High Court upholds election of Leo Wa Muthende as Mbeere North MP

Ajouté : 2026-05-22

[00:00:00]is clearly within the jurisdiction of a special magistrate's court. Such court must be specially constituted by the Chief Justice under Section 23(1) of the Elections 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.

[00:00:24]In light of the foregoing, this court as an election court can make a determination only on whether an electoral malpractice of a criminal nature may have occurred in terms of the Section 87 of the Elections Act, but not on whether the offense of bribery was committed.

[00:00:39]I do find that an electoral malpractice of bribery may have occurred.

[00:00:43]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.

[00:00:53]From the evidence above, I am unable to find that the scope and prevalence of the malpractice substantially affected the results of the election in terms of Section 83 of the Elections Act.

[00:01:05]We are talking about two witnesses who said they were bribed.

[00:01:12]And I only accept their evidence because it was not controverted by the respondents.

[00:01:21]Issue number six.

[00:01:23]Whether there was a broken chain of custody, unlawful handling of election materials, and violation of procedure on close of polling.

[00:01:34]The petitioner made claims of a wide range under this issue alleging broken chain of custody and unlawful handling of election materials.

[00:01:41]However, he was not an eyewitness in any of these in any of these events, neither was his chief agent.

[00:01:49]That is PW2.

[00:01:51]The main evidence that emerged in respect of this issue was that concerning the Tiburi Primary School Polling Station two, where there was a fire, and Kawangware Polling Station where there was an invasion by unauthorized people.

[00:02:10]PW6 Dan Degu the party agent for Safina party stated that he was at Githurai two when a lamp fell and triggered a fire in the classroom that was set up as a polling station.

[00:02:22]He said that they rushed out and then he rushed back into the room his phone which was charging there as he helped put out the fire.

[00:02:31]He stated that CS Rocco came to the station with about 300 people in tow and they occupied the classroom.

[00:02:48]were placed inside the Nissan van which was left unguarded outside and he believed that they could have been interfered with.

[00:02:56]He said that by the time he had been handcuffed by that time he had been handcuffed uh on the instructions of CS Rocco and some agents had run away.

[00:03:04]In his affidavit PW6 could not confirm what happened at the voting in the classroom as he was seated at the back observing.

[00:03:13]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 at the gas lamp or a gas lamp.

[00:03:23]That bedlam then broke loose and the crowd of people started coming into the polling station.

[00:03:33]A video named N&K23CollectionGithurai was shown.

[00:03:38]He said that the crowd comprised of about 300 people and at the time the ballot boxes was still in the classroom where they were left when the fire broke out.

[00:03:49]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.

[00:03:59]IEBC officers were called to come and collect the boxes from the vehicle and and they complied and picked the boxes.

[00:04:06]On further cross-examination, PW6 stated that there were things taken outside the polling station classroom by strangers.

[00:04:19]He said that he did not see in the video the ballot boxes being carried out by locals to the vehicle.

[00:04:26]Upon viewing the aforesaid videos, the court noted that as follows.

[00:04:30]There indeed was a fire.

[00:04:34]That there was commotion at Gitiburi.

[00:04:40]That there was involvement of large crowds of people, some armed with sticks.

[00:04:45]That there was also a van into which some IEBC officials in IEBC reflective vests was seen attempting to enter.

[00:04:54]However, no ballot boxes were seen in the videos.

[00:04:58]Hence, the videos do not support the allegation of third parties handling, I'm talking about handling, the ballot boxes.

[00:05:05]In his affidavit, PW7, Simon Kariuki, a voter at Gitiburi, stated that shortly after the fire was was controlled, CS Ruku came to the station accompanied by people armed with sticks and rungus and they took the ballot box to the vehicle whilst beating people.

[00:05:24]That CS Ruku demanded that the ballot boxes be brought one classroom and ordered that the ballots from both Gitiburi 1 and 2 polling station be counted together.

[00:05:37]One of the ballot boxes emerged from amidst the crowd and was given to CS CS Ruku who gave it to IEBC officials.

[00:05:45]That CS Ruku demanded that the voters Sorry, not the voters but the votes.

[00:05:53]That the votes be counted and tallied.

[00:05:56]He did not witness reopening of the ballot boxes again and he denied signing forms 35A.

[00:06:01]He stated that the counting took place in one polling station at the Gitiburi.

[00:06:07]RW4 Jane Karim Karim Induma was at was a polling presiding officer at Gitiburi 1.

[00:06:14]It was her evidence through affidavit that after the polling ended at 5:00 p.m. she secured the room before counting started.

[00:06:22]She confirmed that CS Rocco came to the station and caused commotion.

[00:06:26]She noted that there was a fire at Gitiburi 2.

[00:06:31]That she prepared the polling station as a counting room.

[00:06:36]She made no mention of Gitiburi 2 in affidavit.

[00:06:40]In her oral evidence, RW4 testified that there was a fire at Gitiburi 2.

[00:06:45]It led to a commotion because there was a large crowd of people.

[00:06:49]She took the ballot box and took a took cover in a vehicle. That vote counting started at 7:00 p.m.

