Please Wait. Searching ...
|Case Number:||Election Petition 2 of 2013|
|Parties:||Lucas Ongaki v Samwel Kenny Nyangenya , Ng’eny K. Robert &The; Independent Electoral & Boundaries Commission|
|Date Delivered:||25 Sep 2013|
|Court:||Election Petition in Magistrate Courts|
|Citation:||Lucas Ongaki v Samwel Kenny Nyangenya & 2 Others  eKLR|
|Advocates:||1. Mr. Oguttu Mboya. Counsel for the Petitioner. 2. Mr. Minda Counsel for the 1st Respondent 3. Mr. Odhiambo Counsel for the 2nd and 3rd Respondent|
|Court Division:||Constitutional and Human Rights|
|Advocates:||1. Mr. Oguttu Mboya. Counsel for the Petitioner. 2. Mr. Minda Counsel for the 1st Respondent 3. Mr. Odhiambo Counsel for the 2nd and 3rd Respondent|
|History Advocates:||Both Parties Represented|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT KISII
ELECTION PETITION NO. 2 OF 2013
IN THE MATTER OF: ARTICLE 87 OF THE CONSTITUTION 2010
IN THE MATTER OF: ELECTIONS ACT NO 24 OF 2011
IN THE MATTER OF: ELECTION OF THE COUNTY ASSEMBLY REPRESENTATIVE FOR BOBARACHO COUNTY ASSEMBLY WARD
IN THE MATTER OF: THE PETITION OF LUCAS ONGAKI
LUCAS ONGAKI ………...........................………PETITIONER
SAMWEL KENNY NYANGENYA ………. 1ST RESPONDENT
NG’ENY K. ROBERT ……….....………… 2ND RESPONDENT
THE INDEPENDENT ELECTORAL
& BOUNDARIES COMMISSION…………. 3RD RESPONDENT
The petitioner LUCAS ONGAKI, brought the instant election petition dated 4th April 2013, filed on the 5th April 2013, under the provisions of Articles 22, 81 and 87 of the Constitution, 2010 and sections 39 and 75 of the Elections Act, no. 24 of 2011 and rules 8 and 10 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 and all enabling provisions of the law, against the 1st Respondent SAMWEL KENNY NYANGENYA, the 2nd Respondent NG’ENY K. ROBERT, and the 3rd Respondent, The Independent Electoral and Boundaries Commission, in their respective capacities, as the declared successful candidate and the County Assembly Ward Representative for Bobaracho County Assembly Ward, the Returning Officer for Nyaribari Chache Constituency, where the Bobaracho County Assembly Ward falls during the held elections and the 3rd Respondent, being the statutory body created and/or established under the provisions of Article 88 of the Constitution, 2010, vested with the constitutional mandate to Inter-alia, conduct, direct and supervise the Presidential, National Assembly, Senate and County Assembly Elections, seeking for the following reliefs;
The petitioner’s case and/or contention, given the averments contained in the filed election petition are inter-alia, that the 2nd and 3rd respondents had purportedly conducted the held elections in a manner substantially inconsistent with the express provisions and principles laid down under Articles 8, 86 and 88 of the Constitution, 2010, Section 39 of the Elections Act no. 24 of 2011 and the provisions of the Elections (General) Regulations, 2012; in that, the 2nd respondent had purportedly declared the 1st respondent winner of the held election without verifying and completing form 36 in the presence of the petitioner and his agents, unlawfully and unjustifiably declining the petitioner’s request for a recount of votes cast, unlawfully and unjustifiably in cahoots with his subordinate officers excluding and/or rejecting or chasing away the petitioner’s agents from many polling stations including but not limited to Nyanguru Primary School, Kenya Marine Fisheries, Nyanko Primary School and Riabamanyi Primary School polling stations and unlawfully and unjustifiably refusing to issue and allow the petitioner’s agents to sign form 35’s in respect of many polling stations, unlawfully and unjustifiably refusing, neglecting and/or otherwise failing to fill form 35s in many polling stations, in allowing the 1st respondent’s supporters to impersonate deceased voters and in consequently endorsing the illegal declaration of the 1st respondent through the 3rd respondent vide Gazette Notice Number 3160 dated 13th March 2013 as the elected member of Bobaracho County Assembly Ward and which election he averred and maintained was thus manifestly void and proceeded to set out the grounds of the petition and the particulars of the breaches committed by the 2nd and 3rd respondents under paragraphs 8 – 26 of the filed petition.
