Machakos Lawsuit

Machakos, Kenya

Machakos, Kenya

Note– The Mavoko Constituency is a voting district southeast of Nairobi in Machakos county.


REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
ELECTION PETITION NO……………..OF 2013

IN THE MATTER OF ELECTIONS ACT 2011
AND
IN THE MATTER OF ELECTIONS RULES & REGULATIONS

BETWEEN

WILSON MBITHI MUNGUTI KABUTI……………………………………1ST PETITIONER
PHILIP MUTUA KILONZO ……………………………………….…………..2ND PETITIONER
STEPHEN MUTHOKA………….………………………………………….…….3RD PETITIONER
JOHN KALATA MALII……………………………………………….………….4TH PETITIONER
JOSEPH MUTUKU MUSAU…………….……………………………..………5TH PETITIONER
SOLOMON KIMUYU…………….………………………………….……………6TH PETITIONER
ANJELA MWIKALI NYALITA ……..…………………..……………………7TH PETITIONER

VERSUS

PATRICK MAKAU KING’OLA …………….….………………………….. 1ST RESPONDENT
THE INDEPENDENT BOUNDARIES AND
ELECTION COMMISSION……………………………………………….. 2ND RESPONDENT

TO THE REGISTRAR
HIGH COURT OF KENYA
MACHAKOS

PETITION

Election for the National Assembly of Mavoko Constituency.

The Petition of WILSON MBITHI MUNGUTI KABUTI,PHILIP MUTUA KILONZO STEVEN MUTHOKA,JOHN MALII,JOSEPH MUTUKU MUSAU,SOLOMON KIMUYU & ANJELA MWIKALI NYALITA

Your Petitioners state that the election was held on the 4th day of March 2013 when WILSON MBITHI MUNGUTI KABUTI, PHILIP MUTUA KILONZO STEVEN MUTHOKA, JOHN MALII, JOSEPH MUTUKU MUSAU, SOLOMON KIMUYU, DAVID SILA NZIOKI, JOSEPH MURIITHI MURIUKI MILKAK WANJIKU KAMAU, PATRICK MAKAU KING’OLA & ANJELA MWIKALI NYALITA were candidates, and the returning officer on the 6th March 2013 returned PATRICK MAKAU KING’OLA as being duly elected with 18,332 votes.

And your Petitioners say that;

A) NAMES AND DESCRIPTION OF THE PARTIES.

1. The 1st Petitioner is a male adult of sound mind residing and working for gain within Machakos County, his address of service for the purpose of this suit is care of OMBATI OTIENO & OPONDO ADVOCATES KIMATHI CHAMBERS,5TH FLOOR,P.O.BOX 12677-00400 NAIROBI.
2. The 2nd Petitioner is a male adult of sound mind residing and working for gain within Machakos County, his address of service for the purpose of this suit is care of OMBATI OTIENO & OPONDO ADVOCATES KIMATHI CHAMBERS,5TH FLOOR,P.O.BOX 12677-00400 NAIROBI.
3. The 3rd Petitioner is a male adult of sound mind residing and working for gain within Machakos County, his address of service for the purpose of this suit is care of OMBATI OTIENO & OPONDO ADVOCATES KIMATHI CHAMBERS,5TH FLOOR,P.O.BOX 12677-00400 NAIROBI.
4. The 4th Petitioner is a male adult of sound mind residing and working for gain within Machakos County, his address of service for the purpose of this suit is care of OMBATI OTIENO & OPONDO ADVOCATES KIMATHI CHAMBERS,5TH FLOOR,P.O.BOX 12677-00400 NAIROBI.
5. The 5th Petitioner is a male adult of sound mind residing and working for gain within Machakos County, his address of service for the purpose of this suit is care of OMBATI OTIENO & OPONDO ADVOCATES KIMATHI CHAMBERS,5TH FLOOR,P.O.BOX 12677-00400 NAIROBI.
6. The 6th Petitioner is a male adult of sound mind residing and working for gain within Machakos County, his address of service for the purpose of this suit is care of OMBATI OTIENO & OPONDO ADVOCATES KIMATHI CHAMBERS,5TH FLOOR,P.O.BOX 12677-00400 NAIROBI.
7. The 7th Petitioner is a female adult of sound mind residing and working for gain within Machakos County, her address of service for the purpose of this suit is care of OMBATI OTIENO & OPONDO ADVOCATES KIMATHI CHAMBERS, 5TH FLOOR, and P.O.BOX 12677-00400 NAIROBI.
8. The Respondent 1st is also an adult of sound mind and service upon it to be effected through the Petitioner’s Advocates.
9. The 2nd Respondent is a commission established under the Independent Electoral and Boundaries Commission Act and service upon it to be effected through the Petitioner’s Advocates.