[00:06:55]That the votes for Gitiburi 2 were also counted at Gitiburi 1.

[00:07:00]In cross-examination, she stated that she did not see CS Rocco and that he was not involved.

[00:07:07]She admitted that she hosted another polling station and that no one authorized her to do so.

[00:07:13]When shown a video of the fire incident at Gitiburi, RW4 confirmed the incident was as depicted in the video.

[00:07:20]She saw the PO of Gitiburi 2 in the video with people in the crowd holding sticks at the sticks at the scene.

[00:07:27]By that time, she said she had secured the ballot box in the vehicle.

[00:07:32]She said no polling officer for Gitiburi 2 was in the vehicle, but the boxes for Gitiburi 2 were there.

[00:07:40]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.

[00:07:54]That was the only time she left the ballot ballot box unattended.

[00:07:59]RW3, Lydia Kamau, was the PO for Gitiburi 2.

[00:08:04]In her affidavit, she stated that after closing the station, she closed the KIMs and sealed the aperture at 5:00 p.m.

[00:08:11]She then called for a short break before counting began.

[00:08:14]At around 5:30, her deputy, Felix Mwaniki, lit a gas lamp which burst into flames. She managed to secure the ballot boxes. She telephoned Siakago Police Station and reported the incident and was issued with an OB number such and such.

[00:08:32]She stated that CS Ruko came to the station and that his arrival caused some commotion.

[00:08:38]RW3 further stated in her affidavit that during the brief incident of the gas lamp uh gas lamp explosion, the election materials remained secure.

[00:08:57]Let me read that again.

[00:08:59]RW3 stated that when the fire broke out, she took the boxes to the vehicle hired by IEBC together with the security officers and agents.

[00:09:11]She said that she and her team transferred the materials to Gitiburi 1 to count ballots and they found station 1 already going ahead with counting.

[00:09:19]In further cross-examination by Mr. Ndegwa, she stated that the forms which were burnt were KIMs forms 32A.

[00:09:29]From the DRC scrutiny report of 17th April, 2026, the DR noted that the PSD for Gitiburi 1 recorded the fire incident as follows.

[00:09:41]Incidents recorded on page 30 as an accidental fire in station 2 at 17:30 hours.

[00:09:48]Fire was put out and calm restored.

[00:09:51]Security backup.

[00:09:53]In Gitiburi 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, key and some forms.

[00:10:07]It is clear from the totality of evidence adduced that in Gitiburi 1 and 2 polling had concluded by the time the disruption arose from the fire and the crowd that invaded the polling stations.

[00:10:20]That RW4 took cover from the crowd in the vehicle and that And at that time the boxes from Gitiburi 2 were in the same van without any officer from the polling station.

[00:10:34]It was admitted by RW4 that at some point she also left the box for Gitiburi 1 in the van unattended when she left to get her bags which had been left inside the polling station.

[00:10:46]With regard to evidence on Kaungu, RW7, Paulino Nthiga Njeru, the PO stated that he witnessed violence from a distance outside the polling station including stones thrown into the polling station.

[00:10:58]He then stopped the election process for 30 minutes. When he reopened voting continued but the voter turnout was lower than earlier.

[00:11:06]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.

[00:11:21]And action was Action taken was the aperture was sealed at 13:45. All election material and officials were put under tight security.

[00:11:30]Thus for Kaungu, it is it was the actual polling that was interrupted at 1:45 uh p.m.

[00:11:38]And the polling station was closed for 30 minutes.

[00:11:41]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.

[00:11:51]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.

[00:12:06]In summary, the evidence on this issue is as follows.

[00:12:11]One, at Kaungu, despite the fact of disruption of polling, the election materials were not interfered with.

[00:12:17]Two, at Gitiburi One, the disruption occurred after closure of the polling station at 17:30 17:30 hours as recorded in the PSD.

[00:12:26]At Gitiburi Two, the disruption occurred after close of the polling station, according to the PO.

[00:12:33]Number three, sorry, number four, at Gitiburi One, the evidence is that the election materials were left unattended in the van, according to the PO.

[00:12:43]Five, the evidence concerning the election materials at Gitiburi Two 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.

[00:12:58]The evidence is inconsistent.

[00:13:01]From the DR's supplementary report dated 22nd April 2026, the results in Gitiburi One, as recorded in the PSD form 35 and KIMs, were consistent save for one ballot paper marked in favor of the fourth respondent with no corresponding counterfoil.

[00:13:19]For Gitiburi Two, the report shows that the KIMs kit showed that the last voter was verified at 1655 hours while the PSD indicated that the polling was closed at 1700 hours.

[00:13:36]There was one ballot cast in favor of the fourth respondent, but no corresponding counterfoil for it.

[00:13:43]The totality of the above evidence discloses that for Gitibori 1 and 2, there was broken chain of custody, possible unlawful handling of voting material, but no violation of poll closing procedure.

[00:13:58]For Kaungu, there was no evidence of broken of broken chain of custody, unlawful handling of or violation of poll stalling poll closing procedure.

[00:14:16]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 Kaungu was pervasive of 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.

[00:15:00]Issue number seven.