The petitioner, in support and in buttressing his case, filed an affidavit of evidence sworn by himself on the 4th of April 2013, filed on 5th April 2013 and in further support attached thereto a number of documents, to wit a certificate of nomination issued by his political party, the statutory form 35s and 36 in respect of the electoral ward and a bundle of copy of the Kenya Gazette Notice in issue. The filed election petition was further supported by a number of witnesses, notably; VINNIE K. ONKUNDI, LINET BOSIBORI MOMANYI, EDNA KERUBO NYAKWARO, CALLEN K. NYANGERI, JACKLINE GIMONDE, ANNA KEMUNTO MAUTIA, HECKINS ARASA NYAKUNDI, DANIEL OSORO ONDUSO and DENIS MATAI NYAKUNDI, who in corroboration of their support of the filed petition, filed their respective sworn affidavits in evidence accompanied by documentary evidence.
The 1st respondent, in his filed response to the petition dated 15th April 2013, filed on the 16th April 2013 vehemently denied the petitioner’s complaints and/or allegations alluded to under paragraph 8 – 27 of the filed petition and invited the petitioner to strict proof hereof. He averred and maintained under paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10 that the elections held and conducted by the 2nd and 3rd respondents in respect of County Assembly Representative of Bobaracho County Assembly Ward, held on the 4th March 2013 was held and conducted in a free and fair manner consistent with the provisions of Article 86 of the Constitution of Kenya, 2010, the Elections Act No. 24 of 2011 and the Elections Regulations, which elections had culminated to his declaration by the 2nd respondent as the validly elected Member of the County Assembly Bobaracho Ward and which results were sanctioned by the 3rd respondent vide Kenya Gazette Notice No. 3160 dated 13th March 2013. He therefore urged the court to issue a declaration to the effect that he was duly and validly elected as the County Assembly Representative for Bobaracho Ward and to dismiss the petitioner’s petition with costs to him. He, in support and corroboration of his filed response to the petition filed a replying affidavit: in evidence dated the 15th April 2013, sworn on the even date, filed on the 16th April, 2013 and attached thereto a bundle of documents, to wit, the statutory forms 35s and 36 in respect of the held election in issue and further supported by witnesses namely; WILFRED OMENGE NKOBE, HENRY NYABUTO DAN, ZABLON INGWANI ORURU, LAWRENCE NYANGAI OCHENGE, VINCENT OMWENGA OBINGO, ANTHONY OUKO ONDIMU, CHARLES ONDIEKI MATUNDURA, ALI MUSTAFHA, ONGERI ALVIN ONGAGA, JAMES OMBOGO BAGWASI, THOMAS MANAS ONCHANGWA, GODFREY MIGIRO MASAKA, and ZACHARIA MOKAYA NYANGAU, who, too as required by law, filed sworn replying affidavits in evidence accompanied by supporting documents thereto.
The 2nd and 3rd respondents in their answer and/or response to the petition dated 22nd April 2013, filed on the even date generally and vehemently denied each and every allegation in the petitioner’s petition and the deponed assertions by the witnesses in their filed sworn affidavits in evidence in support and particularly the contents of paragraph 8 – 27 of the filed petition and invited the petitioner to strict proof thereof. They averred and maintained under paragraph 4 – 17 of their filed response that the 1st respondent was legally declared and Gazetted winner of the subject election, and which elections they hastened to add was conducted in accordance with the provisions of the Constitution and provisions of the Law and in a peaceful and transparent environment and further that no breach of the Law or statute was ever committed as alleged. They further averred, on without prejudice basis that the petitioner herein has made wild allegations against them without proof on the issues, questions and complaints laid before the court for determination, which material facts and evidence, if found by the court, in the unlikely event are not fundamental and material as to invalidate the election of the 1st respondent.
