Evidentiary issues

1.Allegations of;
•Voter bribery ( Where the chiefs were seen giving voters money on the voting day.) The
3rd respondent’s ( Gladys Wanga) husband going round giving voters money on election
day.
•Undue influence by party leader, Raila, that incident where he tells people only to vote
for Gladys.
(Whether the petitioners successfully discharged the burden of proof regarding these
issues)

2. Did the violence and chaos that occurred on the election day, significantly affect the election
process?

3.Admissibility of electronic evidence.

4.Alterations and cancellations on electoral forms & whether these affected the election result or
can be accounted for.

5.Whether there was failure to sign and stamp the electoral forms.

6.Whether there were instances of vote padding & ballot stuffing.

7.Whether there was ejection or denial of entry of petitioners agents into polling stations &
tallying centres and whether such affected the conduct of voting and tallying.

8.Whether the elections in Homabay were free, fair & credible.

In the Homa Bay gubernatorial elections, the petitioners alleged instances of vote padding and ballot
stuffing. However, the respondents denied these allegations and argued that the elections were
conducted in accordance with the law.
One specific allegation mentioned is regarding the Rungu Polling Station. According to PW11, the
petitioners' witness, the results on Form 37B were changed, switching the votes from Rabudi to Gladys
Wanga. However, DW6, an agent for the 3rd respondent, testified that he noticed the error during the
signing of Form 37A and requested the correction, which was done. PW11 agreed that there was an
initial error in the entry of the gubernatorial results.
The respondents argued that discrepancies in the number of votes cast could be explained by the
inclusion of manually verified voters, as well as situations such as spoiled ballots and misplaced votes.
The scrutiny and recount exercise did not reveal evidence of ballot stuffing or padding that would have
favored the 3rd and 4th respondents.
The burden of proof was on the petitioners to establish these allegations beyond reasonable doubt, but
the court found no evidence to support their claims of vote padding and ballot stuffing. Therefore, the
court did not find any merit in these serious allegations against the respondents.
The court examines the allegations made by the petitioners regarding alterations and cancellations on
the statutory electoral forms (Form 37As) and whether these alterations affected the results of the
election. The petitioners claimed that there were alterations in Form 37As that were not countersigned
by the presiding officers, and these alterations were made in favor of the third respondent (Hon. Gladys
Wanga) to give her an unfair advantage.
The petitioners specifically mentioned Rungu Primary School Polling Station No. 2, where they alleged
that agents were asked to sign a blank Form 37A before the valid votes were recorded, and the results
were later changed on Form 37B, favoring the third respondent. They also provided a list of 30 polling
stations where they alleged that Form 37As were altered.
The court considered the testimonies of witnesses and the evidence presented by both parties. The
petitioners relied on the testimony of PW11, their agent at Rungu Primary School Polling Station, who
stated that alterations were made on Form 37A in favor of the third respondent. PW12, the petitioners'
chief agent, also testified about discrepancies in Form 37A from Rungu Polling Station.
The respondents argued that the counting and tallying of votes were done transparently, and no
candidate's votes were inflated or manipulated. They contended that any alterations or errors were
minor and not intentional to favor any candidate. The returning officers and chief agents for the
respondents testified that alterations were made with the presence and consent of agents and were
mostly entry errors that were countersigned.
The court examined the specific allegations regarding Rungu Polling Station and Ongeti Primary
School Polling Station. It found that there were alterations on Form 37A for Rungu Polling Station, but
they were countersigned and explained by the witnesses. However, the court did not find evidence of
alterations on Form 37A for Ongeti Primary School.
The court also referred to the scrutiny report ordered by the court, which covered the 30 polling stations
where the petitioners alleged alterations and cancellations of Form 37As. The report concluded that
none of the Form 37As from these polling stations were found to be altered or cancelled.
The court acknowledged the petitioners' objections to the scrutiny report and their submission of a
separate report with different findings. However, the court considered the official record prepared by
the Deputy Registrar, as it is the authorized agency's report. The court emphasized that discrepancies in
the official data should be addressed, but private reports cannot replace the official record.
In conclusion, the court found no evidence to support the petitioners' claim that Form 37As in the
pleaded 30 polling stations were altered or cancelled without countersigning. The court considered the
official scrutiny report and did not find any alterations on the Form 37As from the examined polling
stations.

