BIG WIN TO WAMUTHENDE AS HIGH COURT DECLINE TO NULLIFY MBEERE NORTH BY-ELECTION ELECTION

Added: 2026-05-23

[00:00:00]closing procedure.

[00:00:02]For Kaungu, there was no evidence of broken of broken chain of custody and lawful handling of or violation of poll stolen poll closing procedure.

[00:00:20]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 83 1 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.

[00:01:03]>> [snorts] >> Issue number seven.

[00:01:06]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 of the Elections Act.

[00:01:28]The [snorts] petitioner 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.

[00:01:40]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.

[00:01:57]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.

[00:02:12]It is probable, but not proved, that these officers were using state vehicles or sorry, state resources for for transportation during the election period.

[00:02:22]They may also have used state resources such as police personnel.

[00:02:26]There is clear evidence that enhanced police presence was noted by many witnesses.

[00:02:34]That is also clear from the videos played in court where in some area in some cases vehicles with no number plates were seen.

[00:02:42]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.

[00:02:53]No evidence, however, has been adduced concerning actual abuse of office and improper influence by any particular state or public officer.

[00:03:02]It was incumbent upon the petitioner in order to prove issue seven, to provide at least the following evidence.

[00:03:11]Names of the public officers, this they did.

[00:03:14]A number of them.

[00:03:16]Their designations and offices held, and particulars and nature of the alleged abuses of such offices.

[00:03:23]And the overall effect of such abuses upon the electorate and the election outcome.

[00:03:29]The petitioner failed to provide these through the evidence adduced, and accordingly I'm unable to find in his favor on this issue.

[00:03:39]Issue number eight.

[00:03:41]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.

[00:03:55]>> [clears throat] >> With regard to delay in counting votes, the only evidence presented related to Gitiburi 1 and 2 where the breakouts of the fire affected the timely counting of votes.

[00:04:11]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.

[00:04:27]From the DR scrutiny reports, agents of the petitioner were present in the stations where scrutiny was ordered and they signed forms 35A.

[00:04:35]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.

[00:04:47]In respect of Karuri Police Station 2, Nazario Mugo, who was the PO, did not testify on the inconsistencies uh between forms 35A and 35B showing a total number of votes obtained and cast as 225 and 223 respectively, a difference of two votes. I looked at the form carefully, the the um forms 35.

[00:05:11]The tally on the right hand side for each candidate is indicated as in a total. That figure is supposed to be translocated to the column on the left hand side and the two should tally.

[00:05:25]So, the the the key figure that is of interest is the one on the right hand side, not the translocated figure.

[00:05:33]In respect of Gitiburi 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.

[00:05:52]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.

[00:06:08]In respect of Mosionok 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.

[00:06:40]At Kamugu 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.

[00:06:52]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.

[00:07:08]And the total rejected votes are indicated as seven. Shadrack and Nyaga and Jagip, the PO at this polling station did not testify and no further explanations were made regarding this inconsistency of 449 and 456 votes.

[00:07:23]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.

[00:07:39]These unexplained inconsistencies in these votes, all these forms 35 that were that I referred to.

[00:07:48]Results These unexplained inconsistencies, I should say.

[00:08:01]Add up to 10 votes in forms 35.

[00:08:09]35A, add up to 10 votes in forms 35A, a difference of 10 votes in forms 35A and 35B.

[00:08:17]So that the election result has a 10 vote difference.

[00:08:21]Unknown as to whom those votes would benefit.

[00:08:25]The scrutiny did not identify, sorry.

[00:08:31]Did not find anything to suggest any irregularity, but rather careless mistake in translocation from the vote tally column.

[00:08:41]Of form 35.

[00:08:46]35A, form 35A.

[00:08:49]Regarding allegations that some some 37 forms 35A were overwritten and not countersigned, the court allowed scrutiny of only eight of them where such overwriting demanded scrutiny.

[00:09:02]The DR's scrutiny report dated 17th April 2026 at pages 21 to 24 found that despite overwriting the figures added up to the total valid votes as in form 35A.

[00:09:14]There was no major discrepancy noted.

[00:09:18]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.

[00:09:30]The will of the voters, not the people.

[00:09:33]The petitioner also complained during the hearing uh about errors on forms 32 in respect of assisted voters.

[00:09:42]I have had to deal with this issue because it arose during evidence repeatedly.

[00:09:53]At the outset, it is essential to note that the issue of assisted voters was not pleaded either in the petition in the petitioners issues or in the grounds of relief.

[00:10:08]It featured, however, in the supporting affidavit of the petitioner.

[00:10:15]In one paragraph, we'll get there.

[00:10:18]And in some of the other affidavits of the petitioners witnesses.

[00:10:24]And also in witness testimony.

[00:10:27]In paragraph 94 of the supporting affidavits to the petitioner the petitioner deposed as follows.