[00:15:02]Whether there was use of state resources, state security, and public office to influence voters which constituted abuse of power and improper influence in violation of articles 10, 73, 75, and 81E of the Constitution and the Elections Act.

[00:15:23]>> [snorts] >> The petitioner com- petitioner's complaint of the use of state resources, state security, and public office to influence voters was from an evidential standpoint entirely contained in allegations.

[00:15:36]I have carefully perused all the evidence that was adduced with a view to identify concrete evidence concerning the use of stated of state resources, state security, and public office to influence voters. I have not found any.

[00:15:53]What I find in this case is that there's evidence that CS Rocco, together with Embu governor and other other public officers, were mentioned by witnesses as intimately involved in the campaigns leading to election day.

[00:16:07]It is probable, but not proved, that these officers were using state vehicles or sorry, state resources for for transportation during the election period.

[00:16:17]They may also have used state resources such as police personnel.

[00:16:21]There is clear evidence that enhanced police presence was noted by many witnesses.

[00:16:29]That is also clear from the videos played in court wherein some area in some cases vehicles with no number plates were seen.

[00:16:37]It is also likely that by virtue of the power, stature, and influence of their public offices, these officers could readily command attention of or influence voters.

[00:16:48]No evidence, however, has been adduced concerning actual abuse of office and improper influence by any particular state or public officer.

[00:16:57]It was incumbent upon the petitioner in order to prove issue seven to provide at least the following evidence.

[00:17:07]Names of the public officers, this they did.

[00:17:10]A number of them.

[00:17:11]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.

[00:17:25]The petitioner failed to provide these through the evidence adduced and accordingly I'm unable to find in his favor on this issue.

[00:17:34]Issue number eight.

[00:17:36]Whether there was delay in counting votes, exclusion of agents, defective and falsified statutory forms, opaque counting and tallying in violation of Article 86 of the Constitution and Regulation 79 of the Elections General Regulations.

[00:17:52]With regard to delay in counting votes, the only evidence presented related to Gitiburi 1 and 2 where the breakout of the fire affected the timely counting of votes.

[00:18:07]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.

[00:18:22]From the DR scrutiny reports, agents of the petitioner were present in the stations where scrutiny was ordered and they signed forms 35A.

[00:18:30]With regard to defective and falsified statutory forms and and opaque counting and tallying, the allegations in the petition were that forms 35 were overwritten resulting in opacity of results.

[00:18:42]In respect of Kanyerere 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 form 35 the tally on the right-hand side for each candidate is indicated as an inner total. That figure is supposed to be translocated 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 translocated figure.

[00:19:28]In respect of Gitibori Gitiburi 2, 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 262, respectively.

[00:19:48]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.

[00:20:04]In respect of Moshonoke 2, Timothy Nyaga Maringa, the PO, did not testify on inconsistencies between forms 35A and 35B, showing 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.

[00:20:35]At Kamugo Polling Station 2, 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.

[00:21:03]And the total rejected votes are indicated as seven. Shadrack 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.

[00:21:19]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.

[00:21:35]These unexplained consistencies in these votes, all these forms 35 that were that I referred to, results These unexplained inconsistencies, I should say, add up to 10 votes in forms 35.

[00:22:04]35A add up to 10 votes in forms 35A, a difference of 10 votes in forms 35A and 35B.

[00:22:13]So, that the election result has a 10 vote difference.

[00:22:16]Unknown as to whom those votes would benefit.

[00:22:20]The scrutiny did not identify, sorry, did not find anything to suggest any irregularity, but rather careless mistake in translocation from the vote tally column of form 35.

[00:22:42]35A, form 35A.

[00:22:45]Regarding allegations that some some 37 forms 35A were overwritten allowed scrutiny of only eight of them where such overwriting demanded scrutiny.

[00:22:57]The DR scrutiny report dated 17th April 2026 at pages 21 to 24 found that despite of writing the figures added up to the total valid votes as in form 35A, there was no major discrepancy noted.

[00:23:13]The court agrees that the writing did not result in any discrepancy and the irregularities cannot be said to substantially have affected the will of the people.

[00:23:26]The will of the voters, not the people.

[00:23:28]The petition also complained during the hearing uh about errors on forms 32 in respect of assisted voters.

[00:23:37]I have had to deal with this issue because it arose during evidence repeatedly.

[00:23:48]At the outset, it is essential to note that the issue of assisted voters was not pleaded.

[00:23:56]Either in the petition, in the petitioner's issues, or in the grounds of relief.

[00:24:04]It featured, however, in the supporting affidavit of the petitioner.

[00:24:10]In one paragraph, we'll get there.

[00:24:13]And in some of the other affidavits of the petitioner's witnesses, and also in witness testimony.

[00:24:22]In paragraph 94 of the supporting affidavits to the petitioner, the petitioner deposed as follows.

[00:24:30]That further, the said agents would bribe the voters on condition that they declared that they were illiterates and in need of assisted voting.

[00:24:40]This led to exhaustion of oaths of secrecy forms due to inexplicable influx of persons allegedly in need of assisted voting.

[00:24:54]The second respondents filed an affidavit in support of the response to the petition.

