Election Petition 6 of 2013

Election Petition 6 of 2013 Case Number Election Petition 6 of 2013 Fatuma Zainabu Mohamed v Ghati Dennitah, Independent Electoral and Boundaries Commission (IEBC), Benson Njau (Kuria East Returning Officer), Parties Lilian Liluma (Returning Officer Awendo Constituency), Moses Omondo Daula (Returning Case Class Civil Judges Edward Muthoga Muriithi Mr. Odhiambo h/b for Ondieki for the 1st Respondent Mr. Odhiambo for the Advocates 2nd - 11th Respondent Case Action Judgment Case Outcome Petition dismissed Date Delivered 07 Oct 2013 Court County Kisii Case Court High Court at Kisii Court Division Civil REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII ELECTION PETITION NO. 6 OF 2013 IN THE MATTER OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE ELECTIONS ACT, 2011 SECTIONS 75; 76; 77; 79; 80; 82; 86 AND 87 AND IN THE MATTER OF THE ELECTIONS (PARLIAMENTARY AND COUNTY ELECTIONS) PETITION RULES 2013: RULES 3; 4; 5; 6(1)(A); 8; 9; 10; 11; 12; 13; 21; 32; 33 AND 38 IN THE MATTER OF THE ELECTIONS (GENERAL) REGULATION, 2012 AND IN THE MATTER OF THE ELECTION FOR MIGORI COUNTY WOMEN REPRESENTATIVE HELD ON THE 4TH DAY OF MARCH 2013 FATUMA ZAINABU MOHAMED …...………………….……………......PETITIONER -VERSUS- GHATI DENNITAH………………………………………………………1ST RESPONDENT INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION (IEBC) .................2ND RESPONDENT BENSON NJAU (KURIA EAST RETURNING OFFICER) ……………………...….……...… 3RD RESPONDENT LILIAN LILUMA (RETURNING OFFICER AWENDO CONSTITUENCY)..................... 4TH RESPONDENT MOSES OMONDO DAULA (RETURNING OFFICER NYATIKE CONSTITUENCY) …..….. 5TH RESPONDENT JACKTON NYONJE (RETURNING OFFICER ORIRI CONSTITUENCY) …………..…….. 6TH RESPONDENT NOAH BOWEN (RONGO CONSTITUENCY) …………………………………......……...… 7TH RESPONDENT ALEX OYUGA (RETURNING OFFICER SUNA EAST CONSTITUENCY) ……….………... 8TH RESPONDENT MARTIN CHENGERE (RETURNING OFFICER SUNA WEST CONSTITUENCY ….…........ 9TH RESPONDENT JAIRUS OBAGO (RETURNING OFFICER MIGORI COUNTY) …………………....…....…. 10th RESPONDENT ADAM MOHAMED (RETURNING OFFICER KURIA WEST CONSTITUENCY) ……........ 11TH RESPONDENT JUDGMENT 1. The petitioner herein Fatuma Zainabu Mohammed filed this petition on the 08.04.2013 against the 1st respondent Ghati Dennitah, and the Independent Electoral and Boundaries Commission and its officers as the 2nd - 11th respondents herein challenging the declaration of the former as the duly elected Women Representative for Migori County following the General Elections held on the 4th March 2013. 2. In the Petition, the Petitioner sought relief as follows: a. A declaration to nullify the election for Migori County Women Representative held on 4th March 2013 for not being free, fair and transparent and for lacking credibility. b. A declaration that the said election did not produce credible results or a credible winner and therefore the 1st Respondent was not validly elected. c. That there be a re-tallying/recounting of all the votes cast in respect of the Women Representative for Migori County. d. That the declaration of results and the certificate issued pursuant thereto and the subsequent Gazette Notice No. 3157 of 13th March 2013 declaring the 1st Respondent as Women Representative for Migori County be quashed and nullified. e. That there be a fresh election for Women Representative Migori County. f. That the Respondent bears the costs of this petition. 3. The petitioner disputed the entire results of the Migori County Women Representative on the following grounds: a. That the Election data is not credible or accurate and therefore the entire results are highly questionable for the reasons that the form 36 contains different conflicting and contradictory figures, they show glaring irregularities with notable differences between figures shown in various constituencies, other figures are sharply at variance and marked differences with the form 35 b. That some constituencies and polling stations strangely recorded over 100% voter turnout and others had 100% voter turn out c. Various electoral documents in particular the forms 35 contain curious cancellations and alterations which are neither countersigned nor justified d. The form 36 wrongly and inaccurately indicates the number of Registered Voters in Migori County as 283,862 while the correct and official number of Registered Voters for Migori County are 562,650 e. Most of the electoral documents in particular forms 35 and forms 36 are returned incomplete as they don't have statutory comments by presiding officer, they are not signed by the Deputy Presiding Officers and Agents f. The form 36 was also incomplete as it did not show the breakdown of results for rejected votes. In Uriri (Karondo Primary) and Kuria East (Nyakehomo Primary) results were not declared in the form 36 and therefore the same were not verifiable. g. That in virtually all polling centers authorized party agents not allied to the Orange Democratic Movement Party (O.D.M) were harassed, obstructed or totally hindered by the Presiding Officers