[00:10:35]That further, the said agents would bribe the voters on condition that they declared that they were illiterate and in need of assisted voting.

[00:10:45]This led to exhaustion of oaths of secrecy forms due to inexplicable influx of persons allegedly in need of assisted voting.

[00:10:58]The second respondents filed an affidavit in support of the response to the petition.

[00:11:04]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.

[00:11:20]That I have read and been explained to by Charles Benedict Mongella, 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 Indriga Newton Kariuki and wish to respond as follows.

[00:11:42]So the issue became sort of subsumed through the affidavits.

[00:11:48]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 featured in his supporting affidavit.

[00:12:02]Other witnesses of the petitioner, for example PW10 and PW11 considered that as they were accepting bribes, others in the group and in the premises at at the house of Edward Njage where they were were also accepting bribes to become assisted voters.

[00:12:19]PW9 Juliet Kizumbu testified that she saw many assisted voters at Muchonoke Health Center two polling station where she was the agent.

[00:12:28]She said that there were mobilizers who brought assisted voters to the station.

[00:12:33]In one case she saw an assistant assist four voters.

[00:12:39]And she complained to the PO but did not record the fact in her notebook.

[00:12:45]Though she signed from 35A without objection.

[00:12:55]The issue of assisted voters became pronounced after the court ordered that election materials be preserved into the custody of the court.

[00:13:05]And the DR to make a detailed report on the movement.

[00:13:09]That's the movement of the materials.

[00:13:14]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 IEBC to Embu High Court.

[00:13:29]The report is dated 27th January 2026.

[00:13:32]In it, the DR recorded having received the following boxes from a strong room of IEBC offices in Embu.

[00:13:40]134 ballot boxes, namely one from each polling station.

[00:13:46]One box captured as the 135th ballot box delivered at the tallying center.

[00:13:52]Four boxes recorded in an quote inventory of other strategic materials issued to Embu High Court for the Baringo by-election petition, end quote.

[00:14:05]And finally, 15 boxes containing KIEMS kits.

[00:14:13]Of the four boxes in the inventory of other strategic materials issued to Embu High Court for the Baringo by-election petition, that is box number 114337.

[00:14:26]It contained, amongst other things, 1,072 Form 32 declaration of secrecy made by a person assisting a voter.

[00:14:36]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.

[00:14:47]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.

[00:15:00]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 Form 32 folio marked 1 to 1072.

[00:15:17]Out of these, 10 were blank or unpopulated in any in any way. Blank forms.

[00:15:25]There were forms by six declarants which had filled forms who not which.

[00:15:36]By six declarants who had filled forms twice.

[00:15:40]Of whom two declarants filled for two forms at two different polling stations.

[00:15:45]While the other four declarants each filled two forms at one station.

[00:15:49]That is all contained in table four of that report.

[00:15:55]RW1 testified that at the tallying center he received 134 ballot boxes.

[00:16:02]He also stated that he handed over to the DR 135 ballot boxes with one box containing strategic materials.

[00:16:09]He stated that he stated that he prepared box 135 out of good faith.

[00:16:14]He gave no explanation for any of the other boxes.

[00:16:18]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.

[00:16:32]However, during scrutiny all forms 32 were found unsealed and loosely loosely filed in a box file in box number 11 43 37.

[00:16:44]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.

[00:16:57]Added to that casualness, there was the neglect and failure to record the same in the register.

[00:17:03]Indeed, there was no way of accounting for these forms. For example, either in the polling station diary or in the voters register.

[00:17:11]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.

[00:17:41]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.

[00:17:58]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.

[00:18:13]My understanding is that what's is required is a continuous balancing between two competing constitutional and procedural imperatives.

[00:18:22]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.

[00:18:35]On the other hand there is the constitutional duty imposed on election courts to safeguard the integrity verifiability accountability and transparency of elections and the articles 86 and 81 of the constitution.

[00:18:49]It is a substantive rule of adjudication that pleadings have a binding force.

[00:18:54]In IEBC versus Stephen Mutinda 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.

[00:19:09]The same logic was reiterated in Raila Odinga and five others um Supreme Court petition number five of 2013.

[00:19:18]There are the Supreme Court emphasized that parties are bound by their pleadings and evidence must be confined to pleaded issues.

[00:19:26]Similarly, the Supreme Court in Zachariah Okoth Obado and Edward OYugi Supreme Court petition 37 of 2014 reinforced the position that election petitions are strictly framed disputes.

[00:19:40]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.

[00:19:49]This establishes pleadings as the primary jurisdictional boundary of electoral adjudication.

[00:19:56]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.

[00:20:08]It is a verification mechanism tethered to pleaded allegations.

[00:20:13]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.

[00:20:21]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.

[00:20:42]Can courts therefore ignore serious electoral irregularities that emerge from scrutiny?

