Philip Kyalo Kituti Kaloki v Independent Electoral and Boundaries Commission & 2 others [2018] KEHC 8503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

THE ELECTIONS ACT, 2011

ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES, 2017

ELECTION PETITION NUMBER 1 OF 2017

PHILIP KYALO KITUTI KALOKI.......................................................................PETITIONER

VERSUS

INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION...1^ST RESPONDENT

THE RETURNING OFFICER KIBWEZI EAST CONSTITUENCY.......2^ND RESPONDENT

JESSICA NDUKU KIKO MBALU................................................................3^RD RESPONDENT

RULING

INTRODUCTION

1. On 31^st October 2017, the matter came up for hearing of the applicant’s Notice of Motion application dated 17^th October 2017. Some prayers had been spent, others were abandoned, others were contested and scrutiny was deferred. After the close of the respondents’ case, the petitioner revisited the issue of scrutiny and the parties agreed to canvass the issue through written submissions.

2. In the ruling delivered on 10^th November 2017, the Court observed that the petitioner’s choice of electing to suspend the issue of scrutiny is sanctioned by law. In the same ruling, the Court went into great detail to look at the relevant law with regard to scrutiny  as well as the emerging jurisprudence.

3. When the matter came up for highlighting of submissions, the petitioner through Counsel clarified that he was only interested in scrutiny and not recount.

4. I will therefore proceed to assess and determine whether sufficient basis has been laid to warrant the granting of an order for scrutiny.

SCOPE

5. In his submissions, the petitioner listed sixty five (66) polling stations and contended that scrutiny should be conducted therein. However, the polling stations which have come out clearly in the petitioner’s pleadings are:

1) Dwa Primary School polling station 1

2) Dwa Primary School polling station 2

3) Kilungu Primary School-

4) Ndauni polling station

5) Athi Kamuyuni polling station

6) Muangeni Primary School

7) Tisya Primary School

8) P.C.E.A Primary School

9) Ivoleni primary School

10) Kiambani Primary School.

11) Nzouni Primary School.

12) Nzayo primary School

13) Mitooni Primary School.

6. Rule 29(4) of the Elections (Parliamentary & County Elections) Petitions Rules, 2017 (EPCE) provides that scrutiny should be confined to polling stations in which results have been disputed. It is noteworthy that no evidence was led disputing the results in any of the polling stations in Kibwezi East Constituency.

7. Listing of polling stations which were not specifically pleaded is in my view an expansion of the petition. As rightly submitted by the 3^rd respondent, the position has been fortified by Justice Maraga in his paper, Scrutiny in Electoral Disputes: A Kenyan Judicial Perspective. In Odote C and Musumba L (eds) Balancing the scales of Electoral Justice: Resolving Disputes from the 2013 Elections in Kenya and emerging Jurisprudence.

8. He states that it had emerged from judicial interpretation that scrutiny ought to be granted only if pleaded specifically and precisely in order to protect Court processes from those interested in fishing for evidence.

9. He writes thus;

“Having shown that scrutiny must be specifically pleaded in the petition, the Courts have also held that pleas for scrutiny must be precise. Scrutiny is not to be granted on ambiguous pleadings intended to enable the petitioner to engage in a fishing expedition and perhaps enlarge his case beyond the scope of his pleadings or on pleadings couched in general terms. Courts have held that it would be an “abuse of process” to look upon scrutiny “as a lottery” and “to allow a party to use [it]…for purposes of chancing on new evidence. Scrutiny can also never be granted on a blanket prayer. As is deducible from Rule 33(4) of the Election Petition Rules, specificity is crucial. The prayer for scrutiny must specify the polling station(s) in which the results are disputed and the documents which should be scrutinized. The party seeking scrutiny must therefore ensure that its petition and affidavit in support “contain concise statements of material facts” upon which the prayer is grounded.”

10. On appeal to the Supreme Court in the case of Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others Petition No. 2B of 2014; [2014] eKLR the Supreme Court held;

“………judicial opinion  distinctly  favours  a  view  that commends itself to us: that, an application for scrutiny and recount, must be couched in specific terms, and clothed with particularity, as to which polling stations within a constituency are to attract such scrutiny. If a party lays a clear basis for scrutiny in each and all the polling stations within a constituency, then the order ought to be granted. Otherwise, a prayer pointing to a constituency but lacking in specificity is not to be entertained.”

11. I will therefore limit my analysis to the 13 polling stations mentioned above.

Has sufficient basis been laid?

12. The purpose of scrutiny as per Rule 29(1) is “to establish the validity of the votes cast.”

13. I will proceed to look at the malpractices alleged in the various polling stations against the purpose of scrutiny.

Agents barred from accessing polling stations

14. The petitioner has not particularized the polling stations where his agents were barred. The evidence or record shows the converse. Jubilee agents were present at DWA (1), Tisya, Ngwata 1, Ndauni, Nzauni, Ngokolani, Mitooni, Athi Kamunyuni, Muusini polling stations among others. In cross examination, PW1, the petitioner stated that his agent in Ndauni polling station signed form 35A. In fact, it was his evidence that only 27 out of 151 form 35A’s were not signed by jubilee agents. The inference to be drawn from this is that Jubilee Party (JP) agents were able to access 124 polling stations.

