Wandera & 3 others v Stephen & 17 others (Appeal E003 (NRB) of 2024) [2024] KEPPDT 515 (KLR) (25 September 2024) (Judgment)
Neutral citation:
[2024] KEPPDT 515 (KLR)
Republic of Kenya
Appeal E003 (NRB) of 2024
D. Nungo, Chair, S Musau, MM Yusuf Jin & AA Abdikadir, Members
September 25, 2024
Between
Eugene Wandera
1st Appellant
Rebecca Naamyu
2nd Appellant
Emiliana Akoth
3rd Appellant
Dr Bonface Erute Ekaabten
4th Appellant
and
Owaret Stephen
1st Respondent
Magio Michael Juma
2nd Respondent
Auki Joyce Petty
3rd Respondent
Obuche Fredrick Oundo
4th Respondent
Ekolan Maurice Chetambe
5th Respondent
Ouma Maximilla
6th Respondent
Arwasi Benard Nandieki
7th Respondent
Ekisa Ronald Engurat
8th Respondent
Chepkemoi Zilpah Bett
9th Respondent
Buluma Stephine
10th Respondent
Nabwire Lydia
11th Respondent
Ouma Hawkins
12th Respondent
Etori John Omerekeke Male
13th Respondent
UDA National Elections Board
14th Respondent
Onyapidi Kennedy Osiya
15th Respondent
Pamba Wilkista Nabwire
16th Respondent
Shitote Pamela Muyeye
17th Respondent
Abungosi Helda Makoba
18th Respondent
Judgment
Background:
1.At all material times, the 1st- 4th Appellants were Members of the United Democratic Alliance Party (UDA Party). They participated in the Party’s elections that were handled by the 18th Respondent for the positions of Chairmanship, County Assembly Member/ Member of National Assembly/Women Representative/Senate/Governor, Chairperson Teso North, and Youth Leader respectively. The Respondents, equally, were at all material times members of the UDA Party & ran for various Grassroot Party Positions in elections held within Busia County and where they were declared winners.
2.The Appellants, dissatisfied with the manner in which the elections were conducted, lodged a complaint with the UDA Party Electoral Dispute Resolution Committee (EDRC) sitting in Nairobi in EDRC Complaint No. 33 of 2024. The EDRC heard the complaint and delivered its decision on the 15th day of June, 2024 dismissing the same and upholding the said elections.
3.Dissatisfied by the decision of the EDRC, the Appellants proffered this Appeal vide the Memorandum of Appeal dated 27th June, 2024 on the following grounds, inter alia:i.That the Electoral Dispute Resolution Committee erred in law and fact in failing to note that the there was a Court order issued on 29th May, 2024 which stayed elections which were to be held at Angurai Ward in Busia County.ii.That the Committee erred in law and fact in failing to appreciate that by virtue of the Court order issued on 29th May, 2024, Teso North constituency delegates could not be properly constituted and the purported county officials election alleged to be carried out in Busia on 10th June, 2024 was null.iii.That the Committee erred in law and fact in failing to appreciate that noncompliance with the Court order affected the outcome of the results as nondelegates from Teso North were allowed to vote against the principle of fairness.iv.That the Committee erred in law and fact by failing to appreciate that the Appellants had adduced sufficient documentary evidence and the Committee denied them audience to testify.v.That the Committee erred in law and fact in failing to appreciate that the 18th Respondent failed to verify the biometric data of the Delegates and with leakage of delegates Identification numbers aided to imposters to masquerade and vote for others .vi.That the Committee erred in law and fact in failing to appreciate the voter register was altered and which made easier for non-delegates to be included as Voters and delegates to be deleted as Aspirants.vii.That the Committee erred in law and fact in failing to appreciate that oath of secrecy was contravened and the Delegates were commandeered to proceed to vote by selection.viii.That the Committee erred in law and fact in failing to appreciate that the 18th Respondent maliciously released Delegates’ Identification numbers and breached their right to privacy as stipulated under Article 31 of the Constitution.ix.That the Committee erred in law and fact in failing to appreciate that the 18th Respondent did not carry out biometric verification which provided a room for non-delegates to vote.x.That the Committee erred in law and fact in failing to note that the 18th Respondent software integrity was questionable and corrupted which allowed non -delegates to be included as voters and bona-fide delegates to be deleted as Aspirants.xi.That the Committee erred in law and fact in abiding with the statutory requirements of ensuring that elections are carried after 21 days after announcement.xii.That the Committee erred in law and fact in failing to ensure that the oath of