Philip Mukwe Wasike v James Lusweti Muke & 2 others

REPUBLIC OF KENYA High Court at Bungoma Petition 5 of 2013 PHILIP MUKWE WASIKE...........................................PETITIONER AND JAMES LUSWETI MUKE...............................1ST RESPONDENT IEBC..................................................................2ND RESPONDENT SILAS ROTICH................................................3RD RESPONDENT RULING I have considered submissions 1) I think the issue of service was overlooked with regard to the pre-trial information initially intended for 9th May 2013 by virtue of the fact that Mr. Wanyonyi was present in court when the date was given. However that is now water under the bridge as the pre-trial did not proceed thus the court apologies for the omission. 2) I think the notice of motion filed is not misplaced, the rules do not restrict what it urges is for parties to find ways of resolving the same. 3) With regard to scrutiny, it would be prudent to first hear the evidence and cross-examination before parties apply for the same – this would then allow parties to lay a basis for such order because scrutiny and recount are not automatic – there must be a basis for doing so. I would also urge counsel to refer to the case of Maina Kamanda V Margaret Wanjiru Election Petition No.5 of 2008 which offers a useful guide on scrutiny. 4) The only other instance where scrutiny would take place ab initio, is if it is the only issue in the Election Petition and that once done it would conclude the matter. I have perused the application – there seems to be several other issues including bribery and witchcraft and such other related electoral offences – so I direct that the issue of scrutiny and recount be raised at the end of the petitioner’s case preferably on 22nd May 2013. 5) I direct that parties explore ways of resolving some of the issues raised in the application for instance: a) Does the applicant seek scrutiny and recount in all polling stations or only some stations? This needs clarification. b) Is there any prejudice likely to be caused if the further evidence sought to be introduced is allowed

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