BREAKING: WAMTHENDE WINS THE CASE AGAINST THE OPPOSITION: MBEERE NORTH BY- ELECTIONS

Added: 2026-05-22

[00:00:00]and and a big counting and tallying the allegations in the petition were that forms 35 were overwritten resulting in opacity of results.

[00:00:11]In respect of Kanyiri polling station two Nazario Mugo who was the PO did not testify on the inconsistencies 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 form 35 the tally on the right-hand side for each candidate is indicated there's in in a total that figure is supposed to be translocated to the column on the left-hand side and the two should tally.

[00:01:01]So, the the the key figure that is of interest is the one on the right-hand side not the translocated figure.

[00:01:09]In respect of Gitiburi two, RW3 Lydia Kamau 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 260 two respectively.

[00:01:29]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.

[00:01:45]In respect of Muchonoket two, Timothy Nyaga Maringa the PO did not testify on inconsistencies between forms 35A and 35B showing 30304 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.

[00:02:16]At Kamugo polling station two, form 35A indicates the number of valid votes 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.

[00:02:44]And the total rejected votes are indicated as seven. Shadrack 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.

[00:03:00]On this latter inconsistency, it appears likely to the court that the seven votes difference is attributable to the total rejected votes being carried to item five and added to the votes obtained.

[00:03:16]These unexplained inconsistencies in these votes or these forms 35 that were that I referred to results These unexplained inconsistencies, I should say add up to 10 votes in forms 35 35A add up to 10 votes in forms 35A, a difference of 10 votes in four 35 A and 35 B.

[00:03:53]So that the election result has a 10 vote difference.

[00:03:57]Unknown as to whom those votes would benefit.

[00:04:01]The scrutiny did not identify, sorry.

[00:04:07]Did not find anything to suggest any irregularity, but rather careless mistake in translocation from the vote tally column.

[00:04:17]Of form 35.

[00:04:22]35 A, form 35 A.

[00:04:25]Regarding allegations that some some 37 forms 35 A were overwritten and not countersigned, the court allowed scrutiny of only eight of them where such overwriting demanded scrutiny.

[00:04:38]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 35 A.

[00:04:51]There was no major discrepancy noted.

[00:04:54]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.

[00:05:06]The will of the voters, not the people.

[00:05:09]The petition also complained during the hearing uh about errors on forms 32 in respect of assisted voters.

[00:05:18]I have had to deal with this issue because it arose during evidence repeatedly.

[00:05:29]At the outset, it is essential to note that the issue of assisted voters was not pleaded.

[00:05:37]Either in the petition in the petitioner's issues or in the grounds of relief.

[00:05:45]It featured, however, in the supporting affidavit of the petitioner.

[00:05:51]In one paragraph, we'll get there.

[00:05:54]And in some of the other affidavits of the petitioner's witnesses.

[00:06:00]And also in witness testimony.

[00:06:03]In paragraph 94 of the supporting affidavits 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.

[00:06:21]This led to exhaustion of oaths of secrecy forms due to inex- ex- inexplicable influx of persons allegedly in need of assisted voting.

[00:06:35]The second respondent filed an affidavit in support of the response to the petition.

[00:06:40]The first and 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 Mongela, counsel 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 Ndwiga Newton Kariouki and wish to respond as follows.

[00:07:18]So, the issue became sort of subsumed through the affidavits.

[00:07:24]In furtherance of his claims on assisted voting, the petitioner, during the his testimony on numerous occasions, reiterated his claim on bribery and assisted voting, which featured in his supporting affidavit.

[00:07:38]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 of at the house of Edward Njeru where they were were also accepting bribes to become assisted voters.

[00:07:56]PW 9 Juliet Kizumbu testified that she saw many assisted voters at Muchuroke Health Center 2 polling station where she was the agent.

[00:08:07]She said that there were mobilizers who brought assisted voters to the station.

[00:08:13]In one case she saw an assistant assist four voters.

[00:08:19]And she complained to the PO but did not record the fact in her notebook.

[00:08:27]Though she signed from 35A without objection.

[00:08:39]The issue of assisted voters became pronounced after the court ordered that the election materials be preserved into the custody of the court.

[00:08:49]And the DR to make a detailed report on the movement.

[00:08:53]That's the movement of the materials.

