In election petitions, courts assess whether electoral irregularities substantially affected the election outcome by examining evidence of violations such as voter registration interference, violence at polling stations, bribery, and procedural failures, while considering that electoral commissions must proactively enforce codes of conduct to ensure free and fair elections; the court found that while some irregularities occurred, they did not substantially affect the election result and dismissed the petition.
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LIVE: WILL WAMTHENDE SURVIVE? MBEERE NORTH ELECTION PETITION-JUDGMENT- BEFORE JUSTICE RICHARD MWONGOAdded:
election, it is incumbent upon it to rigor rigorously enforce the electoral code of conduct which every party and candidate is obliged to subscribe to.
The code mandates IEBC to entirely exercise the measures under paragraph 7 of the electoral code of conduct uh in the event of infringement.
The measures are summarized um as follows amongst others. To issue formal warnings to issue fines which shall be registered in the high court to prohibit a party from using media time.
Issue prohibitions for public meetings, demonstrations or marches either on its own motion on or in consequence of any report made to it. to institute proceedings in the highquarters may be appropriate in the case of any alleged infringement of the code by a political party or by the leader or office bearer of any polit political party from the foregoing there is it is clear that there's no shortage of power or legal means vested in IEP to enable it whether inside or outside the polling station during an election period to deliver a constitutionally sound free and fair election.
It is indeed in the public knowledge that uh during the election period in Ber North the IBC's electoral code of conduct enforcement committee was functional. I found a case complaint number IBC ECC number four of 2025 which was conducted in Nairobi where a fivep person committee reached a verdict um on 17th november 2025. So IBC's electoral conduct committee was live and well um in 2025 November 2025.
It is not novel to suggest that IBC must take a robot robust and active rather than passive role in ensuring discipline and a level playing ground during the elections period. In India, the election commission in its earlier days neglected to act pro proactively despite like Kenya there being a code of conduct in force.
In a book entitled How India Votes, Election Laws, Practice and Procedure by VS Rama Devi and SK Mediraata, it was observed as follows. Rarely, and I quote, rarely was any punitive action taken by anyone in if any breach of the code was observed. It was only from the time the 10th the time of the 10th general election uh to the house of the people in 1991 that the election commission became proactive to ensure the observance of the model code in its true letter and spirit by all concerned.
The commission expressed its open dis displeasure over the conduct of certain high dignitaries violating the model code and censured a few officers on that count and that had the due sobering effect on the others. I have quoted several instances where the uh Indian electoral electoral commission um cited parties or candidates.
Maybe I can put just one just for the purpose of illustration.
Um the authors site an example of a chief minister of Punjab who during the election to the Madia Pradesh legis legislative assembly used the state government aircraft for going from Chandigar to Indore. I know these names mean nothing to us in Kenya but they are real places in India.
um on some official visit and from there proceeded to Bopalo on an election visit. He was made to pay to the government at the asking of the election commission for the entire air journey from Chandiga to Bopal and back for his use of the government aircraft in violation of the model code and uh there's another example too.
This is the background I have given and on that background I now an analyze and determine the issues. Issue number one, whether there was irregular, opaque, and unlawful appointment and dismissal of preciding officers in violation of the constitution, the and the elections general regulations.
The petitioner in paragraph 23 of his supporting affidavit complained that the first respondent trained a set of officers to be appointed as POS and DPOS, but these were not the people who are eventually appointed and deployed.
As a result, there was opacity in the appointments. In cross- examination by Mr. Monguela, PW1 admitted that he was not aware that some of the trained officers were eventually appointed as clerks. PW3 Grace Joyak, the key witness in this on this issue, stated that she was one of the persons selected by IABC for a 4-day training for POS and DPOS.
That there were 39 trainees, that she was assessed by IABC and scored 89 points. On the last day, 20 names were read out and she was amongst them.
However, she was not given an appointment letter and was removed from the list of those deployed at the election. She said she voted at Kanya.
On cross-examination, she stated that there were a total of 356 trainees. She deni she denied that she was dismissed for failing to attend some parts of the training. She said that she had been verbally assured that she would be deployed as a PO or DPO and was called upon to remain on standby in the event that a deployed officer failed to turn up.
In further cross- examination, she said that her non-deployment did not affect the election. She admitted that she was paid for the 4-day training. In re-examination, she stated that she was discriminated upon by not being deployed for alleged lateness, whilst others who were late were deployed. when cross-examined about training and deployment of officers RW2 and PW said that PW3 did not complete the training or that she absconded to this point that this point was explained to her amongst 20 other trainees who were also dismissed. He asserted that PW3 did not complain at the time and that he heard and that he heard about her complaint for the first time through the petition itself.
For the al allegation under this issue to have been proved, the petitioner was required to identify the offices in question and demonstrate that there was something irregular, opaque or unlawful about the appointments, deployment or dismissal of the officers trained by the IBC for the purpose of this election. The petitioner was also required to show which provisions of the law were violated and by what acts or omission they were so violated. The evidence of the petitioner did not list the trainees. It did not identify which of the trainees were opaquely or irregularly appointed and or deployed or dismissed and did not specify which provisions of any law were violated. The petitioner also failed to draw out any evidence through cross-examination of the respondents witnesses that would have supported his claim on this issue. The petitioner's key witness that is PW3 considered that her non appointment her own nonappointment had no effect on the conduct of the election. In light of the above and as early indicated the issue under consideration concerns the qualitative nature of the election.
However, based on the evidence availed, I find that no qualitative disqualifying attribute in appointment and dismissal of I IBC election officials was demonstrated.
Issue number two, whether alleged failure to deploy the printed register of voters resulted in unlawful disenfranchisement of duly registered voters.
The petitioner's claim, Can you get me some water, please?
The petitioner's claim on this issue was underpinned on regulation 69 of the elections general regulations. That provision is as follows. And I'll just uh go to 1 C. Before issuing a ballot paper to a voter, an election official shall call out the number and name of the voter stated in the polling station uh register. D. require the voter to place his or her fingers on the on the fingerprint scanner and cross out the name of the voter from the printed copy register once the image has been retrieved. I think this was the basis of the complaint. On its face, this provision requires that a voter prior to voting should produce an ID or document to an election official who would then assertain that the voter has not voted in that election, calls out the name of the voter as stated in the station's register before he then places the voter's finger on the Kim scanner. Where the Kim identifies him, the officer crosses out the voter's name from the printed reg copy of the register. where the KES fails to identify the voter, a verification process to identify the voter has to take place under which the agents and candidates are involved in identifying the voter using the printed register and completing verification form number 32A.
The respondents argued that the requirement for use of of a physical register at the point of voter verification was obiated according to the jurist prudence in the case of UDA cases of UDA and NASA. A brief background is necessary to understand the role of the physical register.
In Raa Odinga versus IEBC 2013, the petitioners challenged the integrity of the voter identification process after the electronic voter identification devices failed widely on polling day.
The petitioners argued that the IBC had uh improperly relied on multiple registers including the including the biometric voter register, the green book and the special register for voters whose biometric data could not be retrieved uh electronically. The Supreme Court rejected the challenge holding that the principal register of voters was legally capable of existing in multiple integrated forms and that the use of the manual fallback mechanisms uh following technology failure was legally permissible in order to prevent disenfranchisement.
That decision was the first judicial recognition that techn technological failure cannot constit constitutionally extinguish the right to vote given the provisions of section 69 of the elections act. The physical register therefore emerged as a necessary backs stop mechanism within the electoral process.
In addition, judicial interpretation of section 44A of the elections act in relation to voter identification occurred in the NASA national super alliance case of 2017. There the petitioners argued that voter identification and transmission of results ought to be conducted exclusively through electronic systems and that the existence of manual fallback mechanisms created opportunities for electoral fraud. The high court rejected that argument.
Upholding the high court the on appeal the court of appeal acknowledged that the Kenyan electoral framework contemplated an integrated electronic system for voter reg registration identification and transmission of results. In essence, the court determined that the complimentary mechanism contemplated under section section 44A was intended to operate precisely when the integrated system failed as follows.
To our mind, what was required of the respondent was to put in place a mechanism that would complement the one set out in section 44 of the act. the particulars of the mechanism whether electronic, manual or or any other mode was not expressly provided for in section 44A. If that were the intention of parliament, nothing would have been easier than to specify. So the the NASA case is significant in that it rejected techn technolog tech technological exclusivity and instead asserted that the law contemplates the primacy of technology supported by fallback safeguards intended to preserve infranchisement where technology fails.
The Supreme Court's re reasoning directly informs the interpretation of regul regulation 691E which sets out the statutory sequence for identification uh for when there's identification failure. First biometric identification followed by alpha numeric search and finally result to the printed register.
The NASA case confirms that regulation 69 is a procedural expression of section 44A's constitutional complimentary mechanism. In Ria 2017, the petitioners challenged the integrity of the election on the basis of failures in electronic transmission uh verification and accountability.
