An election court has allowed Wajir Gubernatorial poll loser Dr Adan Mohamed Hassan to amend his petition and list 16 more polling stations where electoral malpractices allegedly occurred during voting and counting of votes in last year's General Election.
Justice George Dulu yesterday allowed the amendment and dismissed an objection raised by Governor Ahmed Abdullahi, who had claimed that Dr Hassan's request to amend the election petition was time-barred.
The petitioner had initially listed 27 stations and the court's ruling has effectively increased the targeted stations to 43.
He is also seeking scrutiny of ballot boxes and voting materials for the said polling stations to ascertain the votes garnered by each candidate.
“The polling stations are anchored in the petition. No prejudice will be suffered by the respondents (governor Abdullahi and the electoral commission) if the application is allowed. Leave to amend is granted," said Justice Dulu.
Justice Dulu ruled that no prejudice will be occasioned by Independent Electoral and Boundaries Commission (IEBC) and Governor Abdullahi as they will have an opportunity to put their views forward on each of the polling stations.
The court also directed lawyers of both sides to file their written arguments on a separate request by Dr Hassan for scrutiny of ballot boxes in the Wajir County gubernatorial contest. The ruling on scrutiny will be delivered on January 27, 2023.
The judge further ordered IEBC to take the election materials for the Wajir governorship election to court within seven days and be stored in a safe warehouse to avoid inconvenience.
Dr Hassan, who is former National Hospital Insurance Fund (NHIF) CEO, had earlier listed 27 polling stations for scrutiny and recount of ballot papers and voting kits.
He inadvertently failed to include 16 more stations which he claims, there were grave electoral irregularities.
Scrutiny of votes
Among the polling stations that the petitioner seeks inspection, scrutiny and recount of all votes are Dadantalai primary, Garsechukala Primary, Towfiq centre, Junction, Anole Secondary school, Aresa Wajiyaqo primary school and Masalale Mobile 1.
The court dismissed the allegation by IEBC and Governor Abdullahi that allowing the amendment was an expansion of the election petition.
The governor had also argued the application was incompetent, defective and time-barred.
However, in his ruling, Justice Dulu said the application was made before the closure of the election petition. Hence, it was not time-barred.
He explained that the law provides that an application for scrutiny can be made at any time before judgment.
In the case, Dr Hassan is also seeking nullification of Mr Abdullahi's election on grounds that there were gross discrepancies in Form 37A returns.
He alleges that the total votes cast in some polling stations were more than the total voter turnout captured by the Kenya Integrated Management System (KIEMS) kits.
According to the petitioner, there were discrepancies noted in Eldas and Wajir east constituencies. He says Mr Abdullahi was not validly elected as governor for Wajir County and that the IEBC did not put in mechanisms to ensure that the voters were biometrically identified before being allowed to vote for candidates.
The petitioner further claims there was an exaggeration of voter turnouts, irregular and unlawful assisted voting and unlawful ejection of his agents from several polling stations in Wajir East and Wajir West constituencies.
There was multiple voting by some voters and the IEBC, through its presiding officers, irregularly authorised the said voters to vote without being biometrically identified through the KIEMS Kits.
"As a result, 1206 voters were unlawfully and irregularly authorised to vote in various polling stations among them Qara, Welathi, Adan Awale to the benefit of Ahmed and to my detriment," reads his court documents.
IEBC lawyer Mahat Somane said some of the reported errors were not sufficient to warrant the nullification of the election results.
“All the allegations that have been made in this petition are baseless and the petitioner seems to be on a fishing expedition for substance,” Mr Mahat told the court.
The courts have recently granted recount and scrutiny in various petitions.
In the petition against Homa Bay Governor Gladys Wanga, the High Court ordered a recount of votes in seven constituencies.
Justice Roselyne Aburili said the petitioner Evans Kidero had proved a primafacie case to warrant the recount of votes and scrutiny of forms 37As, 37Bs and 37Cs.
The court also granted orders for scrutiny and recount of votes in 10 polling stations in the petition against Busia Governor Paul Otuoma. High Court judge David Kenei ordered that voting diaries in the named stations be availed for scrutiny.
And in a petition by Paul Karembu and Judy Naiyeyio against Kajiado Governor Joseph ole Lenku, the court last week granted a recount.