JUDGMENT DAY IN Mbeere North AS COURT DELIVERS VERDICT IN ELECTION PETITION!

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[00:00:00]authorize the function of scrutiny scrutiny scrutiny evidence within the broader evidentiary inquiry.

[00:00:08]It held in substance that scrutiny findings do not operate as stand-alone causes of action, but neither are they legally inert simply because they were not expressly and specifically pleaded.

[00:00:21]At Para 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.

[00:00:31]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.

[00:00:42]In the present case, the question of assisted voters was not specifically pleaded as already stated.

[00:00:48]Nevertheless, it does not arise as entirely as an ambush since the petitioners' supporting affidavit and the first to third respondents' replying affidavits took notice of the issue.

[00:01:07]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.

[00:01:25]The court was thus entitled to order scrutiny thereof since oral evidence had been taken and no proper account of the forms that two had been given by the respondents.

[00:01:35]Thus, scrutiny was duly ordered and forms part of the evidential matrix.

[00:01:39]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.

[00:01:54]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.

[00:02:06]The authorities hold as follows, and I've cited the Mohamed Abdi.

[00:02:15]Let me read it. Where the Supreme Court majority refined the remedial approach to regulation 72 non-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.

[00:02:37]Where in the first instance the failure to mark the register is isolated or inadequately proved, the courts generally decline to nullify elections, although the failure weakens the credibility of the official account.

[00:02:51]This was the position in Mohamed Mahmud Ali versus IEBC uh Mombasa High Court 2017.

[00:03:00]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.

[00:03:14]In light of the foregoing analysis of the law, this court can now make the following conclusions.

[00:03:19]First, that regulation 72(6) of the Elections General Regulations was violated in respect of the 10,720 voters, as they were not recorded in the physical registers required, nor was there evidence that they were indicated as such in the KIEMS register or or PSD.

[00:03:39]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 72(5) indicating the declaration of secrecy by persons that assisted the said voters.

[00:03:55]Thirdly, with regard to double declarations by the six declarants earlier discussed as found during scrutiny, these were in breach of regulation 72 five 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.

[00:04:18]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.

[00:04:30]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.

[00:04:44]Finally, taking into account the caution of the supreme superior courts concerning and pleaded 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.

[00:05:11]Conclusions and disposition on issue one.

[00:05:17]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 basically Actually, I've just reiterated. I've plucked from the body of each conclusion and brought it back to the conclusions and disposition.

[00:05:36]Um so that on issue one, I find that no qualitative disqualifying attribute in appointment and dismissal of IBC election officials was demonstrated.

[00:05:49]On issue two, again I plucked the conclusion I reached under that issue and brought it forward.

[00:05:55]It was demonstrated by evidence that there was a physical register, voter voters register available at every polling station, that it had a QR code.

[00:06:04]Um that the KIEMS kit had a soft copy replica of that register.

[00:06:11]No evidence was availed that any voter was disenfranchised disenfranchised since the physical registers were present and were also replicated in the KIEMS kit.

[00:06:24]Then I point out the jurisprudence 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 alphanumeric identification fails.

[00:06:40]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.

[00:06:57]There was no evidence of such failure of identification sorry, the prevailing jurisprudence on the use of registers is the UDA case, is that such register is only to be used in instances where biometric or alphanumeric identification fails. There was no evidence of such failure of identification. Had there been a failure of biometric and alphanumeric identification followed by failure by IBC to deploy the physical register, a case of voter disenfranchisement would have been readily made out.

[00:07:31]On issue three, whether there was an awful 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.

[00:07:43]In substance, therefore, there was no proof that the of the fact that the sole ins- 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.

[00:08:10]On issue four, um the same summary that I I I took I take the same summary or conclusion.

[00:08:19]Um and this is where I said Kaungu theoretically suffered a turnout decrease of about eight 8% or 51 voters as against the constituency average.

