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|Case Number:||Election Petition Case 1 of 2013|
|Parties:||Kithinji Kiragu v Martin Nyaga Wambora, David Kiambi (County Returning Officer) & Independent Electoral and Boundaries Commission|
|Date Delivered:||12 Jul 2013|
|Court:||High Court at Embu|
|Judge(s):||Hedwig Imbosa Ong'udi|
|Citation:||Kithinji Kiragu v Martin Nyaga Wambora & 2 others  eKLR|
|Advocates:||Njagi for Petitioner, Marete assisted by Wairimu for 1st Respondent & Omuko for 2nd & 3rd Respondent|
|Advocates:||Njagi for Petitioner, Marete assisted by Wairimu for 1st Respondent & Omuko for 2nd & 3rd Respondent|
|History Advocates:||Both Parties Represented|
|Case Outcome:||Application dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
ELECTION PETITION CASE NO. 1 OF 2013
KITHINJI KIRAGU...............................................….. PETITIONER
MARTIN NYAGA WAMBORA............................1ST RESPONDENT
(COUNTY RETURNING OFFICER)....................2ND RESPONDENT
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION.........................3RD RESPONDENT
R U L I N G
The Petitioner filed a Notice of Motion dated 8th July 2013 under Rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 seeking the following orders:-
The said application was based on the following grounds:-
The 1st Respondent's grounds of opposition:-
The 2nd and 3rd respondents grounds of opposition:-
(i) The Honourable Court has already made an order for scrutiny based on the evidence before the court. The issue of scrutiny has therefore been determined by this court.
(ii) The petitioner has made a bare request for scrutiny and recount without laying any basis without giving sufficient reason to support the request.
(iii) The Petitioner has made a general request for scrutiny without limiting it to polling stations in which results are disputed and those specifically pleaded in the petition.
(iv) The Petitioner's application is unfounded and an abuse of the court process.
Submissions by Mr. Njagi for the Petitioner:
He submitted that under Part VI of the Election Petition Rules the kind of application the Petitioner had made could be made at any stage. He further submitted that the scrutiny and recount ordered by the court had revealed a lot which required the Petitioner's reaction.
He cited Kithimu and Kathunguri Primary Schools polling stations where there were 107 unaccounted for votes. He took the court through all the polling stations in this Court's directions on scrutiny and recount. He showed the Court where the candidates lost or gained votes.
He also submitted that the Form 35s found in the Mbuinjeru ballot box was a consolidated one and not a single one as had been stated in court by a witness. And that Embu Urban Primary School Stream 3 had an unsigned hand written note instead of a Form 35. He further submitted that the votes complained of in the petition had not been accounted for while the origin of 18 votes in Embu Municipal Council (Stadium) was unknown. He therefore prayed for an order for full scrutiny to reveal more information that would assist this Court determine the petition on merit.
Submissions by Mr. Marete for the 1st Respondent:
He submitted that the issue of scrutiny had already been dealt with by this Court. And the Petitioner was only using a critique of the Deputy Registrar's report to call for scrutiny. To him this was a fishing expedition as referred to in the case of PHILLIP OSORE OGUTU VS M. ONYURA ARINGO Election Petition No. 1/2013 – Busia High Court. Citing the case of WAVINYA NDETI VS IEBC & OTHERS – Election Petition No. 4/2013 Machakos High Court he indicated that errors were admitted by witnesses but it should be noted that it was human beings and not machines that were doing this work. Also referring to
Submissions by Ms. Omuko for 2nd and 3rd Respondents:
Associating herself with the submissions by Mr. Marete which she adopted, she submitted at length on the issue of new evidence being looked for by the Petitioner. She referred to the cases of:-
She referred to Rule 33(4) of the Election Petition Rules saying the Petitioner should have indicated the polling stations he had disputes with. These ought to have been borne in the Petition and affidavits in support. The rest of her submission was covered by Mr. Marete.
In reply Mr. Njagi submitted that his application was supported by Article 86 of the Constitution and Rule 33 of the Election Rules. And that the Petitioner was within his Petition while asking for scrutiny of all other polling stations. The application he says is not resjudicata.
BASIS FOR SCRUTINY
1. Section 82(1) of the Elections Act provides as follows:-
“An election court may on its own motion or on an application by any party to the petition, during the hearing of an election petition, order for scrutiny of votes to be carried out in such manner as the Court may determine.”
It therefore follows that the Court may on its own motion order for scrutiny where it discerns that there is need for such scrutiny. It is the Court which then gives directions on the manner in which the scrutiny will be carried out.
2. The Election (Parliamentary and county Elections) Petition Rules 2013 also provide for scrutiny.
Rule 33(1) provides:-
The parties to the proceedings may at any stage apply for the scrutiny of the votes for purposes of establishing the validity of the votes cast.
(2) Upon an application under sub-rule (1) the Court may, if it is satisfied that there is sufficient reason order for a scrutiny or recount of the votes
(4) Scrutiny shall be confined to the polling stations in which the results are disputed and shall be limited to the examination of:-
It is on record that this Court pursuant to the Provisions of Section 82(1) of the Election Act did on its own motion order for scrutiny which was limited to specific polling stations. The application before me has been brought under Rule 33 of the Election Petition Rules. The Respondents have in their grounds of opposition and their submissions indicated that the present application is resjudicata. Their reason is that the Court had already dealt with scrutiny.