Although the Supreme Court did not nullify the election specifically on voter identification grounds, the decision fundamentally altered Kenya's electoral electoral jury prudence by emp emphasizing that elections must be transparent, traceable, auditable, accountable, and independently verifiable.
The court repeated repeatedly stressed that constitutional compliance depends not merely on whether votes are cast but whether the process through through which they are cast, identified, recorded and transmitted can later be verified through documentary and technological audit trails.
The principle later became central to both the uh regulation 69 identification cases and regulation 72 assisted voted voter cases.
Then I I refer to um uh the the the minor kay case and I'll skip directly to because it's taking us long to get there. I skip directly to UDA uh the UDA case on the eve of the 2022 general election.
Oh, let let me just mention sorry um the minor case Kenya Human Rights Commission versus IBC. Uh it is important in that case uh the petition has challenged IEBC for issuing a directive propos proposing to abandon the printed register entirely and rely exclusively on KE's based identification. The high court building on the NASA case and the constitutional principles articulated in RA 2017 quashed the directive and held that the printed printed register was not merely administrative but a constitutional safeguard. The court found that abandoning the manual register um violated articles 38 and 86 of the constitution.
However, on the eve of the election, 2022 election, the court of appeal intervened through the case of UDA versus Kenya human rights uh commission and others. It stayed the high court's directive requiring immediate universal deployment of the manual register. It did so without rejecting the legitimacy of the complimentary mechanism. Instead, the court of appeal held that the following sequence governed voter identification. First, biometric identification through Kim. Second, alpha numeric search where biometric verification fails and finally resort to the printed register only after confirmation of Kim's failure beyond repair or replacement and with the commission's authorization.
The court therefore accepted the con constitutional necessity of the manual register while insisting that its use remain controlled and sequential.
The Supreme Court applied this hierarchy directly in Raoinga 2022 where the petitioners alleged widespread KE's failures and argued that the resulting identification process was unverifiable.
The Supreme Court upheld the election, finding that although Kim's kits failed in in 235 polling stations affecting approximately 86,889 voters, the IEC had properly implemented the fallback mechanism through form 32A documentation and manual identification procedures. He concluded that the integrity and verifiability of the identification process had been preserved notwithstanding the technological failures.
So Ria 22 confirms that technological failure is not uh fatal in itself fatal and that matters and that matters constitutionally.
um what matters constitutionally sorry and that what matters constitutionally is whether the fallback process remains documented traceable and verifiable in that case the election survived because the fallback process was properly documented through form 32A I've cited a couple of cases on scrutiny from the high court uh which I will not uh uh point out which I'll not read out. Um, but let's go to the evidence. Now, the evidence in the present case compi comprised largely of assertions that the petitioner's agents had not seen the physical register at the polling stations. PW1 stated that there was no manual register at the polling stations.
PW2, the petitioner's chief agent, gave contradictory evidence on this issue, stating that he did not see a manual register in any polling station that he went to. and no agent told him that they saw a manual register that the agent at Kitiburi Kitty Buri polling station told him that some people were voting even though they were not identified by Kim in cross- examination by Mr. Mongala.
However, he stated that he did not witness any Kimkit malfunction and the agents did not tell him how Kim's kits were started. He also stated that he was not present when Kims were being started, but he was shown how the kit was started. He did not recall seeing a QR code on the manual register.
PW3 Joyce Gakin evidence in chief stated that she did not see any manual registers on polling day. When cross-examined by Mongala, she stated that during the IBC training, she was told that manual registers would be used only when the necessary only when necessary like when identifying a voter. When she voted, however, she was identified by Kim and so there was no need to refer to the manual register. PW4 and the PW4 one of the petitioners polling agents stated that the voters who were not identified by Kim's kits were photographed and shown where to vote. He stated in cross-examination by Mr. Mongala that I saw Kim being started. I saw the Kim's kid take a picture. I know it was a picture on voters register. Kim worked from 6:00 a.m. till closure. In re-examination, he stated that people who are not identified in Kim were photographed holding an ID. RW1 stated that Kim's kits were started through scanning the QR codes on the physical registers in all the polling station in all the polling stations. He did not receive any reports of complete failure of Kim's kits being unable to identify a voter that the physical register is used only when Kim fails completely and in such cases use of the physical register must be authorized by IEDC headquarters. In cross-examination by Mr. Gashuba, RW1 stated that the petitioner did not specify any station without a physical register. When cross-examined and uh and referred to paragraph 39 of his affidavit, the witness said that the physical registers were deployed 100%. He stated in cross-examination by Mr. Nirro that Kims cannot start without scanning the QR code on the physical register that the register was used that the register used was the same one used in the 2022 election.
RW2 stated in evidence in chief that a physical register was deployed in each polling station. RW3 the P gibbururi uh two stated that I had a printed register of voters which I scanned the QR code to start Kim. I did not use the register of voters since all votes all voters were identified by Kimkit RW4 PO at Kibburit number number one stated in cross-examination by Mr. Gashuba that she did not use the register of voters except to open the Kimkit.
RW8 was a PO for much polling station.
He stated that uh he had a physical register on polling day and that no voter was turned away. He stated the voter that the register was sealed in a clear plastic paper and it uh remained that way all day. He did not know how many pages the register had.
The top of the register indicated the number of the votes voters in it, but he did not open it to verify the number of voters in it. During scrutiny, when ballot boxes were opened, the DR noted that in each box, there were voter registers wrapped inside a transparent sealed plastic bag. The physical register had on its face a QR code which was used to open the Kim's kit when scanned. Once a Kim's kit was opened through scanning, the kit gained access to the soft copy content of the physical register in the paper bag. Further, when doing the scrutiny, the DR and sealed the physical registers, scrutinized and placed them side by side with the 2022 register and confirmed that they were identical in that they contained the same voters's names. In conclusion, it is demonstrated by the evidence that there was a physical voters register available at every polling station that they had QR codes on them to open the Kim kit at the polling station. The voter register contained the Kim contained in the Kim was a soft copy replica of the physical register which had the QR code. No evidence was availed that any voter was disenfranchised since the physical registers were present and were also replicated inside the Kimkit.
The prevailing juristprudence on use of physical registers is is the UDA case which is that such a register is only to be used in instances where biometric or alpha numeric identification fails.
There was no evidence of such failure of identification. Had there been failure of biometric and alpha numeric identification followed by failure by IEBC to deploy the physical register, a case of voter disenfranchisement would have been made out.
So that issue also fails.
Issue number three, whether there was unlawful third party interference with voter registration data and failure by the first respondent to secure and protect the register of voters.
There are two key complaints sought to be demonstrated by the petitioner's evidence concerning interference with the voter regist register.
These were as follows.
evidence of unlawful interference concerning registration of Collins Mona in Ber North from Ruido and B the alleged transfer of Sicily Morugi in Jag Murug from Ber North to Karatina whilst the register had been frozen.
PW1 stated that Collins Mona did not appear in the 2022 register and that he was not a voter in Baron North. Collins Mona was not called to testify in rep in response. RW 5 Edwin Ibrahim Golicha IABC's voter registration officer at stated in paragraphs three four and five of his his affidavit though an open kim sorry through an open kimkit a registration official at IBC can register a voter at any registration center within the republic of Kenya that on 8th October 2025 I registered Collins Monokei Mon as a voter through use of an open kimkit at my Royal constituency office that they said error occurred due to human error on my part and was not intended to favor any candidate during the conduct of the bi-election.
In his oral evidence, RW5 stated as follows. On 8th October 2025, I was overwhelmed by a large number of youthful voters. In the process, I made a mistake of registering Collins Mon. As soon as I realized the mistake, I reported to ICT uh uh the ICT of IBC. Mun had appeared before me that day. I realized he was registered. I don't know if he could have appeared on Kim.
Collins was the only one I registered.
In cross-examination by Mr. Duar, W5 stated as follows. What I did amounted to an alteration. All registers had been frozen as at 22nd June 2022. I was aware of this. It is an alteration. I had no authority to alter the register. I did inform ICT. I did not inform the commission itself. Section 33.
I think the reference was actually to section three but uh on the on the record it shows section 33 of the elections act was then read out. RW six was Paul Wanga Mugo ICT officer at IBC.
He stated that he was informed of a discrepancy between the physical register and KES that the former had 39 399 registered voters while the latter had 400. He asserted that the discrepancy was caused by inad in inadvertent human error by a registration officer at RU resulting in one extra voter. In cross-examination, he stated that Collins Mon was registered as a voter on 8th October 2025 and that he was alerted by the assistant registration officer RW5.
Once he was told he checked the system, checked in the system and flagged out Collins Monet. That meant he highlighted Collins Monae as a new entry since one cannot remove the name but can only flag it out.
In cross-examination by Mr. Jiri he he stated that even though the register was frozen for purposes of the bi-election, an open kit can register voters anywhere in the country. He did not audit the register to find any other unauthorized registrations. When cross-examined by Mr. He admitted that such registration affected the character and integrity of voter registration.