[00:08:58]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.

[00:09:14]The report is dated 27th January 2026.

[00:09:17]In it, the DR recorded having received the following boxes from a strong room of IEBC offices in Embu.

[00:09:25]130 four ballot boxes, namely one from each polling station.

[00:09:35]One box captured as the 135th ballot box delivered at the tallying center.

[00:09:41]Four boxes recorded in an quote, inventory of other strategic materials issued to Embu High Court for the Barely North by-election petition, end quote.

[00:09:55]And finally, 15 boxes containing Kim's kits.

[00:10:02]Of the four boxes in the inventory of other strategic materials issued to Embu High Court for the Barely North by-election petition, that was box number 114337.

[00:10:16]It contained, amongst other things, 1,072 forms 32, declaration of secrecy made by a person assisting a voter.

[00:10:26]Naturally, this inventory raised concerns as to why these materials were produced from the IEBC offices at Embu without any record by the returning officer.

[00:10:37]Accordingly, in its ruling, paragraph 62 and 4, 62 2 and 4, delivered on 27th March 2026, the court ordered scrutiny of other strategic materials issued to Embu High Court.

[00:10:56]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 1 to 1072.

[00:11:12]Out of these, 10 were blank or unpopulated in any in any way, blank forms.

[00:11:21]There were forms by six declarants which had filled forms who, not which.

[00:11:33]My six declarants who had filled forms twice of whom two declarants filled two forms at two different polling stations while the other four declarants each filled two forms at one station.

[00:11:47]That is all contained in table four of that report.

[00:11:53]RW1 testified that at the tallying center he received 134 ballot boxes.

[00:11:59]He also stated that he handed over to the DR 135 ballot boxes with one box containing strategic materials.

[00:12:07]He stated that he stated that he prepared box 135 out of good faith.

[00:12:12]He gave no explanation for any of the other boxes.

[00:12:15]According to the IBC polling station diary complete forms 32 from each polling station understanding is that what is required is a continuous balancing between two competing constitute. On the one hand is is the cardinal or rule on adversarial litigation that parties are bound by their pleadings, ensuring procedural fairness, certainty of issues, and protection against trial by ambush.

[00:13:49]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.

[00:14:03]It is a substantive rule of education that pleadings have a binding force.

[00:14:08]In IEBC versus Stephen Mute Mule and others, the court of appeal 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.

[00:14:24]The same logic was reiterated in Raila Odinga and five others, um Supreme Court petition number five of 2013.

[00:14:32]There the Supreme Court emphasized that parties are bound by their pleadings and evidence must be confined to pleaded issues.

[00:14:46]Similarly, the Supreme Court in Zachariah Okoth Obado and Edward Oyuugi, Supreme Court petition 37 2014 reinforced the position that election petitions are strictly framed disputes.

[00:15:00]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.

[00:15:09]This establishes pleadings as the primary jurisdictional boundary of electoral adjudication.

[00:15:16]Against this strict framework, the Supreme Court in Gatirao Peter Munya versus Dickson Mwenda 2014 set out the governing logic on scrutiny, which is that scrutiny is not a fishing expedition.

[00:15:29]It is a verification mechanism tethered to pleaded allegations.

[00:15:33]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.

[00:15:41]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.

[00:16:02]Can courts therefore ignore serious electoral irregularities that emerge from scrutiny?

[00:16:08]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.

[00:16:16]It cannot be used to enlarge the petition or introduce new grounds of challenge.

[00:16:22]Yes, several cases cited.

[00:16:24]By contrast, where scrutiny is ordered suo moto, 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.

[00:16:41]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.

[00:16:54]The question whether the court should turn a blind eye on malpractices arising from scrutiny was focused on in the Muscari 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.

[00:17:13]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.

[00:17:28]In Peter Kingara versus IEBC 2014, the Court of Appeal emphasized that scrutiny is not an avenue for building a new case.

[00:17:36]That position was reaffirmed in many other cases.

[00:17:40]I have cited a number of them.

[00:17:44]The courts have reiterated that scrutiny must remain tethered to pleaded issues unless exceptional procedural safeguards exist.

[00:17:53]That caution was emphasized also in Walter Nyambati case 20 18 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.

