Civil_Appeal_154_of_2013.pdf - Kakuta Maimai Hamisi v Peris Pesi Tobiko 2 others[2013 eKLR IN THE COURT OF APPEAL AT NAIROBI(CORAM KARANJA OUKO KIAGE

Civil_Appeal_154_of_2013.pdf - Kakuta Maimai Hamisi v Peris...

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Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] eKLR IN THE COURT OF APPEAL AT NAIROBI (CORAM: KARANJA, OUKO & KIAGE, JJA.) CIVIL APPEAL NO. 154 OF 2013 BETWEEN KAKUTA MAIMAI HAMISI ……… ....... ................. APPELLANT AND PERIS PESI TOBIKO………………………..1 ST RESPONDENT INDEPENDENT ELECTORAL AND BOUNDARY COMMISSION (IEBC)...…………………………...……… .... 2 ND RESPONDENT RETURNING OFFICER KAJIADO EAST CONSTITUENCY ............................................ 3 RD RESPONDENT (An appeal from the Ruling and Order of the High Court of Kenya at Nairobi (G.K. Kimondo, J.) delivered on the 25 th June, 2013 in HC. ELECTION PETITION NO. 5 OF 2013) ***************************** JUDGMENT OF THE COURT The appellant herein KAKUTA MAIMAI HAMISI contested the Kajiado North Parliamentary Seat in the March 4 th 2013 General Election. When the results for that seat were announced on 5 th March, 2013 he was announced as coming in second with 22,771 votes. The margin separating him and the declared winner PERIS PESI TOBIKO , the 1 st respondent herein was the rather tantalizingly close figure of 874 votes. Unhappy with the outcome of the election, and believing himself possessed of sufficient grounds in the form of stated irregularities and discrepancies, the respondent challenged the by way of a Petition filed at the High Court in Nairobi against the respondents herein in which he sought the following - Page 1/10
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Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] eKLR prayers; i. Declaration that the 4/3/2013 election of member of parliament of the 1 st respondent is null and void for not being free fair and transparent and lacking credibility. ii. Certificate issued and granted to the 1 st respondent be and is hereby quashed and nullified. iii. Fresh election be held. After the usual preliminaries, the petition was set down for hearing before the Election Court (G.K. Kimondo, J). In the course of the trial, the appellant moved that court by a Notice of Motion dated 16 th May 2013 by which he sought scrutiny of votes and the production and supply of various election materials or documents in respect of some five polling stations. The learned Judge directed that the application be held in abeyance in the first instance awaiting the conclusion of the trial by adduction of oral evidence which hearing of the petition proper ended on 19 th June 2013 whereafter the learned Judge heard the rival arguments for and in opposition to the application for scrutiny. By a ruling dated and delivered on 25 th June 2013, the Election Court faulted the appellant for not having pleaded for scrutiny in the Petition proper and found that his application had meandered well beyond the confines of the Petition, the primary pleading by which he was bound. It did, however, find that there was a case made out for a partial scrutiny. The learned Judge delivered himself as follows on the issue; “The Petitioner and his witnesses have in my view raised sufficient grounds for limited scrutiny.
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