During scrutiny, the DR made the following findings regarding the issue of Collins Monet under paragraph 414 of the supplementary report dated 22nd April. I quote, according to the Kim's logs and total registered voters, sorry, according to the KE's logs, the total registered voters is 400. Whilst according to the 2022 register of voters, registered voters are 3.99 and according to the 2025 by election register, the total voters registered is 399.
The discrepancy was noted down in the polling station diary at page 30 by the PO. The same is also noted in the initial DR's report filed on 17th April 2026.
It further quotes that number 154 on Kim's logs indicates the name Muryoki Collins Mon. Yet on both the 2022 and 2025 registers, number 154 is Mutala Daniel MuMA.
Therefore, Muroki Collins is not in the two register of voters. The petitioner was interested in knowing whether Moryoki Collins Mun voted in the bi-election. The same was checked in the Kim's logs voter register using the national ID number and the result was Muryoki Collins Mon did not vote in the bi-election.
PW5 Sicily Murin Jag stated that she had been a voter atari polling station since the year 2022. She said she was unable to vote in the 2025 bi-election as she could not be identified through Kim. She was instead informed that she is a registered voter at Karatina. However, she asserted that she had never transferred her voting station. When she checked on the online IEC portal in her phone, she found that she had she was indeed registered in Karatina.
During scrutiny, the DR noted in paragraph 4 of the supplementary report uh as follows regarding the case of Sicily Jag.
The petitioners asked to check out the status of one Alex and Sicily Murjagi.
Both ID numbers are retained in the hard copy of the report to confir of the of the of the DR's report to confirm whether they were in the register of voters 2022 Kim's register and Kim's logs. The findings are as follows.
Sicily was not present in both register of voters 2022 and 2025 for Giguari polling station and Kim's biometric register. Her n ID number appears at 0710 a.m. on Kim's logs under the citizen ID number so and so on 27th November 2025. Voter ID belonged to a polling station number so and so which is Neri County Mira constituency.
So she was not present in the in the voters's register. With regard to Alex, which is not necessary in this case, uh he was not present in both um the 2022 and 2025 register voters.
I'm only reading this because it's in the report and the petitioner had asked during scrutiny.
Uh both never voted in Guari polling station.
From the evidence above, particularly the admissions of RW5 and RW6, the following following conclusions are inevitably drawn. One, that an IEC registration officer using an open Kimkit can register a voter anywhere in the country for a constituency.
Two, that an open Kimkit can override the freezing of a register in an area scheduled for an election.
It is also concluded on the issue at hand that there was no proof availed that the admitted interference with the register was either widespread, systemic or intended. In substance, therefore, there was no proof and thus no finding can be made of the fact that the stated interference with the register affected the will of the people.
Issue number four, whether there was violence, intimidation and disruption of voting in violation of the constitution, the electoral code of conduct and electoral law.
Incidents of violence and were primarily shown through evidence to through evidence to be significant at Kongo polling station. Congo polling station. PW1 testified that he was informed of incidences of violence, voter intimidation, disruption of voting at various polling stations. He stated that at Kongu, the Embu County governor and the fourth respondent forced their way into the polling station and chaos erupted. That the aids accompanying state officers fired shots in the air.
He was shown videos titled violent shooting victim which had been admitted in part and CS Roa agitation kyamora.
These are two videos. PW1 was not present at Kongo at the time.
PW8 James Murag who stated that he voted at Kongo polling station.
He said thereafter he left the station and was standing outside the polling the gate of the polling station waiting for his friend. While standing there, he was shot in his upper on his upper arm. He reported to the police that he had sustained a gunshot wound before going to Embu level 5 hospital where he reported the nature of his injury. Dr. John Wangi's medical report indicated that the witness reported that he had been shot. Produced in evidence, there are handwritten doctor's notes showing that he had reported a shot wound and that there was a slight crack in the distal end of his radius.
RW7 Pauliga Jeru the PO at Congo polling station stated that he witnessed violence from a distance outside the polling station including stones thrown into the polling station. Voters were aggravated so he stopped the election process for 30 minutes. When he reopened v when he reopened when he reopened voting continued but the voter turnout was lower than the earlier turnout. He recorded as follows in the polling station diary. Quote the locals and some politicians disrupted the polling process where some windows window glasses for the polling station were broken. Voting was disrupted between 1345 hours and 1415 hours.
Action taken. The aperture was sealed at 1345 hours. All election material and officials were put under tight security.
The arrow ensured there was backup security.
In cross-examination by Mr. Niri, he stated as follows concerning the incident of invasion into the polling station at paragraph 9. I say there was a shooting incident shown page 345 of the PSD.
I he says I recorded that there was that there were politicians. I don't know which politicians I do not know their names. The politicians and locals affected the polling by stoning the classroom. We had to stop the process of polling. The shooting was passed noon.
Yes, the number of voters reduced.
PW6 was shown a video titled armed goons unattended.
It concerns the period after the fire at Gituri 2 and there are crowds with some of them armed with sticks.
The video titled Gibbururi part violence 001 also shows agitated people armed with sticks confronting the IEC officers after the fire had occurred at Gibbururi polling station. On viewing the videos, the court notes as follows that most the most significant violence was experienced at Kawongu Polling Station.
The video showed vehicles like praos and land cruisers without number plates driving out of the polling station with hordes of people armed with sticks jeering angrily and demanding their removal. At Kawongo, there's evidence of PW8 who testified that he was shot outside the police station. There's no doubt that whilst Kongo was Kawongu was epicenter of the violence demonstrated in this case, there were instances of disruption and commotion wherever any unusual event occurred such as a fire or attendance of politicians at polling stations in unmarked vehicles.
as to whether this violence has a substantial effect on the outcome of the election. The findings from the supplementary report dated 22nd April 20 2026 indicated that at Kawongu from the opening of the polling station at 6 a.m.
up to 100 p.m. the voter turnout was 3:47 voters from 1 1 p.m. up to close of polling at 5:00 p.m. Not forgetting that the u the violence occurred at around lunch break at around 1:30.
the voter turnout declined to 49 voters.
This is clearly shown in the highlighted row in number two on table three which I have u extracted and put in the in the in the the judgment.
The extract on row number two of the table two shows as follows. Record of voter turnout at the polling station details as per the PSD. Total registered voters were 641.
Voters who had voted at 900 hours 177 at 1000 hours. It should be 11 actually because uh it goes by every 2 hours. It records every 2 hours. At 1100 hours 287 at 1300 hours 347.
So between morning and 1300 hours the voters were 347.
From 1300 hours to 1700 hours, the total voters were 396, which shows that merely 49 people voted in the afternoon.
The other witnesses to violence as to violence was PW witness to violence was PW6 Dan Deua Macharia, the agent for Safina party at Vitiburi 2.
He said that he traveled from Lykeia to participate as a party agent. He testified that after the fire started, the station was invaded by about 300 outsiders, some armed with sticks accompanying CS Ro. He stated that the group entered the classroom and took things outside the classroom. He protested against CS Ro commandering the station, but was handcuffed by police officers who were not uniformed. He was then beaten and detained on in a police vehicle until 8:00 p.m. on that day. He said that he was personally beaten by CS Ro and was later sent away from the station, denying him a chance to witness the vote counting exercise.
In cross- examination, he confirmed that the v that the video did not show the ballot boxes being carried, that he saw ballot box aperture being sealed, that he later saw the ballot box being removed from the Matu uh Matu vehicle by the preciding officer and his assistant, that he could not tell if seals were broken, and that the ballot boxes were taken to stream one. He did not report this incident to the police. Take into account the evidence and use concerning violence as a whole, the court is not able to find that such violence was widespread be beyond Kitiburi and Kawuno stations or was systematic or pervasive within the electoral area or constituency. I'm talking about the evidence. I'm not talking about the allegations.
It's the evidence. That is where the weakness of your case was. It's the evidence. The court relies entirely on what is brought into court. So if there are 500 other people and I know the people of Ember may be feeling something about this. There may have been 500 other people who faced violence. It is possible. But unless the evidence comes into the courtroom and those people testify, proof is not there. The court goes by what is provided as evidence.
Um I was aware take into account the evidence aduced concerning violence as a whole. Um it is not the court is not able to find that such violence was widespread be beyond Gibburi and Kawongu. In fact in Gibbburi the only evidence that was provided of of violence was Negoa Dan who said he was beaten by the seers. Then of course there are the incidents of the commotion and people with sticks but that was not indicated as violence.
I am not persuaded in the circumstances that the violence substantially affected the overall result of the elections.
Despite this, despite this though, there is no doubt that after the violence occurred at Kongo, there was a decline in voter turnout from about 3:47 voters between 6:00 a.m. and 1:00 p.m. to 49 voters between 1:00 p.m.
and 6 p.m. The voter turnout at Kongu being 53.9%.
Compared for example to Gitiburi where there was a turnout of 66.5%.
And compared to Gituri 2 which had a turnout of 61.8%.