[00:18:13]I have cited Abdi Kadir Hussein's case the 2023 High Court.

[00:18:21]Sorry, Kenya Court of Appeal.

[00:18:23]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.

[00:18:41]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.

[00:18:55]>> [snorts] >> In the present case and as already pointed out, the issue of assisted voters featured significantly in the petitioner's supporting affidavit and upon hearing of the evidence of the petitioner's witnesses.

[00:19:07]The respondents thus had a full opportunity to deal with the with the issue.

[00:19:12]It was evident as far back as was recorded in the DR's report on movement of the preservation materials and in the petitioner's witness and witness affidavits.

[00:19:23]There was no ambush in my view.

[00:19:30]In its decision in Kombo versus Carissa and three and three others 2024 Kenya Supreme Court Supreme Court affirmed the core principles in Munya on scrutiny.

[00:19:43]The apex court site stated [clears throat] as follows at the 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.

[00:20:00]That it was never intended to enable the court to unearth new evidence on the basis of which the petition could be sustained.

[00:20:07]From the record, the Supreme Court accepted that trial court had engaged extensively with scrutiny findings such as unstamped counterfoils polling station inconsistencies and irregularities in statutory forms.

[00:20:20]The Court of Appeal had criticized reliance on some of these matters as unpleaded.

[00:20:25]The Supreme Court's reaction was not to abandon the pleadings rule but to recharacterize the function of scrutiny scrutiny scrutiny evidence within the broader evidentiary inquiry.

[00:20:38]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.

[00:20:51]At paragraph 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's when he sought it.

[00:21:01]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.

[00:21:13]In the present case, the question of assisted voters was not specifically pleaded as already stated.

[00:21:18]Nevertheless, it does not arise as entirely as an ambush.

[00:21:30]Since the petitioners supporting affidavit and the first to third respondents replying affidavits took notice of the issue.

[00:21:37]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.

[00:21:56]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.

[00:22:05]Thus, scrutiny was duly ordered and forms part of the evidential matrix.

[00:22:09]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.

[00:22:24]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.

[00:22:36]The authorities hold as follows and I've cited Mohamed Abdi 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.

[00:23:08]Where in the first instance the failure to mark the register is isolated or inadequately proved, the courts generally decline to nullify elections.

[00:23:16]Also, the failure weakens the credibility of the official account.

[00:23:21]This was the position in Mohamed Mahmud Ali versus IEBC, Mombasa High Court 2017.

[00:23:30]Further, if the failure becomes systemic, particularly in constituencies where assisted voting would predictably be widespread, courts may infer that the process itself became un-verifiable.

[00:23:44]In light of the foregoing analysis of the law, this court can now make the following conclusions.

[00:23:49]First, that regulation 72(6) of the Elections General Regulations was violated in respect of the 10,072 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 KIEMS register or our PSD.

[00:24:09]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 same voters.

[00:24:25]Thirdly, with regard to double declarations by the six declarants earlier discussed as found during scrutiny, these were in breach of regulation 72(5) 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.

[00:24:49]The person shall assist or support only one voter at that election and have a mark of as proof of assisting or supporting a a voter.

[00:25:00]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.

[00:25:14]Finally, taking into account the caution of the supreme superior courts concerning unpleaded 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.

[00:25:42]Conclusions and disposition.

[00:25:45]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 vaguely Actually, I've just re- reiterated I've plucked from the body of each conclusion and I've brought it back to the conclusions and disposition.

[00:26:06]Um so that on issue one, I find that no qualitative disqualifying attribute in appointment and dismissal of IEBC election officials was demonstrated.

[00:26:19]On issue two, again I have plucked the conclusion I reached on the last issue and brought it forward. It was demonstrated by evidence that there was a physical register, voter voters' register available at every police station, that it had a QR code, um that the KIEMS kit had a soft copy replica of that register.

[00:26:41]No evidence was availed that any voter was disenfranchised disenfranchised since the physical registers were present and were also replicated in the KIEMS kits.

[00:26:54]Then, 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.

[00:27:11]The UDA UDA case, I may say, does not entirely deal with section 72 regulation 72. It doesn't entirely uh with regard to assisted voters.

[00:27:28]There was no evidence of such failure of identification Sorry, the prevailing jurisprudence on the use of registers is the UDA case.