[00:08:32]But I found overall the failure did not affect the outcome in terms of section 81 of the Elections Act.

[00:08:44]Section 82, sorry, of the Elections Act.

[00:08:48]On issue five, whether there was bribery, treating, maybe I just read all of them.

[00:08:52]If you don't mind, let me just read all of them so that I don't uh give an impression.

[00:08:58]On issue five, whether there was bribery, treating, and undue 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 on whether the the the election mal practice whether an election of an electoral mal practice of a criminal nature may have occurred in terms of section 87 of the Election Act, but not on whether the offense of bribery was committed.

[00:09:25]I do find that an electoral mal practice of bribery may have occurred.

[00:09:31]As to whether the electoral mal practice of bribery and voter influence so found results in the nullification of the election, the evidence does not does not show that the scope and prevalence of the malpractice substantially affected the result of the election in terms of section 83 of the Elections Act.

[00:09:48]On issue six, whether there was broken chain of custody and lawful handling of election materials and violation of procedure on close of polling. The totality of the evidence availed disclosed that one out of 134 polling stations there was broken chain of custody, possible unlawful handling of voting material, but no violation of poll closing procedure at Gitiburi one and two, except with regard to the time.

[00:10:23]For Kangogo, there was evidence of violence, but no evidence of broken chain of custody unlawful handling of violation of violation of poll station poll station closing procedure. Consequently, there's no basis for a finding that the irregularities or non-compliance were substantial and affected the election outcome in terms of the section 83 one of the Elections Act. Had it been demonstrated that the sort of violence shown at Kangogo was pervasive or widespread, a positive case would have been made out to conclude that the violence affected the overall quality of the election and had a significant impact on the result.

[00:10:59]Issue seven on whether there was use of state resources, state security offices to influence the voters.

[00:11:10]It was incumbent on the petitioner in order to prove issue seven to provide at least the minimum information or proof.

[00:11:22]The names which are some of which are provided, their formal designations, the offices held and 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 adduced.

[00:11:43]Accordingly, the court is unable to find in his favor on this issue.

[00:11:47]On issue number eight, um the same, the court was unable to find in favor of the of the uh petitioner, the same on even the assisted voters. Because either assisted voters, what I have done is that I have said I take seriously the caution by the superior courts concerning unpleaded evidence gathered through scrutiny.

[00:12:14]The outright determination, the overall determination, for all the foregoing reasons, the court finds that the petition was not proved to the required standard, and it is hereby dismissed with costs.

[00:12:27]The costs are as follows.

[00:12:31]The costs are as follows.

[00:12:33]The parties made submissions on costs generally to the effect that costs follow the event.

[00:12:38]The first to third respondents counsel went into some fair detail in indicating the depth of the case, the number of attendances, preparatory time, complexity, and so on.

[00:12:48]The first to the third respondents and the fourth respondents both indicated that costs should be at Kenya shillings 5 million.

[00:12:57]The petitioner only uh submitted in during highlighting.

[00:13:05]So, having considered the nature of the case and the input of the parties and noting the fourth respondent did not testify to avail witnesses, I hereby cap party and party costs at Kenya shillings 4 million.

[00:13:17]The first to third respondents shall be entitled to 70% thereof, and the fourth respondent to 30% thereof.

[00:13:26]I have prepared a report of court on an 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.

[00:13:49]And directs that the same be transmitted to the DPP.

[00:13:53]A, admitted alteration of register without authority, contrary to section 61 of the Election Offences Act.

[00:14:03]B, double assistance of voters.

[00:14:06]That is allowing six persons to assist more than one voter each contrary to regulation 72(5)(c) of the regulations.

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

[00:14:29]I will make recommendations separately.

[00:14:31]They are I will not because there is no there is no point of putting the recommendations in the judgment, but I'll make recommendations separately particularly for IBC's notice uh subsequent to this judgment because I think it is important.

[00:14:47]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 Baringo North Constituency.

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