Um this is compared to the average constituency voter turnout of 61.92%.
So Gibbururi achieved sorry Kawongu achieved 53 instead of the average 61.
If we do a a calculation theoretically we can say Kawongu may be said to have suffered a turnout decrease of about 8% 8% or 51 votes or voters as against the constituency average.
So on that issue again the petitioner fails.
Issue number six, whether there was bribery, treating, and undue influence in violation of the Election Offenses Act and the Constitution.
PW1 stated that he received reports about serious cases of bribery at Kune, Kageri, Itira, and Kanamo polling stations. He also alleged that bribery was connected to the high numbers of assisted voters. However, he was not able to give any concrete direct evidence of bribery.
PW2 the petitioner's chief agent received reports of bribery at Riandu polling station and treating of voters with una and cooking oil at Makonguru polling station. He highlighted a person called ina area who was allegedly involved in bribery but he had no proof that the named person was acting on behalf of the fourth respondent.
PW3 testified that she witnessed bribery at Kanyamora police station but gave no further details.
PW10 and Seta Wer Maringa and PW11 Lydia Buouya Neru were the key witnesses for the petitioner on the issue of bribery.
PW10 testified that on the occasion on the on the election day she was called by her former MP Muryokin Jagua who she who she knew. He asked her to go to the home of her neighbor Edward Ninjag. And when she got there, she found many people and was informed that there were presents available for them. She saw those items in and in Edward and Jag's home where Jaguar was. They were then each given Kenya 2 kgs of maze flour, wheat flour and rice and Kenya shillings 500.
The items are to be in exchange for her vote for the UDA government candidate in the bi-election. When she refused to take the items and the money, she was told that she would not benefit and Jaguar left the items for them. Shown her affidavit, she said there was no indication that she took any bribe, though she alleged that she saw others taking bribes.
In her oral testimony in cross-examination by Mr. Gashuba, PW10 stated as follows. Jagua was bribing people. He did it on behalf of Wamuende.
He told us so. I did not see Wuende. I took two kgs of rice, 2 kgs of ugali, 500 shillings and unaya chapati. I ate them.
It was not written that they were for the election. I was hungry so I ate.
Others also got and they ate. Many who couldn't write also ate and they were helped to vote. I have no affidavit of others involved. Lydia was with me at Edward's house. We were given the gifts together.
Cross-examined by Mr. Kamoto, she reiterated. I think this one Mr. Makamoto spoke the local lingua. You forgot you were in court.
Cross was examined by Mr. Kamoto. She reiterated that she indeed took the gifts that initially she declined but eventually she took the things since they belong to the government.
PW11 that was uh I think Lydia Lydia Buya testified that she was invited to Edwan Jagis's home where they were offered bribes in the form of food. They were offered the goodies so as to be assisted to vote in the for the fourth respondent and that she agreed to vote for the fourth respondent that is in paragraph four of her affidavit. They were told that if they if any of them voted, sorry, if any of the invited recipients refused to vote for the fourth respondent, they would not benefit from the gifts. That most people took money and they were swayed to pose as voters needing assistance. In her oral testimony, she said that she was given 2 kgs of sugar, 2 kgsa, 2 kgsangano, and 500 shillings by Jaguar who told them to vote for the fourth respondent.
Further PW11 testified that there were two ladies and one man who were given Kenya shillings 15,000 to find people who would vote for the fourth respondent and that some of them would pose as assisted voters. She considered that she took the bribes and was influenced to vote as suggested. In cross-examination, she stated that she witnessed bribery outside the gate of the polling station, but she did not report the vice generally. She reasserted that she was bribed and the bribe was intended to influence her vote for the fourth respondent.
In the present case, PW10 and PW11 have admitted repeatedly that they took the bribes intended to influence them to vote for the government candidate, namely the fourth respondent.
I listened carefully to their evidence in which they were they corroborated one another. They did not strike me as incredible, lying, or flippant. I believe their testimony as to the fact that they took bribes. I do not know I do not doubt that they were at Jagi's house where they said they were when Jaguar offered them the bribes.
The submission by the petitioner was that the bribery was not only intended to influence the voters to vote for the government candidate but also enable them pose as illiterate voters needing assistance.
However, neither PW10 nor PW11 alleged that they were actually assisted to vote, nor was a single witness brought to testify who was an assisted voter. On this, the IBC submitted that whilst PW10 knew that she was committing an election offense by taking the bribe from Jaguar, she did not report the same.
IBC I challenge anybody to ever report to you that they were bribed or any briber to to report to you that they gave a bribe.
There was no witness availed by the respondents to controvert the evidence of PW10 and PW11. Although Jagago was named in the affidavit as was Ninjag.
The petitioner invited the court to find that the bribery treaty and undue influence were offenses in in violation of the election offenses act. However, this court's jurisdiction is to hear petitions under article 105 which provides as follows. The high court shall hear and determine any question whether a a person has been validly elected validly elected as a member of parliament or b the seat of a member has become vacant.
Clearly the constitutional jurisdiction of the election court is limited to making a finding on validity of the election and vac and vacancy of a seat.
The court does not sit as a criminal court when conducting a an election petition.
Thus the finding this court can make regarding bribery treaty and undue influence is that prescribed under the elections act and no other. In that light, the provision of section 871 of the elections act enables the election court to make a determination regarding an electoral malpractice of a criminal nature. The provision that is section 871 is in the following terms. An election court may at the conclusion of a hear of the hearing of a petition in addition to any other orders make a determination on whether an electoral malpractice of a criminal nature may have occurred.
This provision merely entitles this court to make a finding as to whether a malpractice of a criminal nature may have occurred, not that it did occur.
Further, in an in an election petition, the election court has no jurisdiction to determine a criminal matter or whether an offense under the election offenses act was or has in fact been committed since that is an issue squarely within the jurisdiction of a special magistrate's court. Such court must be specially constituted by the chief justice under section 231 of the election offenses act which provides as follows. The chief justice may by notification in the gazette appoint as many special magistrates as may be necessary to hear and determine matters relating to offenses under this act.
In light of the forgoing this court as an election court can make a determination only on whether an elector of malpractice of a criminal nature may have occurred in terms of a section 87 of the elections act but not on whether the offense of bribery was committed. I do find that an electoral malpractice of bribery may have occurred. Ultimately, however, the question I must answer on this issue is whether the electoral malpractice of bribery and voter influence so found results in the nullification of the election. From the evidence above, I am unable to find that the scope and prevalence of the malpractice substantially affected the result of the election. In terms of section 83 of the elections act, we are talking about two witnesses who said they were bribed and I only accept their evidence because it was not controverted by the respondents.
Issue number six, whether there was a broken chain of custody and lawful handling of election materials and violation of procedure on closeup polling.
The petitioner made claims of a wide range under this issue alleging broken chain of custody and unlawful handling of election materials. However, he was not an eyewitness in any of these in any of these events. Neither was his chief agent. that is PW2. The main evidence that emerged in respect of this issue was that concerning Tibburi Primary School polling station 2 where there was a fire and Kawongu police station where there was an invasion by unauthorized people.
PW6 Dan Deua, the party agent for Safhina party, stated that he was at Kitiburi 2 when a lamp fell and triggered a fire in the classroom that was set up as a polling station. He said that they rushed out and then he rushed back into the room to retrieve his phone which was charging there as he helped put out the fire. He stated that CS Ro came to the station with about 300 people in tow and they occupied the classroom that the votes were placed inside the Nissan van which was left unguarded outside and he believed that they could have been interfered with. He said that by the time he had been handcuffed by that time he had been handcuffed uh on the instructions of CS Ro and some agents had run away. In his affidavit, PW6 could not confirm what happened at the voting in the classroom as he was seated at the back observing.
In his oral evidence, he reconfirmed that it was about 5:00 p.m. when the fire broke out as the deep as the PO was attempting to light the gas lamp or a gas lamp.
That bed lamp then broke loose and the crowd of people started coming into the polling station.
A video named NNK23 collection gioui was shown. He said that the crowd comprised of about 300 people and at the time the ballot boxes were still in the classroom where they were left when the fire broke out.
He further stated that locals salvaged the ballot boxes and took them to the vehicle. That the PO and DPO were not in the vehicle when the ballot boxes were taken to it. IABC officers were called to come and collect the boxes from the vehicle and the and they complied and picked the boxes. On further cross-examination, PW6 stated that there were things taken outside the polling station classroom by strangers.
He said that he did not see in the video the ballot boxes being carried out by locals to the vehicle.
Upon viewing their forced videos, the court noted that as follows. There indeed was a fire, that there was commotion at Giti, that there were was involvement of large crowds of people, some armed with sticks, that there was also a van into which some IBC officials in IEC reflective vests were seen attempting to enter.