[00:27:35]Is that such register is only to be used in instances where biometric or alphanumeric identification fails.

[00:27:41]There was no evidence of such failure of identification. Had there been a failure of biometric and alphanumeric identification followed by failure by IEBC to deploy the physical register, a case of voter disenfranchisement would have been readily made out.

[00:28:02]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.

[00:28:13]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.

[00:28:41]On issue four, um the same summary that I I I took I take the same summary or conclusion.

[00:28:50]Um And this is where I said Kaungu theoretically suffered. It turned out to decrease of about eight 8% or 51 voters as against the constituency average.

[00:29:02]But I found overall the failure did not affect the outcome in terms of section 81 of the Elections Act.

[00:29:15]Section 82, sorry, of the Elections Act.

[00:29:18]On issue five, whether there was bribery, treating, maybe I just read all of them.

[00:29:23]If you don't mind. Let me just read all of them so that I don't uh give an impression.

[00:29:28]On issue five, whether there was bribery, treating, and undue influence in violation of the Elections Offenses Act and the Constitution, there was uncontroverted evidence of bribery involving two witnesses. As an election court, this court can make a determination only on whether the the the election malpractice whether an election of an electoral malpractice 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. I do find that an electoral malpractice of bribery may have occurred.

[00:30:01]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.

[00:30:18]On issue six, whether there was broken chain of custody, unlawful handling of election materials in violation of procedure on close of polling, the totality of the evidence availed disclosed that one out of 134 polling stations there was broken chain of custody, possible unlawful handling of voting material, but no violation of poll closing procedure at Gitiburi one and two except with regard to the time.

[00:30:53]For Kaungu, there was evidence of violence but no evidence of broken chain of custody.

[00:30:58]Uh unlawful handling of violation or violation of poll station poll station closing procedure. Consequently, there's no basis for the finding that the irregularities or non-compliance were substantial and affected the election outcome in terms of the section 83 one of the Elections Act. Had it been demonstrated that the sort of violence shown at Kaungu 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.

[00:31:29]Issue seven.

[00:31:33]On whether there was use of state resources, state security offices to influence the voters.

[00:31:41]It was incumbent on the petitioner in order to prove issue seven to provide at least the minimum information or proof.

[00:31:52]The names which are some of which are provided, their formal designations, offices held, and particulars and nature of the alleged abuses of such offices, pro- provisions of the law breached, and the overall effect of such abuses upon the electorate and the election outcome. The petitioner failed to provide these through the evidence adduced.

[00:32:13]Accordingly, the court is unable to find in his favor on this issue.

[00:32:17]On issue number eight, um the same, the court was unable to find in favor of the of the petitioner, the same on even the assisted voters because with the assisted voters, what I have done is that I have said I take seriously the caution by the superior courts concerning unpleaded evidence gathered through scrutiny.

[00:32:44]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.

[00:32:58]The costs are as follows.

[00:33:01]The costs are as follows.

[00:33:03]The parties made submissions on costs generally to the effect that costs follow the event.

[00:33:08]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.

[00:33:18]The first to the third respondents and the fourth respondents both indicated that costs should be at Kenya shillings 5 million.

[00:33:27]The petitioner only submitted in during highlighting.

[00:33:35]So, having considered the nature of the case and the input of the parties and noting the fourth respondent did not testify to or avail witnesses, I hereby cap party and party costs at Kenya shillings 4 million.

[00:33:47]The first to third respondents shall be entitled to 70% thereof and the fourth respondent to 30% thereof.

[00:33:57]I have prepared a report of the court on the 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.

[00:34:23]A, admitted alteration of register without authority, contrary to section 61 of the election offenses act.

[00:34:33]B, double assistance of voters.

[00:34:36]That is allowing six persons to assist more than one voter each contrary to regulation 72 5 C of the regulations.

[00:34:45]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.

[00:34:59]I will make recommendations separately.

[00:35:02]They are I will not because there's no there's 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 cuz I think it is important.

[00:35:17]Um certificate of the of court as to validity of the election under section 86 of the elections act.

[00:35:27]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. This information has to be submitted and transmitted to the speaker of the National Assembly.

[00:35:48]Orders accordingly.

[00:35:57]Yeah, my lord we are most obliged by the decision of the court. We have sat and listened to it.

