"YOU ARE BIASED, WE ARE GOING TO APPEAL" GACHAGUA LAWYERS TO JUDGES AFTER LOST MBEERE NORTH PETITION

Added: 2026-05-23

[00:00:01]Where the register was shown to be to have been unlawfully altered, the officer involved may have committed a criminal offense.

[00:00:09]On issue four, um the same summary that I I I took I take the same summary or conclusion.

[00:00:18]Um and this is where I said Kaungu theoretically suffered a turnout decrease of about eight 8% or 51 voters as against the constituency average.

[00:00:31]But I found overall the failure did not affect the outcome in terms of section 81 of the Elections Act.

[00:00:43]Section 82, sorry, of the Elections Act.

[00:00:47]On issue five, whether there was bribery, treating, maybe I just read all of them.

[00:00:51]If you don't mind, let me just read all of them so that I don't uh give an impression.

[00:00:57]On issue five, whether there was bribery, treating, undue influence in violation of the Elections Offenses Act and the Constitution, there was uncontroverted evidence of bribery involving two witnesses. As an election court, this court can make a determination only on whether the the the election mal practice whether an election of an electoral mal practice of a criminal nature may have occurred in terms of section 87 of the Elections Act, but not on whether the offense of bribery was committed. I do find that an electoral mal practice of bribery may have occurred.

[00:01:30]As to whether the electoral mal practice of bribery and voter influence so found results in the nullification of the election, the evidence does not does not show that the scope and prevalence of the mal practice substantially affected the result of the election in terms of section 83 of the Elections Act.

[00:01:47]On issue six, whether there was broken chain of custody, unlawful handling of election materials in violation of procedure on close of polling, the totality of the evidence availed disclosed that one out of 134 polling stations there was broken chain of custody, possible unlawful handling of voting material, but no violation of poll closing procedure at Gitiburi 1 and 2 except with regard to the time.

[00:02:22]For Kangundo, there was evidence of violence but no evidence of broken chain of custody uh unlawful handling of violation or violation of poll station poll station closing procedure. Consequently, there's no basis for the finding that the irregularities or non-compliance were substantial and affected the election outcome in terms of section 83 1 of the Elections Act.

[00:02:43]Had it been demonstrated that the sort of violence shown at Kangundo was pervasive or widespread, a positive case would have been made out to conclude that the violence affected the overall quality of the election and had a significant impact on the result.

[00:02:58]Issue seven.

[00:03:02]On whether there was used of state uh resources, state security offices to influence the voters.

[00:03:09]It was incumbent on the petitioner in order to prove issue seven to provide at least the minimum information or proof.

[00:03:21]The names which are some of which are provided, their formal designations, offices held, and particulars of nature of the alleged abuses of such offices, pro- provisions of the law breached, and the overall effect of such abuses upon the electorate and the election outcome. The petitioner failed to provide these through the evidence adduced.

[00:03:42]Accordingly, the court is unable to find in his favor on this issue.

[00:03:46]On issue number eight, um the same, the court was unable to find in favor of the of the petitioner the same on even the assisted voters because with the assisted voters what I have done is that I have said I take seriously the caution by the superior courts concerning unpleaded evidence gathered through scrutiny.

[00:04:13]The outright determination, the overall determination for all the foregoing reasons, the court finds that the petition was not proved to the required standard and it is hereby dismissed with costs.

[00:04:26]The costs are as follows.

[00:04:30]The costs are as follows.

[00:04:32]The parties made submissions on costs generally to the effect that costs follow the event.

[00:04:37]The first to third respondents council went into some fair detail in indicating the depth of the case, the number of attendances, preparatory time, complexity, and so on.

[00:04:47]The first to the third respondents and the fourth respondents both indicated that costs should be at Kenya shillings 5 million.

[00:04:56]The petitioner only submitted in during highlighting.

[00:05:04]So, having considered the nature of the case and the input of the parties and noting the fourth respondent did not testify to avail witnesses, I hereby cap party and party costs at Kenya shillings 4 million.