[00:24:59]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 Kariuki and wish to respond as follows.

[00:25:38]So, the issue became sort of subsumed through the affidavits.

[00:25:44]In furtherance of his claims on assisted voting, the petitioner during his testimony on numerous occasions reiterated his claim on bribery and assisted voting, which he featured in his supporting affidavit.

[00:25:57]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 Njuguna, where they were were also accepting bribes to become assisted voters.

[00:26:14]PW9 Juliet Kibumbu testified that she saw many assisted voters at Muchonoke Health Centre two polling station, where she was the agent.

[00:26:23]She said that there were mobilizers who brought assisted voters to the station.

[00:26:28]In one case, she saw an assistant assist four voters.

[00:26:34]And she complained to the PO, but did not record the fact in her notebook.

[00:26:40]Though she signed from 35A without objection.

[00:26:51]The issue of assisted voters became pronounced after the court ordered that election materials be preserved into the custody of the court.

[00:27:01]And the DR to make a detailed report on the movement.

[00:27:04]That's the movement of the materials.

[00:27:09]The record of that movement of materials for preservation is contained in the DR's report pursuant to the directions of the court.

[00:27:17]Dated 15th January 2026 for removal of the election materials from IEBC to Embu High Court.

[00:27:24]The report is dated 27th January 2026.

[00:27:27]In it, the DR recorded having received the following boxes from a strong room of IEBC offices in Embu.

[00:27:35]134 ballot boxes, namely one from each polling station.

[00:27:41]One box captured as the 135th ballot box delivered at the tallying center.

[00:27:47]Four boxes recorded in an court inventory of other strategic materials issued to Embu High Court for the by-election petition, and quote.

[00:28:01]And finally, 15 boxes containing KIEMS kits.

[00:28:08]Of the four boxes in the inventory of other strategic materials issued to Embu High Court for the by-election petition, that is box number 114337.

[00:28:21]It contained, amongst other things, 1,072 forms 32, declaration of secrecy made by a person assisting a voter.

[00:28:32]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.

[00:28:42]Accordingly, in its ruling, paragraph 62 and 4, 62 2 and four, delivered on 27th March 2026. The court ordered scrutiny of other strategic materials issued to Embu High Court.

[00:28:55]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.

[00:29:12]Out of these, 10 were blank or unpopulated in any any way, blank forms.

[00:29:21]There were forms by six declarants which had filled forms who, not which.

[00:29:31]By six declarants who had filled forms twice.

[00:29:35]Of whom two declarants filled for two forms at two different polling stations.

[00:29:40]While the other four declarants each filled two forms at one station.

[00:29:45]That is all contained in table four of that report.

[00:29:50]RW1 testified that at the tallying center he received 134 ballot boxes.

[00:29:57]He also stated that he handed over to the DR 135 ballot boxes with one box containing strategic materials.

[00:30:05]He stated that he stated that he prepared box 135 out of good faith.

[00:30:09]He gave no explanation for any of the other boxes.

[00:30:13]According to the IBC polling station diary template, forms 32 from each polling station where voters were assisted were required to be put in a tamper-proof envelope and handed over to the returning officer.

[00:30:27]However, during scrutiny, all forms 32 were found unsealed and loosely loosely filed in a box file in box number 11 43 37.

[00:30:39]The foregoing handling of forms 32 shows a rather casual approach to a very important act of verification and secrecy relating to assisted voters in exercise of their right to vote.

[00:30:52]Added to that casualness, there was the neglect and failure to record the same in the register.

[00:30:58]Indeed, there was no way of accounting for these forms, for example, either in the polling station diary or in the voters register.

[00:31:06]The stipulation of the law on aided voters is found at regulation 72 6 of the elections general regulations, which provides as follows, where a presiding officer grants a the request of a voter under this regulation, the presiding voter presiding officer, sorry, shall record in the polling station register against the name of the voter the fact that the voter was assisted and the reason for the assistance.

[00:31:36]It was not contested that the physical voters register that was deployed was contained in a sealed tamper-proof envelope and that it was never physically opened, but was only used to open the Kim's kit through the QR code.

[00:31:53]What requires interrogation is whether an election court may assess or make determination on irregularities or illegalities revealed during scrutiny or recount where such matters were not specifically pleaded.

[00:32:09]My understanding is that what is required is a continuous balancing between two competing constitutional and procedural imperatives.

[00:32:17]On the one hand is the cardinal rule on adversarial litigation that parties are bound by their pleadings, ensuring procedural fairness, certainty of issues, and protection against trial by ambush.

[00:32:30]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.

[00:32:44]It is a substantive rule of adjudication that pleadings have a binding force.

[00:32:49]In IEBC versus Stephen Mwendwa 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.

[00:33:05]The same logic was reiterated in Raila Odinga and five others um Supreme Court petition number 5 of 2013.

[00:33:13]There the Supreme Court emphasized that parties are bound by their pleadings and evidence must be confined to pleaded issues.

[00:33:21]Similarly, the Supreme Court in Zachariah Okoth Obado and Edward Oyuugi Supreme Court petition 37 of 2014 reinforced the position that election petitions are strictly framed disputes.