secrecy was complied with and delegates were controlled and intimidated to proceed voting by selection.xiii.That the Committee erred in law and fact in preventing the 16th Respondent to give her viva voce evidence on the denunciation of the post due to non- participation in the alleged election.xiv.That the Committee erred in law and fact in failing to appreciate that the Appellants had adduced substantial evidence that non-delegates were included as participants in the election.xv.That the Committee erred in law and fact in failing to make a determination that the voter registrar was interfered and the alleged grass root election failed to meet the threshold of a free, independent and transparent election as provided under article 37 of the constitution.xvi.That the Committee erred in law and fact in declining to grant the Appellants an opportunity to be heard and adduce evidence and ensuring a substantive trial ensued as provided under Article 50 of the Constitution.xvii.That the Committee erred in law and fact in stipulating unreasonable timelines on hearing which precluded the Appellants from adequately scrutinizing and responding to allegations replied by the Respondents.
4.In consequence, the Appellants seek the Orders:a.That the ruling of the UDA Party Electoral Dispute Resolution Committee issued on 15th June, 2024, upholding the election of county delegates in Busia be set asideb.Nullification of grass root election for County Officials in Busia conducted on 10th June, 2024 and a fresh election be conducted.c.A Conservatory order be issued directing the 18th Respondent to refrain from using the current software in any other grass root elections until its integrity is authenticatedd.A Compelling order directing the 18th Respondent to avail the system logs for detection of official liable with tampering of cyber security systems e) Costs.
5.The Appellants also filed a Notice of Motion Application of even date (hereinafter referred to as the Application) seeking the following prayers:a.This Application is urgent and be heard ex-parte within the first instance.b.Pending the hearing of the application this Honourable Tribunal do issue restraining conservatory orders against the 1st to 17th Respondents from assuming officec.That this Honourable Court do stay the Ruling issued by UDA, Elections Disputes Resolution Committee upholding Busia grass roots election pending the hearing of this applicationd.That this Honourable Court do issue a stay of execution and suspension of the Committee Ruling delivered on 15th June, 2024e.This Honourable Court do issue conservatory orders against the Respondents from assuming office pending the hearing of the appealf.Costs be in the cause.
6.In view of the stringent timelines prescribed by Section 41(1) of the Political Parties Act, Chapter 7D of the Laws of Kenya (the PPA), for determining matters filed before this Tribunal, and with the concurrence of all the parties hereto, the Application was subsumed in the main Appeal, thus paving way for issuance of pre-trial directions on the hearing of the substantive appeal.
7.Pursuant to our directions issued on 11th September 2024 on the disposal of the substantive appeal, all parties hereto filed their respective responses and written submissions on the appeal within the timelines prescribed.
8.During the hearing of the matter, the Appellants were represented by Ms. Shumila Advocate and the 1st to 15th and the 17th Respondents were represented by Mr. Dome Advocate appearing together with Ms. Luvai Advocate. The 16th Respondent was represented by Mr. Jumba Advocate, and the 18th Respondent was represented by Mr. Tunen Advocate.
The Appellants’ Case and Submissions:
9.The Appellants relied on their Memorandum of Appeal filed herein and their Written Submissions dated 16th September, 2024.
10.The Appellants reminded this Tribunal of the long-held precept of law, that as the first appellate court, this Tribunal has the duty to re-evaluate the evidence from the lower court, and make its own independent findings. They relied on the locus classicus case of Selle v Associated Motor Boat Co. [1968] EA 123 on the role of a court sitting on a first Appeal.
11.In advancing their grounds of appeal, and specifically, on the issue of Inclusion of Non-Aspirants, the Appellants contend that the elections conducted on 10th June 2024 violated Article 38 of the Constitution, which guarantees every citizen the right to participate in free and fair elections. They submit that non-aspirants, specifically the 17th Respondent, were unlawfully allowed to participate and were even declared winners, which act destroyed the credibility of the said elections.