However, no ballot boxes were seen in the videos. Hence, the videos do not support the allegation of third parties handling I'm talking about handling the ballot boxes.
in his Afidavit PW7 Simon Karuki Avotad Gibbururi stated that shortly after the fire was was controlled CS Ro came to the station accompanied by people armed with sticks and runus and they took the ballot box to the vehicle whilst beating people that CSO demanded that the ballot boxes be brought to one classroom and ordered that the ballots from both Gitri one and two polling station be counted together.
One of the ballot boxes emerged from amidst the crowd and was given to CS CS Ruku who gave it to IEBC officials. That CS Ruku demanded that the voters sorry not the voters but the votes that the votes be counted and tallied.
He did not witness reopening of the ballot boxes again and he denied signing forms 35A.
He stated that the counting took place in one polling station at Gibbururi.
RW4 Jane Karim Karim Duma was at was a pol preciding office at Gibbburi 1. It was her evidence through her fidavit that after the polling ended at 5:00 p.m. she secured the room before counting started. She confirmed that CS Ro came to the station and caused commotion. She noted that there was a fire at Gitri 2. that she prepared the polling station as a counting room. She made no me mention of Gituri 2 in her fidavit. In her oral evidence, RW4 testified that there was a fire at Kitiburi 2. It led to a commotion because there was a large crowd of people. She took the ballot box and took took cover in a vehicle that vote counting started at 7 p.m. that the votes for Gibbori 2 were also counted at Gibbururi 1. In cross- examination, she stated that she did not see CS RO and that he was not involved. She admitted that she hosted another polling station and that no one authorized her to do so.
When shown a video of the fire incident at Gibbburi, RW4 confirmed the incident was as depicted in the video. She saw the PO of Gibburi 2 in the video with people in the crowd holding sticks at the sticks at the scene. By that time she said she had secured the ballot box in the vehicle. She said no polling officer for Gibbburi 2 was in the vehicle but the boxes for Gibbori 2 were there.
On re-examination her evidence was that after getting to the vehicle with her ballot box and with the security officer, she realized that she had left some personal items in the polling station. She thus left the ballot box in the vehicle to get those items. That was the only time she left the ballot ballot box unattended.
RW3 Lydia Camo was the PO for Gibbori 2.
In her affidavit, she stated that after closing the station, she closed the Kims and sealed the aperture at 5:00 p.m. She then called for a short break before counting began. At around 5:30, her deputy, Phelix Moniki, lit a gas lamp which burst into flames. She managed to secure the ballot boxes. She telephoned Chicago police station and reported the incident and was issued with an OB number such and such. She stated that CS Ro came to the station and that his arrival caused some commotion.
RW3 further stated in her affidavit that during the brief incident of the gas lamp uh gas lamp explosion, the election materials remained secure.
Let me read that again. RW3 stated that when the fire broke out, she took the boxes to the vehicle hired by IEC together with the security officers and agents.
She said that she and her team transferred their materials to Gibbori one to count ballots and they found station one already going ahead with counting. In further cross-examination by Mr. Nea, she stated that the forms which were burnt were Kim's forms 32A.
From the DR's scrutiny report of 17th April 2026, the DR noted that the PSD for Pibburi 1 recorded the fire incident as follows.
Incidents recorded on page 30 as an accidental fire in station 2 at 17:30 hours. Fire was put out and calm restored. Security backup in Giti 2. The PSD indicated that the fire sorry that the PO recorded gas cylinder exploded and some of the forms were burnt. We were able to secure the ballot papers, ballot boxes, kims and some forms.
It is clear from the totality of evidence aduced that inori one and two polling had concluded by the time the disruption arose from the fire and the crowd that invaded the polling stations that RW4 took cover from a crowd in the vehicle and that and at that time the boxes from Gibbori 2 were the same van without any officer from the police station. It was admitted by AR4 that at some point she also left the box for Gibbori one in the van unattended when she left to get her bags which had been left inside the polling station.
With regard to evidence on Kawongu RW7 Pauliga Jeru, the PO stated that he witnessed violence from a distance outside police station, including stones thrown into the police station. He then stopped the election process for 30 minutes. When he reopened, voting continued, but the voter turnout was lower than earlier.
He recorded in the PSD that locals and some politicians disrupted polling the polling process when some windows were for the polling station were broken.
Voting was disrupted between 13:45 and 14:15 hours and action was action taken was the aperture was sealed at 13:45.
All election material and officials were put under tight security.
Thus for Kongo it is it was the actual polling that was interrupted at 1:45 uh p.m. and the polling station was closed for 30 minutes.
However, there's no evidence that during this time the election materials were removed from the polling station or were outside the PO's control. In summary, the evidence on this issue, we are looking at the issue whether there was broken chain of custody and lawful handling of election materials and violation of procedure of close of polling.
In summary, the evidence on this issue is as follows.
One, at Kongu, despite the fact of disruption of polling, the election materials were not interfered with. Two, at Gibbururi one, the disruption occurred after closure of the polling station at 17:30 17:30 hours as recorded in the PSD. at Gibburiburi 2. The disruption occurred after close of the polling station.
According to the PO number three, sorry, number four, at Kitibi one, the evidence is that the election materials were left unattended in the van according to the PO.
Five, the evidence concerning the election materials at Gituri 2 is inconsistent, namely that they were handled by unauthorized persons and also that they were left unsecured or unattended in the van or that they were secured. It is not clear. The evidence is inconsistent from the DR's supplementary report dated 22nd April, 2026. The results in Gituri 1 as recorded in the PSD form 35 and Kim were consistent say for one ballot paper marked in favor of the fourth respondent with no corresponding counterfiliburi 2.
The report shows that the Kimkit showed that the last voter was verified at 1655 hours while the PSD indicated that the polling was closed at 1700 hours.
There was one ballot cast in favor of the respondent but no corresponding counterfoil for it.
The totality of the above evidence discloses that for Gibbori one and two there was broken chain of custody, possible and lawful handling of voting material but no violation of Paul closing procedure for Kongo. There was no evidence of broken of broken chain of custody.
unlawful handling of or violation of poll stoing poll closing procedure.
Consequently, there is no basis for finding that the irregularity or non-compliance was substantial and that it affected the election outcome in terms of section 831 of the elections act. Had it been demonstrated that the sort of violence shown at Kawongo was per pervasive or or widespread and occurred during the polling. A positive case would have been made to conclude that the violence affected the overall quality of the election and had a significant effect on the result.
Issue number seven, whether there was use of state forces state security and public office to influence voters which constituted abuse of power and improper influence in violation of articles 107375 in order to prove issue seven to provide at least the following evidence. Names of the public officers. This the a number of them their designations and offices held and particulars and nature of the alleged abuses of such offices and the overall effect of such abuses upon the electorate and the election outcome.
The petitioner failed to provide these through the evidence aduced and accordingly I'm unable to find in his favor on this issue.
Issue number eight, whether there was delay in counting votes, exclusion of agents, defective and falsified statuto reforms, opaque counting and ting in violation of article 86 of the constitution and regulation 79 of the elections general regulations.
With regard to delay in counting votes, the only evidence presented related to GitOburi 1 and two where the breakout of the fire affected the timely counting of votes. Regarding exclusion of agents, the only evidence was that of PW6, who alleged that he was handcuffed and detained in a police vehicle.
Until 8:00 p.m., Hence was denied a chance to witness counting of the votes.
From the DR scrutiny reports, agents of the petitioner were present in the stations where scrutiny was ordered, and they signed forms 35A.
With regard to defective and falsified statuto reforms and and opaque counting and tiling, the allegations in the petition were that forms 35 were overwritten resulting in opacity of results. In respect of career polling station two, Nazario Mugo who was the PO did not testify on the inconsistencies uh between forms 35A and 35B showing a total number of votes obtained and cast as 225 and 223 respectively. A difference of two votes. I looked at the form carefully. The the um forms 35 the tally on the right hand side for each candidate is indicated in a total that figure is supposed to be transllocated to the column on the left hand side and the two should tally. So the the the key figure that is of interest is the one on the right hand side not the transllocated figure.
In respect of Gibburi Gibbburi 2 RW3 Lydia Camauo the PO did not testify on the inconsistencies between forms 35 and 35A and 35B which indicated that the number of valid votes obtained and cast is 261 and 262 respectively. However, during scrutiny, the votes were recounted and the number of valid votes cast remained 262, meaning that forms 35B was erroneous by one vote.
In respect of motion no 2 Timothy Maringa the PO did not testify on inconsistencies between forms 35A and 35B showing 30 304 and 303 votes respectively on the number of valid votes obtained and cast. Scrutiny was not done for this station and the inconsistency of one vote remains unexplained.
at Kamugo polling station 2 form 35A indicates the number of valid votes ind obtained as 449 which is where the tally of for each candidate is indicated whereas in the section of polling station counts at item five the total number of valid votes cast is indicated as 456 this is on the left side of the form 35 five and the total rejected votes are indicated as seven. Shadrach and Nyaga and Jagib the PO at this polling station did not testify and no further explanations were made regarding this inconsistency of 449 and 456 votes.
