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Justus Mongumbu Omiti v Walter Enock Nyambati Osebe & 2 others [2011] eKLR - The 1 st respondent and or his agents were allowed by the 2 nd respondent and or his subordinate electoral staff to communicate with the tallying clerks so as to influence the final outcome. - The election officials denied Timothy Bosire’s agents the opportunity to sign form 16A. - The 2 nd respondent failed to announce the results of each polling station at the tallying centre. - The tallying clerk who was a nephew to the 1 st respondent, manipulated the results in favour of the 1 st respondent. - The 3 rd respondent’s officials were biased and partisan. - Valid votes cast at Girango Polling Station exceeded the total number of registered voters and those results were thus a nullity; yet the 2 nd respondent allowed them to stand. - Entries in the tally sheet for five stations, Mongoni, Nyasore, Ikobe, Miriri and Nyaisa did not reflect the actual votes received by Timothy Bosire. In paragraph 9 of the petition, the petitioner complains that: - The whole exercise of election was manipulated in favour of the 1 st respondent since the 2 nd respondent allowed participation in the exercise of presiding officers, clerks and election officials who were known supporters and relatives of the 1 st respondent. - 2 nd respondents allowed the 1 st respondent supporters to openly campaign in or within the precincts of the polling station. - The 2 nd respondent and or his officers showed contempt for other candidates other than the 1 st respondents. 6
Justus Mongumbu Omiti v Walter Enock Nyambati Osebe & 2 others [2011] eKLR - The 2 nd respondent and or his officials paid no regard to accuracy and scrutiny in counting of votes received. - The 2 nd respondent irregularly and unlawfully gazetted results on 30 th December, 2007 and without addressing the complaints made. - The 2 nd respondent failed to take control of the tallying centre and finally, - The 2 nd respondent officers allowed the clerks to enter into the tally sheet figures which did not reflect the actual votes received, nor the votes as per forms 16A. In support of the petition, the petitioner called a total of 8 witnesses. Their evidence is contained in their respective affidavits which I have carefully read and considered. In summary, the case for the petitioner appears to be that he was the registered voter in Kitutu Masaba Constituency, chief manager and agent for his preferred ODM party candidate, Timothy Bosire. In that capacity, it was his duty to traverse the constituency on the election day to talk to and prepare his various agents in different polling stations who were on duty and to receive reports on the voting exercise and subsequently attend the tallying exercise at Nyambaria High School. In the course of his aforesaid duties, he received reports of bribery by the 1 st respondent and another candidate, one, Mose Nyambega in some polling stations. He also received reports on election materials being delivered late in some polling stations. Save for the foregoing incidents, the voting exercise in most polling stations went on smoothly and without hitches. At about 8.00p.m on the polling day, he joined other candidates and supporters of various parties or candidates ready for the tallying exercise at Nyambaria High School. When the presiding officers arrived and started submitting their results, he discovered that they were different from the results he had received from his agents in the field. He protested to the 2 nd respondent. Indeed the results for Nyamakoroto Polling Station were the subject of such protest. It had been discovered that the presiding officer for this polling station had unilaterally and individually filled form 16A and fiddled with the figures in the process. The 2 nd respondent unilaterally excluded those votes from the final tally and had the said presiding officer arrested by police. The tallying centre was disorganized and the 2 nd respondent was not in control of the affairs. In the meantime, the 2 nd respondent kept on 7
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