REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIVASHA NAROK ELECTION PETITION NO. 3 OF 2017 IN THE MATTER OF A PETITION CONTESTING THE VALIDITY OF THE ELECTIONS FOR THE SEAT OF SENATOR OF NAROK COUNTY HELD ON 8TH AUGUST 2017 IN THE MATTER OF ARTICLES 1, 2, 3, 10, 20, 23, 47, 81, 82, 83, 86, 87, 98, 165 (3) (b), (d), (e), 258, 259 OF THE CONSTITUTION OF KENYA IN THE MATTER OF SECTION 75 AND 76 OF THE ELECTIONS ACT 2011 IN THE MATTER OF AN ELECTION PETITION BY NKOIDILA OLE LANKAS AND ALBERT KIPLANGAT NKOIDILA OLE LANKAS.......................................1ST PETITIONER ALBERT KIPLANGAT............................................2 ND PETITIONER -VERSUSINDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION..............................1ST RESPONDENT NDUKU KIMEU ANNAHSTACIA........................2ND RESPONDENT LEDAMA OLE KINA.............................................3 RD RESPONDENT RULING 1. On 14th December 2017, this court received the parties’ oral submissions. At the close of the submissions, the court directed that a date for the delivery of its judgment would be communicated to the parties by 31 st January, 2018. 2. This court has now had opportunity to consider, albeit in a preliminary manner, the evidence adduced by the parties, including documentary evidence, as well as the submissions. Consequently, the court is of the view that in order that justice may be done in this case, it is imperative for a limited scrutiny exercise to be carried out. 3. Thus, for reasons that will be given in detail at the time of judgment, the court invokes the discretionary power under Section 82 (1) of the Elections Act and Rule 29 of the Elections (Parliamentary and County Elections) Petitions Rules to order suomotu that a scrutiny, limited to the examination of results be carried out as follows:a) General examination of the printed copy of the Register of voters, all original Forms 38A, 38B and 38C, as well as Candidate Vote Tally Sheets which were used in the 130 polling stations identified at paragraph 39 of the Petition namely:Narok South Constituency
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ITEM POLLING STATION 1. Lengina Primary School 2. Lengina Primary School 3. EngareNgiro Primary School 4. EngareNgiro Primary School 5. Olenkuluo Primary School 6. Erupata Primary School 7. OldonyoOrasha Primary School 8. EnkareNairowua Primary School 9. EnkareNairowua Primary School 10. Enkiu Primary School 11. Ingoswani Primary School 12. Esupetai Primary School 13. Morloo Ole Kasale Primary School 14. Olgilai-Osupuko Primary School ITEM POLLING STATION 15. KosekaNur School 16. Kanunka Primary School 17. Kanunka Primary School 18. OsupukoOirobi Primary School 19. NkoisusuNur School 20. Nkimpa Primary School 21. Olosirua Primary School 22. Olepolos Primary School 23. Isinon Primary School 24. ElangataEnterit Primary School 25. ElangataEnterit Primary School 26. Ntuka Primary School
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27. Kideket Primary School 28. Oloisuisho-Osupuko Primary School 29. Kuntai Primary School 30. Kuntai Primary School 31. Kuntai Primary School 32. Entiapirri Primary School 33. Naserian Primary School 34. Olepariata Primary School 35. Enkutoto Primary School 36. Enkutoto Primary School 37. Iladoru Primary School 38. Iladoru Primary School 39. Ilchorroi Primary School 40. Olemegili Primary School 41. Iletukunyi Primary School 42. Inchaishi Primary School 43. MoyongoNur School 44. Olosiyoi Primary School 45. Kotolian Primary School ITEM POLLING STATION 46. Eroret Primary School 47. Olmusakwa Primary School 48. Olmusakwa Primary School 49. Oloisuisho Primary School 50. Oloisuisho Primary School 51. Oloisuisho Primary School
