Kidero & another v Independent Electoral and Bounderies Commission & 4 others (Election Petition E001 of 2022) [2022] KEHC 15827 (KLR) (26 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15827 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Election Petition E001 of 2022

RE Aburili, J

November 26, 2022

Between

Evans Odhiambo Kidero

1^st Petitioner

Elijah Odondi Kodoh

2^nd Petitioner

and

Independent Electoral and Bounderies Commission

1^st Respondent

County Returning Officer, Homabay County Fredrick Apopa

2^nd Respondent

Gladys Atieno Nyasuna Wanga

3^rd Respondent

Joseph Oyugi Magwanga

4^th Respondent

Orange Democratic Movement Party

5^th Respondent

Ruling

1.Following this court’s ruling on the November 18, 2022 on the petitioners’ application dated September 29, 2022 and the meeting held between the Deputy Registrar and the respective parties’ representatives pursuant to the court’s ruling, the parties herein sought clarifications on the scope of scrutiny and recount which is to be undertaken by the Deputy Registrar.

2.In its ruling of the November 18, 2022, the court alluded to the fact that the petitioners’ application for scrutiny and recount dated September 29, 2022 was grounded on the petition as one of the prerequisites for grant of the order for scrutiny and recount.

3.To this end, the court observed that paragraph 16 of the supporting affidavit to the application for scrutiny and recount dated September 29, 2022 by Dr Evans Odhiambo Kidero in which he alleged glaring inconsistencies of the number of votes being cast being more than those identified by the KIEMS kit mirrored Paragraph 138 of the Petition.

4.Further, paragraph 17 of the supporting affidavit to the application for scrutiny and recount aforementioned that alleged that the KIEMS Kit identified more people than those recorded to have voted mirrored paragraph 139 of the petition and finally paragraph 20 of the supporting affidavit to the application for scrutiny that provided that form 37As were not signed by either agents, presiding officers or their deputies was a mirror of paragraph 174 of the petition.

5.The court then made orders for scrutiny and recount and referred to specific paragraphs before finally concluding that the scrutiny and recount was to be undertaken in the 7 out of 8 constituencies and in the polling stations mentioned in the paragraphs 11,16,17,20,22 and 28 of the affidavit of Dr Evans Odhiambo Kidero sworn on September 27, 2022. In particular, the parties sought clarifications on paragraphs 151 and 186 of the ruling of November 18, 2022.

6.This court notes that there is an error apparent on the face of the record regarding the reconciliation on the number of constituencies and polling stations that scrutiny and recount would take place and the error is that the scrutiny and recount would specifically happen in 7 out of 8 constituencies in Homabay County. This is an error because the specified polling stations as contained in the petition and the supporting affidavits to the petition and application for scrutiny and recount wherein the petitioner asked this court to undertake a scrutiny and recount and which this court in the aforesaid ruling allowed, cuts across the 8 constituencies and not seven. In addition, not all polling stations in the 8 constituencies were alleged to have had issues. The court upon reconciling the number of polling stations complained of, finds only 195 covering 8 constituencies and not seven.

7.The question is whether this court can review its orders made on scrutiny and recount made on November 18, 2022, having found that there is an apparent error on the face of the record in the ruling of November 18, 2022 regarding the application for recount and scrutiny.