[00:33:35]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.

[00:33:44]This establishes pleadings as the primary jurisdictional boundary of electoral adjudication.

[00:33:52]Against this strict framework, the Supreme Court in Gatirau Peter Munya versus Dickson Mwenda 2014 set out the governing logic on scrutiny, which is that scrutiny is not a fishing expedition.

[00:34:04]It is a verification mechanism tethered to pleaded allegations.

[00:34:08]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.

[00:34:17]However, the court also recognized a controlled opening, namely that where a 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.

[00:34:37]Can courts therefore ignore serious electoral irregularities that emerge from scrutiny?

[00:34:43]When scrutiny is triggered by a party's application, its scope is strictly confined to the pleaded issues and the specific polling stations in dispute.

[00:34:51]It cannot be used to enlarge the petition or introduce new grounds of challenge.

[00:34:57]As several cases cited.

[00:34:59]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.

[00:35:16]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.

[00:35:29]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.

[00:35:48]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.

[00:36:03]In Peter King'ara versus IEBC 2014, the court of appeal emphasized that scrutiny is not an avenue for building a new case.

[00:36:11]That position was reaffirmed in many other cases and I've cited a number of them.

[00:36:20]The courts have reiterated that scrutiny must remain tethered to pleaded issues unless exceptional procedural safeguards exist.

[00:36:29]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.

[00:36:48]I have cited Abdikadir Hussein's case the 2023 High Court.

[00:36:56]Sorry, Kenya Court of Appeal 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.

[00:37:16]The court treated this not as a discretionary courtesy, but as a requirement of due process. Unpleaded material cannot silently or automatically mature into grounds for nullification.

[00:37:30]>> [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.

[00:37:42]The respondents thus had a full opportunity to deal with the with the issue.

[00:37:47]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 there was no ambush in my view.

[00:38:05]In its decision in Kombo versus Karisa and three and three others 2024 Kenya Supreme Court Supreme Court affirmed the core principles in Munya on scrutiny.

[00:38:18]The apex court site stated 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.

[00:38:35]That it was never intended to enable the court to announce new evidence on the basis of which the petition could be sustained.

[00:38:43]From the record, the Supreme Court accepted that the trial court had engaged extensively with scrutiny findings such as unstamped counterfoils, polling station inconsistencies and irregularities in statutory forms.

[00:38:55]The court of appeal had criticized reliance on some of these matters as unpleaded.

[00:39:00]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.

[00:39:13]It held in substance that scrutiny findings do not operate as stand-alone causes of action, but neither are they legally innate simply because they were not expressly and specifically pleaded.

[00:39:26]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.

[00:39:36]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.

[00:39:48]In the present case, the question of assisted voters was not specifically pleaded as already stated.

[00:39:53]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.

[00:40:12]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.

[00:40:28]They were delivered in.

[00:40:31]The court was thus entitled to order scrutiny thereof since all our evidence had been taken and no proper account of the Forms 32 had been given by the respondents.

[00:40:40]Thus, scrutiny was duly ordered and forms part of the evidential matrix.

[00:40:45]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.

[00:40:59]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.

[00:41:12]The authorities hold as follows, and I've cited Mohammed Abdi, Let me read it. Where the Supreme Court majority refined their 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.

[00:41:43]Where in the first instance the failure to mark the registers as isolated or inadequately proved, the courts generally declined to nullify elections, although the failure weakens the credibility of the official account.

[00:41:56]This was the position in Mohammed Mahmud Ali versus IEBC uh Mombasa High Court 2017.

[00:42:05]Further, the failure becomes systemic, particularly in constituencies where assisted voting would predictably be wide widespread, courts may infer that the process itself became unverified.

[00:42:19]In light of the foregoing analysis of the law, this court can now make the following conclusions.

[00:42:24]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 registers required. Nor was there evidence that they were indicated as such in the Kiems register or our PSD.

[00:42:45]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.

[00:43:00]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.

[00:43:24]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.

[00:43:35]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.

[00:43:50]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.

[00:44:17]Conclusions and disposition.

[00:44:20]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 obliquely Actually, I've just reiterated I have plucked from the body of each conclusion I have brought it back to the conclusions and disposition.

[00:44:41]Um so that on issue one, I find that no qualitative disqualifying attribute in appointment and dismissal of IBC election officials was demonstrated.

[00:44:54]On issue two, again I have plucked the conclusion I reached under that issue and brought it forward.

[00:45:01]It was demonstrated by evidence that there was a physical register, voter a voter's register available at every polling station, that it had a QR code, um that the Kimski had a soft copy replica of that register.

[00:45:16]No evidence was availed that any voter was disenfranchised since the physical registers were present and were also replicated in the Kimskit.

[00:45:29]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.

[00:45:46]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.

[00:46:03]There was no of such failure of identifica- Sorry, the prevailing jurisprudence on the use of registers is the UDA case.

[00:46:10]Is that such register is only to be used in instances where biometric or alphanumeric identification fails.

[00:46:16]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.

[00:46:37]On issue three, whether there was an unlawful 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 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.

