Case Metadata |
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Case Number: | Election Petition Nos 9 & 7 of 2013 (Consolidated) |
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Parties: | Jonas Misto Vincent Kuko & Omari Wafula Asman v David Wafula Wekesa, Farah Abdi Ibrahim &Independent; Electoral and Boundaries Commission |
Date Delivered: | 16 Jul 2013 |
Case Class: | Civil |
Court: | High Court at Kitale |
Case Action: | Ruling |
Judge(s): | Abigail Mshila |
Citation: | Jonas Misto Vincent Kuko & another v David Wafula Wekesa & 2 others [2013] eKLR |
Court Division: | Civil |
County: | Trans Nzoia |
Case Summary: | Electoral Law – recount and re-tallying – petition seeking an order for recount and re-tallying of the votes cast in Saboti constituency – claim that the elections had been characterized by discrepancies and irregularities in various polling stations – where the Respondents admitted that they had detected and corrected the errors – where a second Form 36 was generated as a result of the corrections – claim that the existence of two Forms 36 rendered the election results ineffective - whether basis had been laid out for an order of recount and re-tally of votes for Saboti Constituency to issue - Election (General) Regulations 2012, regulation 83 Cases: East Africa;
Statutes: East Africa;
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History Advocates: | One party or some parties represented |
Case Outcome: | 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 KITALE
ELECTION PETITION NO. 9 OF 2013
JONAS MISTO VINCENT KUKO ….................................................... PETITIONER
VERSUS
DAVID WAFULA WEKESA …..................................................... 1ST RESPONDENT
FARAH ABDI IBRAHIM …......................................................... 2ND RESPONDENT
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ….............................................. 3RD RESPONDENT
[CONSOLIDATED WITH ELECTION PETITION NO. 7 OF 2013]
OMARI WAFULA ASMAN..................................................................... PETITIONER
VERSUS
DAVID WAFULA WEKESA …......................................................1ST RESPONDENT
IBRAHIM FARAHI…....................................................................2ND RESPONDENT
INDEPENDENT ELECTORAL &
BOUNDARIES COMMISSION (RO))....................................... 3RD RESPONDENT
RULING
2. The application was supported by the Affidavit of the Applicant sworn on 22/6/2013, and the grounds on face of the application are as follows;
a) that the re-counting and re-tallying of the votes cast on 4/3/2013 was materially erroneous and the said errors definitely affected the election results.
b) that the margin between the petitioner/applicant and the 1st Respondent were 433, and the 2nd and 3rd Respondents in their response have reduced the margin to 266;
c) that the re-count and re-tallying shall lead to an expeditious disposal of the petition in terms with the overriding objectives of the election petition rules;
d) that the errors complained of regarding the entries in forms 35 and 36 have been admitted.
e) that the recount and re-tallying shall enable the court to ascertain the intergrity of the results that were announced by the 3rd Respondent.
f) that the Respondents shall not be prejudiced.
3. The Applicant's Supporting Affidavit reiterated the grounds and deposed the basis for a recount and re-tallying in paragraphs 10-15 as follows;
a) That form 35 for stream 5, Trans Nzoia Primary School polling station (No. 033) shows that I gannered 74 votes yet form 36 shows only 5 votes. None of the agents signed that form 35.
b) That form 35 for stream 3, in Trans Nzoia Primary School polling station (No. 033) shows that I gannered 97 votes, yet form 36 has no reflection of the said votes.
c) That form 36 has duplicated results for steam 3 in Trans Nzoia Primary School polling station (No. 033) while the results for stream 3 in the same polling station were left out.
d) That form 35 for Town Hall polling station (No. 022), stream 2, shows that I gannered 77 votes, yet form 36 shows only 4 votes.
e) That form 35 for Town Hall polling station (No. 022) Stream 5 shows that the total votes cast were 490 with 30 rejected votes and yet the valid votes cast are shown as 450 instead of 460, leaving 10 votes unaccounted for.
f) That form 35 for Matisi Polling Station (No. 18) stream A, 3, 4 and 5 show alterations/cancellations in the results entered and only one was countersigned. None of the agents countersigned the alterations.
g) that the samples shown go to demonstrate that the results declared from form 36 are not credible and only a recount and re-tallying of the votes cast can really credibly tell who won the parliamentary election for Saboti Constituency
4. In opposing the application, David Wafula Wekesa, 1st Respondent in Petition 9 of 2013, filed a Replying Affidavit sworn on 1/7/2013 in which he depones inter alia-
a) That I am advised by Counsel, which advice I verily believe to be true that the Application as filed is misconceived, incompetent, the same does not lie in law and is an abuse of process.