They further averred that, the presented petition is without substance in law and in fact which petition they asserted is incurably and fatally defective, embarrassing, ill conceived, misguided, frivolous, vexatious and an abuse of the Honourable Court process warranting its dismissal with costs, and urged the court to make a determination that the 1st respondent was duly elected County Assembly Representative for Bobaracho Ward and that the said election was valid.
The 2nd and 3rd respondents in support of the filed response to the petition filed sworn affidavits in evidence by witnesses led by one NG’ENY K. ROBERT, the Returning Officer for Nyaribari Chache Constituency, whose jurisdiction the held elections fell, and denied each and every allegation or complaint raised by the petitioner and his witnesses in their respective filed sworn affidavits in evidence in support of the petition and in corroboration of their cases attached therewith copies of the statutory forms 35s and 36 in respect of the held County Assembly Ward election, which considered position was corroborated by the following witnesses, in their respective sworn affidavits in evidence, EVANS MACHUKI MOGANA, FLORENCE OGETO, STEPHEN ONGORI TEYA, BENARD KONGO MOSE, DENDEN MOSIMA MIKURO, DOMINIC NYACHIRO MOTURI, GILBERT ONGWENYI and MAIRURA EDWARD OKEMWA.
B: AGREED ISSUES FOR DETERMINATION.
The agreed issues for determination as filed by the parties would be crystalized and/or summarized as follows;
C: INTERLOCUTORY APPLICATIONS:
The petitioner at the first instance and prior to the hearing of the election petition brought a notice of motion application dated 26th April 2013, filed on the even date seeking for the following orders; inter-alia,
The presented motion was strenuously opposed by the respondents and the court in its ruling thereafter disallowed the application on grounds that same was premature taking note of the fact that the prayers sought were not the only prayers or issues in the filed election petition as contemplated and/or envisaged vide Section 32(2) of the Election Rules and secondly, the petitioner having failed to establish and/or demonstrate a legal basis and/or sufficient reasons thereto to the satisfaction of the court which scenario, as noted by the court would be achievable upon hearing of the main petition, whereupon all parties to the petition would be tested and examined in their respective evidence to de adduced.
D: EVIDENCE ADDUCED:
The petitioner in his sworn testimony in evidence in chief wholly adopted the filed sworn affidavit and the bundle documents attached thereto as his evidence in support and corroboration of the filed petition. He, on cross examination stated that he was among the nine candidates who had contested for the Bobaracho County Assembly Ward during the elections held on the 4th March 2013, which elections he conceded were conducted in a free and fair manner save for the instances where he had noted some discrepancies during the tallying of the votes cast, wherein the garnered votes in his favour had been diminished and posted in favour of other competing candidates; as in the cases obtaining at Nyamage, Bobaracho and Jogoo polling stations. He stated that at Bobaracho Secondary School Polling Station, he had garnered a total of 67 votes but during the tallying of the cast votes, at Keumbu tallying centre, he was declared by the Returning Officer to have garnered 17 votes and had consequently lost 50 votes and at Nyamage Polling Station, he had garnered 299 in stream no. 2 as indicated by the filed statutory form 35, but the tallied results showed he had garnered 247. He denied the respondents assertions and/or allegations that he, in company of one Kerosi Ondieki, now the current Assembly Speaker – Kisii County had attempted to disrupt the counting of the votes cast at Jogoo Polling Station. He further on cross examination maintained that he had appointed agents, who however were allegedly not accredited by IEBC, the 3rd respondent and were thus consequently denied access to the polling stations. He reiterated that the votes cast in his favour in some