[00:47:16]On issue four um the same summary that I I I took I take the same summary or conclusion.

[00:47:25]Um and this is where I said Kalungu theoretically suffered a turnout decrease of about eight 8% or 51 voters as against the constituency average.

[00:47:37]But I found overall the failure did not affect the outcome in terms of section 81 of the Elections Act.

[00:47:50]Section 82, sorry, of the Elections Act.

[00:47:53]On issue five, whether there was bribery, treating. Maybe I just read all of them.

[00:47:58]If you don't mind, let me just read all of them so that I don't uh give an impression.

[00:48:03]On issue five, whether there was bribery, treating, undue influence in violation of the Election Offences 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.

[00:48:31]I do find that an electoral malpractice of bribery may have occurred.

[00:48:36]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.

[00:48:54]On issue six, whether there was broken chain of custody and lawful 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.

[00:49:28]For Kaungu, there was evidence of violence but no evidence of broken chain of custody.

[00:49:33]Uh unlawful handling of violation of 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 in at 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.

[00:50:04]Issue seven.

[00:50:08]On whether there was use of state resources, state security offices to influence the voters.

[00:50:16]It was incumbent on the petitioner, in order to prove issue seven, to provide at least the minimum information or proof.

[00:50:27]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.

[00:50:48]Accordingly, the court is unable to find in his favor on this issue.

[00:50:53]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.

[00:51:19]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.

[00:51:33]The costs are as follows.

[00:51:36]The costs are as follows.

[00:51:38]The parties made submissions on costs, generally to the effect that costs follow the event.

[00:51:43]The first to third respondents council went into some fair detail in indicating the depth of the case, the number of attendances, preparatory time, complexity, and so on.

[00:51:53]The first and the third respondents and the fourth respondents both indicated that costs should be at Kenya shillings 5 million.

[00:52:02]The petitioner only submitted in during highlighting.

[00:52:10]So, having considered the nature of the case and the input of the parties and noting the fourth respondent did not testify to have or avail witnesses, I hereby cap party and party costs at Kenya shillings 4 million.

[00:52:22]The first and third respondents shall be entitled to 70% thereof and the fourth respondent to 30% thereof.

[00:52:32]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 have been committed.

[00:52:54]And directs that the same be transmitted to the DPP.

[00:52:58]A, admitted alteration of register without authority, contrary to section 61 of the Election Offences Act.

[00:53:08]B, double assistance of voters.

[00:53:12]That is allowing six persons to assist more than one voter each, contrary to regulation 725C of the regulations.

[00:53:20]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.

[00:53:34]I will make recommendations separately.

[00:53:37]There I'll not because there's no there's no point of putting the recommendations in the judgments, but I'll make recommendations separately, particularly for IBC's notice subsequent to this judgment cuz I think it is important.

[00:53:52]Um Certificate of the of court as to validity of the election under section 86 of the Elections Act.

[00:54:03]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 Embakasi North Constituency. This information is to be submitted to and transmitted to the speaker of the National Assembly.

[00:54:23]Orders accordingly.

[00:54:32]Yeah, my lord, we are also obliged by the decision of the court. We have thought and listened to it.

[00:54:40]We appreciate where the court is coming from.

[00:54:45]But we however would wish to make an appeal in regard to some of the issues the court has dealt with.

[00:54:53]And therefore, my lord, we are making an application for expedition of the vision of typed proceedings the judgment of the court and the decree occurring therefrom.

[00:55:15]Your lordship, the reason for the appeal is, my lord, that uh this might be only time the certain issues will be clarified by the court of appeal.

[00:55:27]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 make the court of appeal pronounce itself.

[00:55:44]Number two, your lordship, on the question of um the scrutiny that was dealt with by the uh deputy registrar.

[00:55:53]Lord, we have listened to you and uh the judgment.

[00:55:56]And we note that the judgment itself does not capture the entire report as reported by the deputy registrar. And most importantly, in respect to ballot box number 35 and the 212 votes that were cast in foil. We have not had you pronounce yourself on that, your lordship.

[00:56:17]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 you ordered >> be easy enough because the proceedings of the registrar will be part of the proceedings. Yes, my lord. So, you just annex them and say that the court the lower court failed to deal with that issue.

[00:56:41]My lord, we will we will be we will be obliged. Uh we are otherwise happy um that the [clears throat] court has made its decision.

[00:56:50]We'll try our luck in the court of appeal. We are most obliged.

[00:56:53]Fortunately, the um the the judgment is typed already. Yes, my lord. The proceedings are typed.

[00:57:01]So, it should be fairly easy to get the the the record fairly quickly. We'll get it my lord.

[00:57:10]Yes, sir.

[00:57:11]Yeah. Yeah.

[00:57:12]>> [clears throat] >> Yeah. My lord, Kira Gota Aduta.

[00:57:15]And uh I thank you for for that judgment.

[00:57:20]Uh my lord, I just have one request.

[00:57:24]And uh as we review the judgment so that then we can see what we we make of it in terms of uh what is the next step.

[00:57:33]Uh we'd just like to make an application for stay of execution on the issue of costs because we know that we have we have money in court.