On this latter inconsistency, it appears likely to the court that the seven votes difference is attributable to the total regist rejected votes being carried to item five and added to the votes obtained.
These unexplained inconsistencies in these votes, all these uh forms 35 that were that I have referred to result these unexplained inconsistencies I should say add up to 10 votes in forms 35 35 A add up to 10 votes in forms 35A, a difference of 10 votes in for forms 35A and 35B so that the election result has a 10 vote difference and known as to whom those votes would benefit.
The scrutiny did not identify sorry did not find anything to suggest any irregularity but rather careless mistake in transllocation from the vote tally column or form 35 35A form 35A regarding allegations that some some 37 forms 35A were overwritten.
and not countersigned. The court allowed scrutiny of only eight of them where such overwriting demanded scrutiny. The DR's scrutiny report dated 17th April 2026 at pages 21 to 24 found that despite overwriting the figures added up to the total valid votes as in form 35A.
There was no major discrepancy noted.
The court agrees that the overwriting did not result in any discrepancy and the irregularities cannot be said to substantially have affected the will of the people.
The will of the voters, not the people.
The petitioner also complained during the hearing uh about errors on forms 32 in respect of assisted voters.
I have had to deal with this issue because it arose during evidence repeatedly at the outset. It is essential to note that the issue of assisted v voters was not pleaded either in the petition in the petitioner's issues or in the grounds of relief.
It featured however in the supporting affidavit of the petitioner in one paragraph. We'll get there and in some of the other affidavits of the petitioner's witnesses and also in witness testimony.
In paragraph 94 of the supporting affidavit to the petitioner, the petitioner deposed as follows.
that further the said agents would bribe the voters on condition that they declared that they were illiterate and in need of assisted voting. This led to exhaustion of oaths of secrecy forms due to inex inexplicable influx of persons allegedly in need of assisted voting.
The second respondents filed an affidavity in support of the response to the petition.
The first or third respondents did not respond specifically to the allegation made under paragraph 94 of the supporting affidavit of the petition. Even though on their behalf the second respondent acknowledged as follows that I have read and been explained to by Charles Benedict Monguela Council on record for the first, second and third respondents the election petition dated 22nd December 2025 and the affidavit in support of the election petition sworn on 22nd December 2025 by Digga Newton Kario and wish to respond as follows. So the issue became sort of subsumed through the affidavit in ftherance of his claims on assisted voting.
The petitioner during his testimony on numerous occasions reiterated his claim on bribery and assisted voting which featured in his supporting affidavit.
Other witnesses of the petitioner, for example, PW10 and PW11, considered that as they were accepting bribes, others in the group and in the premises at the house of Edward Jag where they were were also accepting bribes to become assisted voters.
PW9 Juliet testified that she saw many assisted voters at Muchon Health Center 2 polling station where she was the agent.
She said that there were mobilizers who brought assisted voters to the station. In one case, she saw an assist four voters and she complained to the PO but did not record the fact in her notebook though she signed from 35A without objection.
The issue of assisted voters became pronounced after the court ordered that election materials be preserved into the custody of the court and the DR to make a detailed report on the movement.
That's the movement of the materials.
The record of that movement of materials for preservation is contained in the DR's report pursuant to the directions of the court dated 15th January 2026 for removal of the election materials from IEBC to embu high court. The report is dated 27th January 2026.
In it, the DR recorded having received the following boxes from a strong room of IEBC offices in Embu.
134 ballot boxes, namely one from each polling station.
One box captured as the 135th ballot box delivered at the ting center.
four boxes recorded in an quote inventory of other strategic materials issued to Embu High Court for the Bur North by election petition unquote and finally 15 boxes containing Kim's kits.
of the four boxes in the inventory of other strategic materials issued to Embu High Court for the Ber North by election petition. That was box number 114337.
It contained amongst other things 172 forms 32 declaration of secrecy made by a person assisting a voter.
Naturally, this inventory raised concerns as to why these materials were produced from the IEC offices at Embu without any record by the returning officer.
Accordingly, in its ruling paragraph 62 and 4, 622 and 4 delivered on 27th March 2026, the court ordered of other strategic materials issued to Embuh High Court. Following scrutiny by the DR, she reported her findings at page 15 to 19 of her report of 17th April 2026 as follows. that there were 1072 forms 32 folio marked one to 1072.
Out of these 10 were blank or unpopulated in any in any way blank forms.
There were forms by six declarants which had filled forms who not which by six declarants who had filled forms twice of whom two declarants filled for uh two forms at two different polling stations while the other four declarants each filled two forms at one station.
That is all contained in table four of that report.
RW1 testified that at the ting center he received 134 ballot boxes. He also stated that he handed over to the DR 135 ballot boxes with one box containing strategic materials. He stated that he stated that he prepared box 135 out of good faith. He gave no explanation for any of the other boxes.
According to the IBC polling station diary, template forms 32 from each polling station.
My understanding is that what is required is a continuous balancing between two competing constit on the one hand is the card rule on adversarial litigation that parties are bound by their pleadings ensuring procedural fairness certainty of issues and protection against trial by ambush. On the other hand, there is the constitutional duty imposed on election courts to safeguard the integrity, verifiability, accountability, and transparency of elections under articles 86 and 81 of the constitution.
It is a substantive rule of adjudication that pleadings have a binding force. In IBC versus Steven Mutinda Mule and others, the Court of Appeals stated in unequivocal terms that parties are bound by their pleadings and that evidence which departs from the pleaded issues goes to no issue and must be disregarded.
The same logic was reiterated in Raoinga and five others um Supreme Court petition number five of 2013.
There the Supreme Court emphasized that parties are bound by their pleadings and evidence must be confined to pleaded issues.
Similarly, the Supreme Court in Zakariah Okto and Edward Ougi Supreme Court petition 37 of 2014 reinforced the position that election petitions are strictly framed disputes.
Respondents are entitled to know with precision the case they must meet and the court is equally constrained by the issues framed in the pleadings.
This establishes pleadings as the primary jurisdictional boundary of electoral adjudication.
Against this strict framework the Supreme Court in gira Peter Muna versus Dixon Menda 2014 set out the governing logic on scrutiny which is that scrutiny is not a fishing expedition.
It is a verification mechanism tethered to pleaded allegations.
The court was clear that scrutiny cannot be used to discover new causes of action or to sustain a petition that fails on its pleaded grounds. However, the court also recognized a controlled opening, namely that where scrutiny scrutiny is properly ordered, particularly by the court itself, as in this case, what emerges may be interrogated by the parties and evaluated for its impact on the integrity of the result.
Can courts therefore ignore serious electoral irregularities that emerge from scrutiny?
Where scrutiny is triggered by a party's application, its scope is strictly confined to the pleaded issues and the specific polling stations in dispute. It cannot be used to enlarge the petition or introduce new grounds of challenge as several cases cited. By contrast, where scrutiny is ordered suumoto, which is I think what this court did, the court may direct scrutiny as part of its case management powers to clarify the evidentiary record, but this does not expand the issues for determination or convert scrutiny into an inquisitorial process.
Any irregularities emerging from the scrutiny remain subject to contestation by the parties and must be evaluated within the pleaded issues and the constitutional standard of electoral compliance.
The question whether the court should turn a blind eye on malpractices arising from scrutiny was focused on in the Musikari Combo case 2014 where the court held that an election cannot turn a blind eye to serious electoral malpractices revealed during scrutiny or recounts simply because they were not pleaded. The court justified this exception on constitutional grounds that electoral justice cannot be reduced to procedural technicalities where the process itself is shown to be fundamentally compromised.
In Peter Kara versus IBC 2014, the court of appeal emphasized that scrutiny is not an avenue for building a new case.
That position was reaffirmed in many other cases and I've cited a number of them.
The courts have reiterated that scrutiny must remain tethered to pleaded issues unless exceptional procedural safeguards exist.
That caution was emphasized also in Walter Yamati case 2018 where the Supreme Court stated that scrutiny is not a fishing expedition cannot be used to latch onto whatever evidence to construct a case not pleaded.
I've cited Abdi Kadir Hussein's case the 2023 high court sorry Kenya Court of Appeal um where the court of appeal introduces a decisive procedural safeguard that even where serious irregularities are revealed by scrutiny an election court cannot rely on them without first placing the adverse party on notice and affording an opportunity to respond.
The court treated this not as a discretionary courtesy but as a requirement of due process and pleaded material cannot silently or automatically mature into grounds for nullification in the present case and as already pointed out the issue of assisted voters featured significantly in the petitioner supporting a fidavit and upon hearing of the evidence of the petitioner's witnesses. The respondents thus had a full opportunity to deal with the with the issue. It was evident as far back as was recorded in the DR's report on movement of the preservation materials and in the petitioners witness witness affidavit.
There was no ambush in my view in its decision in com versus karisa and three and three others 2024. Kenya Supreme Court the Supreme Court affirmed the core principles in Munya on scrutiny.