12.Further, they draw the tribunal’s attention to Pg. 59 of the Record of Appeal, which they submit reveals that the 17th Respondent’s name is not only missing from the list, but also that not a single documentation was adduced by the Respondents to show that the 17th Respondent had even paid the requisite fee to participate in the elections.
13.They argue that the 18th Respondent’s unlawful conduct was clearly premediated as one Godfrey Opayi had been shortlisted as an Aspirant for the County Delegates Elections despite having lost in the Constituency Election. They argue that he was only removed after uproar, but the damage on the credibility of the elections had already been done.
14.They rely on Morgan versus Simpson (1974) 3 All ER 722 where the Court had found that that an election can be nullified if it is held that it was conducted so badly that it was not substantially in accordance with the election law, it can be invalidated irrespective whether or not the results of the election had been allowed.
15.On the issue of Non-Compliance with the law, it is the submission of the Appellants that the 18th Respondent disobeyed a court order issued in PPDTC No. E005 of 2024, which stayed the elections in Teso North Constituency. They submit that the elections proceeded in contravention of the order, thereby occasioning extreme prejudice to voters from Teso North. They argue that this breach of lawful court orders rendered the elections null & void, and urge this Tribunal to find as such.
16.They further submit that the assertion by the 18th Respondent that it was not served with the court order afore-stated was a disingenuous attempt at escaping accountability as it was not necessary that the order bear a stamp in view of electronic service.
17.They place reliance on William Kabogo Gitau V George Thuo & 2 Others [2010] eKLR, where Justice Kimaru in making a decision that the election should be nullified explained the independent body failed in its duty of ensuring the election was free and fair election.
18.On Manipulation of the Voter Register, the Appellants submit that the 18th Respondent manipulated the voter register by including non-aspirants and excluding legitimate aspirants, such as Evelyn Okumu Auma. They submit that this manipulation was aimed at influencing the outcome, contrary to fair electoral practices.
19.On the Failure to Use Technology, the Appellants submit that the 18th Respondent failed to use biometric technology as required by Section 10 of the Elections Act to verify the identity of voters. They assert that this failure allowed imposters to vote, undermining the integrity of the election.
20.They rely on Edward Tale Nabangi v James Lusweti Mukwe & 2 Others [2018] eKLR where the Court of Appeal sitting in Kisumu had held that failure to use technology affected the results.
21.On whether the UDA Dispute Resolution Committee perpetrated a Breach of Natural Justice, it the Appellants’ submissions that the denial of the UDA Dispute Resolution Committee for the Appellants to give viva voce evidence went against the rules of Natural Justice.
22.The Appellants claim that they were denied the right to present viva voce evidence before the UDA Resolution Committee, thus breaching natural justice. They cite Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji Civil Appeal No.179 of 1998, which underlines the importance of the right to be heard, including the opportunity to present evidence. They also relied on the decision of the court in Local Government Board versus Arlidge (1915) A.C 120(138) IHL.
23.On Failure to Enforce Oath of Secrecy, the Appellants submit that the 18th Respondent failed to enforce the oath of secrecy during voting, leading to voter intimidation. They argue that agents from certain candidates were allowed to interfere with the process. This they submit, was supported by evidence from their witness, Suleiman Linford Sanya.
24.On the issue of Breach of Privacy, Appellants argue that the 18th Respondent negligently published the identification numbers of aspirants, enabling imposters to use these details to vote. They argue that this violated privacy and transparency requirements under our electoral laws.
25.They pray that this Tribunal finds that the elections were not conducted in a free & fair manner, and urge us to declare the same as a nullity.
The 16th Respondent’s Case and Submissions;
26.Represented by the firm of Balongo and Company Advocates, the 16th Respondent filed her submissions dated 20th September, 2024, where in principle, she agrees with the Appellants that the elections complained of herein were so badly mismanaged, that their outcome could not have been considered to be credible. It was her submissions that the elections were marred with undue influence, best evidenced by her being followed by some agents to vote for certain candidates. This, she submits, impeded her right to freely choose.