B) FACTS RELIED UPON
10. The 1st petitioners last name and passport photo affixed to the ballot box were missing and interchanged respectively so as not to match what was posted in the system of the IEBC
11. The Petitioners severally but individually were the 2013 Parliamentary aspirants for the Mavoko constituency in Machakos County.
12. The Petitioners severally noted a number of anomalies during the March 4th General elections, promptly notified the Returning officer Mavoko constituency, but none of the anomalies and irregularities was addressed.
13. The petitioners registered their complaints of unfairness both orally and formally with the returning officer Mavoko Constituency before, during and after elections, but no remedy at all to their complaints was offered but rather the returning officer simply became rude.
14. The Petioners’ agents were chased out of the polling streams during the casting of the ballot and further were not allowed to participate in the counting and signing of form 35.
15. THAT several results were cancelled or altered without consent of all the parties involved or without prior consultation.
16. There are a lot of discrepancies in tallying including missing results and/or all results were not included as at the time the 1st Respondent was declared the winner.
17. Bribery and vote buying was the order of the day on the election date and even though the Petitioners registered their complaints with the returning officer, no action was taken.
18. Some of the form 35 that were used to declare the 1st respondent the winner lacked IEBC Official rubberstamps or were on unofficial IEBC forms.
19. Prior to the date of election, the Petitioners requested the returning officer to supply it with the number of agents required per polling station/stream but such was not supplied but instead they were informed that the only the ones required to be present were particularly the ones for Jubilee and cord thereby denying the petitioners their right to appoint agents as envisaged by section 30(2) of the Elections Act.

REASONS WHEREFORE;
a) Your Petitioners pray that it be determined that the said PATRICK MAKAU KING’OLA was not duly elected ,the election was flawed and therefore void and this Court should be able to call for fresh elections.
b) Costs of the petition.

Dated at Nairobi this day of 2013.

OMBATI OTIENO & OPONDO ADVOCATES
ADVOCATES FOR THE PETITIONERS.

DRAWN & FILED BY
M/S OMBATI, OTIENO OPONDO & CO. ADVOCATES
KIMATHI CHAMBERS, 5TH FLOOR
KIMATHI STREET
P.O. BOX 12667-00400
NAIROBI

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
ELECTION PETITION NO……………..OF 2013

IN THE MATTER OF ELECTIONS ACT 2011
AND
IN THE MATTER OF ELECTIONS RULES & REGULATIONS

BETWEEN

WILSON MBITHI MUNGUTI KABUTI………………….……………………1ST PETITIONER
PHILIP MUTUA KILONZO ………………………….……………….…………..2ND PETITIONER
STEPHEN MUTHOKA………………………………………………………….…….3RD PETITIONER
JOHN KALATA MALII…………………………………….…………….………….4TH PETITIONER
JOSEPH MUTUKU MUSAU………………………………..……………..………5TH PETITIONER
SOLOMON KIMUYU…………………….…………………….……….……………6TH PETITIONER
ANJELA MWIKALI NYALITA ……………………………..……………………7TH PETITIONER

VERSUS

PATRICK MAKAU KING’OLA ……………….………………………….. 1ST RESPONDENT
THE INDEPENDENT BOUNDARIES AND
ELECTION COMMISSION………………………………………………. 2ND RESPONDENT