b) That the counting and tallying of the votes cast was duly undertaken as by law prescribed and the discrepancies, if at all, alluded to by the Petitioner would have had, no effect on the election result.
c) The plea for a recount and re-tally is unsupported and not lawfully feasible; given that the Petitioner's duly authorized agents duly signed the form 35's upon successful counting of the votes cast, without indicating any displeasure with the said process, or noting any breach of the Elections Act, 2011 and the rules and regulations made there under. Further the same is being sought for the ulterior purpose of fishing for grounds to support an ailing petition, and to avoid the rigmaroles of a trial, so as to obtain summary judgment on the petition
5. The application was also opposed by Farah Abdi Ibrahim, the 2nd Respondent and the Independent Electoral and Boundaries Commission (3rd Respondent) through the Replying Affidavit sworn by the 2nd Respondent on 28/6/2013. He deponed that;
a) That the said Application is premature and lacking in merit.
b) That indeed the counting and tallying of votes cast in Saboti Constituency was accurate, transparent and verifiable and the results declared reflected the wishes of the people of Saboti Constituency.
c) That indeed any tallying errors if any, arose from human flaws and were not premeditated or skewed against the Petitioner or any other candidate.
d) That any tallying errors were duly detected and duly corrected. In any event the disparities, if any, did not affect the final outcome.
e) That the Petitioner's agents were granted opportunity for recount of votes up to three times in every polling station as required by the elections regulations. The Application is therefore superfluous and is an afterthought.
f) That having looked at the petition, the Petitioner did not indicate in his petition that he only requires a determination on recount and re-tallying of the votes cast in Saboti Constituency.
g) That the Petitioner's application is overtaken by events since in my affidavit in response to the petition I have challenged the results posted by the Petitioner and have posted the right results which duly addressed the Petitioner's concerns hence rendering the present application superfluous.
6. Counsels for the Applicant and the Respondents made their oral submission on 9/7/2013. Before the submissions commenced this court delivered its ruling on the consolidation of Kitale High Court Election Petition number 7 of 2013 with Election Petition 9 of 2013. The court cautioned the Petitioner that he is not obliged to participate in the instant application. Mr. Kraido, Counsel for the Petitioner in Election Petition 7 of 2013 elected to participate in the proceedings. ThePetitioner in Election Petition number 7 of 2013 had filed a Replying Affidavit-under protest sworn by Asman Omari Wafula (Petitioner in Petition 7 of 2013) in which he deponed as follows;
a) That the Orders sought herein shall prejudice him as it will pre-empt his petition.
b) That the Orders are sought in vain because the Applicant's complaints of excluded votes were fully addressed by the 2nd and 3rd Respondents by carrying out a re-tally.
c) That the Application is mere fishing expedition which the Court ought to disallow.
APPLICANT'S SUBMISSIONS
2ND AND 3RD RESPONDENT'S SUBMISSIONS
PETITIONER IN PETITION 7 SUBMISSIONS
APPLICANT'S REJOINDER
ISSUES FOR DETERMINATION
i) Whether a sufficient basis has been laid to warrant the orders sought:
ii) Anomalies/Irregularities/discrepancies
iii) Two sets of Forms 36
iv) Margins
v) Costs
ANALYSIS
‘…….......Regulation 83 of the Election (General) Regulations 2012 does not provide for a situation where there can be generated two (2) Form 36s…….”
“…........ A relevant factor to consider is the number of contestants………..Where there are more than two candidates, it is absolutely essential to consider the margin between all the candidates….......”
“82. (1) An election court may, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election court may determine.”
39. The above section confers this court with jurisdiction, either on its own motion (suo moto) or upon the application of any party to order for a scrutiny at any stage of the proceedings but before judgment is pronounced. This court is also guided by the decision in Raila Odinga V. Uhuru Kenyatta, Petition No 5 of 2013 where the Supreme Court ordered for a partial scrutiny of Forms 34 to determine the results contained therein were reflected in the final tally.
FINDINGS
40. For the reasons stated above this court finds that the prayer for recount is found to be premature and this issue may be revisited later and at any stage of the trial upon oral evidence having been adduced.
CONCLUSION
It is so Ordered.
Dated, Signed and Delivered at Kitale this 16th day of July, 2013.
A. MSHILA
JUDGE.