27.She submits that indeed the 17th Respondent had not been shortlisted as a candidate, but by some unknown magic was declared a winner. She further submits that the IT system was infiltrated, rendering the entire exercise untrustworthy.
28.Finally, she submits that non- compliance with the Order of the Tribunal in PDTC No. E005 of 2024 which had barred the elections from proceeding rendered the elections not free & fair. She relies on the case of Raila Odinga vs IEBC (2017) eKLR.
The 1st to 15th and 17th Respondents’ Case and Submissions;
29.The 1st to 15th and 17th Respondents filed their Written Submissions dated 13th September, 2024, where they argue that the present appeal is a selfish attempt at preventing the Respondents herein from assuming office after being validly elected. They argue that the Appellants are not entitled to any of the remedies sought in view of the lack of cogent and verifiable material to support their claims.
30.They assert that the Appellants’ heavy reliance on the court order dated 29th May, 2024 to support their claims is misplaced as the said order was very clear that the elections to be stayed in the interim were only those to be held at the Sub-County level (Constituency level) at Angurai North Ward in Busia County which were scheduled for 31st May, 2024.
31.Conversely, the present matter before this Tribunal related to County level elections which were slated for 10th May, 2024 and as such the said order cannot therefore purport to be that which would affect the County Level elections. They draw the Tribunal’s attention to Form 34D annexed to the Appellants Record of Appeal which they assert clearly shows that the County Level elections were held on 10th June, 2024, and therefore the said order was never meant to affect those particular elections.
32.On the issue of documentary evidence, they submit that the Appellants have failed not just in this Tribunal, but equally before the Dispute Committee to adduce evidence that would support their claims. It is their submission that the Appellants failed to file witness statements before the Dispute Committee, and therefore it could not have been possible for them to give viva voce evidence, as there would have been no basis for said evidence. As for the photos adduced by the Appellants herein, the Respondents submit that the images of the persons appearing thereon cannot be ascertained by any measure.
33.They rely on the case of Raila Amollo Odinga & Another vs Independent Electoral & Boundaries commission & 2 Other (2017) eKLR on the issue of burden of proof in election cases where the court held that the legal burden rests on the Petitioner. They argue that the same can also be deduced from the provisions of Section 107 of the Evidence Act.
34.It is their submission that grounds 5 to 11 of the Appellants grounds of Appeal must suffer the same fate of dismissal as they are largely unsubstantiated.
35.Regarding the Appellants ground 13, the Respondents submit that as a matter of law & procedure, the 16th Respondent was a Respondent in the matter before the Committee, as she is now before this Tribunal, and therefore she could not have been allowed to give evidence in support of the Appellants’ (then Complainants’) case, unless she applied to be removed as a Respondent and to join the Complainants.
The 18th Respondent’s Case and Submissions;
36.Vide their Written Submissions dated 19th September, 2024, the 18th Respondent submits that the allegation that the members in Angurai Ward could not participate in the elections due to a court order is both misleading and factually incorrect. The elections in Angurai Ward were conducted on 18th May 2024, well before the court order, which was issued on 29th May 2024.
37.Moreover, it is their submission that no material has been placed before this Tribunal to show that the Appellants served the said Order, and no return of service was filed to that effect.
38.It is their further submissions that in any event, this Honorable Tribunal vacated the said court orders on 11th July, 2024 as the orders had since been overtaken by events since the elections had already taken place.
39.Further, they contend that none of the Appellants were candidates in the Ward level elections in Angurai Ward, and were therefore in essence, piggy-backing on the PPDTC E005 of 2024 illegally & without proper foundation.
40.It is their submission that the allegation of the Appellant that the 18th Respondent did not deploy technology and/or that they allowed non- candidates to vote were neither here nor there, and that no material had been placed before the Tribunal by the Appellants to prove this fact.
41.They submit that the purported list of Aspirants & Election Results marked as EN-5 as part of the Appellants supporting documents cannot be verified, and their origin & authenticity remains unknown. They rely on the provisions of Sec 106B of the Evidence Act & the case of Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018] eKLR on the legal requirement for a Certificate of Electronic Evidence.