of the polling stations i.e. in Jogoo, Nyamase and Bobaracho Secondary School as declared by the Presiding Officers were altered during the tallying and announcement of the final results by the Returning Officer, the 2nd respondent herein. He called nine (9) PW2 VINNIE K. ONKUNDI, PW3 LINET BOSIBORI MOMANYI, PW4 EDNA KERUBO NYAMWARO, PW5 CALLEN KEMUNTO NYANGENYI, PW6 JACKLINE GIMONDE KEMUMA, PW7 ANNA KEMUNTO MAUTIA, PW8 HECKINS ARASA NYAKUNDI, PW9 DANNIEL OSORO NYANDUSO and PW10 DENNIS MATAI NYAKUNDI, who all in their respective sworn testimonies in evidence in chief adopted their respective sworn affidavits in evidence filed, as their evidence in corroboration of the petitioner’s election petition. They all except PW7 ANNA KEMUNTO MAUTIA who in evidence was a polling clerk at Bobaracho Secondary school polling station, stated in their cross examination and re-examination that they were appointed agents, who had been purportedly, assigned the role of overseeing the electoral process in the assigned polling stations falling under Bobaracho County Assembly Ward by their respective political parties. For instance PW2 in evidence alleged to have been appointed by ODM party, PW3 allegedly was appointed by an individual candidate running under ODM party ticket, the petitioner herein, PW4 appointed by FORD Peoples Party, PW5 allegedly an accredited agent for FORD People Party, PW6, appointed as an agent by Safina Party and PW8, 9 and 10 allegedly directly appointed by the petitioner as individual candidate’s agents. PW8, PW9 and PW10, in their respective adduced evidence, upon presenting their appointment letters or credentials to the IEBC officials were purportedly chased or turned them away and were therefore denied access to the polling stations and did not as it were witness the voting and the counting exercise and the declaration of the votes cast by the presiding officer. On the other hand, PW2, PW3, PW4, PW5 and PW6 had witnessed the entire electoral process in the voting, counting and declaration of the votes cast by the presiding officers and had allegedly made their personal handwritten notes on the votes cast by each candidate and particularly in favour of the petitioner which results they had handed over to the petitioner upon his request much later after the announcement and declaration of the final results. They alleged in evidence that they were not availed the statutory form 35s for them to append their signatures in acknowledgement and in confirmation of the votes cast and that in some polling stations declared results by the Presiding Officers were not properly posted and tallied in statutory form 36 by the Returning Officer, the 2nd respondent herein.
The 1st respondent in his evidence in chief stated that he is the incumbent elected County Assembly Representative for Bobaracho County Assembly Ward in the election held on the 4th March 2013, wherein he was among the nine contestants and had emerged the declared winner, having garnered the highest cast votes and was consequently Gazetted as the duly elected County Representative for Bobaracho Assembly Ward, which held elections he maintained was conducted by IEBC, the 3rd respondent herein in a free, fair and transparent manner. It was his evidence that he had appointed agents in the polling stations with instructions to oversee, monitor and to keep a close eye on the election process. He, in examination in chief reiterated that the entire election process held on the 4th March 2013, in respect of Bobaracho County Assembly Ward were conducted in a free and a fair manner with no complaints or any ugly incidents reported save, for an isolated incident reported at Jogoo Polling Station where his close competitor and ally, the petitioner herein in the company of one Kerosi Ondieki had attempted to disrupt the smooth counting of the votes cast, which incident he had formally lodged at Kisii Central Police Station vide OB entry No. 4 of 4th March 2013. He wholly adopted his affidavit in evidence in answer to the petition and the attached bundle of documents thereto in evidence in answer to the filed petition.