The petitioners alleged that there was a failure to sign and stamp statutory electoral forms, specifically
Form 37As, and that this failure affected the results of the election. They claimed that some Form 37As
were not signed by the presiding officers, some were not stamped by the 1st respondent (presumably
the electoral body), and that there were different signatures on some forms, which raised suspicions.
In response to these allegations, the 1st and 2nd respondents argued that the failure to stamp the forms
did not affect the credibility of the election process or the final election results. They stated that the
stamping of a document is meant to ensure completeness and does not invalidate the election.
The 3rd and 4th respondents, on the other hand, contended that the allegations of unsigned or
unstamped forms were fabricated by the petitioners. They claimed that the evidence presented by the
petitioners was deliberately withheld or that the forms were faintly printed to conceal the truth. They
also argued that the non-stamping of forms by agents could not invalidate the election.
The court recognized the importance of signing electoral statutory forms by presiding or returning
officers, stating that failure to sign such forms renders them worthless and lacking in authenticity. The
court referred to a previous Supreme Court ruling that emphasized the significance of the signature as
the final act of assurance by the officer.
However, the court observed that the petitioners did not provide evidence to demonstrate that the Form
37As were not signed or stamped by the officers. It noted that the clearer copies of the forms filed by
the petitioners were duly stamped and signed. Some forms had multiple stamps, and the court found
that all the scrutinized Form 37As had signatures of either the presiding officers or the deputy presiding
officers. The court also mentioned that the original Form 37As were in the custody of the Chief
Executive Officer of the electoral body.
Regarding the ballot papers, the court clarified that Form 37A is not a ballot paper and therefore there
is no legal requirement for it to be stamped. The court found no evidence that any of the Form 37As
were unstamped.
In summary, the court concluded that the petitioners did not provide sufficient evidence to prove their
allegations of unsigned or unstamped forms. The court emphasized the importance of signing and
stamping electoral forms but did not find that the alleged failures in this case affected the credibility of
the election process or the final results.

The petitioners alleged that their agents were unlawfully ejected from polling stations and tallying
centers during the election. They claimed that this denial of access prevented their agents from
overseeing the electoral process, accessing and approving the declared results, and signing Form 37A,
which raised doubts about the credibility of the election results.
The petitioners specifically mentioned 14 polling stations where their agents were denied access: Wira
Primary School, Ngeri Primary School, Ringa Primary School, Atemo Primary School, Dudu Primary
School, Osuri Primary School, Kogonda Primary School, Nyasore Primary School, Kirindo Primary
School, Wakondo Primary School, Kakrigu Primary School, Wasaria Primary School, Nyagina Fish
Banda Polling Station, and Mbita Fish Banda.
The petitioners argued that their agents were intentionally denied access to allow fraudulent electoral
officers and agents of the third respondent to manipulate the election results in favor of the third
respondent.
In response, the 1st and 2nd respondents argued that authorized agents could not be excluded from
polling stations, and they produced Polling Station Diaries (PSDs) to show that the petitioners' agents
were eventually admitted into the polling stations, albeit slightly later than the agents of the 3rd and 4th
respondents. The respondents also stated that the admission of more agents for one candidate than the
other did not favor the 3rd respondent and did not affect the election results.
The court found that there was a failure of communication from the 2nd respondent (IEBC) to the
presiding officers regarding the admission of the petitioners' agents into the polling stations. However,
the court noted that the petitioners' agents were eventually allowed into the polling stations based on
the evidence and Polling Station Diaries produced by the 2nd respondent.
The court stated that the petitioners failed to prove that the denial of access to their agents affected the
election results or resulted in ballot stuffing. The court also emphasized that even if agents failed to
sign Form 37A, it would not invalidate the election results unless there were other reasons or factors
involved.
In conclusion, the court did not find sufficient evidence to support the petitioners' claims of unlawful
ejection and denial of entry to polling stations and tallying centers. The court did not find that the
failure of the petitioners' agents to sign Form 37A or the presence of more agents for one candidate
than the other affected the election results.