[00:20:48]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.

[00:20:55]It cannot be used to enlarge the petition or introduce new grounds of challenge.

[00:21:01]Yes, several cases cited.

[00:21:04]By contrast, where scrutiny is ordered suo moto, which is I think what this court did.

[00:21:08]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.

[00:21:21]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.

[00:21:34]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.

[00:21:53]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.

[00:22:08]In Peter Kingara versus IEBC, 2014, the Court of Appeal emphasized that scrutiny is not an avenue for building a new case.

[00:22:16]That position was reaffirmed in many other cases.

[00:22:19]I have cited a number of them.

[00:22:24]The courts have reiterated that scrutiny must remain tethered to pleaded issues unless exceptional procedural safeguards exist.

[00:22:33]That caution was emphasized also in Walter Nyambati case, 2018, where the Supreme Court stated that scrutiny is not a fishing expedition, cannot be used to latch onto whatever evidence to construct a case not pleaded.

[00:22:52]I have cited the Abdi Kadir Hussein's case, the 2023 High Court.

[00:23:00]Sorry, Kenya Court of Appeal.

[00:23:02]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.

[00:23:21]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.

[00:23:35]>> [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.

[00:23:47]The respondents thus had a full opportunity to deal with a with the issue.

[00:23:51]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 uh affidavits, there was no ambush, in my view.

[00:24:10]In its decision in Kombo versus Kaisa and three and three others, 2024, Kenya Supreme Court Supreme Court affirmed the core principles in Munya on scrutiny.

[00:24:23]The apex court site stated as follows at uh 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.

[00:24:40]That it was never intended to enable the court to unearth new evidence on the basis of which the petition could be sustained.

[00:24:47]From the record, the Supreme Court accepted that the trial court had engaged extensively with scrutiny polling station inconsistencies and irregularities in statutory forms.

[00:25:00]The court of appeal had criticized reliance on some of these matters as unpleaded.

[00:25:05]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.

[00:25:18]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.

[00:25:31]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.

[00:25:41]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.

[00:25:53]In the present case, the question of assisted voters was not specifically pleaded as already stated.

[00:25:58]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.

[00:26:17]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.

[00:26:35]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.

[00:26:45]Thus, scrutiny was duly ordered and forms part of the evidential matrix.

[00:26:49]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.

[00:27:04]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.

[00:27:16]The authorities hold as follows, and I've cited Mohammed Abd Let me read it. Where the Supreme Court majority refined the remedial approach to regulation 72 non-compliance by requiring that such breaches be assessed within the broader Article 86 framework of verifiability and materiality, rather than be treated as automatically determinative of electoral invalidity.

[00:27:48]Where in the first instance instance, the failure to mark the register is isolated or inadequately proved, the courts generally decline to nullify elections, although the failure weakens the credibility of the official account.

[00:28:01]This was the position in Mohammed Mahmud Ali versus IEBC uh Mombasa High Court 2017.

[00:28:10]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.

[00:28:24]In light of the foregoing analysis of the law, this court can now make the following conclusions.

[00:28:29]First, that regulation 72 six of the elections general regulations was violated in respect of the 10,072 assisted voters as they were not recorded in the physical registers as required, nor was there evidence that they were indicated as such in the KIEMS register or our PSD.

[00:28:49]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 five indicating the declaration of secrecy by persons that assisted the same voters.

[00:29:05]Thirdly, with regard to double declarations by the six declarants earlier discussed as found during scrutiny, these were in breach of regulation 72 five of the elections general regulations, which provides that the as follows, the following shall apply with respect to a person who assists a voter under this regulation.

[00:29:29]The person shall assist or support only one voter at that election and have a mark off as proof of assisting or supporting a vote a voter.

[00:29:40]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.

[00:29:54]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.

[00:30:21]Conclusions and disposition on issue one.

[00:30:27]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 brought it back to the conclusions and this position.

[00:30:46]Um so that on issue one I find that no qualitative disqualifying attribute in appointment and dismissal of IEBC election officials was demonstrated.

[00:30:59]On issue two again I have plucked the conclusion I reached under that issue and brought it forward.

[00:31:06]It was demonstrated by evidence that there was a physical register voter voters register available at every polling station that it had a QR code.

[00:31:15]Um that the Kimski had a soft copy replica of that register.

[00:31:21]No evidence was availed that any voter was disenfranchised since the physical registers were present and were also replicated in the Kimskit.

[00:31:34]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.

[00:31:51]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.

[00:32:08]There was no evidence of such failure of identification sorry the prevailing jurisprudence on the use of registers is the UDA case is that such register is only to be used in instances where biometric or alphanumeric identification fails.

[00:32:21]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.

[00:32:42]On issue three, whether there was an awful that party interference, on this I came to the conclusion that it was not proved that in a 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.