He, on cross examination and upon being shown bundle of copies of the statutory form 35s, filed by himself in answer to the filed petition and those filed by IEBC, the 3rd respondent conceded that some of his appointed agents apparently did not sign on the statutory form 35s as opposed to what he had deponed to in his sworn affidavit in answer to the petition. He, on further cross examination conceded that there were apparent noted discrepancies on the statutory form 35s in respect of the votes cast, with a case in point, being Bobaracho Primary School Polling Station, which had two streams, wherein some five (5) votes were not reflected anywhere and could not be accounted for. He maintained that all the statutory form 35s were generated by IEBC, the 3rd respondent who, are in a better position to explain the discrepancies noted. He, reiterated that the election exercise, notwithstanding the noted discrepancies was conducted in a free and fair manner by IEBC, the 3rd respondent, who complied with the law and was thus validly declared as the County Assembly elected representative for Bobaracho County Assembly Ward. He, called five (5) witnesses his appointed agents in some of the polling stations namely; RW2, JAMES OMBOGO BAGWASI an agent at Bobaracho Secondary School, RW3, ONGORI ALVIN ONGAGA, Jogoo Primary School Stream No. II, RW4, ALI MUSTAFHA, Jogoo Primary School Stream No. I, RW5, THOMAS MWAMASI ONCHANGA, Riabamanyi Primary School polling station and RW6, ZABLON INGWANI ORURU, Nyamage Primary School polling station, who in their respective sworn testimonies and evidence in chief adopted their filed affidavit of evidence in reply to the filed petition. They all maintained that they were trained as agents at Keumbu Tallying Centre prior to the Election Day and had witnessed the election process in their respective polling stations which exercise, they all maintained was conducted in a free and fair manner and that the results declared by the Presiding Officers as captured in the statutory form 35s were true results and a reflection of the tallied results by the returning officer in statutory form 36.
They conceded that not all of them had signed the statutory form 35s and further that some of their names were missing from the statutory form 35s
The 2nd and 3rd respondents, in evidence called four (4) witnesses led by the 2nd respondent, ROBERT K. NG’ENY, who in evidence was/is the Returning Officer for Nyaribari Chache Constituency under whose jurisdiction the Bobaracho County Assembly Ward elections, held on the 4th March 2013 fell.
The 2nd respondent, referred to as RW1 stated in his sworn testimony that his role as the Returning Officer, with the assistance of his Deputy Returning Officer was to inter-alia monitor and to ensure the smooth running of the elections process, to receive any complaints from all the polling stations, if any and/or challenges encountered and ultimately to receive all the results from the Presiding Officers from all the polling stations which results were contained in the statutory form 35s, which results he would then verify before tallying and pronouncing the final tallied results in the presence of the candidates and their chief agents, upon asking them if they had any complaints thereto. He stated that he would then thereafter proceed to cause their ICT personnel to key in the tallied results in form 36. He, in his evidence in chief stated that, he had prior to the Election Day held a consultative seminar with the candidates and their agents, where they were trained and sensitized on their roles during the election period and on the need to observe the Oath of Secrecy and the Electoral Laws and the requirement for them to submit the list of their agents 48 hours prior to the voting day. It was his evidence in chief that overally the elections held on the 4th March 2013 in respect of Nyaribari Chache Constituency was conducted in accordance with the law and was free and fair notwithstanding the obtaining technical challenges in remitting the results. He commended all IEBC officers who worked under him for doing a commendable job. He wholly adopted his sworn affidavit in evidence in answer to the filed petition and the entire attached documents notably, the statutory form 35s and 36 in support and in corroboration of his evidence and on behalf of the 3rd respondent. He, on cross examination by the 1st respondent’s counsel maintained that the elections held in respect of Bobaracho County Assembly Ward, on the 4th March 2013 was conducted in a free and fair manner and the winning candidate, the 1st respondent herein consequently validly declared. He further stated that one ANNE KEMUNTO who was a polling clerk for the IEBC, called by the petitioner as a witness in the petition ought to be investigated for a possible commission of an electoral offence in taking away an election material from the polling station. He on cross examination by the petitioner’s counsel, stated that there was no law forbidding anyone from getting access to the duly filled copy of form and that ANNE KEMUNTO MAUTI called as the petitioner’s (PW7) was within the law to have requested the Presiding Officer, a copy of the filled form 35. He on further cross examination and upon being shown a number of copies of documents to wit the statutory form 35s and 36 filed by the 1st, 2nd and 3rd respondents and his own sworn affidavit in support of the 3rd respondent’s case conceded that there were apparent transposition errors during the keying in of the results in form 36 at the constituency level, in some isolated instances such as in Bobaracho Primary School polling station Stream II where Five (5) votes cast could not be accounted for, Bobaracho Secondary School, where the petitioner was indicated to have garnered 17 votes, instead of his rightful cast votes of 67, to mention but a few. He maintained that the results he declared and announced in respect of Bobaracho County Assembly Ward are the true reflection of the results received by him from the presiding officers, which results he had posted onto form 36.