[00:36:05]We appreciate where the court is coming from.

[00:36:10]But we however would wish to make an appeal in regard to some of the issues the court has dealt with.

[00:36:17]And therefore my lord we are making an application for expeditious provision of typed proceedings the judgment of the court and the decree going there from.

[00:36:40]Your lordship, the reason for the appeal is, my lord, that uh this might be beyond a time the certain issues will be clarified by the court of appeal.

[00:36:52]Most importantly, the question of the alteration of the voters register. And my lord, since I'm not making an appeal before you, would wish to make the court of appeal pronounce itself.

[00:37:09]Number two, your lordship, on the question of um the scrutiny that was dealt with by the uh deputy registrar.

[00:37:17]My lord, we have listened to you and the judgment.

[00:37:21]And we know that the judgment itself does not caption the entire report as reported by the deputy registrar. And most importantly, in respect to ballot box number 35 and the 200 and 12 votes that were cast in uh foil people.

[00:37:39]We have not had you pronounce yourself on that, your lordship.

[00:37:42]Would we therefore wish to make an appeal. And then my lord, I don't know how that will square out because it has not been captioned in the in the in the in the in the uh in the in the judgment. Because, my lord, when It should be easy enough because the proceedings of the registrar will be part of the proceedings of the >> Yes, my lord. So, you will just annex them and say that the court the lower court failed to deal with an issue. My lord, we will we will be we will be we will be obliged. We are otherwise uh happy um that [snorts] the court has made its decision.

[00:38:15]We'll try our luck in the court of appeal. We are most obliged.

[00:38:18]Fortunately, the um the the judgment is typed already? Yes, my lord. The proceedings are typed.

[00:38:26]So, it should be fairly easy to get the the the record fairly quickly. We will get it, my lord. Okay.

[00:38:34]Yes, Waduta. Yeah.

[00:38:37]Uh >> [clears throat] >> my lord, I am Waduta.

[00:38:40]And I am waiting for for that judgement.

[00:38:45]Uh my lord, I just have one request.

[00:38:49]And uh as we review the judgement so that then we can see what we we make in terms of what is the next step.

[00:38:58]And we would just like to make an application for stay of execution on the issue of costs because we know we we have money in court.

[00:39:21]Yeah.

[00:39:22]Go ahead. Go ahead. Yeah. So, that my lord, um the issue of costs may be given about 30 days for us to review the judgement before money is released if such an order is sought.

[00:39:37]>> [clears throat] >> So, that then we can make the appropriate application in obtaining instructions.

[00:39:49]Okay. So, that my lord, as Mr. Ndebo Jiru mentioned, he is in need for review or clarification from the court, then we can have that period to to consider all those options. All right. That's my lord. Thank you. Um Yeah, I have been informed that I seek 45 days, kindly. 45 days? 45 days, my lord.

[00:40:14]>> [snorts] >> I think you have 30 actually.

[00:40:19]I think well, yeah, he's asking for 35.

[00:40:22]Yes, I I hear you, my lord.

[00:40:23]>> Yes.

[00:40:25]We would be opposing the request for stay, my lord.

[00:40:30]There is no indication upon which such a stay would be predicated, my lord. No appeal has been filed as yet.

[00:40:38]Even the costs have not even been ascertained.

[00:40:45]My lord, on the second issue, the IBC takes notes of no no note of the issues you have raised.

[00:40:52]And they welcome the report which will be extracting and sending them from this judgement, your my lord, which is going to to inform the improvement the improvement in terms of how they conduct their affairs and how the elections can be improved better.

[00:41:13]Otherwise, my lord, on behalf of the electoral body Let me summarize it. Yes, my lord. Yes.

[00:41:19]Uh just sit down.

[00:41:21]During the hearing of the case, almost without exception, every IBC officer who gave testimony asked, "Did you report?"

[00:41:36]You also said, "Was this outside the polling station?

[00:41:42]Did this occur outside the polling station?"

[00:41:45]I give 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.

[00:42:04]It's not the Kenya police.

[00:42:07]So that you cannot wring your hands and say that it was not reported, we don't have an OB. No complaint was made. You have seminal powers.

[00:42:17]IEBC You have powers as a commission even to investigate.