[00:05:16]The first to third respondents shall be entitled to 70% thereof and the fourth respondent to 30% thereof.

[00:05:25]I have prepared a report of the court on electoral practices under section 87 of the Elections Act which is as follows. The court finds that the following malpractices of a criminal nature may have been committed and directs that the same be transmitted to the DPP.

[00:05:52]A, admitted alteration of register without authority contrary to section 61 of the election offenses act.

[00:06:02]B, double assistance of voters.

[00:06:05]That is allowing six persons to assist more than one voter each contrary to regulation 72 5 C of the regulations.

[00:06:14]C, failure to record in the polling station register against the name of of the voter the fact that the voter was assisted contrary to regulation 72 6.

[00:06:28]I will make recommendations separately.

[00:06:31]There I'll not because there's no there's no point of putting the recommendations in the judgments, but I'll make recommendations separately particularly for IBC's notice uh subsequent to this judgment cuz I think it is important.

[00:06:46]Um certificate of the of court as to validity of the election under section 86 of the elections act.

[00:06:56]Having concluded the hearing of the election petition, I certify that the petition was dismissed and the fourth respondent remains the duly elected member of parliament from Baringo North Constituency.

[00:07:08]This information is to be submitted to and transmitted to the speaker of the National Assembly.

[00:07:17]Orders accordingly.

[00:07:22]>> [clears throat] >> Yeah, my lord, we are also obliged by the decision of the court. We have sat and listened to it.

[00:07:34]We appreciate where the court is coming from.

[00:07:39]But we however would wish to make an appeal in regard to some of the issues the court has dealt with.

[00:07:46]And therefore, my lord, we are making an application for expeditious provision of typed proceedings, the judgment of the court, and the decree accruing therefrom.

[00:08:09]Your lordship, the reason for the appeal is, my lord, that uh this might be beyond the time the certain issues will be clarified by the court of appeal.

[00:08:21]Most importantly, the question of the alteration of the voters' register. And my lord, since I'm not making an appeal before you, would wish to make the court of appeal pronounce itself.

[00:08:38]Number two, your lordship, on the question of um the scrutiny that was dealt with by the deputy registrar.

[00:08:46]My lord, we have listened to you and the judgment.

[00:08:50]And we note that the judgment itself does not caption the entire report as reported by the deputy registrar. And most importantly, in respect to ballot box number 35, and the 200 and 12 votes that were cast in foil paper. We have not heard you pronounce yourself on that. Your lordship would wish therefore wish to make an appeal. And then, my lord, I don't know how that will square out because it has not been captioned in the in the in the in the in the uh in the in the judgment. Because, my lord, when you ordered >> That should be easy enough because the proceedings of the registrar will be part of the proceedings of the >> Yes, my lord. So, you'll just annex them and say that the court the lower court failed to deal with an issue. My lord, we will we will be we will be obliged.

[00:09:37]We are always happy um that the court has made its decision.

[00:09:43]We'll try our luck in the court of appeal. We are most obliged.

[00:09:47]Fortunately, the um the the judgment is typed already.

[00:09:53]>> Yes, my lord. The proceedings are typed.

[00:09:55]So, it should be fairly easy to get the the the record fairly quickly.

[00:10:01]>> We will get it, my lord. Okay.

[00:10:03]Yes, uh Waduuta. Good morning, >> [clears throat] >> my lord.

[00:10:07]I am Kiragu Waduuta.

[00:10:08]And uh I thank you for for that judgment.

[00:10:14]Uh my lord, I just have one request.

[00:10:18]And uh as you review the judgment so that then we can see what we we make in terms of what is the next step.

[00:10:26]And we would just like to make an application for stay of execution on the issue of costs.

[00:10:34]Because we know we have we have money in court.

[00:10:50]Yeah.

[00:10:51]All right, go ahead. Yeah. So that, my lord, the issue of costs may be given about 30 days for us to review the judgment before money is released if such an order is sought.