and Returning Officers from performing their duties. h. That there was rampant bribery of voters by known proxies of the 1st Respondent who also corrupted the officials of the 1st Respondent herein in particular the 3rd to 11th Respondents. i. That in some polling centers like Kuria East, Chinato Primary O.D.M agents and even the presiding officer openly guided voters to vote for the 1st Respondent j. That the election was neither free nor fair as it was meant to ensure that the 1st Respondent won at all costs. k. That to allow the 1st Respondent to assume the office of Women Representative Migori County would be a grave violation of the will of the electorate in Migori County and a serious travesty of justice and mockery of democracy l. That the petition raises serious integrity issues with regard to the conduct of the 1st Respondent making her unsuitable to assume office of Women Representative Migori County and it is in the interest of justice as well as in the public interest that the prayers sought therein 4. The Petition was supported by the annexed affidavits of Fatuma Zainab Mohammed, Leah Awuor Obago, Nelson Sagia and Kennedy Otieno Opiyo, the last of whom did not testify before the court. The Response 5. In her response to the Petition dated the 22nd April 2013, the 1st Respondent herein Ghati Dennitah states principally that she won the election of Women Representative for Migori County in an Election that was free, fair and transparent and which reflected the will of the people of Migori County conforming to the provisions of Section 83 of the Election Act, 2011. 6. She states that the election data was credible and its integrity and accuracy is not questionable or suspect she has denied in toto the allegations contained in the Petition at paragraph 17 adding that the figures by the Petitioner's agents are not factual. She further states that alterations and cancellations are not an indication of interference but corrections and that the Petitioner is not in a position to know the number of registered voters in Migori county and the said number did not affect the end result. The forms 35 and forms 36 in Migori county were duly stamped and signed by the relevant officials and same were properly filled by the I.E.B.C officials. She states that the form 36 was accurate and it reflected the will of the people of Migori County. It was complete and if there were errors on the form the same did not affect the final results. 7. She has denied bribing any voters and states that if the Petitioner had any proof of bribery then she should have reported the same to the Police. She adds that agents from all particular parties were present during the election process and it is not true that PDP Agents were ejected from polling centers as is being alleged in the petition. 8. She states that the results are not disputed and maintains that she won the elections fairly having not compromised and/or corrupted the any I.E.B.C officials who were conducting the election. She concludes by reiterating that it will not be in the interest of democracy, justice and fairness to grant the prayers sought by the Petitioner and she wants the court to dismiss the petition and declare her as the Women Representative for Migori County with costs. 9. In the answer to the petition the 2nd – 11th respondents denied each allegation in the petitioner’s petition together with the assertions in the supporting affidavits of the petitioner and her three witnesses. The respondents stated that the 4th March 2013 General Elections for County Women Representative in Migori was conducted as provided for by the Constitution and provisions of the law, rules and regulations. There was no breach of the Constitution or any statute during the process. The elections as such did not deviate from the normative process and procedures of elections and it was neither a sham nor travesty. 10. The petitioner called three witnesses; the 1st respondent testifying and calling three witnesses and the 2-11 Respondents called nine witnesses, after which final submissions were made on 30th September 2013 and judgment reserved for the th7 October 2013. The prayer for a re- tallying/recounting of all the votes cast in respect of the Women Representative for Migori County was not urged in the course of the hearing and it must be taken to have been abandoned as the matter is coming for final judgment. 11. Accordingly the issues before the court are: a. Whether the allegations of irregularities and breaches of election law have been proved; b. Whether any election offences have been proved; and c. Whether the irregularities and election offences and breaches of election law if proved affect the results of the election. 12. There was no dispute as to the jurisdiction of the election court and the criteria for the nullification of elections. The parties were agreed that the court’s jurisdiction to nullify an election existed under section 83 of the Election Act.

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