RW2 BENARD KONGO MOSE in his evidence in chief adopted his sworn affidavit in evidence in corroboration of the 2nd and 3rd respondents’ cases and confirmed that he was the Presiding Officer posted to Bobaracho Secondary School by IEBC, the 3rd respondent. It was his evidence that the election process was peaceful throughout the entire process with no complaint raised by the contesting candidates and that the results reflected and posted in form 36 exhibited by the 2nd and 3rd respondents were the true reflection of the results on the votes cast in favour of the candidates. He stated that the petitioner herein had garnered 17 votes and one MARY ANGIMA 67 votes as indicated on the statutory forms 35 and 36. He, on cross examination by the 1st respondent’s counsel maintained that the statutory forms 35 in respect of Bobaracho Secondary School polling station had shown the petitioner having garnered 17 votes and one MARY ANGIMA having garnered 67 votes. He, on being shown the statutory form 35 exhibited by the petitioner in respect of Bobaracho Secondary School polling station denied the contents therein and termed them forgeries. He, on cross examination by the petitioner’s counsel maintained that the statutory form 35s exhibited by the 1st respondent and the petitioner are unknown to him and disowned the signature and the handwriting, terming them forgeries. He conceded that some agents did not sign the statutory form 35s which he would normally fill in.
RW3, BENDEN MOSIMA MIKURO, in his evidence in chief adopted his sworn affidavit in evidence filed in support and in corroboration of the 2nd and 3rd respondents’ cases and confirmed having been deployed by the 3rd respondent as a presiding officer at Bobaracho Primary School Stream II in the elctions held on the 4th March 2013.
He, on cross examination conceded that there were five (5) cast votes which were unaccounted for, which votes, in his own opinion could have been rejected votes, which votes in any event could not have been factored in favour of any candidate. He further conceded that he did however post the five (5) cast votes unaccounted for to the final document form 35. He, on further cross examination denied any knowledge of the statutory form 35 exhibited by the petitioner and the first respondent and termed them forgeries. He stated that the copies of statutory form 35 exhibited by the 2nd and 3rd respondents in their response to the petition are the genuine documents. He confirmed, however that as the Presiding Officer he had the custody of the IEBC official rubber stamp and could not comment as to who might have embossed the IEBC official rubber stamp on the disputed documents. He further stated that the failure to factor the unaccounted for, five (5) cast votes was due to fatigue and vehemently denied bungling the elections held on the 4th March 2013.
RW4, EVANS MACHUKI MOGAKA, in evidence in chief adopted his sworn affidavit in evidence as his evidence in support of the 2nd and 3rd respondents’ cases. He, on cross examination owned up to the three (3) sets of form 35s shown to him relating to Nyamage Primary School, wherein he had posted as the Presiding Officer. He conceded there were inaccuracies in form 35s wherein he had posted the total number of votes cast as 452 instead of 453 consequently thereof he had robbed one candidate, Francis Michieka one (1) cast vote.
