Fredrick Otieno Nyagowa v Isaiah Oyoo Opap & 2 others [2013] KEMC 10 (KLR)

REPUBLIC OF KENYA

IN THE MAGISTRATES   COURT OF KENYA AT HOMA BAY ELECTION     PETITION 2 OF 2013

FREDRICK OTIENO                                                       NYAGOWA                                                              PETITIONER

AND

                                    ISAIAH OYOO OPAP……………………… 1ST RESPONDENT

THE RETURNING OFFICER

                                  FOR KASIPUL CONSITUENCY…………………. 2ND RESPONDENT

INDEPENDENT   ELECTORAL

                         & BOUNDARIES   COMMISSION………………………………… 3RD RESPONDENT

JUDGMENT

1. The Petitioner FREDRICK OTIENO was a candidate in the 4thMarch 2013 General  Election  in which  he contested  the seat of County Representative   of West Kamagak  ward in which  the 1^st Respondent  ISAIAH  OYOO  OPAP was declared the winner  having  garnered  3184 votes against the Petitioner's   2960.
2. The Petitioner being aggrieved filed this petition  on z= April 2013 in which he   sought the following  reliefs;

a)   An order of scrutiny and a recount of all the ballot papers cast with respect to all the candidates participating at the election of County Assembly Representative   for West Kamagak ward.

b)   An order declaring the Petitioner duly elected County Assembly Representative   for West Kamagak ward should the results of the recount prove the Petitioner had led in the elections with valid votes cast.

c)   Costs of the petition be met by the Respondents.

3.   All the parties were served  and the 2nd  Respondent  and 3rd  Respondent  filed joint response  however  and strangely  enough  the I" Respondent  did not file any Response  nor did he appear.

4.   The petition was premised on the following complaints;

a)   The 2nd and 3rdRespondents  allowed  their agents  employees  and/or servants  to falsify  records  of the results  of the votes  cast.

b)   The tallying  of votes for the Petitioner  and the I" Respondent  were deliberately  meddled  by the 2nd and 3rdRespondents  presiding  officers  and clerks so as to give the I" Respondent  a lead over the Petitioner.

c)   The Petitioner's   agent was not allowed to scrutinize the ballots with respect to the pt Respondent's.

d)   The Petitioners agent were never allowed by the employees of the 2nd and 3^rd Respondent to sign the election results tallying sheets (Form 35).

5.   The Petitioner  filed his supporting  affidavits  alongside  his witness  affidavit  one Phosdick  Felix Omondi  who was his agent at Obisa Primary  School which was a polling  station  in the ward.

6.   The 2nd Respondent  who was the returning  officer  for Kasipul  Constituency  filed along the 2nd  and 3rd  Respondents'   response  his witness  affidavit.  The 2nd Respondent and 3^rd Respondent  filed the Form 35 for both streams  at Obisa Primary  School.

THE EVIDENCE

7.   The Petitioner  in his affidavit  evidence  and in cross-examination   and re-exam  told the court that the results  especially  from stream  1 and stream  2 at Obisa  Primary School polling  station  were doctored  by the 2nd  and 3rdRespondent  to give the I" Respondent  an advantage  over him.

8.   The Petitioner  further  alleges that the entries made in form 35 were  falsified  and that his agents  were sent away and not allowed  to participate  in the scrutiny, tallying  and counting  of ballots  cast in his favor.

9.   On cross-examination   the Petitioner  states his agent was supposed  to sign form 35 and that the Form 35 for stream  1 at Obisa Primary  School  showed  that the total number  of votes  cast were 408 but on totaling  the number  for each candidate  the total comes to 407 leaving  one vote unaccounted  for.

10. He also states that in stream  1 at Obisa Primary  School the total votes were reflected  to be 415 but when the total votes of all candidates  are added the total comes to 414 also leaving  one vote unaccounted  for.

11. One Phosdick  Felix Omondi  (Pw2) was the agent of the Petitioner  at Obisa Primary  School  and states that the scrutiny,  tallying  and counting  of votes  was riddled  with secrecy,  unnecessary  strictness  and was not allowed  to verify the particulars  of the person  whom  a vote had been cast.

12. He further states that he did not sign the form 35 and votes did not tally with individual vote casted.

13. On cross examination the witness says that during counting he was not allowed to make any verification.   He further says that he got form 35 at the door.

14. Upon re-examination   Pw2 says that he noticed to anomalie in form 35 that the figures were not tallying.

15. The 2nd  Respondent  who was Returning  Officer  says that there was no complaint received  from the Petitioner  but during the tallying  he directed  the Presiding Officer  from Obisa  Primary  School to re-tally  the results  and corrected  the anomalies.

16. During  the hearing  of this petition  I declined  the evidence  of some of the witnesses  from both sides because  their affidavits  were filed out of time.