[00:57:44]>> [snorts] >> Yeah, so that my lord uh the issue of costs may be given about 30 days for us to review the judgment before the money is uh is released if uh such an order is sought.

[00:58:15]So that then we can make the appropriate application if any upon taking instructions.

[00:58:25]So that my lord, if as Mr. Ndegwa Njiru mentioned, if there's any need for review or clarification from the court, then he can have that period to to to consider all those options. That's all my lord. Okay.

[00:58:37]Um Yeah, I'm being uh informed that I seek 45 days, kindly my lord. 45 days, my lord.

[00:58:50]That's all my lord.

[00:58:52]Thank you.

[00:58:57]Yes, I I hear you, my lord.

[00:59:00]We won't be opposing the request for stay, my lord.

[00:59:06]There is no indication upon which such stay would be predicated, my lord. No appeal has been filed as yet.

[00:59:13]Even the costs have not even been ascertained.

[00:59:20]My lord, on the second issue, the IBC takes notes of not not of the issues you have raised.

[00:59:27]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 they conduct their affairs and how they elections can be improved better.

[00:59:49]Otherwise my lord on behalf of the electoral body >> Let me summarize it. Yes my lord. Yes.

[00:59:55]You just sit down.

[00:59:57]During the hearing of the case almost without exception every IBC officer who gave testimony asked did you report?

[01:00:12]They also said was this outside the polling station?

[01:00:18]Did this occur outside the polling station?

[01:00:21]I gave a long introductory discussion about the powers of IBC.

[01:00:28]Because it is important to IBC to remember that during or in connection with anything to do with elections IBC is the policeman of Kenya.

[01:00:40]It's not the Kenya police.

[01:00:42]So that you cannot ring your hands and say that it was not reported. You don't have an alibi. No complaint was made.

[01:00:48]You have seminal powers.

[01:00:52]IBC You have powers. As a commission even to investigate.

[01:00:59]You just need to read the newspaper. You hear something occurred you run.

[01:01:03]Just like the Kenya Revenue Authority when they hear ching ching ching the number on the phone they come running.

[01:01:13]That is how IBC is supposed to operate under this constitution and the laws.

[01:01:17]So that is the one of the big areas I'll be discussing in the recommendations. Yes my lord. In in it's it is clear that IBC behaved sorry not IBC the electoral commission there behaved the way IBC behaves today.

[01:01:32]They changed.

[01:01:35]They became proactive.

[01:01:37]The code of conduct is enforced in India.

[01:01:42]And in fact in India the petitions are very very I was there myself personally.

[01:01:48]There are hardly any petitions because IBC does its work.

[01:01:52]Yeah. But but my lord when you're still on that and No, this is not part of the judgment. That's correct my lord. That's correct my lord. It's also my observation.

[01:02:00]And my lord the reason why we would wish to have some some of these issues clarified 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 IBC is supposed to conduct. My lord even when you hear us making an appeal we just want to make sure that we address some of those issues that you have said.

[01:02:27]Yeah, but you will notice that uh in discussing the powers of IBC and its its authority this was not in in respect of an issue for determination. So all that is mostly what we call it what we call it obiter?

[01:02:42]No, it's not obiter because you're supposed to pronounce yourself in a manner that the law has fixed.

[01:02:47]It's not obiter. All right. Anyway, you will take the you will take the judgment to the next court. But what worries me is what I see every day happening because we are all Kenyans.

[01:02:57]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.

[01:03:06]There are clips from all sorts of places. We don't we don't believe everything.

[01:03:10]But we get we get we are able to get the general mood of people.

[01:03:14]And that mood although we don't we cannot represent it in our judgments. It has to come through evidence.

[01:03:24]Part of it has to bring in evidence.

[01:03:26]Even all this bribery, I've actually seen myself clips of people standing in a line being given money.

[01:03:32]It's just that nobody takes them to court.

[01:03:34]But these are things that IEBC can has the power to curtail even under the constitution.

[01:03:42]Under the constitution.

[01:03:43]And the DPP cannot say that he's the only one who can investigate or prosecute because the powers have been given under stat- under under under under the constitution to a statute for prosecutorial.

[01:03:57]So, one of the things I'll be proposing is that is the um the setting up of an inspectorate of IEBC.

[01:04:08]That's one of the things I want to recommend. I can't recommend those things yet because that would be it wouldn't make sense.

[01:04:15]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, it seems to be fairly effective.

[01:04:26]That's what we want with IEBC because the constitution guarantees us a free and fair election.

[01:04:33]It guarantees a voter that when she's going to her polling station, nobody is going to tell her to vote.

[01:04:40]Nobody must tell you who I'm going to vote and I'm going to vote for who I like.

[01:04:44]And if I take your money, I will still vote for who I like.

[01:04:48]So, that's that's the point. Sorry, anything else?

[01:04:51]Yeah, my lord. Maybe just obiter dicta as I thank you for the way you have conducted the proceedings and the efficiency.

[01:04:59]Also to bear in mind the timelines which the respondents are really given to respond to this such a bulky election petition.

[01:05:08]Single 7 days.