42.They submit that the Appellants prayer for examination of the election logs is without proper basis, as the Appellants have failed to demonstrate that indeed there was tampering. They rely on the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, where the Supreme Court noted that an election should not be nullified unless the irregularities are of such a nature and magnitude that they influence the election outcome.
43.In the end, they seek that this Honorable Tribunal dismisses the Appellants appeal in its entirety.
Tribunal’s Analysis and determination;
44.Flowing from the parties’ pleadings and submissions, we have isolated the following issues for determination; -i.Whether there was lack of procedural fairness before the UDA Party Electoral Dispute Resolution Committee (the EDRC)?ii.Whether there was substantive fairness in the EDRC decision and/or whether the EDRC decision was arrived at in accordance with the law / Whether this Tribunal should nullify the grassroot election for County Officials in Busia conducted on 10th June, 2024 and a fresh election be conducted?iii.Whether the Appellants have established a case to warrant issuance of an order directing the 18th Respondent to refrain from using the current software in any other grass root elections until its integrity is authenticated? / Whether the Appellants have established a case to warrant issuance of an order directing the 18th Respondent to avail the system logs for detection of official liable with tampering of cyber security systems?iv.Who should bear the costs of these proceedings
Whether there was lack of procedural fairness before the UDA Party Electoral Dispute Resolution Committee?
45.The importance of the constitutional right of fair hearing and the application of the rules of natural justice has been judicially underscored in numerous cases including President of the Republic of South Africa & others v South African Rugby Football Union & others (CCT16/98) 2000 (1) SA 1; Onyango Oloo vs. Attorney General [19861989] EA 456; Republic vs. The Honourable The Chief Justice of Kenya & Others Ex Parte Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004, amongst others.
46.The Appellants have in their grounds of appeal claimed that they were not granted a fair trial before the EDRC. Their major concern is that they were denied an opportunity to bring their witnesses. It is further alleged that the witness testimony of one Suleiman Sanya was rejected solely on the basis that he was not a party to the dispute before the EDRC. They in addition have issues with the EDRC allegedly declining to consider the testimony of the 16th Respondent.
47.In order for the tribunal to appreciate the claims put forth by the Appellants, it would have been paramount for this tribunal to peruse the record of proceedings before the EDRC with a view to appreciating and establishing whether there were any procedural gaps that led to the breach of the Appellants right to a fair hearing as claimed. However, save for the EDRC Decision and the Complaint the Appellants filed before the EDRC, the Appellants have not produced in evidence any record of proceedings or events before the EDRC in a bid to demonstrate any of the claims that they have made.
48.We have further taken into consideration the acknowledgment made at paragraph 23 of the impugned EDRC decision that the Appellants herein did not avail any witness. There is no mention that any of their witness was denied an opportunity to give evidence. The subject paragraph reads;-
49.Considering the above, it is our view that the Appellants have not substantiated their claim that there was lack of procedural fairness before the EDRC. We accordingly have no basis to arrive at a conclusion that there was lack of procedural fairness as alleged or at all. Our finding on this issue is therefore in the negative.
Whether there was substantive fairness in the EDRC decision and/or whether the EDRC decision was arrived at in accordance with the law / Whether this Tribunal should nullify the grassroot election for County Officials in Busia conducted on 10th June, 2024 and a fresh election be conducted?
50.As we consider these intertwined issues, we must state at the onset that this tribunal is not bound by the findings of the impugned decision of the EDRC subject hereof. Our jurisdiction under the PPA is sui generis and we neither exercise appellate nor an extension of the party’s IDRM. Reflecting on the tribunal’s jurisdiction, Lesiit, J stated as follows in the case of Thomas Ludindi Mwadeghu v John Mruttu & another [2017] eKLR:-
51.Similarly in the case of Agnes Nailentei Shonko Wachira vs. John Njoroge Chege vs United Democratic Alliance, PPDT at Nairobi A Complaint No. E020 of 2022 we observed as follows:-
52.Turning to the facts of this case, we note that none of the parties took the tribunal through the guiding and applicable party laws for conduct of the UDA party elections for county officials. This Tribunal is therefore left to consider the dispute whilst guided by the law of evidence and the general electoral principles that are defined in the constitution, statutes and judicial authorities.
