents such as Francis Ngugi, Anthony Maina, Benson Mbuthia signed  forms 35 without complaining; that in respect of allegations on bribery and treating, she made them  on the hearsay evidence of third parties; that she had no witness to state they were  confused in choosing who to vote for on  account of the allegedly unclear photograph; that when she allegedly saw agents counting votes she did not complain.

143. The Petitioner’s Chief Agent, Ricardo Nyantika, PW2, also gave evidence on the irregularities.  At Greenspan he allegedly spoke to about twentyvoters whowere turned away. He estimated that about one thousand two hundred (1200) such voters did not vote. He said that voting begun atabout 8.00 a.m. or 9.00 a.m. and there was a stampede at Donholm. He said the queues became long because the IEBC electronicvoter identification system (EVID) failed, but voting continued.He said he saw agents counting votes, but that when he complained at Utawala polling station, they stopped counting there.  With regard to the tallying of results, he admitted that he was not at the Constituency Tallying Centre. He also admitted that none of his party agents who signed the form 35 complained.

144. Lucy Wanjiku Wacera gave evidence as an observer from the Centre for Multiparty Democracy (CMD).  She said voters were turned away at Donholm. She saw about 1000 voters crowded around the closed gate at Greenspan. This was about 5.00 p.m. She said she saw IEBC officials fall asleep at night, and agents did the counting of votes.  She said she took photographs of irregularities occurring at stations.  She annexed twelve photographs to her affidavit.  However, she did not take any photographs of IEBC officials sleeping, and party agentscounting.

145. Stephen Kagoiyo Mwangi was a TNA agent at Soweto Social Hall Stream 13.  He said he noticed at Soweto Social Hall that some voters were coughing from about 6.30 to about 8.00 a.m. He did not express his concerns to the Presiding Officer.  He also says he saw voters being given folded ballot papers, which had been torn out of the ballot books in bundles. It was the station at which a person was caught double voting, but there was no other incident.

146. The witness also said that the Presiding Officer and clerks were dozing and falling asleep. The party agents were therefore counting the ballots.  A clerk had to be woken up to record the result of the counting.  In the end, the witness never signed the form 35 because of the alleged irregularities.

147. PW5, Felix Isoka, was the Petitioner’s agent at Edelvale Polling Station Stream 5. He said he saw the IEBC officials fall asleep.  The parties’ agents then counted the ballots. He however said in cross-examination that he signed form 35 for his stream, but did not indicate his protest at the time because he was not told to do so.

148. PW6 Eunice Gathaiga was the TNA agent at Soweto Social Hall Stream 4.  She said the IEBC clerks fell asleep during counting.  In fact the Presiding Officer laid a place for them to sleep.  She was instructed by that officer to get involved in the counting, and she did.  There were four agents, two from TNA and one each from ODM and Wiper parties.  Whenever they woke up the IEBC officials, they were told to recount the ballots.  She protested to the Presiding Officer and refused to sign form 35.

149. In cross-examination by Mr. Wakla, she was shown form 35 for the stream 4, at page 73 -74 of the 2^nd Respondents’ bundle.  She admitted having signed the form, but said she signed it in the morning as she entered the polling station.  She reluctantly admitted that during training she was told that they could record reasons for refusing to sign.

150. PW7 Ann Muthoni Nganga was a TNA agent in Soweto Social Hall Stream 1. Her affidavit incorrectly stated she was in stream 3.  Like Petitioner’s other witnesses, she said she saw clerks stamping ballots twice.  She said that although the agents were instructed by the presiding officer to count votes, she personally did not.  She did not see any agents counting votes, as only IEBC clerks were counting.  She did not sign form 35, which she was not in any event shown or given.  In re-examination she said if she had been given the form 35, she would have signed it.

151. I will deal with those irregularities in the categories highlighted in the petition.

Voter Suppression in Greenspan Mall and Donholm Primary School Polling Stations

152. The complaints here were that voters registered at Greenspan were misdirected to vote at Donholm. Others were directed to go to Donholm from Greenspan mall.  They ended up not voting.  Ricardo Nyantika, PW2, estimated that about 1,200 voters were turned away from Greenspan mall and did not vote.  He said he spoke to about twenty of them.  He did not obtain depositions from any of them concerning the incident.  None of the voters who allegedly suffered this disenfranchisement gave evidence.

153. Lucy Wacera, PW3, was an elections observer. She was at Donholm at 5.00 a.m. on 4^th March, 2013.  She says the gates were broken down in a stampede of humanity at about 6.30.a.m. Voting begun an hour later.  She spoke to about ten voters who said they were registered at Donholm but were referred to Greenspan to vote.