E: SCRUTINY AND RECOUNT OF VOTES CAST
The court upon the close of trial and upon satisfying itself on its own suo moto ordered for a scrutiny and recount of all the votes cast in all the polling stations falling under Bobaracho County Assembly Electoral Ward, the election in issue, for it to ascertain the validity and authenticity of all the votes cast and the legality or otherwise of the entire electoral process; which exercise as ordered by court was carried out by the Executive Officer of the Court with the assistance of Judicial staff and in the presence of all the parties to the petition and their respective nominated agents, which exercise was carried out from the 5th day of August 2013 running to the 7th day of August 2013 when the exercise was concluded and a report presented to the court by the Executive Officer of the Court on the 8th day of August 2013, which report formed part of the record in these proceedings and which would ultimately assist the court to arrive at an informed decision on the matter. For the record, the results from the scrutiny and recount of votes cast were as follows;
All the parties to the petition, upon the close of the trial, through their respective counsels on record filed written submissions on the raised issues during the trial of the matter i.e. the summary of the oral as well as documentary evidence so adduced and tendered in support and in corroboration of the respective cases, resting with the results of the scrutiny and recount of the votes cast as ordered and directed by court. Parties in buttressing their considered positions in the matter cited several case law, which I would shortly, hereinafter consider in my final determination of the matter.
The petitioner’s counsel, during the highlighting of the written submissions; submitted and highlighted the following;
The petitioner’s counsel in buttressing his considered position in the highlighted issues herein before cited the cases of HASSAN JOHO –VS- NYANKE & ANOTHER, 2008 eKLR, MURGOR – VS – IKONGA, 2008 KLR, WABUGE – VS – LIMO, SIMON OGARI & ANOTHER – VS- HON. JOEL OMAGWA ONYANCHA and OMINGO MAGARA – VS- NYAMWEYA.
The petitioner’s counsel, on this limb submitted that the report on the scrutiny and recount of the votes cast presented before court revealed that a total of seven (7) polling stations did not have the original form 35s, namely; Nyanko, Nyamemiso, Kegati Steam No.2, Nyosia, Kenya Marine Fisheries, Nyamage Stream No.1 and Nyanguru polling stations. He further submitted in the other polling stations i.e. G.I.T. code 013 and Riabamanyi polling station, the statutory form 35s did not have the IEBC validation stamp which omission would in effect invalidate the held elections as held in the cited case of THOMAS MALINDA – VS- IEBC & TWO OTHERS.
He further submitted that Regulation 74 relates to a counting agent but not an agent and that the refusal to admit agents to a polling station such as in the instant case, would vitiate the held elections
The petitioner’s counsel, in resting his submissions urged court to place reliance on the cited legal authorities and to invalidate and nullify the elections held.
The 2nd and 3rd respondents’ counsel during the highlighting of the filed submissions, submitted the following;
The 1st respondent’s counsel in highlighting the final written submissions, submitted the following;
He reiterated that the 1st respondent did not misconduct himself or committed any electoral offence during the held elections for any sanctions to be meted against him.
I have carefully and seriously considered the filed pleadings in the petition and the answers/responses thereto and the accompanying filed sworn affidavits in evidence and the attached bundle of documents, forming part of the records, by all the parties, in support and in corroboration of their respective cases, the oral evidence adduced as well as the filed written submissions on the raised issues for determination by the court.
“ No election shall be declared to be void by reason of non-compliance with any written law relating to the election, if it appears that the election was conducted in accordance with the principles laid down in the Constitution and other written law or that the non-compliance did not affect the final result of the election.” This position in law was stated in the cited case of JOHO – VS – NYANGE & ANOTHER, where it was further held that;
“An election will be nullified if it is not conducted substantially in accordance with the law as to elections. It will also be nullified, even though conducted substantially in accordance with the law as to elections, if the errors or mistakes in conducting it, however trivial are found to have affected the result of the election”.