53.It is a canon principle of evidence, well captured in Section 107 of the Evidence Act, that
54.In the case of Emmanuel O Achayo v Orange Democratic Movement & 4 others (2017) eKLR, the High Court equally emphasized that;
55.And in John Kiarie Waweru v Beth Wambui Mugo & 2 others, the High Court held
56.In consideration of the law and the reasoning in the above cases, we now proceed to address our minds to the question whether the Appellants herein have satisfied the burden and standard of proof in respect of the irregularities alluded to in this matter?
57.Firstly, submissions have been made revolving around this Tribunal’s orders of 29th May 2024 which temporarily stayed elections which were to be held at Angurai Ward, Teso North Constituency, Busia County. This Tribunal already addressed its mind to the issues revolving around the subject interim orders issued in respect of the subject elections in Angurai Ward in PPDT Kakamega Complaint No. E005 of 2024 Moses Oude Amoo & Anor vs. UDA Party, and we wish not to revisit the same here. In any event, the subject Complaint has since been determined conclusively.
58.Secondly, it has been submitted that there was alteration of voters register which made it easier for non-delegates to be included as voters and delegates to be deleted as aspirants. From the Affidavits of both Eugene Wandera and Pamela Shitote, reference has been made to three incidents. One relates to the 17th Respondent, Abungosi Helda Makoba, whose name was allegedly not in the list yet she was allowed to participate and declared winner. Another one relates to the exclusion of one Everline Okumu Auma from the list, and the inclusion of Godfrey Opai who was shortlisted as aspirant in county delegates elections yet he lost in the constituency elections, and was only removed after an uproar. In consideration of these allegations, it is instructive to note that no verified voters register for the county elections was produced before the Tribunal to enable us appreciate and verify the claims that have been made. What the Appellants and the 16th Respondent produced are basically three unsigned, unstamped documents whose authors are unknown, allegedly obtained from the UDA portal, without the filing of any Certificate of Production of Electronic Evidence in respect thereto. We are therefore not able to confirm their authenticity and integrity and are at pains to admit the same. In this regard, we rely on the case of Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018] eKLR, where the court stated: -
59.Nevertheless, for whatever effect, even if we were to consider the same, in so far as the 17th Respondent is concerned, we have not been shown the list for all delegates at constituency level to enable us arrive at the conclusion that he was not meant to be an aspirant at county level in the first place. What was produced was document titled ‘County level election results ‘Winners Summary’ (Form 34B), which we have already observed was neither signed nor stamped. As regards Godfrey Opai, the unauthenticated list titled ‘Nairobi, Homabay and Busia County Elections Aspirants’ lists him as vying for the position of Organising Secretary together with one Wycliffe Ouma. However, the Form 34B does not even give the results in respect of the position of Organizing Secretary. In any event, there is an admission that Godfrey Opayi did not participate. On allegations relating to the exclusion of Everline Auma, save for the averment in pleading, we have not been furnished with any evidence to demonstrate this. In essence, there is no sufficient evidence before us to support the claim that there was alteration of the voters register, which register we have already observed was not produced before us.
60.Thirdly, and still related to the allegation that non-delegates were included as voters, the Appellants submitted that the bio-metric data of delegates was not verified by the 18th Respondent, that there was leakage of delegates identity card details in breach of their privacy, and which leakage aided impostors to masquerade and vote. That the 18th Respondent’s software integrity was questionable and corrupted. We have considered the record and we note that no iota of evidence has been produced to support any of these allegations touching on the software that was used. The only document that seems to have been placed on record is a list annexed to the 16th Respondent’s Affidavit, which list is claimed to be the leaked personal data. The subject list is simply titled ‘Busia County.’ Just like other documents produced in this matter referred to above, we are not able to identify the author of the otherwise unsigned list. There is nothing to demonstrate that it was leaked, and by who, and for what purpose? We are therefore not persuaded that the list as it is supports the contention that the 18th Respondent leaked personal data as alleged or at all, or that its software had integrity issues.