The apex court stated as follows at paragraph 107. The court of appeal relied on the decision of the Supreme Court in Munya that scrutiny is a vehicle to assist the court to verify the allegations made by the parties to the petition which allegations themselves must be hinged on pleadings that it was never intended to enable the court to announce new evidence on the basis of which the petition could be sustained.
From the record, the Supreme Court accepted that the trial court had engaged extensively with scrutiny findings such as and stamped counter foils, polling station inconsistencies and irregularities in statuto forms. The court of appeal had criticized reliance on some of these matters as unpleased.
The Supreme Court's reaction was not to abandon the pleadings rule, but to reccharacterize the function of scrutiny scrutiny scrutiny evidence within the broader evidentiary inquiry.
It held in substance that scrutiny findings do not operate as standalone causes of action, but neither are they legally inert simply because they were not expressly and specifically pleaded.
At par 108 the Supreme Court noted as follows. It would appear therefore that the report of scrutiny did not yield the outcome expected by the first respondent when it when he sought it that did not preclude him from presenting and relying on other pieces of evidence to to illustrate that the election in question did not conform with the constitutional and legal imperatives.
In the present case, the question of assisted voters was not specifically pleaded as already stated. Nevertheless, it does not arise as entirely as an ambush.
Since the petitioners supporting affidavit and the first to third respondents replying affidavit took notice of the issue when the court ordered scrutiny of the assisted voter forms. This emanated from the fact that they were produced for preservation without any record as to how they found their way into the box and files.
They were delivered in.
The court was thus entitled to order scrutiny thereof since oral evidence had been taken and no proper account of the forms 32 had been given by the respondents.
Thus scrutiny was duly ordered and forms part of the evidential matrix. In my view the outcome of the scrutiny may be used in aid of in aid in evaluation of whether the totality of the electoral process met the constitutional threshold of integrity, verifiability and accountability.
The decisive question is not whether each irregularity was individually pleaded but whether the election taken as a whole complied with the constitutional and statutory standards.
The authorities hold as follows and I've cited Muhammad Abdi.
Let me read it. where the Supreme Court majority refined the remedial approach to regulation 72 than compliance by requiring that such breach breaches be assessed within the broader article 86 framework of verifiability and materiality rather than be treated as automatically determinative of electoral invalidity where in the first in instance the failure to mark the register is isolated or inadequately proved the courts generally declined to nullify elections although The failure weakens the credibility of the official account.
This was the position in Muhammad Mahmud Ali versus IEBC uh Mombasa High Court 2017. Further, if the failure becomes systemic, particularly in constituencies where assisted voting would predictably be widespread, courts may infer that the process itself became unverifiable.
In light of the forgoing analysis of the law, this court can now make the following conclusions.
First, that regulation 726 of the elections general regulations was violated in respect of the 1072 assisted voters as they were not recorded in the physical register as required, nor was there evidence that they were indicated as such in the Kim's register or PSD.
Secondly, that the only evidence available that there were assisted voters is the existence of form 32 which is the declaration of secrecy in compliance with regulation 725 indicating the declaration of secrecy by persons that assisted the same voters.
Thirdly, with regard to double declarations by the six declarants earlier discussed as found during scrutiny, these were in breach of regulation 725 of the elections general regulations which provides that the as follows. The following shall apply with respect to a person who assists a voter under this regulation. The person shall assist or support only one voter at that election and have a mark of as proof of assisting or supporting a vote a voter.
Fourthly, while the court take the position that all assisted voters votes be struck off, it would not change the result of the election as it is impossible to identify for which candidate they voted.
Finally, take into account the caution of the sup superior courts concerning unpleased issues and considering these violations cumulatively with the other irregularities pleaded and on which evidence was availed and has been evaluated. I am not satisfied that it was ultimately shown that the results did not reflect the will of the people in relation to assisted voters.
Conclusions and disposition.
On issue one, the court found that the evidence of the petitioner did not list the IBC officers in issue. Did not identify which of the officers were opaquely. Actually, I've just reiterated I have plucked from the body of each conclusion. I have brought it back to the conclusions and disposition.
Um so that on issue one I find that no qualitative disqualifying attribute in appointment and dismissal of IABC election officials was demonstrated.
On issue two again I plucked the conclusion I reached under that issue and brought it forward. It was demonstrated by evidence that there was a physical register voters register available at every police station that it had a QR code um that the Kimkit had a soft copy replica of that register. No evidence was availed that any voter was disenfranch disenfranchised since the physical registers were present and were also replicated in the Kimkit.
Then I point out the jury's prudence on the use of the physical register is essentially what is carried in the UDA case that such register is only to be used on in instances where biometric or alpha numeric identification fails. The UDA the UDA case I may say does not entirely deal with section 72 regulation 72. It doesn't entirely uh with regard to assisted voters.
There was no evidence of such failure of identific. The prevailing juristp prudence on the use of registers is the UDA case is that such register is only to be used in instances where biometric or alpha numeric identification fails.
There was no evidence of such failure of identification. Had there been a failure of biometric and alpha numerical identification followed by failure by IEC to deploy the physical register, a case of voter disenfranchisement would have been readily made out on issue three. whether there was a lawful third party interference on this.
I came to the conclusion that it was not proved that in admitted interference with the register was either widespread, systemic or intended in substance.
Therefore, there was no proof that the of the fact that the sole in that the sole instance of interference that we saw in the case of Collins affected the will of the people. It was also held that in the case of one individual where the register was shown to be to have been unlawfully altered, the officer involved may have committed a criminal offense.
On issue four, um the same summary that I I I took I take the same summary or conclusion.
Um and this is where I said Kunguo theoretically suffered a turnout decrease of about 8 8% of 51 voters as against the constituency average but I found overall the failure did not affect the outcome in terms of section 81 of the elections act section 82 sorry of the elections act on issue five whether there was bribery treating maybe I just read all of them if you don't mind let me just read all of them so that I don't uh give an impression on issue five whether there was bribery treating and and due influence in violation of the election 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 malpractice whether an election of an electoral malpractice or a criminal nature may have occurred in terms terms of section 87 of the election act but not on whether the offense of bribery was committed. I do find that an electoral malpractice of bribery may have occurred as to whether the electoral malpractice 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 malpractice substantially affected the result of the election in terms of section 83 of the elections act.
on issue six whether there was broken chain of custody unlawful handling of election materials and violation of procedure and close of polling. The totality of the evidence availed disclosed at one out of 134 polling stations. There was broken chain of custody possible and lawful handling of voting material but no violation of poll closing procedure at Gitburi one and two except with regard to the time.
for Kongo. There was evidence of violence but no evidence of broken chain of custody uh and lawful handling of violation or violation of poll poll station closing procedure. Consequently, there's no basis for a finding that the irregularities on non-compliance were substantial and affected the election outcome in terms of section 831 of the elections act. Had it been demonstrated that the sort of violence shown at Kawongu 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. Issue seven on whether there was use of state uh resources, state security offices to influence the voters. It was incumbent on the petitioner in order to prove issue seven to provide at least the minimum information or proof the names which are some of which were provided. There are formal designations offices held in particulars and nature of the alleged abuses of such offices 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 induced. According the court is unable to find in his favor on this issue.
On issue number eight, the same the court was unable to find in favor of the of the u 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 and pleaded evidence gathered through scrutiny.
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.
The costs are as follows.
The costs as follows. The parties made submissions on costs generally to the effect that costs follow the event. The first to third respondents con council went into some fair detail in indicating the depth of the case, the number of attendances, preparatory time, complexity and so on.
The first to the third respondents and the fourth respondents both indicated that costs should be at Kenya shillings 5 million.
The petitioner only uh submitted in during highlighting. So having considered the nature of the case and the input of the parties and noting the fourth respondent did not testify to a or avail witnesses I hereby cap party and party costs at Kenya shillings 4 million. The first to third respondents shall be entitled to 70% thereof and the fourth respondent to 30% thereof.
I have prepared a report of the court on electoral malpractices 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.
A admitted alteration of register without authority contrary to section 61 of the election offenses act.
B double assistance of voters that is allowing six persons to assist more than one voter each contrary to regulation 725 C of the regulations.
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 726.
I will make recommendations separately.
I'll not because there's no there's no point on putting the recommendations in the judgment but I'll make recommendations separately particularly for ABC's notice uh subsequent to this judgment because I think it is important um certificate of the of court as to validity of the election under section 86 of the elections act. 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 for Ber North constituency.
This information is to be submitted to transmitted to the speaker of the national assembly.
Orders accordingly.
Yeah, my lord. Uh, we are most obliged by the decision of the court. We have sat and listened to it. We appreciate where the court is coming from.
But we, however, would wish to make an appeal in regard to some of the issues the court has dealt with. And therefore my lord we are making an application for expeditious provision of typed proceedings the judgment of the court and the decree ring there from your lordship. The reason for the appeal is my lord that uh this might be the only time the certain issues will be clarified by the court of appeal.
Most importantly the question of the alteration of the voters's register and my lord since I'm not making an appeal before you would wish to make the court of appeal pronounce itself.