17. The matter  then proceeded  for recounting  and scrutiny  and re-tallying  in which the Petitioners  votes remained  the same but the results  especially  of  stream  2 changed  for the other 2 candidates.

18. The results presented to this court were as follows;

A- RESULTS RELEASED FOR OBISA PRIMARY SCHOOL

B- RESULTS RELEASED AT CONSTITUENCY TALLYONG CENTRE                                                                                                                             

C- RESULTS IN COURT

19. When this court convened Pretrial conference the following issues were framed which now fall for my determination.

a)   Whether the election of the 1^st Respondent was valid, free and fair.

b)   Whether there were any irregularities and malpractices   as alleged by the Petitioner.

c)   Whether if such irregularities were detected could affect the result or final outcome of the election.

d)   Whether the election in West Kamagak on 4/3/2013 met the requirements of election Act No. 24 of 2011.

20. After considering the evidence in this matter I would like the consider and consolidate the issues into 3.

i.    Whether the election of the 1st Respondent was free and fair.

ii.   Whether the irregularities detected affected the outcome of the results.

iii.  Who should  pay costs of the petition.

WHETHER THE ELECTION WAS FREE AND FAIR.

21. The Petitioner  in his evidence  and that of his witness  alleged  that the counting, scrutiny  and tallying  of votes at Obisa polling  station  was doctored,  falsified  and riddled  with secrecy,  unnecessary  strictness  and the witness  was not allowed  to verify the votes.

22. The 2nd  and 3^rd Respondent  alleged  that the election  went on well and that the Petitioner never reported  any incident  to the returning  officer.

23. The Petitioner in his evidence confirms that the voting process went on smoothly though the Pw2 talked of being prevented from seeing how the aged were voting but this was not reflected in his affidavit and so this court will consider them as an after thought.

24. The Regulations under the Election Act No.24 of 2011 under Rule 76(1)

provides;

'76(1) The presiding officer shall in the presence of the candidate or agents;

a)       Open each ballot box and empty  its content  onto the counting  table or any other facility  provided  for the purpose  and shall  cause  to be recounted  the votes received   by each candidate.  And

b)    Record the total number of votes cast in favor of each candidate. (2)  

      Each ballot paper shall be counted as follows;

a)     The presiding officer shall in respect of every ballot paper announce the candidate in whose favor the vote was cast.

b)    Display to the candidate or agents the ballot paper sufficiently   for them to ascertain the vote; and

c)    Put the ballot paper  at the place  on the counting  table, or other facility provided  for this purpose,  set for the candidate  in whose  favor  it was cast.'

25. In Pw2 evidence he purported to imply that the above provisions were not complied by the presiding officer at Obisa polling station.

26. The court then wishes to address itself whether the election was conducted in a free and fair atmosphere.

27. Ugandan Supreme court in the case of Rtd co. Dr.  Kizza  Besigye  versus

Electoral   commission   & another   (Election petition   no 1 of 2006) stated;

'To ensure that elections are free and fair there should be sufficient time given  for all stages  of the elections,  nominations,   campaigns, voting  and votes. Candidates  should  not be deprived  of their right  to stand  for elections,  and citizens  to vote for candidates  of their choice through unfair  manipulation   of the process  by electoral  officials.  There must be a levelling of ground so that the incumbents   or Government

ministers and officials do not have an  unfair  advantage.   The entire election process should have an atmosphere   free of intimidation, bribery, violence, coercion or anything   intended to subvert the will of the people.  The election procedures   should guarantee   the secrecy of the ballot, the accuracy of counting   and the announcing    of the results in a timely manner.  Election   laws and guidelines   for those participating   in elections should be made and published   in good time. Fairness   and transparency   must be adhered to in all stages of Electoral process.

Those who commit electoral offences or otherwise subvert the electoral process should  be subjected  to severe  sanctions.   The Electoral commission must consider  and determine   election  disputes  speedily  and fairly. '

28. Fairness  and transparency   is quite important  in any election  process  such that from the very beginning  from registration  of voters  to publishing  of results  the process  must be open and fair to each voter  and candidate.

29. From the supreme court of Uganda case of Besigye the court had this to say:

'In my opinion, the principles   of the act can be summarized as follows;

• The election must be free and fair.
• The election must be by universal adult suffrage,   which underpins   the right to register and vote.
• The election must be conducted   in accordance   with the law and procedure   laid down by parliament.
• There must be transparency   in the conduct of elections.

• The result of the elections must be based on the majority of the votes cast.'

30. The Petitioner in his evidence says that the counting scrutiny was meddled with a lot of secrecy and strictness.

31. I dare state here that strictness  is not wrong  perse if that strictness  is aimed to bring  order to otherwise  a process  where  there is a lot of anxiety  and emotions where  sometimes  people  allowed  as agents  and candidates  or observers  become rowdy  and uncontrollable.   However in this strictness the presiding officer must at

all stages  remind  himself  or herself  that he or she is required  to be open and fair to each party such that it will not be fair to be strict to one party while  he or she allows  the other candidate  to freely meddle  with election  process.