[00:11:06]>> [cough] [clears throat] >> So that then we can make the appropriate application and obtain instructions.

[00:11:18]Okay. So that, my lord, as Mr. Ndebu Chiru mentioned, if he's in need for review or clarification from the court, then we can have that clarified.

[00:11:27]To consider all those options.

[00:11:29]>> All right. That's all, my Thank you. Um Yeah, I've been informed that I seek 45 days actually. 45 days?

[00:11:44]I think you have 30 days actually.

[00:11:47]I think well, yeah, he's asking for 45.

[00:11:51]Yes, I I hear you, my lord.

[00:11:52]>> Yes.

[00:11:54]We won't be opposing the request for stay, my lord.

[00:11:59]There's no indication upon which such stay would be predicated, my lord. No appeal has been filed as yet.

[00:12:07]Even the costs have not even been ascertained.

[00:12:14]My lord, on the second issue, the IBC takes notes of not not of the issues you have raised.

[00:12:21]And they welcome the report which you'll be extracting and sending them from this judgment here, my lord, which is going to be to inform their improvement.

[00:12:33]The improvement in terms of how they conduct their affairs and how the elections can be improved better.

[00:12:42]Otherwise, my lord, on behalf of the electoral body >> summarize it. Yes, my lord. Yes.

[00:12:48]Uh just sit down.

[00:12:50]During the hearing of the case, almost without exception, every IBC officer gave testimony.

[00:13:01]Asked, "Did you report?"

[00:13:05]They also said, "Was this outside the polling station?

[00:13:11]Did this occur outside the polling station?"

[00:13:14]I gave a long introductory discussion about the powers of IBC because it is important for IBC to remember that during or in connection with anything to do with elections, IEBC is the policeman of Kenya.

[00:13:33]It's not the Kenya police.

[00:13:36]So that you cannot ring your hands and say that it was not reported. We don't have an OB. No complaint was made. You have seminal powers, IEBC.

[00:13:47]You have powers as a commission even to investigate.

[00:13:52]You just need to read the newspaper. You hear something occurred, you run.

[00:13:57]Just like the Kenya Revenue Authority, when they hear ching ching ching in your mobile phone, they come running.

[00:14:06]>> [snorts] >> That is how IEBC is supposed to operate under this constitution and the laws.

[00:14:11]So that is the one of the big areas I'll be discussing uh in the recommendations.

[00:14:16]In India, it it is clear that IEBC behaved Sorry, not IEBC, the Electoral Commission there, behaved the way IEBC behaves today.

[00:14:26]They changed.

[00:14:28]They became proactive.

[00:14:30]The code of conduct is enforced in India.

[00:14:36]And in fact, in India, the petitions are very very few. I was there myself personally. There are hardly any petitions because IEBC does its work.

[00:14:46]Yeah. But my lord, while you're still on that No, this is not part of the judgment.

[00:14:50]>> That's That's That's quite my lord. It's also my observation.

[00:14:53]And my lord, um the the reason why we would wish to have some such some of these issues clarified would not wish my lord even to disturb that kind of fighting because my lord, this is the first time I've heard an election court making such kind of pronouncements in respect on how the IEBC is supposed to conduct. So my lord, even when you hear us making an appeal, we just want to make sure that we address some of those issues that you have said in your judgment.

[00:15:21]>> you will notice that uh in discussing the powers of IEBC and its its authority this was not in in respect of an issue for determination. So all that is mostly what we call it what orbital? No, no, it's not orbital. You're supposed to pronounce yourself in a manner that the law also speaks.

[00:15:40]It's not orbital. All right, anyway, you will take the you will take the judgement to the next court.

[00:15:44]But what worries me is what I see every day happening because we are all Kenyans.

[00:15:51]We we see things that occur. We hear when there's an election petition or an election, sorry, in any part of the country. It's reported in the newspapers.

[00:16:00]There are clips from all sorts of places. We We don't believe everything.

[00:16:04]But we get we get we are able to get the general mood of people.