For resjudicata to arise the following must be established
If these two factors are not established th plea of resjudicata cannot be sustained. It is clear that though scrutiny was dealt with by this Court, it was not at the instance of any of the parties herein. Further no such application has been heard and decided on merit. The application for scrutiny may be made at any stage of the proceedings. I therefore find that the application is not res judicata and is properly before this Court.
A reading of Rule 33(2) of the Election Petition Rules confirms that the order for scrutiny is not a matter of course. The Court must be satisfied that there is sufficient reason for it to order for scrutiny or recount. It is therefore incumbent upon the Applicant to demonstrate to the Court the reasons which must be sufficient in order for the Court to grant the same. It is therefore the Court to determine if the reasons are sufficient or not.
In the case of MASINDE –V- BWIRE & ANOTHER ELECTION PETITION NO.9 OF 1993 AT NAIROBI Justices O’Kubasu, Mbito and Mwera held;
“There must be a good reason before this Court can order for scrutiny. An order for scrutiny is not automatic. There must be a basis for it”.
In the case of JOHN KIARIE WAWERU –VS- BETH WAMBUI MUGO & 2 OTHERS  eKLR Justice Kimaru stated;
“The Petitioner further failed to establish any basis for this Court to order scrutiny of the ballots in respect of the Parliamentary elections of Dagoretti Constituency”.
This position has been buttressed by various decisions held by the High Court in recent times during this period of Election Petitions.
In the case of PHILLIP OSORE OGUTU (Supra) Justice Tuiyot had this to say;
“An order for scrutiny will not be made as a matter of course. In the words of Rule 33(2) of the Election Petition Rules, the Court must be satisfied that there is sufficient reason to require an examination of the ballots. This rule codifies a long held judicial opinion that scrutiny may only be ordered where a foundation or basis has been laid”.
Justice Tuiyot further stated;
“It would be expected that a party filing an election petition is from the outset, seized of the grounds, facts and evidence questioning the validity of the election. And where the evidence is unclear the party can, on application to Court, seek and obtain better particulars of that evidence from its adversary. But it would be an abuse of the Court process to allow a party to use scrutiny for purposes of chancing on new evidence. Scrutiny should not be used as lottery”.
In RISHAD HAMID AHMED AMANA –VS- IEBC & OTHERS – ELECTION PETITION NO.6/2013 MALINDI – Justice Kimaru held thus;
“In this regard, scrutiny cannot be ordered where the Petitioner has not specifically pleaded for scrutiny in his petition. It will not do for the Petitioner to aver in the petition that he desires scrutiny and recount to be undertaken in respect of all the polling stations in the electoral areas that is the subject of the dispute. The Petitioner must plead in sufficient detail why he requires the Courts intervention to order scrutiny. In that regard, the Petitioner has to state the specific polling stations that he alleges there were irregularities and therefore should be scrutinized”.
Other cases I have considered are;
1. RICHARD N. KALEMBE NDILE & ANOTHER –VS- DR. PATRICK MASIMBA MWEU & ANOTHER ELECTION PETITION NO.7 OF 2013 MACHAKOS.
2. FERDINAND NDUNGU WAITITU –VS- IEBC & 8 OTHERS ELECTION PETIION NO. 1 OF 2013 NAIROBI
3. WAVINYA NDETI –VS- IEBC & OTHERS ELECTION PETITION NO.4 OF 2013 MACHAKOS.
The common thread running through all these authorities is that they clearly espouse the position of the law as it is currently. And the position is that there must be a sufficient basis for there to be scrutiny or recount. It is however note worthy that where the Court acts suo moto and orders for scrutiny it does so after taking into account the pleadings, affidavits of both sides and the evidence adduced in Court. Even though the Rules provide that an application may be brought at any time before the delivery of Judgment, most Courts have found it suitable that the same is dealt with after both the Petitioner and Respondent have laid their cases before the Court. Scrutiny should not therefore be used as a tool for discovering new evidence or in Justice Tuiyott’s words, “It should not be used as a fishing expedition”.
It is with the above principles in mind that I now wish to consider whether I should order scrutiny of the vote for the Governor’s election in Runyenjes and Manyatta constituencies of Embu County.
“The Petitioner set out particulars of 9 polling stations. Further allegations of discrepancies were brought out while the case was litigated on the basis of the results delivered to Court by the IEBC. To my mind an order for scrutiny will only broaden the scope of the dispute beyond that defined by the pleadings and contemplated by the parties ………………….. To proceed on a course outside the confines of the petition is not warranted in the circumstances of this case”.
I entirely agree with my brother Judge that allowing scrutiny without a basis being laid would stretch the dispute beyond the pleadings. This would reduce these proceedings to an all for all arena.
Costs shall abide the outcome of the petition.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 12TH DAY OF JULY 2013.
J U D G E
In the presence of:-
Mr. Njagi for Petitioner
Mr. Marete assisted by Ms. Wairimu for 1st Respondent
Ms. Omuko for 2nd & 3rd Respondent