32. In MWENE -VS- KUBO & ANOTHER (2008)1 KLR (EP) 336 the court observed that;

'The Petitioner must state the particulars of breaches of the law and state the provisions of the law thereto'

33. The Pw2 in his evidence was very general in what he alleged to have been the irregularities.   It was not stated whether the presiding officer failed to show them the votes cast and whether she failed to read which vote had been cast for who.

34. Pw2 did not come out clearly how the presiding officer prevented him from signing the form 35 while at one point the witness said he was not given the form

35 but he was able to show that the votes cast were adding up for individual candidates.

35. The 2nd Respondent says that he never received any complaint fact which is not disputed by the Petitioner.

36. There is no evidence that any complaint was raised from the complainant nor any other person.

37. Regulation 79 (7) of the Election Act provides inter alia

'The absence of a candidate or an agent at the signing of declaration form or the announcement   of results under sub regulation (2) shall not itself invalidate the results announced.  '

38. The circumstances   of the case will show that Pw2 decided not to sign the form and that itself is not ground to invalidate the election.

39. I have had an opportunity of reading the judgment of Justice Warsame in

DICKSON DANIEL KARABA -VS- JOHN NGATIA KARIUKI & 2

OTHERS (2010)e  KLR  in which he observed.

'An election ought not to be held void on the basis of transgressions   of

the law committed   without  any corrupt  motive by the returning  officer or his subordinates.   The court is concerned with substance and that the results  of the election  was and could not have been affected  by those

transgression   in a substantial   manner.   On the other  hand  an election process  encompasses   of several  activities  from  the nomination   to the declaration   of the final  and duly  elected  candidate.  In  my understanding the whole process  from  the nomination   of candidates  to the final declaration   f the candidate  as the winner  must  be within  the law and must  as far as possible  represent  the wishes  and the voice of the electorate.  It cannot be said that one part was fair while the other part was conducted   in a flawed manner.   The basic tenet of democracy   is that the will of the people must be respected and incorporated   in all the branches of the election.  One cannot be heard to say that he derived a benefit from a process that did not meet all the requirements   of the law is that the person  with  the highest  votes be declared  the winner'

40. The Petitioner alleged that there were falsifications of results.  But however  when the court ordered  a recount  there was no difference  in votes  announced  at the polling  station  and votes  counted  at the court in favor of the Petitioner.  The process to me confirmed to this court there was no manipulation   as suggested by the Petitioner.

41. After considering the principles and requirements   of the law I find that the elections at West Kamagak ward were free and fair.

WHETHER ANY IRREGULARITIES   DETECTED AFFECTED THE OUTCOME OF THE RESULTS.

42. From the recounting  and scrutiny  and tallying  that was done and the form 35 that was filed from the 2nd   and 3rd  Respondent  it is not disputed  that there were alterations  made to form 35 and that there were differences  noticed  in the re- tallying.

43. This irregularity the 2nd  Respondent  explained  was merely  arithmetic  error which was not substantial.

44. In the case of KARABA already referred Justice Warsame observed;

'One  may say that nobody  may expect  counting  in an election  to be completely  accurate,  indeed I suppose  if one goes on recounting   one will get in each case slightly  different   results.'

45. The above position is confirmed by the recounting that was done it gave different results especially in stream 2 at Obisa Primary School.

46. After quoting from the KARABA   decision the court observed;

'It is the law that the issue raised by the Petitioner must be something substantial   and which was calculated to determine the outcome of the election'

47. From the results of the recounting only one vote was misplaced to the 1^st Respondent to the disadvantage of one Joash Onyango Arogo.

48. In WABUGE -VS- LIMO   & ANOTHER    (2008)1 KLR (EP) 417 the court observed that;

'If  election  was conducted  such  that it was substantially   in accordance with  the law as to elections,  it would  be vitiated  by breach  of rules or mistake  at the polls provided  it did not affect  the outcome  of the election'

49. The court in JOHO   -VS- NYANGE    & ANOTHER    (2008)2  (EP)20  held that whatever  little deficiencies  that may have occurred  during the conduct  of the elections  cannot be said to have affected  the outcome  of the election.

50. In this particular case I agree that the irregularity was minor and did not affect the outcome of the results.

51. The results given by the 2nd and 3rd Respondent will show that the I" Respondent garnered 3175 against the Petitioner 2960 and with the irregularity noted this is a minor discrepancy

52. In JOSIAH   & 4 OTHERS   -VS- OGUTU & ANOTHER   (2008)1 KLR (EP)73 the court observed  that;

'..... These  and such  minimal  discrepancies   could  not and did not affect the results  of the election  of I" Respondent   who was returned  with  a very  substantial   and legitimate  majority  over his nearest rival. '