[00:16:08]And that mood although we don't we cannot represent it in our judgements. It has to come through evidence.

[00:16:18]Parties have to bring the evidence.

[00:16:20]Even all this bribery, I've actually seen myself clips of people standing in a line being given money.

[00:16:26]It's just that nobody takes them to court.

[00:16:28]But these are things that IEBC can has the power to curtail even under the constitution.

[00:16:35]Under the constitution.

[00:16:37]And the DPP cannot say that he's the only one who can investigate or prosecute because the powers have been given under under the constitution through our statute for prosecutorial.

[00:16:51]So one of the things I'll be proposing is that is the um the setting up of an inspectorate of IEBC.

[00:17:02]That's one of the things I want to recommend. I can't recommend those things here because that would be it would it wouldn't make sense.

[00:17:08]But there must be some kind of inspectorate. I I I I know I don't know how Kenya Revenue or or Kenya Anti-Corruption Commission how how they do it. But however they do it, they seem to be fairly effective.

[00:17:20]That's what we want with IEBC because the constitution guarantees us a free and fair election.

[00:17:27]It guarantees whoever it is that when she is going to her polling station, nobody is going to Sumbua her.

[00:17:33]No masumbuko, I'm going to vote and I'm going to vote for who I like.

[00:17:37]And if I take your money, I'll you still vote for who I like.

[00:17:41]Okay. So that that's that's the key point. Sorry, anything else?

[00:17:45]Yeah, my lord. Maybe just orbital.

[00:17:47]As I thank you for the way you have conducted the proceedings and the efficiency.

[00:17:53]Also to bear in mind the timelines which the respondents are really given to respond to this such a bulky election petition.

[00:18:01]A single 7 days. Yeah. Some of the irregularities, my lord, which may go unexplained could be because of this scarcity of time, my lord.

[00:18:10]Um otherwise, it's to say that I Yes. Yes, my lord. Put it in the report?

[00:18:16]>> You did. I did, my lord. Okay.

[00:18:18]Otherwise, we take a lot of lessons as IEBC and we appreciate you a lot and your entire staff.

[00:18:24]Thank you very much and even to counsel who appeared in this matter. Okay.

[00:18:30]Yes, my lord.

[00:18:32]As the fourth respondent, we appreciate the announcement except for one issue.

[00:18:39]Mandela has taken the bulk of the of the cost. Mhm. I've seen as well discussion on the record.

[00:18:48]You can share something.

[00:18:50]Um otherwise, my lord, we are happy in the manner in which you have conducted this petition.

[00:18:58]We are also happy with the judgment that you have pronounced today.

[00:19:02]Of course you would be.

[00:19:03]>> [laughter] >> Yes.

[00:19:06]Thank you, my lord. Yeah. But um on my part, I'm most impressed by the time you've taken Yeah.

[00:19:48]My lord we welcome the well reasoned judgement of this honorable court which has really shed light on very pertinent issues that arose from the petition.

[00:20:10]And our client, the fourth respondent, who is present uh takes uh this opportunity to extend a hand of friendship to the petitioner.

[00:20:30]Now that uh the court has decided and as we are aware politics and democracy in their very nature are competitive.

[00:20:44]But it it takes a wise soul to accept the electoral and judicial outcomes right.

[00:20:59]And I recognize that uh Mr. Odinga is already in agreement with the position taken by this court.

[00:21:07]And indeed he says he wishes to go to the court of appeal to buttress the decision of this honorable court.

[00:21:16]So, we we are of the view that uh that Mr. Gilo may want to take into consideration the will of the people, the constituents of Bek Baringo, who who decided that they're going forward the game moves from the courts to the ground in terms of development programs, in terms of rendering of services, such that no more attention will be devoted to court proceedings.

[00:21:55]The fourth respondent has had a lot of distraction uh during the time when these proceedings were in progress.

[00:22:03]He had to shuttle between the constituency and the court, and that has unduly impacted on uh his ability to fulfill uh the promises that he made to his constituents. So, we would be glad if this matter can rest at this stage.

