Judges give reasons for dismissing election petition cases

Justice David Majanja delivers his ruling on the petition challenging the election victory of Anyang' Nyong'o as Kisumu governor, on January 3, 2018. He said votes recorded in Form 37A are final. PHOTO | ONDARI OGEGA | NATION MEDIA GROUP

What you need to know:

  • Many of the cases made references to the Supreme Court case of August that led to the annulment of the August 8 presidential election.
  • In Machakos, Justice Aggrey Muchelule said that Ms Ndeti could not secure witnesses or evidence to back her allegations.

When he launched his attempt to quash Prof Anyang’ Nyong’o election as governor of Kisumu, former county boss Jack Ranguma had what he thought was a silver bullet — a man who had hacked into the electoral commission’s servers and seen “the truth”.

Testifying as an information technology expert, Mr Levi Oduor Otieno told the High Court in Kisumu in November last year that when he accessed the servers of the Independent Electoral and Boundaries Commission (IEBC), he found the result forms for the gubernatorial election (Forms 37A) had been deleted and others uploaded.

While his evidence might have caused a stir and divided the court on that day, it was not of much help in aiding Mr Ranguma’s case.

IEBC SERVERS

In his ruling, Justice David Majanja sidestepped the tricky question of what to do with evidence from a man who claimed he did something illegal but in the public good by accessing the IEBC servers. Instead, he chose to rely on the law.

“A reading of Section 39(1C) of the Elections Act shows that electronic transmission and publication of polling result in a public portal is only a statutory requirement for the presidential election,” Justice Majanja said in his ruling. 

The upshot of this was that with the elections being conducted manually, except for the identification of voters and the transmission of the results, and in elections below the presidential race, it is all about the forms.

“Even accepting the errors, omissions and inconsistencies highlighted,” he said, “the legal position remains that the votes as recorded in Form 37A are final”.

MALPRACTICE EVIDENCE

He said unless the forms were disputed, any errors in the electronic transmission of the results or their publication in the IEBC’s public portal could not invalidate the Forms 37A.

Mr Ranguma’s case was among the many that have been dismissed, with millions of shillings in costs then lumped on the petitioner.

It was also one among the many in which the petitioners failed to get any evidence of malpractice or are tripped up by the law, according to an analysis of the judgments.

Many of the cases made references to the Supreme Court case of August that led to the annulment of the August 8 presidential election.

The relied on that case on the question of the burden of proof in election petitions but judges and magistrates have placed the physical forms as the primary records of elections.

This appears to be a deviation from the position taken by the Supreme Court that the process in an election is more important than the results.

RESULTS TRANSMISSION
There are as many reasons why so many election petitions have been thrown out as there have been cases.

However, going by the explanations given in court, many of the lost cases would have been avoided if only the petitioners had acted more meticulously.

A common observation was that the petitioners failed to provide sufficient evidence to back up their claims and mainly relied on hearsay. 

Like Mr Ranguma, some of the petitioners used the failure to transmit results electronically as evidence that the election was not conducted properly.

Like in that case, the judges pointed out that it was only in the presidential election that electronic transmission was required.

Justice Majanja would declare in the Ranguma case: “It is the petitioner’s duty to plead his case with specificity and this defect is not cured by having a detailed affidavit making broad allegations.” 

PROCEDURE
In its latest report, the Judiciary Committee on Elections said there were cases which were dismissed because the petitioners failed to deposit security for costs.

Others failed to serve the respondents with the court papers and some filed their petitions when it was already too late and were time barred.

Other petitions, according to JCE, were not drafted according to the rules.

Petitioners or their lawyers failed to attend court, while others requested and were allowed to withdraw their petitions. 

Other judgments by the courts pointed to the fact some petitions were simply defective and the only option available was to dismiss them.

In the gubernatorial petition for Kajiado, Mr Taraiya ole Kores had used the affidavit of Dr Noah Akala in the Raila Odinga case, which had alleged numerous irregularities in Kajiado County.

FORM 37A

However, he and his co-petitioner later admitted they could not rely on it because they were not its authors and had not put in the name of the author and the title in their submission.

When they claimed there were more votes cast than there were registered voters in five polling stations, they could not back up their case with the Forms 37A.

Mr Kores and his colleague had taken over the petition from Mr David Nkedianye, former Kajiado governor, and used the Supreme Court’s finding on scrutiny to back their case.

In his ruling, Justice John Onyiego said: “During the hearing of this petition, one unfortunate thing that came out clearly was the petitioners purely attempted to prove their case dependent on the Supreme Court’s petition finding on scrutiny exercise which was totally irrelevant in this petition.

"They came to court totally unprepared and unaware of what the petition entailed and their role thereof. They simply took over a petition which had no supporting documents.” 

WITNESSES
In Machakos, where Wavinya Ndeti recently lost in her attempt to unseat Dr Alfred Mutua, it was apparent in the ruling by Justice Aggrey Muchelule that Ms Ndeti could not secure witnesses or evidence to back her allegations.

She had alleged that a clerk had been caught on camera giving more than one ballot paper to voters but the video was not produced in court.

No voter was called to testify and the agent who was at the polling station at Kenyatta Stadium was not called to testify either.