15. An agent as defined under Section 2 of the Elections Act,2012 is a person duly appointed by a political party or independent candidate and includes a counting and tallying agent. Regulation 2 of the Elections (General) Regulations defines an agent as a person appointed under Section 30 of the Elections Act. The agents are required to take an oath of secrecy prescribed in the third schedule to the Act.

16. Regulation 62(1) of the Elections (General) Regulations, 2012 provides that only authorized agents were to be allowed into polling stations. Further Regulation 62(4) of the Elections (General) Regulations, 2012 requires such agents to display their official badges supplied by the commission.

17. Regulation 74(1) of the Elections (General) Regulations requires candidates and political parties to submit the names and letters of appointment of the agents to polling stations. At the tallying Centre, only authorized agents are allowed to enter pursuant to the provisions of Regulation 85(1) (e) of the Elections (General) Regulations, 2012.

18. As such, to be an authorized agent and therefore liable to be admitted  to a polling station or tallying Centre, one must demonstrate that:

?The person was duly appointed as an agent of a candidate or party and has a letter of appointment.

?The person must have sworn an oath of secrecy.

?The person must have been issued with a badge by the 3rd Respondent.

19. PW2, Simon Kilaki was the Chief Agent of the Jubilee Party (JP). He testified that he was also a chief agent of the petitioner. He however did not have an appointment letter from the petitioner. It came out in evidence that the chief agent delayed in picking the IEBC badges and as a result, he was not able to distribute them to the other agents on time. He stated as follows:

“I was to pick badges previous day before election on 08/08/2017. I picked badges on 08/08/2017 in the morning together with Petitioner at Kambu. I collected badges at 7.00 a.m. The polling station opened at 6.00 a.m. I knew polling stations (same) were opened even at 5.00 a.m. in the morning”

20. R1PW1 the 2^nd respondent and the CRO Kibwezi E C confirmed that he gave Jackline Muteti JP county coordinator badges on 6/8/2017 for all the 151 P/Ss agents but apparently she failed to deliver the same. The testimony was not rebutted.

21. PW4, Kisilu Matheka, was a JP agent at Mitooni primary school polling station. In re-examination he stated as follows;

“I was allowed to enter polling station at 10.00 a.m. I was denied entry because I had no IEBC badge”

22. Similarly, PW7, Simon Kanyulu Musau, a JP agent accessed the polling station late because he did not have a badge. He stated as follows:

“I did not have badge but I had the other 2 papers. I got letter of appointment and oath on 7^th night August 2017. I got badge later… I entered polling station at 10.00 a.m.”

23. In my view, none of the agents called to testify was barred from accessing the polling stations for invalid reasons.

24. Further, none of them was employed directly by the petitioner. The petitioner seemed to be relying on the agents employed by the JP party. In fact, he confirmed that he was aware of the requirement to provide a list of agents 14 days before elections but did not provide the same. It is my considered opinion that consequences of the chief agent’s inefficiency are not attributable to any of the respondents.

25. In close scrutiny of the evidence it is clear that a large number of agents were allowed into the polling stations before seven(7) o’clock in fact to be precise they witnessed the opening of the polling stations according to the sampled stations and agents as contained herein below

26. The Respondents I & 2 have done SAMPLING ON TIME IN OF ENTRY FROM WITNESSES IN CROSS EXAMINATION as hereunder which court confirmed from the record;

27. It is therefore not true that agents were barred from polling stations as alleged and the same cannot be a basis to grant an order for scrutiny. This is a general and vague allegation which lacks specificity. It is trite law that the Petitioner is bound by his pleadings unless the Petitioner demonstrates that he made out a case to warrant scrutiny, the same cannot be granted.

Failure to assist voters, Intimidation, harassment and/or misleading of voters.

28. In DWA (1), PW 11, Deus Allan was one of the petitioner’s agents. In re-examination he confirmed that “the people assisted were many”. He also stated that “…we were allowed to witness the assistance of those voters.”

29. In cross examination, the petitioner stated that he could not tell who wanted to vote for him but changed his mind due to harassment/intimidation etc. Further, the petitioner confirmed that he did not know how many people were harassed or intimidated.

30. Intimidation, harassment and/or misleading of voters falls under ‘ undue influence’

31.Section 10(3) of the Election Offences Act, No 37 of 2016 provides;

“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,

i. commits an offence”

32. PW7, Simon Kanyulu Musau was a JP agent at Athi Kamunyuni polling station. He testified that he saw an agent by the name Mutiso Kariithi misleading voters. In cross examination however, he admitted that voting was being done secretly. In my view, the evidence of this witness was shaky because despite witnessing the alleged malpractice, he signed form 35A which in my view is an indication that he was satisfied with the results at the polling station.