8.In the case of Godfrey Masaba v IEBC & 2 others [2013] eKLR, where the Election Court was called upon to review its orders on account that it had not considered the replying affidavit and written submissions filed by the applicant H Omondi J (as she then was) stated as follows, extensively, and I concur:“21.Having read both the Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules 2013 I can confirm that they make no provision for review of an Election court's orders.Secondly, the Election (Parliamentary and County) Petition Rules are complete and the only instances that the Civil Procedure Rules are invoked are as provided under rule 15 (7) of the Election (Parliamentary and County) Rules.22.The question which arises is whether the failure to expressly provide for review of the courts orders negates the application of this remedy in the appropriate circumstances?23.Article 35(2) of the Constitution guarantees every person the right to correction or deletion of untrue or misleading information that affects the person. Article 20(3)(a) on the other hand, enjoins a court when applying a provision of the Bill of Rights, to develop the law to the extent that it does not give effect to a right or fundamental freedom.24.By failing to make provision for the court to review its orders in the appropriate circumstances, especially where there is a mistake or error apparent on the face of its record that needs to be corrected or deleted in order to set the record straight, it would appear that the Elections Act, 2011 and the Rules made thereunder offends the spirit and letter of article 20(3)(a) as read with Article 35(2) of the Constitution.25.For this reason notwithstanding lack of any express provisions for review in the Election Act and the Rules made thereunder, I hold the view that an election court would, in the appropriate circumstances, review its orders if in so doing, it would give effect to a right or fundamental freedom that the law in question had failed to recognize or give effect to.26.There are decisions to the effect that an election court has power, in exercise of its inherent power, to review its orders. For instance in Mohamed Ali Mursal v Saadia Mohamed & 2 others (2013) e KLR SN Mutuku J, conceded that An Election Court has power to review its orders and invoked Order 45 of the Civil Procedure Rules in resolving the matter before her. Similarly, in Nuh Nassir Abdi v Ali Wario & 2 others (2013) e KLR EP No 6 of 2013 GV Odunga J, observed:-“A decision whether or not to vary, set aside or review earlier orders was an exercise of judicial discretion and the court could only exercise such discretion if so to do would serve useful purpose...”27.It is apparent that an election court has power to review its order if doing so would serve a useful purpose in the just determination of the issue before it.”

9.Odunga J (as he then was) in the case of Nuh Nassir Abdi v Ali Wario & 2 others [2013] eKLR stated that:“I have considered the foregoing. The order for scrutiny was made pursuant to section 82 of the Elections Act which provides:“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.)”Apart from the foregoing section 80(1)(d) and (e) of the said Act empowers the Court to decide all matters that come before it without undue regard to technicalities. Rule 4 of the Elections (Parliamentary and County Elections) Petitions Rules provides:The overriding objective of these Rules is to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution and the Act.(2)The court shall, in the exercise of its powers under the Constitution and the Act or in the interpretation of any of the provisions in these Rules, seek to give effect to the overriding objective.These provisions derive their Constitutional underpinning on Article 159(2) of the Constitution which provides:"In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(a)justice shall be done to all, irrespective of status;(b)justice shall not be delayed;(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);(d)justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted”

10.From the above provisions of the law and persuasive case law, I find that in the circumstances of this case, this court has jurisdiction to review its orders in election petitions and therefore on the court’s own motion or on application by any party to the proceedings may review and clarify its order. I therefore proceed and review the ruling delivered on November 18, 2022 touching on the application dated September 29, 2022 seeking for scrutiny and recount and more specifically clarifying paragraphs 150, 151 and 186 of the ruling delivered on November 18, 2022 as follows:a.A scrutiny and recount shall be undertaken as per this court’s findings in paragraph 150 of the ruling dated November 18, 2022 for the gubernatorial election carried out on the August 9, 2022 in Homabay County in respect of the following polling stations:

Constituency	Ward	Polling Station
Homa Bay Town	Homa Bay Central	Pap Ndege Primary School
Homa Bay Arujo	Shauri Yako Primary School
Homa Bay Central	Nduta Primary School
Homa Bay Arujo	Opande Rarage Primary School
Homa Bay East	Marindi Primary School
Homa Bay East	Pala Masogo Primary School
Homa Bay Central	Rodi Kopany Market
Homa Bay East	Walambla Primary School
Homa Bay Central	Asego Nursery School
Homa Bay Central	Got Rabuor Primary School
Homa Bay Central	Homa Bay Polytechnic
Homa Bay Central	Homa Bay Primary School
Homa Bay Arujo	Gogo Kochungo Primary School
Kabondo Kasipul	Kabondo East	Kolweny Primary School
Kabondo West	Orera Primary School
Kabondo East	Nyamwaga Primary School
Kokwanyo/Kakelo	Dudi Primary School
Kokwanyo/Kakelo	Ragogo Primary School
Kokwanyo/Kakelo	Gangre Primary School
Kabondo West	Ongoro Primary School
Kabondo East	Wang’apala Primary School
Kabondo East	Othoro Primary School
Kojwach	Ringa Primary School
Karachuonyo	Wangchieng	Apuko D.O.K Primary School
Wangchieng	Seka D.O.K Primary School
West Karachuonyo	Gogo Primary School
Central	Ngeta Primary School
Kanyaluo	Kowuor Primary School
Wangchieng	Gongo Primary School
Kanyaluo	Rabware Primary School
Kibiri	Oriwo Primary School
Kendu Bay Town	Nyaburi Primary School
Wangchieng	Kamwala Primary School
Wangchieng	Karabondi Primary School
West Karachuonyo	Masogo Primary School
Kendu Bay Town	Gendia Primary School
Kanyaluo	Kamolo Primary School
Central	Kital Primary School
Central	Paul Mboya Vocational Training
Kendu Bay Town	Kideswa Primary School
North Karachuonyo	Ngolo Primary School
Kibiri	Omolo Agar Primary School
West Karachuonyo	Jonyo Primary School
North Karachuonyo	Otaro Primary School
Central	Simbi Primary School
North Karachuonyo	Kagai Primary School
Kanyaluo	Wikondiek Primary School
Kanyaluo	Omboga Primary School
Kibiri	Nyaola Primary School
West Karachuonyo	Lwala Primary School
Central	Alego Primary School
Central	Warao Primary School
Wangchieng	Kajiei Primary School
Kibiri	Kandiege Primary School
Wangchieng	Samba Primary School
North Karachuonyo	Kanyamfwa Primary School
Central	Pier Got Primary School
Kibiri	Rabuor Primary School
Wangchieng	Kamser Primary School
Wangchieng	Mirembe Primary School
Wangchieng	Kamwala Primary School
North Karachuonyo	Migunde Primary School
Kibiri	Nyabiage Primary School
Kasipul	Central Kasipul	Kaluoch Primary School
East Kamagek	Sino Kagola Primary School
West Kamagek	Agoro Sare Primary School
South Kasipul	Ayoro Primary School
South Kasipul	Kamuga Primary School
South Kasipul	Yala Primary School
South Kasipul	Kotieno Primary School
South Kasipul	Kasimba Primary School
West Kasipul	Nyagowa Primary School
South Kasipul	Buoye Primary School
Central Kasipul	God Nyango Primary School
West Kasipul	Nyabola Primary School
Central Kasipul	Aolo Primary School
Ndhiwa	Kabuoch South/Pala	Ober Primary School
Kanyadoto	Nyarongi Primary School
Kanyadoto	Rapedhi Primary School
Kanyamwa Kosewe	Ndhiwa Primary School
Kanyikela	Otange Primary School
Kabuoch North	Ongako Primary School
Kanyamwa Kosewe	Unga Primary School
Kanyamwa Kologi	Malela Primary School
Kanyamwa Kologi	Kombe Primary School
Kabuoch South/Pala	Kamenya Primary School
Kanyamwa Kologi	Abuoro Primary School
Kabuoch North	Rarage Primary School
Kabuoch North	Adek Primary School
Kwabwai	Nyoniang Primary School
Kwabai	Apuoche Primary School
Kabuoch North	Maranga Primary School
Kabuoch North	Aluor Primary School
Kanyamwa Kologi	Goyo Primary School
Kanyamwa Kologi	Dunga Primary School
Kwabai	Osani Primary School
Kanyadoto	Osodo Primary School
Kabuoch South/Pala	Maroo Primary School
Kwabwai	Osogo Primary School
Kwabai	Wayara Primary School
Kabuoch North	Lwanda Kawuor Primary School
Kabuoch South/Pala	Ober Primary School
Kwabai	Ngere Primary School
Kabuoch South/Pala	Anding’o Pala Primary
Kanyikela	Thuon Gweno Nur School
Kwabai	Aorachuodho Primary School
Rangwe	West Gem	Anding’o Primary School
Kagan	Got Nyalgosi Primary School
Kagan	Kachar Primary School
Kochia	Obengele Primary School
East Gem	Rangwe Primary School
Kagan	Luora Primary School
Kochia	Ongoro Primary School
Kochia	Kawiya Primary School
Kagan	Aimo Primary School
West Gem	Randung’ Primary School
East Gem	Wikoteng’ Primary School
Kochia	Nyajanja Primary School
Kochia	Nyalienga Primary School
Kochia	Ngegu Primary School
West Gem	Nyandiwa Primary School
Kochia	Ang’iro Primary School
Kagan	Maugo Primary School
Kochia	Kuoyo Kaura Primary School
Kochia	Olare Primary School
West Gem	Oluso Primary School
West Gem	Sango Gem Primary School
Kagan	Nyawita Primary School
Kochia	Ligisa Primary School
West Gem	Orero Primary School
West Gem	Nyopuge Primary School
Kochia	Ongeti Primary School
East Gem	Nyakwadha Primary School
East Gem	Nyambare Primary School
Suba North	Kasgunga	Mbita Primary School
Kasgunga	Usare Primary School
Kasgunga	Osodo Primary School
Rusinga Island	Wakondo Primary School
Kasgunga	Ogando Primary School
Kasgunga	Nyamanga Primary School
Kasgunga	Ndiru Primary School
Kasgunga	Mbita Fish Banda
Kaksingri West	Gingo Beach Fish Banda
Mfangano Island	Takawiri Primary School
Kasgunga	Nyamasare Primary School
Kasgunga	God Awendo Primary School
Rusinga Island	Dr. Williams Primary School
Kasgunga	Urianda Primary School
Kasgunga	Lambwe Primary School
Mfangano Island	Rinya Primary School
Rusinga Island	Waregi Primary School
Kasgunga	Kamsama Primary School
Kasgunga	Lambwe Primary School
Kasgunga	Powo Primary School
Kasgunga	Nyasanja Primary School
Kasgunga	Got Kopolo Primary School
Kasgunga	Obalawanda Primary School
Kasgunga	Sikri Jerusalem Primary School
Kasgunga	Chamakowa Primary School
Kasgunga	Sen Kajwang Sec School
Kasgunga	Genge Primary School
Kasgunga	Gode Ariyo Primary School
Kasgunga	God Jope Primary School
Ruma – Kaksingri	Manyalla Primary School
Mfangano Island	Wakiangata Primary School
Rusinga Island	Nyamuga Primary School
Rusinga Island	Kamayoge Primary School
Rusinga Island	Uya Primary School
Rusinga Island	Kiumba Fish Banda
Rusinga Island	Ulugi Fish Banda
Mfangano Island	Konyahero Beach Fish Banda
Rusinga Island	Nyagina Fish Banda
Kasgunga	Kisui Fish Banda
Mfangano Island	Sena Primary School
Rusinga Island	Uya Primary School
Kasgunga	Wanga Primary School
Kasgunga	Nyamaji Primary School
Kasgunga	Kamoto Primary School
Kasgunga	Sulwe Primary School
Suba South	Gwasi South	Orore Primary School
Gwasi South	Magunga Primary School
Gwasi South	Nyamdede Primary School
Gwasi South	Kigoto Primary School
Gwasi South	Miriya Primary School
Gwasi South	Kisegi Primary School
Kaksingri West	Ngeri Primary School
Gwasi South	Kiabuya Primary School
Gwasi South	Obanga Primary School
Gwasi North	Nyagwethe Primary School
Ruma – Kaksingri	King’Eyo Primary School
Gwasi North	Kisegi Beach Fish Banda
Gwasi South	God Bura Primary School
Gwasi South	Nyaburu Primary School
Kaksingri	Kianyumba Primary School
Gwasi South	Kenchororio Primary School