61.Fourthly, there have been made various claims of undue influence, intimidation and coercion. Allegations were made in the affidavits of Eugene Wandera, Pamela Shitole, and also the witness statement of Suleiman Sanya, that an agent by the name Casper Juma coerced voters to vote in a certain way by inter alia reading out the names of preferred candidates at the voting queue, that there were also people from Ababu Namwamba Foundation that gave out hoodies and influenced voters. To support these allegations, photos were relied on. We have looked at the photo images and we note that apart from the same being undated and unclear, we are not able to identify with certainty the persons photographed therein. In any event, the photos do not in our assessment support the claims on undue influence by a third party as alleged or at all. It is noteworthy that the Certificate of Production of Electronic Evidence produced on record does not provide the specific details including identity of person who took the photos, the device used, etc as required under Section 106B(4) of the Evidence Act hence the admissibility of the photos remain in question.
62.In a nutshell, taking cue from the findings in the afore-referenced judicial authorities, it is our observation that the Appellants claims on election irregularities are mere statements without substantiation and the same do not in our opinion meet the standard of proof that is expected in election disputes. We accordingly find that the Appellant have failed to meet the burden and standard of proof.
63.In addition to our foregoing finding that the Appellants have not met the burden and standard of proof in this matter, it is also inescapable for us to apply our minds to the question whether the irregularities alluded to, if proven, would affect the results of the elections. We say so based on guidance obtained from numerous court decisions. For instance in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Supreme Court stated: -
64.And in Raila Odinga vs. IEBC (2013) eKLR, the Supreme Court in declining to nullify the outcome of 2013 General elections stated: -
65.Similarly, in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission &4 Others & Attorney General & Another Election Petition No. 1 of 2017 the Supreme Court considered the circumstances under which an election may be nullified for failure to adhere to provisions of the Constitution and the law or on account of irregularities stating;
66.Further in Bernard Kibor Kitur v Alfred Kiptoo Keter & another [2018] eKLR, the Supreme Court observed thus:-
67.In consideration of the guiding principles in the above authorities from the Supreme Court, we posit that even if we were wrong in our finding that the Appellants did not meet the burden and standard of proof required in election disputes, no evidence was led to demonstrate how the irregularities alluded to affected the results of the elections in Busia County. In the Raila Odinga vs IEBC Case (2013) and (2017) and in Gatirau Peter Munya Case referred to above, the Supreme Court found that the court ought to consider the effect of alleged irregularities on the results before nullifying the same. In this case, it has not been demonstrated that the concerns to do with voter registers, biometric data, undue influence, etc. affected only the Appellants and their voters to the exclusion of the Respondents, and/or that the results would have significantly changed.
68Taking into consideration the totality of the foregoing, we arrive at the conclusion that the threshold for nullification of an election or nomination as set in law and precedents has not been met in this case. We consequently agree with the EDRC decision, which in our opinion was arrived at in accordance with the law.
Whether the Appellants have established a case to warrant issuance of an order directing the 18th Respondent to refrain from using the current software in any other grass root elections until its integrity is authenticated? / Whether the Appellants have established a case to warrant issuance of an order directing the 18th Respondent to avail the system logs for detection of official liable with tampering of cyber security systems?
69.We have already found that the Appellants have not proven the allegations revolving around the integrity of the 18th Respondent’s software. Accordingly, we make a finding on these issues in the negative.
Who should bear the costs of these proceedings
70.Turning to the question of costs, whereas costs follow the event, we are of the considered view that it is in the interest of fostering party unity that all the parties hereto meet their own costs of these proceedings.
Disposition
71.In light of the foregoing, we order as follows: -i.That the Complaint herein be and is hereby dismissed.ii.That the UDA Party Election Dispute Resolution Committee decision delivered in EDRC Complaint No. 33 of 2024 on the 15th day of June, 2024 be and is hereby upheld.iii.That each party to bear its own costs of these proceedings.Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER__ 2024.DESMA NUNGO -(CHAIRPERSON)---------------------------------------------------------HON. STEPHEN MUSAU - MEMBER………………… ……………………………..HON. MUZNA JIN - MEMBER………………………………………………….HON. ABDIRAHMAN ADAN ABDIKADIR - MEMBER