The petitioners alleged that there was voter bribery in several polling stations, including Kisui Primary
School, Nyakango Primary School, Bolo Polling Station, Ragogo Primary School, Kogonda, Osuri
Primary School, Omiro Polytechnic, Umai Primary School, and Kojwach Primary School. They also
claimed that there was bribery and vote-buying by the area Chief and another person at Wakondo
Primary School Polling Centre. However, the evidence provided by the petitioners was not conclusive,
and witnesses were unable to identify individuals who received the alleged bribes.
Regarding undue influence, the petitioners argued that the 5th respondent's party leader, Raila Amolo
Odinga, used undue influence to compel voters to vote for the 3rd respondent. They cited remarks
made by Odinga during a funeral service, where he allegedly called anyone who did not vote for the
3rd respondent "stupid." The 5th respondent, on the other hand, claimed that campaigning for all ODM
party candidates was a duty of the party leader and members.
The court analyzed the allegations of bribery and undue influence, emphasizing that clear and
unequivocal evidence is required to prove such allegations beyond a reasonable doubt. The court found
that the evidence provided by the petitioners was not sufficient to meet this standard. They did not
provide cogent evidence to prove the allegations of bribery, and the allegations of undue influence
based on Odinga's remarks were not considered sufficient to invalidate the election results.

There were allegations of violence and chaos during the Homabay gubernatorial elections. The
petitioners claimed that there were widespread instances of violence that were systematic and
coordinated to benefit the 5th respondent's ODM party while frustrating other candidates not affiliated
with the party.
The violence was reported to have started during the party nominations, carried out by an organized
criminal outfit called the "men in black," which terrorized citizens during the primaries. The petitioners
alleged that this outfit was at the disposal of certain figures within the 5th respondent's ODM party and
carried out nefarious assignments on behalf of the party.
During the elections, the same group was accused of unleashing violence on voters before, during, and
after the elections, with the intention of benefiting the 3rd respondent. The petitioners claimed that the
violence affected the results of the election by suppressing voters, conducting a coup on certain polling
stations, intimidating officials, hijacking vehicles transporting election materials, and colluding with
certain officials to deny access to the petitioners' agents or eject them from polling stations.
Instances of violence were reported to the police, but the progress on investigations was said to be
limited. There were specific instances mentioned where violence led to the death of an individual and
caused fear in certain wards and constituencies.
Several witnesses testified about the violence they experienced or witnessed during the elections. They
described being physically assaulted, threatened with weapons, and witnessing the destruction of
election materials. Video clips were also presented in court to support the allegations of violence.
The presiding officers and polling station diaries (PSDs) confirmed the occurrence of violence in the
polling stations mentioned. The PSDs recorded the incidents and actions taken to address the violence.
The respondents denied the allegations and stated that the violence shown in the videos was unrelated
to the recent elections. They argued that the PSDs were crucial in capturing incidents and that there was
no doubt about the occurrence of violence in specific polling stations.
The court acknowledged the presence of violence and skirmishes in the mentioned polling stations, as
supported by the testimonies and evidence presented. The PSDs also confirmed the incidents. The
crucial question was whether the violence affected the election results.
The burden of proof fell on the petitioners, who alleged that the violence influenced the election results.
The court considered Section 107, 108, and 109 of the Evidence Act, which state that the burden of
proof lies with the party making the allegations.
The court did not provide a conclusive statement on whether the violence affected the election results
based on the information provided. It acknowledged the petitioners' allegations but did not explicitly
state whether the violence had a direct impact on the outcome of the election.