Ledama Ole Kina v Samuel Kuntai Tunai & 10 others [2013] eKLR

Key Facts

Issues

• Respondents argued the petitioner did not enforce a consent order (Petition 167/2013) to obtain Forms 35 and 36 for Narok South, despite claims of non-receipt. The court questioned the petitioner's diligence in following up on the order and noted that witnesses were not cross-examined about missing forms, potentially prejudicing the respondents by introducing new issues post-hearing.
• The court evaluated whether the petitioner's general allegations of over 100% voter turnout in Narok South Constituency and a specific error at Iladoru polling station (300 extra votes for the respondent) justified a broad scrutiny of all Forms 35 and 36 in the constituency. The issue centered on the sufficiency of the petitioner's basis for scrutiny, the requirement for specificity in polling stations, and the application of Section 82 and Rule 33 of the Elections Act, which mandate that scrutiny must be confined to disputed stations and require a clear basis. The respondents argued the large vote margin (84,000) rendered scrutiny unnecessary, while the petitioner emphasized unverified and incomplete forms as evidence of potential irregularities.
• The petitioner highlighted a 153% voter turnout at Iladoru Primary School polling station (MM1) and a 102% turnout in Narok South, both exceeding the registered voter count. The court considered whether these discrepancies, attributed to a human error in posting results by the Returning Officer, warranted a recount to verify the accuracy of the County Form 36 (PEx.2), which showed inflated votes for the respondent. The respondents contended the error was isolated and did not require scrutiny for the entire constituency.
• The court referenced cases like Masinde v Bwire and Raila Odinga v IEBC, which emphasize that scrutiny must be specific to polling stations with clear evidence of irregularities. It also noted that a large vote margin (84,000) typically reduces the need for scrutiny unless compelling evidence of fraud or error exists. The petitioner's general allegations were compared to these precedents, which require precise, documentable issues to justify scrutiny.
• The petitioner sought to have ballot boxes for Narok South delivered to the court for scrutiny. Respondents opposed this, asserting the court cannot function as a Returning Officer under Rule 21. The court clarified that it deferred this decision to avoid redundant orders and emphasized that its role is to direct scrutiny, not assume administrative duties like delivering ballot boxes.

Holdings

• The court declined to grant the application for scrutiny of all Forms 35 and 36 in Narok South Constituency but approved scrutiny for Iladoru polling station to investigate a 300-vote discrepancy and 153% voter turnout error.
• The court directed a full scrutiny and recount of valid votes at Iladoru polling station and a re-tallying of Forms 35 and 36 in Kilgoris and Narok West constituencies to verify results. Ballot boxes for these areas must be delivered to court 48 hours before 29/7/2013.
• Costs of the application were awarded to be in the cause, indicating no specific party bears them unless determined later in proceedings.

Remedies

• The court mandated delivery of ballot boxes for Iladoru polling station (Narok South), Kilgoris, and Narok West Constituencies to the court 48 hours prior to the scrutiny commencement on 29/7/2013 at 9:00 a.m.
• The court ordered a full scrutiny and recount of all valid votes at Iladoru polling station in Narok South Constituency to establish the accurate vote counts for each candidate and verify the addition of 300 votes to the first respondent's tally.
• The court reserved the determination of costs for the cause, leaving the allocation to its discretion based on the proceedings.
• The court directed a re-tallying of Forms 35 (in ballot boxes) and Forms 36 for Kilgoris and Narok West Constituencies to conduct a recount and establish the valid vote distribution among candidates.

Legal Principles

• The court cited precedents (e.g., Raila Odinga v IEBC, Joho v Nyange) to establish that scrutiny is not a routine procedural tool and must be justified by concrete evidence of irregularities or errors. It also highlighted that courts must avoid transforming themselves into agents for resolving electoral disputes without proper grounds.
• The court emphasized that a petitioner seeking scrutiny must demonstrate a sufficient basis for the court to order it, as outlined in Section 82 of the Elections Act and Rule 33 of the Election Petitions Rules. The applicant's general allegations of irregularities without specificity were insufficient to warrant a blanket scrutiny order.
• The court applied a high standard of proof, requiring the petitioner to specify exact polling stations and document discrepancies for scrutiny. General claims of over 100% voter turnout across constituencies without targeted evidence were deemed insufficient to justify scrutiny for the entire Narok South Constituency.

Precedent Name

• Raila Odinga v IEBC
• Masinde v Bwire & Another
• Peter Gichuki King'ara v IEBC
• Kithinji Kirago v Martin Nyaga Wabore
• Philip Osore Ogutu v Michael Onyura Aringo
• Wavinya Ndeti v IEBC
• Hassan Ali Joho v Nyange & Another

Cited Statute

• Constitution of Kenya, 2010
• Elections Act, 2011
• Elections (Parliamentary and County Elections) Petition Rules, 2013
• Elections (General) Regulations, 2012

Judge Name

Passage Text

• I decline to grant the application for a scrutiny of Forms 35 and 36 of Narok South Constituency. However, I do grant an order of scrutiny for Iladoru polling station in Narok South Constituency to establish how the 'error' arose and whether the 300 votes added to the 1st respondent's votes were considered in the final tally.
• The purpose of the scrutiny was to understand the vital details of the electoral process, and to gain impressions on the integrity thereof.
• An application for scrutiny of all of Narok South Constituency lacks specificity, is a blanket prayer that, in my view, cannot be granted. The applicant needed to be specific on which polling stations he wanted a scrutiny done.