[00:22:27]We continue to celebrate the wisdom of this court together with the the petitioner, and it would be good for for all of all of us, because sometimes you win, sometimes you lose, and even then, the next election cycle is just uh 1 year away. And uh I'm sure my uh our client, the fourth respondent, would be willing to make some considerations uh which would be favorable to the petitioner, depending on how the petitioner takes the outcome of these proceedings. Now, with regard to the prayer for the costs, we'll also be making an application that the amount deposited as security for deposits be released to to the respondents.

[00:23:22]So, you're making that application now?

[00:23:26]Because I've already given a stay of 30 days, so even if you make the application, it will not affect the stay.

[00:23:33]Very well, then the amount can be released to the respondents on the 31st day.

[00:23:38]>> [laughter] [laughter] >> Judge, we thank you for the detailed judgment and the way the court has conducted this particular petition.

[00:23:56]I as a Karoki Njiriri, I'm the senior most the petitioner, and on behalf of the petitioner, we thank the court for the judgment. At the same time, to remind my colleague Mr. Kamotho that the petitioner and the fourth respondents are friends, and they will remain as friends besides their political diversity.

[00:24:21]Um one issue we would like the court to give directions on the electoral materials. My colleague had requested me to mention that, and also the keys that we are holding for the safe um room going forward. We shall be inviting uh Judge Karodoi to thank the court formally on behalf of our team.

[00:24:50]Let me I forgot to say that the about the electoral materials.

[00:24:54]Obviously, they'll be returned, but let let let the let that come through a direction that I'll give the DR. Which will So, I'm just saying directions on electoral materials will be given to DR to effect.

[00:25:19]Yes.

[00:25:20]Thank you for reminding me.

[00:25:22]Thank you, my lord.

[00:25:24]I noticed to be the role of the bar saying thank you to the court has been taken up by several people.

[00:25:33]I think it's what they say that success tends to have many fathers.

[00:25:39]But, um on behalf of the bar, we would like to say thank you for the way the matter has been conducted.

[00:25:54]Um on the end of the petitioner, we may not be happy, but we are grateful.

[00:26:01]We have been handled, managed, treated with utmost professionalism.

[00:26:09]And I think that no one sitting on this side can take it away from this court.

[00:26:16]And even next time, if there is, we will be more than happy to end up in this court.

[00:26:26]And we also hope that all the issues that we picked up for recommendation, that they are going to be acted upon to make um the resolution of electoral disputes um to be enhanced. And that is why I wonder >> [clears throat] >> looking at the spirit with which we have gone, um I I was also thinking that Mr. Kamotho or Dr. Adrian Kamotho should be looking forward to a robust appeal process which will actually even make these issues clearer instead of offering an olive branch.

[00:27:08]While the petitioner is actually going after the whole tree and its fruits.

[00:27:13]So, we hope that we will be fully facilitated with everything that we have asked for and we wish the court all the best going forward and thank you very much. Thank you very much, counsel.

[00:27:28]We I take that with a a lot of appreciation. I I If you noticed, I started by appreciating and acknowledging you all cuz I didn't know what uh what might happen after I make the final determination.

[00:27:43]>> [laughter] >> And I didn't know whether there is enough security.

[00:27:50]No, thank you very much, uh counsel. I have also enjoyed myself uh during those this whole exercise and uh you say when we do it again. I hope we don't. By then, I think I should be an elder doing a alternative justice system next year.

[00:28:07]>> [laughter] >> But, thank you very much, all. I appreciate you. Have a good afternoon.

[00:28:13]Oh, I have not used my gavel and somebody complained. So, let me use it today.

[00:28:19]Let me use my gavel because uh it has not been seen to be used.

[00:28:25]The proceedings are closed.

[00:28:29]You may stand.

[00:28:35]Thank you very much. You most obliged.

[00:28:37]You most obliged.

[00:28:48]>> My mom I got a good job.

[00:28:56]Let me put on my favorite song.

[00:29:49]No.