SUPPORTING AFFIDAVIT

I, WILSON MBITHI MUNGUTI of Post Office Box Number 216 Athi River in the Republic of Kenya do hereby make oath and state as follows:-
1. THAT am a male adult of sound mind and one of the Petitioners herein duly authorized by the rest of my co-petitioners to swear this affidavit on their behalf and on my own behalf and therefore competent to swear this affidavit.
2. THAT my co-petitioners and I were aspirants for the Mavoko National Assembly seat having been nominated on different party tickets.
3. THAT the petitioners duly participated on the march 4th 2013 general elections whose results were declared on the 6th day of march 2013 to the effect that Patrick Makau King’ola was the ultimate winner.
4. THAT the election was marred by several malpractices before, during and after the exercise to the effect that the same was flawed and thus devoid of being free and fare.
5. THAT to begin with, prior and way ahead to the election date, I supplied the IEBC with a deed poll for change of name which they duly acknowledged and agreed to effect in their data system. .(Annexed herein and marked “wm1” is a copy of the deed pole and the communication between me and the IEBC.
6. THAT true to their word, a few days later when I checked their system the changes I intended had been effected.
7. THAT despite supplying the assurance and the fact that i supplied the IEBC with a duly registered deedpoll for a change of name and proper passport photos, come the day of election, my last name was omitted from the ballot papers and on top of that my picture that appeared on the ballot papers was not the one I supplied to IEBC.
8. THAT I took it upon myself to register my complaint with the IEBC returning officer after word went round that my name was not in the ballot papers but the Returning Officer would hear none of that.
9. THAT further and without prejudice to the foregoing, I know of my own knowledge that there were several anomalies that occurred during the period o election which renders the election void thus;
a) One of the candidate’s names, say 1st petitioner, had his name missing from the ballot box.
b) There were several allegations of bribery and vote buying and indeed the declared winner was arrested by police at kyumbi market on the eve of election date.
c) The 1st respondent was practically campaigning and talking to voters on the election.(annexed hereto and marked WM2 is a picture showing such evidence.
d) Some of the forms used were not the official IEBC forms, to wit the forms used at railway nursery school at stream 3,syokimau borehole at stream 2 and 7,makadara Imani nursery at stream 4,mavoko primary school at stream 22 (all the relevant forms are annexed hereto and marked WM3
e) Most of the forms 35 were not signed by the agents as required as they were practically chased out. Annexed and marked WM4 is the schedule of the relevant streams affected.
f) There were several cancelled or altered results done without the participation of the agents or the aspirants which is not right and their respective results should be cancelled. Annexed is a list of the cancelled stations and marked WM5
g) Besides there were IEBC official forms 35 which had no official rubberstamps. The included railway nursery at stream 3, Githunguri primary at stream 2 and Makadara Imani nursery school at stream 1.the relevant forms are attached and marked WM6
h) Some Polling stations were opened as late as midday but no extension of time was granted.
i) Also the declared winner was seen obtaining the services of an official vehicle that belonged to mavoko municipal council where he was once an employee. We annex picture as proof and marked WM7
j) That all the petitioners were denied the right to appoint agents of their choice whether for themselves as individuals or for the party
k) Further, the election results were not affixed on the door of each polling station as per the IEBC normal procedure and regulations.
10. THAT I therefore adopt, repeat and reiterate the contents of the said statements as if the same had been reproduced in this affidavit.
11. THAT what is deponed herein is true to the best of my knowledge, information and belief save as to matters of information sources whereof have been disclosed.
Sworn by the said:
WILSON MBITHI MUNGUTI
At Nairobi this…………… day of………2013 …………………… DEPONENT
BEFORE ME

COMMISSIONER FOR OATHS

DRAWN & FILED BY
M/S OMBATI, OTIENO OPONDO & CO. ADVOCATES
KIMATHI CHAMBERS, 5TH FLOOR
KIMATHI STREET
P.O. BOX 12667-00400
NAIROBI

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