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52. Oloisuisho Primary School 53. Osotua Primary School 54. Osotua Primary School 55. Nkoben Primary School 56. Masaantare Primary School 57. Masaantare Primary School 58. Oloirien Primary School 59. EorEwuaso Primary School 60. Ololoipangi Primary School 61. Ololoipangi Primary School 62. Ololoipangi Primary School 63. Iltriben Primary School 64. Olonini Primary School 65. Olgilai-Ololulunga Primary School 66. Oloshapani Primary School 67. OlmekenyuNur School 68. OlmekenyuNur School 69. OlmekenyuNur School 70. OlmekenyuNur School 71. OlmekenyuNur School 72. Enoosokon Primary School 73. Enoosokon Primary School 74. Enoosokon Primary School 75. Ilubi Primary School 76. Ilubi Primary School ITEM POLLING STATION 77. Olengajinabo Primary School
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78. Olpukoti Primary School 79. Melelo Primary School 80. EnosagamiWuas Primary School 81. Ole Nkanai Primary School 82. Isinantet Primary School 83. Ololua Primary School 84. Olengapune Primary School 85. Olengapune Primary School 86. Olmukonge Primary School 87. Oltarakwai Primary School 88. Ilkujuka Primary School 89. Emorogi Primary School 90. Olpusare Primary School 91. Olmesutie Primary School 92. Emupurputia Primary School 93. Entasekera Primary School 94. Entasekera Primary School 95. Osinantei Primary School 96. MorijoLoita Primary School 97. MorijoLoita Primary School 98. Olorte Primary School 99. NairebukNur School 100. Kone Primary School 101. Enkaroni Primary School 102. Enkaroni Primary School 103. Naisudori Primary School 104. Naisudori Primary School 105. Sogoo Primary School
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106. Sogoo Primary School 107. Sogoo Primary School ITEM POLLING STATION 108. Kichapa Primary School 109. Kapkatet Primary School 110. Siwot Primary School 111. Siwot Primary School 112. Marinua Primary School 113. Marinua Primary School 114. Tumuyot Primary School 115. Tumuyot Primary School 116. Minet Primary School 117. Kewet Primary School 118. Kewet Primary School 119. Bondet Primary School 120. Sitowet Primary School 121. Tendwet Primary School 122. Tendwet Primary School 123. Choronook Primary School 124. Kebenet Primary School 125. Kebenet Primary School 126. Kebenet Primary School 127. Kalyet Primary School 128. Saire Primary School 129. Sagamian Primary School 130. Sagamian Primary School
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b) Examination and comparison of the entries in the printed copy of the Register of Voters, the Candidate Vote Tally Sheets, the original Forms 38A and B alongside corresponding entries in the original Form 38C, stated above to confirm:i) the general accuracy of the entries; ii) the number of registered voters in the polling stations in question; iii) specifically, the accuracy in the tallying and transposition of votes as captured in the entries in the stated documents. iv) where necessary reference may be made to relevant notices in the Kenya Gazette. c) Special note is to be made of incidents, if any, where the total number of votes cast or valid votes exceed the total number of registered voters; and of any similarities in entries that may be noted in the Form 38C annexed to the Petition and the Original Form 38C supplied by the Independent Electoral & Boundaries Commission (I.E.B.C.). d) The exercise will be conducted at Naivasha Law Courts under the supervision of the Deputy Registrar of this court between the 5th and 9th of February, 2018 and a report filed and served on all parties by 12 th February, 2018. e) For purposes of the scrutiny exercise, each party will be at liberty to nominate one agent to act as its representative during the exercise. f) For the avoidance of doubt, the scrutiny exercise is limited to the stated documentation,and does not include the scrutiny or recounting of physical ballots (votes). 4. Parties will be accorded opportunity to make comments or submissions on the contents of the report on 14 th February 2018. Delivered and Signed at Naivasha this 30thday ofJanuary, 2018. In the presence of: Miss Kithinji holding brief for Mr. Marete for the Petitioners Mr. Mwangi for the 1st& 2nd Respondents Mr. Odhiamboor the 3rd Respondent Court Clerk –Quinter .................. C. MEOLI JUDGE
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