[00:42:23]You just need to read the newspaper. You hear something occurred, you run.

[00:42:28]Just like the Kenya Revenue Authority when they hear ching ching ching in your mobile phone, they come running.

[00:42:37]That [snorts] is how IEBC is supposed to operate under this constitution and the laws.

[00:42:42]So, that is the one of the big areas I'll be discussing in the recommendations.

[00:42:47]In India, it it is clear that IEBC behaved Sorry, not IEBC, the Electoral Commission there behaved the way IEBC behaves today.

[00:42:57]They changed.

[00:42:59]They became proactive.

[00:43:02]The code of conduct is enforced in India.

[00:43:07]And in fact in India, the petitions are very very few. I was there myself personally. They are hardly any petitions because IEBC does its work.

[00:43:17]Yeah. But my my lord, when you sit on that No, this is not part of the judgment.

[00:43:21]>> that's that's correct, my lord. It's also my observation.

[00:43:25]And my lord, the reason why we would wish to have some such some of these issues clarified, we would not wish, my lord, even to disturb that kind of finding because, my lord, this is the first time I have had an election court making such kind of pronouncements in respect on how the IEBC is supposed to conduct. So, my lord, even when you hear us making an appeal, we just want to make sure that we buttress some of those issues that you have said Yeah, but you will notice that uh in discussing the powers of IEBC and its its authority this was not in in respect of an issue for determination. So, all all that is mostly what Do you call it what? Orbiter? No, it's not orbiter. You were supposed to pronounce yourself in a manner that >> [laughter] >> It's not orbiter. 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.

[00:44:19]Because we are all Kenyans.

[00:44:22]We uh 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. Um there are clips from all sorts of places. We do We don't believe everything.

[00:44:35]But we get we get we are able to get the general mood of people.

[00:44:39]And that mood, although we don't we cannot represent it in our judgments, it has to come through evidence.

[00:44:49]Parties have to bring the evidence.

[00:44:51]Even all this bribery, I've actually seen myself clips of people standing in a line being given money.

[00:44:57]It's just that nobody takes them to court.

[00:44:59]But these are things that IEBC can has the power to curtail.

[00:45:04]Even under the Constitution.

[00:45:06]Under the Constitution.

[00:45:08]And the DPP cannot say that he's the only one who can investigate or prosecute.

[00:45:14]Because the powers have been given under and and and and and under the Constitution through a statute for prosecutorial.

[00:45:22]So, one of the things I'll be proposing is that is the um the setting up of an inspectorate of IEBC.

[00:45:33]That's one of the things I want to recommend. I can't recommend those things here because that would be It would It wouldn't make sense.

[00:45:39]But there must be some kind of an inspectorate. I I I I know I don't know how Kenya Revenue or or Kenya Anti-Corruption Commission how how they do it. But however they do it, they seem to be fairly effective.

[00:45:51]That's what we want with IEBC. Because the Constitution guarantees us a free and fair election.

[00:45:58]It uh guarantees Wavinya that when she's going to her polling station, nobody is going to Sumbua.

[00:46:05]No masumbuko. I'm going to vote and I'm going to vote for who I like.

[00:46:08]And if I take your money, I'll still vote for who I like.

[00:46:12]Okay. So, that's that's the key point.

[00:46:14]Sorry, anything else?

[00:46:16]Yeah, my lord. Maybe just Obita. 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.

[00:46:33]A single 7 days. Yeah. Some of the irregularities, my lord, which may go unexplained could be because of this scarcity of time, my lord.

[00:46:42]Um otherwise, it's to say that I miss Yes. Yes, my lord. Did you Did you put it in the report?

[00:46:47]>> I did. You did? I did, my lord.

[00:46:48]>> Okay.

[00:46:49]Otherwise, we take a lot of lessons as IBC and we appreciate you a lot and your entire staff.

[00:46:55]Thank you very much and even to counsel who appeared in this matter. Okay.

[00:47:01]Yes, my lord.

[00:47:03]On the fourth respondent, we appreciate the announcement.

[00:47:09]Except one is Mandela has taken the bulk of the of the cost. Mhm. After you have a discussion outside the court.

[00:47:20]You can share something with us.

[00:47:21]Um otherwise, my lord, we are happy in the manner in which you conducted these petitions.