Number two, your lordship on the question of um the scrutiny that was dealt with by the deputy registar.
Lord, we have listened to you and the judgment and we know that the judgment itself does not caption the entire report as reported by the deputy registry and most importantly in respect to ballot box number 35 and the 212 votes that were cast in foil paper.
We've not heard you pronounce yourself on that. your lordship would would therefore wish to make an appeal and 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 your judgment because my lord when you order >> it should be easy enough because the proceedings of the registra will be part of the proceedings of the lord so you 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'll be obliged we are always happy uh um that the court has made its decision. We'll try our luck in the court of appeal. We are most obliged.
>> Fortunately, the um the judgment is typed already.
>> Yes, my lord.
>> The proceedings are typed, so it should be fairly easy to get the the the record fairly quickly.
>> We will get it, my lord.
>> Okay.
Yes.
And uh I thank you for for that judgment.
Uh I just have one request and uh as we review the judgment so that then we can see what we we make it in terms of uh what is the next step. H we would just like to make an application for T of execution on the issue of costs because we know we have money in court.
Go ahead.
>> Yeah. So that lord um the issue of cost may be given about 30 days for us to review the judgment before the money is uh is released if uh such an sort so that then we can make the appropriate application of any appointing instructions.
>> Okay.
>> So that as Mr. mentioned if there's any need for review or clarification from the court then we can further to consider all these options.
>> All right >> that's >> thank you. Um yeah, I've been uh informed that I seek 45 days.
>> 45 days.
>> I think you have 30 days actually.
>> I think well he's asking for 45.
>> Yes. I hear you my lord.
>> Yes.
>> We would be opposing the request for stay my lord.
There is no indication upon which such state would be predicated. My lord, no appeal has been filed as yet.
>> Even the costs have not even been ascertained.
Mal on the second issue the IMC takes notes of not note of the issues you have raised and they welcome the report which you'll be extracting and sending them from this judgment you my lord which is going to to inform their improvement the improvement in terms of how they conduct their affairs and how the elections can be improved better otherwise my lord on behalf of the electoral body.
>> Let me summarize it. This >> Yes.
>> Uh just sit down.
During the hearing of the case almost without exception, every IBC officer who gave testimony asked, "Did you report?"
He also said, "Was this outside the polling station?"
Did this occur outside the polling station? 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, IBC is the policeman of Kenya. It's not the Kenya police.
So that you cannot ring your hands and said it was not reported. We don't have an OB. No complaint was made. You have seinal powers.
IBC.
You have powers as a commission even to investigate.
You just need to read the newspaper. You hear something occurred, you run. Just like the Kenya Revenue Authority.
When they hear ching ching ching in your mobile phone, they come running. that is how ABC is supposed to operate under this constitution and the laws. So that is one of the big areas I'll be discussing uh in the recommendations >> in India. It it is clear that IBC behaved sorry not IBC the electoral commission there behaved the way IBC behaves today.
They changed they became proactive.
The code of conduct is enforced in India 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.
>> Yeah my lord.
>> No this is not part of the judgment. I'm just that's correct my lord. It's also my observation and my lord 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 have he had an election court making such kind of pronouncements in respect on how the IBC is supposed to conduct.
So my lord even when you hear us making an appeal we just want to make sure that we betray some of those issues that you have said in your judgment. You will notice that uh in discussing the powers of IEBC and its uh its authority this was not in in respect of an issue for determination. So all all that is mostly >> what we call it what orbiter >> no it's not orbiter you supposed to pronounce yourself in a manner that the law speaks it's not >> all right anyway you will take the you will take the judgment to the next court but the what worries me is what I see every day happening because we are all Kenyans we are 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 there are clips from all sorts of places we we don't believe everything but we we we are able to get the general mood of people and that mood although we don't we cannot represent it in our judgments it has to come through evidence parties have to bring the evidence even all this bribery I've actually seen myself clips of people standing in a line being given money it's just that nobody takes them to court but these are things that IBC can has has the power to cartel even under the constitution under the constitution and the DPP cannot say that he's the only one who can uh investigate or prosecute because the powers have been given under and and under under the constitution to a statute for prosecutorial so one of the things I'll be proposing is that is the um the setting up of an inspectorate of IEBC DC 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 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 that's what we want with IEBC because the constitution guarantees us a free and fair election it guarantees that when she's going to uh polling station. Nobody is going to SUA.
No more. I'm going to vote and I'm going to vote for who I like and if I take your money, I'll still vote for who I like. Okay. So that that's that's the key point. Sorry. Anything else? Um >> yeah man maybe just as I thank you for the way you have conducted in the proceedings and the efficiency >> also to bear in mind the timelines which the respondents are really given to respond to this such a bulky election petition a single seven days >> some of the irregularities my lord which may go unexplained could be because of this scarcity of time my lord um otherwise it's to say that Yes, my lord.
>> Did you do you put it in the report?
>> I did. You did.
>> I did, my lord.
>> Okay.
>> Otherwise, we take a lot of lessons as IBC and we appreciate you a lot and your entire staff. Thank you very much and even to council who appeared in this matter.
>> Yes, the fourth respondent. We appreciate the announcement except one. I think Mandela has taken the bulk of cost >> perhaps we'll have a a discussion before you can share something with us otherwise we happy in the management you have conducted these petitions we are also happy with the judgment that today >> of course you would be naturally but on my part I'm most impressed by the time you've taken to give IBC the teeth and it seems to have lost for me that's that's a very proactive which practice >> otherwise thank you very much from the fourth respondent congratulate you my colleague has something to say thank you My lord, uh we welcome the where is on judgment of his court which has really shed light on very issues that arose from the petition And our for the respondent who is present uh takes this opportunity to extend a hand of friendship to the petitioner.
Now that uh the court have decided and as we are aware politics and democracy in their very nature are competitive but it takes a wise soul to accept the electoral and judicial outcome and straight and I recognize that Mr. Ajiro is already in agreement with the position taken by this court and indeed he says he wishes to go to the court of appeal to back press the decision of this honorable court. So we we are of the view that uh Mr. uh hero may want to take into consideration the will of the people the constituents of Ber who will desire that going forward the game moves from the court 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.
Therefore, the respondent has had a lot of distraction during the time when these proceedings were in progress. He had to shut between the constituency and the court and that has undue impacted on his ability to fulfill the promises that he made to his consequence. So we would be glad if this matter can rest at this stage. We continue to celebrate the wisdom of this court together with the practitioner and it will be good for for all all of us because sometimes you win sometimes you lose and even then the next election cycle is just uh one year away and uh I'm sure my our client for the respondents >> will be willing to make some considerations s which will be favorable to the petitioner depending on how the petitioner takes the outcome of this proceedings. Now with regard to their prepare for the cost, we'll also be making an application that the amount deposited as security for deposit be released to to the respondent has not been assessed.
>> Are you making that application now? It has not been assessed >> because >> I've already given a stay of 30 days. So even if you make the application, >> it will not affect the stay.
>> Absolutely.
>> Very well. Then the amount can be released to the respondents on the 31st day.
Judge uh we we thank you for the detailed judgment and the way the court has conducted uh this particular petition. I I as a kioiri I'm the senior most for the petitioner and on behalf of the petitioner we thank the court for the judgment at the same time uh to remind my colleague Mr. Kamodo that the petitioner and the four the respondents are friends and they will remain as friends besides their political diversity. 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 Karoi to thank the court formally on behalf of our team.
>> Let me I forgot to say anything about the electoral materials. Obviously they will be returned but let let let that come through a direction that I'll give the DR which will so I'm just saying directions on electro materials will be given to DR to effect.
Yes. Thank you for reminding me.
>> Thank you my lord. Um I noticed today the role of the bar saying thank you to the court has been taken up by several people. I think it's what they say that success tends to have only fathers but um on behalf of the bank we would like to say thank you for the way the matter has been conducted.
Um on the end of the petitioner we may not be happy but we are grateful.
We have been handled, managed, treated with utmost professionalism.
And I think that no one sitting on this side can take it away from this court.
And even next time, if there is, we will be more than happy to end up in this court.
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 looking at the spirit with which we have gone um I I was of the thinking that Mr. Camodo or Dr. Adrian Camovo should be looking forward to a robust appeal process which will actually even make these issues clearer instead of offering an olive branch while the petitioner is actually going after the whole tree and its fruits. 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 council. We I take that with 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 and I didn't know whether there is enough security.
No, thank you very much council. I have also enjoyed myself uh during this this whole exercise and u 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 but thank you very much all I appreciate you have a good afternoon oh I have not used my gvel and somebody complained so let me use it today let me use my gvel because It has not been seen to be used. The proceedings are closed.
May we stand.
>> Thank you very much. You must approach.
My ass.
Heat. Heat.
Heat.
Heat.
Heat.
Heat.
Heat. Heat.
Heat. Heat.
Heat. Heat.
Hallelujah.
Congratulations.
I love you.
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