154. She said that in the evening from around 5.00 p.m., over 1,000 voters who had been referred to Greenspan had not voted, yet Greenspan closed its gates at 5.00 p.m., promptly.  People on the line were allegedly locked out.  She did not take their names, nor were they asked to give evidence.

155. These complaints would have been weighty had names been given and depositions of voters who were actually disenfranchised filed.  No such witness was called.  Given the heavy burden of proof in election cases, I am not satisfied that the Petitioner made out a compelling case as to disenfranchisement of voters.  I therefore reject this allegation as unproved.

Dozing Election Officials

156. This complaint  emanates from paragraph 27 of the petition where the  Petitioner says:

“Many election officials were tired and were  sleeping and in virtually all polling streams the agents  had been incorporated as counting officials and were  actually handling and counting the votes.”

157. In paragraph 16 of her affidavit the Petitioner reiterated this averment.  However she neither particularized the polling stations affected, nor indicated consequences of the actions alleged. The following witnesses also gave evidence on the issue.

158. Ricardo Nyantika PW2 said he saw agents from all parties in Donholm polling station counting votes.  At Utawala polling station, he complained, and TNA agents stopped counting. As he was going round the stations, he thinks he met Lucy Wacera, the observer, but he did not go round with her. He admitted that some TNA agents signed the form 35s without writing any complaint or comment. He says he complained to the Returning Officer and she said she would take action.

159.  Lucy Wacera, PW3, in cross-examination by Mr. Wakla, said she saw some clerks fall asleep at Donholm polling station.  The counting there was taken over by party agents and no one was in charge.  Even the Presiding Officer fell asleep.  She did not go to other stations.  According to her, the result was that some Presiding Officers filled forms 35 but others were not filled.  Some form 35s had no signatures.

160. Ann Muthoni Nganga, PW7 was at Soweto Social Hall Stream 3. She said that the Presiding Officer and some clerks disappeared for a long time.  Believing the officer had the powers to delegate according to paragraph 8 of her affidavit, he “instructed the agents to join in and count.”  He later came and signed form 35. She said the process was not proper as “in many instances the agents were actually handling the votes for the candidates who were sponsored by the same parties”.

161. In cross-examination by Mr. Wakla, she said she did not personally count any votes although instructed. She  said:

“I did not see any agent counting. I saw the clerks of IEBC counting.”

In so stating, she contradicted her deponed evidence, rendering it less credible.

162. Eunice Gathigia PW6 and Felix Isoka PW 5 also gave evidence on this issue.  Eunice was in Soweto Social Hall Stream 2.  Felix was in Edelvale Polling Station Stream 5.  Both witnesses stated that after the clerks finished counting the ballots for the presidential election, the presiding officer and the clerks started “dozing off”.  At that point, the Presiding Officers instructed the agents to assist in counting on their behalf.

163. In the case of Eunice at Soweto Social hall, there was a   recount for county Women Representative and county representative’s votes because of disparities.  However, the Presiding Officer allegedly declined her request to recount the votes for M.P.  Felix also said his complaints against counting fell on deaf ears.

164. In cross-examination, Felix said that IEBC Officers did not all doze off at the same time.  He himself was not requested to count and did not take part in the counting.  He nevertheless signed form 35.

165. In cross-examination by Mr. Wakla, Eunice said when the clerks fell asleep:

“We counted the ballots with the clerks of IEBC and Presiding Officer.  They did not all fall asleep at once….. Madam (the Presiding Officer) laid a place for sleeping …. Whenever we woke the officials they told us to recount …. I refused to sign form 35……”(Record page 49).

Later on in cross-examination she said she was not involved in counting for Member of Parliament ballot.

166. In cross-examination by Ms Mate, she said she agreed to count votes because she was under the Presiding Officer.  She said she called the Chief Agent to complain.  She said she had signed form 35 as she entered the polling station.

167. The 2nd and 3^rd Respondents’ witnesses also testified on this issue.  Sylvia Maritim, RW3, said the Petitioner did not call her complaining that party agents were counting votes. Nor did the Chief Agent.  She understood the fact that the agents signed forms 35 to mean that the agents agreed with the results.  She denied that any form 36 was signed in the morning of Election Day, as they were not available then. The only document signed by all those present in the morning at the opening of the polling station, was the Polling Day Diary.

168. Sylvia Maritim admitted that she noticed that the Presiding Officers and clerks were tired at the time when she first announced the results. She told them to rest, and to come back later. When they returned, any anomalies in the results were corrected.  At the tallying centre when she declared the results, there was no complaint from anyone.

169. RW4, Daniel Mutemi, the Presiding Officer at Soweto Social Hall Stream 13, said the clerks were awake from the night of 3^rd March, up to the morning of 5^th March, 2013.  He asserted that they were red-eyed but did not sleep.  He had two deputy presiding officers.  There were eleven IEBC officials in the station, and all counted votes.