[01:05:10]Some of the irregularities, my lord, which may go unexplained could be because of this scarcity of time, my lord.

[01:05:17]Um otherwise, it's to say that I Yes. Yes, my lord. Yes.

[01:05:22]I did. I did, my lord.

[01:05:24]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 counsel who appeared in this matter.

[01:05:36]Yes, my lord.

[01:05:39]For the fourth respondent, we appreciate the pronouncement except on one issue. I think Mongalla has taken uh the bulk of the of the cost.

[01:05:51]Perhaps we'll have a a discussion outside the court. If you can share something with us.

[01:05:57]Um otherwise, my lord, we are happy in the manner in which you have conducted these petitions.

[01:06:04]We are also happy with the judgment that you have pronounced today. Of course, we would be >> [laughter] >> Well, yes. Naturally. But um on my part, I'm most impressed by the time you've taken to give IBC the teeth that it seems to have lost along the way.

[01:06:27]I think for me that's um that's a very uh proactive uh judgment which will clean up the electoral practicing this country. Otherwise, thank you very much from the fourth respondent and we do congratulate you.

[01:06:44]But my colleague has something to say.

[01:06:46]Thank you, my lord.

[01:06:55]My lord, uh we welcome the well-reasoned judgment of this honorable court which has really shed light on very pertinent issues that arose from the petition.

[01:07:16]And our client, the fourth respondent, who is present, uh takes uh this opportunity to extend a hand of friendship to the petitioner.

[01:07:36]Now that uh the court has decided, and as we are aware, politics and democracy, in their very nature, are competitive.

[01:07:51]But it it takes a wise soul to accept the electoral and judicial outcome in stride.

[01:08:06]And I recognize that uh Mr. Njiru is already in agreement with the position taken by this court.

[01:08:13]And indeed, he says he wishes to go to the court of appeal to buttress the decision of this honorable court.

[01:08:22]So, we we are of the view that uh uh Mr. Njiru may want to take into consideration the will of the people, the constituents of Baringo, who who desire that uh 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.

[01:09:01]The fourth respondent has had a lot of distraction during the time when these proceedings were in progress.

[01:09:09]He had to shuttle between the constituency and the court.

[01:09:14]And that has unduly impacted on 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.

[01:09:34]We continue to celebrate the wisdom of this court together with the petitioner.

[01:09:40]And it will be good for for all of all of us because sometimes you win, sometimes you lose.

[01:09:48]And even then, the next election cycle is just uh 1 year away. And uh I'm sure my uh our client, the fourth respondent, will 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 the prayer for the costs, we'll also be making an application that the amount deposited as security for deposit be released to to the respondent.

[01:10:29]For the Yes, because uh it Yes.

[01:10:39]Very well. Then, the amount can be released to the respondent on THE 31ST DAY.

[01:10:44]>> [laughter] >> THAT'S ALL, MY LORD.

[01:10:50]>> [laughter] >> JUDGE, UH WE THANK YOU FOR THE detailed judgment.

[01:10:57]And the way the court has conducted this particular petition. I'm I as a Kariki Njiri, I'm the senior most for the petitioner.

[01:11:07]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 fourth respondent are friends and they will remain as friends.

[01:11:24]Besides their political diversity.

[01:11:27]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 Korir to thank the court formally on behalf of our team.

[01:11:56]Let me I forgot to say that we have all the electoral materials. Obviously, they will be returned. But let let let the let that come through a direction that I'll give the DR. Which will So, I'll just say directions on electoral materials will be given to DR to effect.

[01:12:25]Yes.

[01:12:26]Thank you for reminding me.

[01:12:28]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.

[01:12:40]I think it's what they say that success tends to have many fathers.

[01:12:46]But um on behalf of the bar, we would like to say thank you for the way the matter has been conducted.

[01:13:00]Um on the end of the petitioner, we may not be happy, but we are grateful.

[01:13:08]We have been handled, managed, treated with utmost professionalism.

[01:13:16]And I think that no one sitting on this side can take it away from this court.

[01:13:23]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 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, instead of offering an olive branch, while the petitioner is actually going after the whole tree and its fruits.

[01:14:20]So, we hope that we will be fully facilitated with everything that we have asked for.

[01:14:28]And we wish the court all the best going forward. And thank you very much. Thank you very much, counsel.

[01:14:34]We have I take that with a uh a lot of appreciation. I I 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?

[01:14:50]>> [laughter] >> And I didn't know whether there is enough security.

[01:14:57]No, thank you very much counsel. I have also enjoyed myself uh during this whole exercise and uh You say when we do it again. I hope we don't. By then, I think I should be an elder doing a alternative justice system next year.

[01:15:13]>> [laughter] >> But thank you very much all. I appreciate. You have a good afternoon.

[01:15:19]Oh, I have not used my gavel and somebody complained. So, let me use it today.

[01:15:25]Let me use my gavel because uh it has not been seen to be used.

[01:15:32]The proceedings are closed.

[01:15:35]You may stand.

[01:15:42]Thank you very much. You may be seated.

[01:15:44]You may be seated.

[01:16:42]>> Go left.

[01:16:43]Go left.