The main issue then, in my considered view, is whether the electoral malpractices and illegalities noted and found and/or established by the court during the scrutiny and recounting of the cast votes and the presented report, the non-signing of the statutory form 35s and 36 by the Presiding Officers in some polling stations and the Returning officer and the absence of appointed agents at some polling stations as alleged by the petitioner have been proved in evidence to the settled standard of proof afore stated and as to whether if the allegations found, would be sufficient grounds or reasons to vitiate and to nullify the held elections.
These witnesses purportedly appointed by the petitioner as his agents, admittedly on record were indeed agents to other rivaling political parties and could not reasonably be expected to have been the petitioner’s independent competent witnesses on the grounds of possible conflict of interest. The evidence adduced with due respect to that extent have no evidentiary value. I, further find that, even if the petitioner’s alleged agents were chased away or turned away from the polling stations, that in my view, would have amounted to a procedural anomaly, which would not have fundamentally affected the final results of the election.
Regulation 79 (6) (7) of the Elections Regulations states;
“The refusal or failure of a candidate or agent to sign a declaration form under sub regulation (4) or to record the reasons for their refusal to sign as required under sub regulation (2) shall not by itself invalidate the results announced under sub regulation 2(a). The absence of a candidate or an agent at the signing of a declaration form or the announcement of results under sub regulation (2) shall not by itself invalidate the results announced.”
Although, it is crucial for the agents/candidates to sign the statutory form 35, failure to do so, however does not necessarily nullify an election as held in the cited case of MACHAKOS HC ELECTION PETITION NO. 2 OF 2013, THOMAS MULINDA MUSAU & TWO OTHERS – VS – IEBC & TWO OTHERS.
Additionally, it was established that the counterfoils in respect to Nyanguru Primary School polling station was missing from the ballot box. The IEBC validation official stamp was also established to have been missing at GIT code no. 014 and RIABAMANYI code 013 polling stations. It was further established that the petitioner’s cast votes amounting to 67 votes at Bobaracho Secondary School polling station were inaccurately and/or erroneously posted in favour of a rivaling or competing candidate.
There is no dispute that the 1st respondent, even after the scrutiny and recount of the votes cast remained in the lead.
I would wish to point out in this regard that the final results, posted onto statutory form 36, given the apparent election irregularities were thus null and void ab initio, consequently rendering the held election invalid.
“If scrutiny showed that the documents in the ballot boxes were substantially non-compliant or that certain statutory documents were not contained therein, a recount of the ballots per se cannot cure the inherent defect. The presence of a ballot paper in a ballot box is validated by the counterfoil thereof and the marked voters register. Without the counterfoils, there is no telling how it found its way in the ballot boxes.”
The import of the letter and spirit of Section 33(4) of the Election Petition Rules, 2013, in my view is for expediency, but not intended or meant to curtail, or tie up the court’s hands, or shut its eyes into laying its hands or setting its eyes into the wider scope and perspective of an entire electoral process, in so far as the court does not consider extraneous matters in its findings.
I do not think therefore, with this in mind, that the court in ordering for a scrutiny and recount of the votes cast, at the tail end of the proceedings would have occasioned any party any injustice, prejudice or hardship.
Justice L.N. MUTENDE, in MACHAKOS HC. ELECTION CASE No. 2 of 2013, THOMAS MULINDA MUSAU & TWO OTHERS – VS – IEBC & TWO OTHERS, in making reference to the decision held in the case of MORGAN & OTHERS – VS – SIMPSON & ANOTHER (1974) 3 ALL. E.M at page 722, stated in part;
“Where breaches of the election rules, although trivial, had affected the result, that by itself, was enough to compel the court to declare the elections void, even though it had been conducted substantially in accordance with the election law; it was vitiated – irrespective of whether or not the result of elections had been affected.”
DATED, SIGNED and DELIVERED at KISII this 25th day of September, 2013.
In the presence of;
Counsel for the Petitioner. …………………………………………
Counsel for the 1st Respondent …………………………………………
Counsel for the 2nd and 3rd Respondent …………………………………
Court Clerk ………………………………………….