33. Further, it was his evidence that he saw 3 people being misled and even gave their names to the petitioner; however, they were not called as witnesses. Finally, he testified that the said Mutiso was a wiper agent but no evidence was tabled to establish a nexus between Mutiso and the 3^rd respondent. It is my considered view that this allegation was not substantiated.

34. In Kilungu Primary School, PW3, Julius Mbithi Mwania, an agent of Muungano Party testified that he witnessed 5 votes belonging to the petitioner being stolen. It was his further evidence that upon the issue being raised with the presiding officer, the votes were eventually counted in favour of the petitioner. He stated as follows;

“The presiding officer was announcing votes as he counted. The 5 votes which he (PO) had put in the 3^rd Respondent side were counted in Petitioner’s favour. The 5 votes were among the total of Petitioner’s votes. The 3^rd Respondent got 126 and Petitioner 116 votes respectively”

35. Apart from this incident, there was no evidence of other malpractices in the polling station.

36. In Nzayo, Mitooni and Nzauni primary school polling stations No evidence was produced by the Petitioner to support allegations of voter intimidation, misleading of voters, refusal to assist voters etc. On cross examination, PW 8 Stephen Mulwa Joel a JP agent stated as follows;

“There was no problem at Nzayo polling station.  I was Jubilee Party agent.   The voting was smooth. All people who wished to vote voted”

37. PW13, Charles Onganyi was a voter. He testified that the lady who was assisting voters shouted at him and asked him whether he was voting NASA or Jubilee. She told him that he should have gone to school. He got annoyed and almost left without voting. However, another mzee at the polling station convinced him to vote. In my assessment, this was a credible witness and the lady who shouted at him committed a malpractice.

38. There was however no evidence tabled as to where this occurred (polling station). Further, apart from saying that the lady who shouted was the one assisting voters, it was not clear as to  whether she was an employee of the 1^st respondent. I say this because I am alive to the fact that people assisting illiterate and aged voters were also being allowed into the polling stations.

39. PW19, Dickson Wycliffe Ogweno Okello was a JP agent. In cross examination, he stated as follows;

“I did not witness a voter being forced to vote for Jessica. No voter was sent away by saying he would vote the Petitioner. Nobody was forced to vote for any candidate. I did not see any voter who left without voting.”

40. The totality of the foregoing is that there is nothing to support the granting of an order for scrutiny on the basis that voters were intimidated, harassed and or misled.

Lack of proper sealing of ballot boxes.

41. The petitioner alleged that the ballot boxes in multiple polling stations including but not limited to Ndauni and Athi Kamunyuni primary school were not properly sealed.

42. On cross examination, PW7, the JP party agent at Athi Kamunyuni maintained that there were only two seals on the ballot box. He however admitted that his name, ID number, phone number and signature were appearing on form 35A.

43. Apart from the issue of sealing, this witness also testified that the declaration form 35A was only signed by two agents as per the instructions of the presiding officer. I have looked at the said form and it indicates that 6 agents signed.

44. I am aware that the parties under the supervision of the Deputy Registrar (DR) conducted a resealing exercise on all the ballot boxes. The report of the DR indicates that the ballot box for Athi Kamunyuni had 5 seals. This is in tandem with the information contained in the polling station diary. It is my considered view that PW7 was not a credible witness and his evidence should be disregarded.

45. With regard to Ndauni Primary school, PW18, James Ndambuki Mulandi, a JP agent stated as follows;

“I know Petitioner’s garnered 70 votes in Ndauni p/s.

I did not agree with that result. I have not put in affidavit that I disputed it. But I reject the results. I signed form 35A. I signed voluntarily without intimidation or coercion. I never requested for the recount of the votes…The problem noted was on issue of seals not being enough after vote counting… I don’t know whether Petitioner lost any vote for improper sealing”

46. The totality of PW 18’s evidence in my view is that he was satisfied with the voting process as well as the votes garnered by the petitioner.

47. As rightly submitted by the 1^st and 2^nd respondents, sealing of ballot boxes is a procedure that comes after vote counting declaration of results and preparation of form 35A. Further, the results on form 35A were reflected on form 35B which infers that despite the improper sealing, the votes were not interfered with in the course of transportation from the polling station to the tallying centre. In my opinion, no basis has been laid to justify scrutiny in Ndauni polling station.

Variance between form 35A and 35B.

48. In paragraph 15 of the supporting affidavit, the petitioner depones that there were variations between form 35A and 35B in Muangeni, Tisya, PCEA, Ivoleni and Kiambani primary schools polling stations.

49. Having looked at the forms, I note that the discrepancies affected less than 20 votes. The Returning officer explained that those were minor and unintentional clerical errors which affected neither the petitioner’s nor the 3^rd respondent’s votes.

50. In my opinion, the number of votes affected was so minimal that it could not upset the difference in terms of votes between the petitioner and the 3^rd respondent.

CONCLUSION

51. In my view, the malpractices and discrepancies alleged by the petitioner were sufficiently rebutted by the evidence. The petitioner did not table evidence to show how the allege malpractices influenced the results.

52. Of importance is that none of the JP agents disputed the results at the polling stations or requested for a recount.