[00:47:29]We also have judgment that you pronounced today. Of course, you would be.

[00:47:35]>> [laughter] >> Yeah.

[00:47:40]On my part, I'm most impressed by the time you've taken to give IBC the teeth that it seems to have lost.

[00:47:51]Yeah.

[00:47:52]And to me, that's a That was a very corrective Thank you.

[00:48:00]You can clean up the electoral practice in this Yeah. Otherwise Thank you very much for the fourth respondent. We do congratulate and my colleague has something to say.

[00:48:11]Thank you.

[00:48:20]My lord, we welcome the well-reasoned judgment of this honorable court which has really shed light on very pertinent issues that arose from the petition.

[00:48:41]And our further fourth respondent who is present uh takes uh this opportunity to extend a hand of friendship to the petitioner.

[00:49:01]Now that the court has decided and as we are aware politics and democracy in their very nature are competitive.

[00:49:16]But it it takes a wise soul to accept the electoral and judicial outcomes right.

[00:49:30]And I recognize that Mr. Odinga is already in agreement with the position taken by this court.

[00:49:38]And indeed he says he wishes to go to the court of appeal to buttress the decision of this honorable court.

[00:49:47]So, we we are of the view that uh Mr. Wairo may want to take into consideration the will of the people, the constituents of Baringo, who who desire that they're 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.

[00:50:26]The fourth respondent has had a lot of distraction during the time when these proceedings were in progress.

[00:50:34]He had to shuttle between the constituency and the court, and that has unduly impacted on, uh, his ability to fulfill the promises that he made to his constituents. So, we would be glad if this matter can rest at this stage.

[00:50:58]We continue to celebrate the wisdom of this court together with the petitioner, and it would be good for all of all of us because sometimes you win, sometimes you lose, and even then the next election cycle is just, uh, 1 year away, and I'm sure my uh, our client, the fourth respondent, would be willing to make some considerations, uh, which would be favorable to the petitioner, depending on how the petitioner takes the outcome of these proceedings. Now, with regard to the prayer for the costs, we will also be making an application that, uh, amount deposited as security for deposits be released to to the respondents.

[00:51:54]Are you making that application now?

[00:51:57]Because I've already given a stay of 30 days, so even if you make the application, it will not affect the stay.

[00:52:04]Very well then, the amount can be released to the respondents on the 31st day.

[00:52:08]>> [laughter] [laughter] >> Judge, we thank you for the detailed judgement and the way the court has conducted this particular petition.

[00:52:26]I I as a Karoki Kanjiri, I'm the senior most for the petitioner.

[00:52:32]And on behalf of the petitioner, we thank the court for the judgement. At the same time, to remind my colleague Mr. Kamotho that the petitioner and the for the respondents and they will remain as friends besides their political diversity.

[00:52:52]Um, one issue, we would like the court to give directions on the electoral materials. My colleague had requested me to mention that.

[00:53:01]And also the keys that we are holding for the safe um room going forward. We shall be inviting uh Judge Karoki to thank the court formally on behalf of our team.

[00:53:21]Let me I forgot to say that the about the electoral materials.

[00:53:25]Obviously, they will be returned, but let let let let that come through a direction that I'll give the DR. Which will So, I'm just saying directions on electoral materials will be given to DR to be effect.

[00:53:50]Yes.

[00:53:51]Thank you for reminding me.

[00:53:53]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.

[00:54:04]I think it's what they say that success tends to have many fathers.

[00:54:10]But um on behalf of the bar we would like to say thank you for the way the matter has been conducted.

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

[00:54:33]We have been handled, managed, treated with utmost professionalism.

[00:54:41]And I think that no one sitting on this side can take it away from this court.

[00:54:47]And even next time if there is we will be more than happy to end up in this court.

[00:54:57]And we also hope that all the issues that we picked up for recommendation that they are going to be acted upon to make um the resolution of electoral disputes um to be enhanced. And that is why I wonder >> [clears throat] >> looking at the spirit with which we have gone um I I was of the thinking that Mr. Kamotho or Dr. Adrian Kamotho should be looking forward to a robust appeal process which will actually even make these issues clearer.

[00:55:35]Instead of offering an olive branch >> [laughter] >> our petitioner is actually going after the whole tree and its fruits.