In addition, there shall be:b.A scrutiny of all the form 37As from the polling stations set out in table D1 and D2 of paragraph 20 of the petitioners’ affidavit sworn by Dr Evans Odhiambo Kidero in support of the application dated September 29, 2022.c.A scrutiny of form 37As from the polling stations set out in table F of paragraph 28 of the petitioners’ affidavit sworn by Dr Evans Odhiambo Kidero in support of the application dated September 29, 2022.d.The rest of the directions issued for the Deputy Registrar to supervise the scrutiny and recount as per paragraph 186 of the ruling delivered on November 18, 2022 shall remain as they are and the Deputy Registrar shall give directions in conference with the parties on the process and the timelines in accordance with the already established guidelines.

DATED, SIGNED AND DELIVERED AT HOMABAY THIS 26^TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE

1.	Nuh Nassir Abdi v Ali Wario & 2 others [2013] KEHC 965 (KLR) Explained	7 citations
2.	Godfrey Masaba v IEBC,Madahana Mbaya & Reginalda Nakhumicha (Petition 8 of 2013) [2013] KEHC 2258 (KLR) (25 September 2013) (Ruling) Explained	3 citations

Kidero & another v Independent Electoral and Bounderies Commission & 4 others (Election Petition E001 of 2022) [2022] KEHC 15827 (KLR) (26 November 2022) (Ruling)

Kidero & another v Independent Electoral and Bounderies Commission & 4 others (Election Petition E001 of 2022) [2022] KEHC 15827 (KLR) (26 November 2022) (Ruling)

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