170. On the basis of the above evidence on this issue, I come to the following conclusions.  If IEBC officials fell asleep during counting of ballots, it was not as widespread as alleged in paragraph 27 of the petition.  It was an exaggeration to allege that the problem was in virtually all polling stations.

171. Ricardo Nyantika, DW2, witnessed this problem at Donholm Polling Centre.  This is where observer Lucy Wacera also witnessed the dozing officers. They did not indicate which stream. That Lucy Wacera did not take photographs of such a serious irregularity was, in my view, an evidential lapse on her part.

172. Stephen Kagoiyo PW4 witnessed the problem at Soweto Social Hall Stream 13.  Ann Muthoni PW7 Witnessed this problem at Soweto Social Hall Stream 3.  Then she contradicted herself in cross-examination, saying she saw IEBC clerks doing the counting.

173. Eunice Gathigia, PW6, witnessed this issue of sleeping officials at Soweto Social Hall stream 2, and Felix Isoka witnessed it at Edelvale Polling Station Stream 5.

174. I have perused forms 35 exhibited by the Respondent, for the stations which were the subject of the complaint on dozing officials.  I have summarized my observations on those forms in the table below:

Table 2

175. In summary, I do not consider that the evidence on this allegation is of such weight as to show that the irregularity affected the result of the election or that, overall, the election was not conducted in accordance with the principles laid down in the constitution and the law.

SUMMARY

176. I have addressed all the allegations raised in the petition. Accordingly, I am now in able to answer the issues drawn by the parties for determination by the court.

177. Issue No 1: Whether there were serious electoral malpractices of omission or commission by the Respondents leading to an election that was neither credible free and fair thereby the affecting the results of the election. The answer is that there were electoral malpractices, but their nature and severity were not such as to result in any effect on the results of the elections.

178. Issue No 2: Whether the 2^nd& 3^rd Respondents used a different picture of the petitioner other than the one provided and as such made identification by voters difficult. The answer is, no. This was not proved.

179. Issue No 3: Whether the official results declared by the 2^nd& 3^rd Respondents for Embakasi East Constituency at the Constituency Tallying Centre and at the National Tallying Centre were authentic, reliable and accurate.  The results declared by the IEBC had discrepancies. The said discrepancies were not a reflection of any errors in, or tampering with, the results of the number of votes cast for each candidate in the forms 35s, which were not impugned. The final result was that the  given in form 36

180. Issue No 4: Whether the 1st Respondent was validly elected as MP for Embakasi East Constituency.The answer is, yes. The votes disclose that hiselection was a reflection of the will of the people.

181. Issue No 5: Who should bear the costs of this petition?This is dealt with in the following paragraphs.

DISPOSITION

182. Given my findings and conclusions in respect of the allegations made out in the petition, I hereby dismiss the petition with costs to the Respondents. The Petitioner’s prayers in the petition are hereby declined.

183. I hereby declare, pursuant to Section75(3) of the Elections Act, that John Omondi Ogutu whose election was questioned herein, was validly elected as Member of the National Assembly for Embakasi East Constituency in Nairobi City County.

COSTS

184. In accordance to Section 84 of the Elections Act, costs follow the cause. Accordingly, the Petitioner shall pay costs to all the Respondents.

185. Pursuant to Rule 36(1) (a) of the Election Petition Rules, I shall cap the costs to be paid by the Petitioner to the Respondents so as not to exceed Kshs. 2,500,000. The said costs shall, if not agreed as to proportions as between the Respondents, shall be taxed by the Registrar of the Court under separate bills pursuant to Rule 37 of the Rules.
186. I also direct that part of the costs awarded herein shall be paid to the Respondents, pro rata upon taxation, from the security deposited in court by the Petitioner.

CERTIFICATE AS TO VALIDITY OF ELECTION

187. I hereby direct, pursuant to Section 86(1) of the Elections Act, that a certificate of this determination do issue to the Independent Electoral and Boundaries Commission and to the Speaker of the National Assembly

REPORT ON ELECTION OFFENCES

188. Pursuant to Section 87(1) of the Elections Act, I make the following report as to election offences committed in connection with the election: There was no election offence found in respect of this election

189. In conclusion, I wish to thank all counsel acting in this matter for their very able representations; the court staff and my staff for their expeditious and meticulous assistance towards determination of this petition.

Orders accordingly.

DATED, SIGNED and DELIVERED at NAIROBI this 8^thday of October, 2013

________________________

R.M. MWONGO

PRINCIPAL JUDGE

Judgment read in open court in the presence of:

1. Mr. Okatch and Mr. Munyororo for the Petitioner
2. Mr. Wakla for the 1^st Respondent
3. Ms. Mate for the 2^nd& 3^rd Respondent