REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTION & JUDICIAL REVIEW pISION
PETITION NO. OF 2013
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTION & JUDICIAL REVIEW pISION
PETITION NO. OF 2013
IN THE MATTER OF: ARTICLE 22 (1) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2 (1), 3 (1) 10 (1) (2), 19 (2), 20 (2), 27 (1), 35 (1), 38(1) (2) & (3), 47 (1) (2), 48, 50 (1)(2), 81 OF THE CONSTITUTION OF KENYA 2010
AND
AND
IN THE MATTER OF BREACH OF THE RIGHT TO INFORMATION
BETWEEN
ELIUD OWALO...................…………………………………..……………………PETITIONER
VERSUS
BETWEEN
ELIUD OWALO...................…………………………………..……………………PETITIONER
VERSUS
INDEPENDENT ELECTORAL BOUNDARIES
COMMISSION (IEBC)…………………………......... …............….……..1ST RESPONDENT
SAFARICOM LIMITED..............................................................2ND RESPONDENT
COMMISSION (IEBC)…………………………......... …............….……..1ST RESPONDENT
SAFARICOM LIMITED..............................................................2ND RESPONDENT
PETITION
TO: REGISTRAR
THE HIGH COURT OF KENYA
NAIROBI
TO: REGISTRAR
THE HIGH COURT OF KENYA
NAIROBI
The Humble Petition of ELIUD OWALLO of P. O. Box care of Rachier and Amollo Advocates 55645-00100 Nairobi in the Republic of Kenya is as follows :-
THE PARTIES
1. The Petitioner is a male adult of sound mind residing and working in Nairobi and a duly registered voter in the general elections held on 4th March 2013. His address of service for purposes of this suit shall be C/o Rachier & Amollo Advocates, Ralphe Bunche Road, Mayfair Centre, 5th Floor, P.O. Box 55645-00200 Nairobi.
2. The 1st Respondent is the Independent Electoral Commission of Kenya duly established under the Constitution of Kenya (Service of summons shall be effected through the Petitioners Advocate’s office)
3. The 2nd Respondent is a limited Liability Company duly established under the companies Act Laws of Kenya (Service of summons shall be effected through the Claimant’s Advocate’s office)
LEGAL FOUNDATIONS OF THE PETITION
LEGAL FOUNDATIONS OF THE PETITION
4. Article 2(1) of the Constitution of Kenya pronounces the supremacy of the Constitution and provides that the Constitution binds all persons and state organs at both levels of government.
5. Article 3(1) of the constitution states that every person has an obligation to respect, uphold and defend the Constitution.
5. Article 3(1) of the constitution states that every person has an obligation to respect, uphold and defend the Constitution.
6. Article 10 of the constitution of the Republic of Kenya sets out the national values and principles of government. Among the national values and principles of governance are rule of law, equity, inclusiveness, equality, human rights, non- discrimination, good governance, transparency and accountability.
7. Article 19 of the Constitution of Kenya asserts that the Bill of rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies and that the purpose of recognizing and protecting human rights and fundamental freedoms.
8. Article 20 states that every person shall enjoy rights and fundamental freedoms in the Bill of rights to the greatest extent consistent with the nature of the right or fundamental freedom.
7. Article 19 of the Constitution of Kenya asserts that the Bill of rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies and that the purpose of recognizing and protecting human rights and fundamental freedoms.
8. Article 20 states that every person shall enjoy rights and fundamental freedoms in the Bill of rights to the greatest extent consistent with the nature of the right or fundamental freedom.
9. Article 22 of the constitution vests locus standi for the enforcement of the Bill of rights in; among others the petitioner.
10. Article 23 vests authority in this Honourable Court to uphold and enforce the Bill of Rights and highlight some of the remedies that this Honourable Court can grant to uphold and enforce bill of rights.
10. Article 23 vests authority in this Honourable Court to uphold and enforce the Bill of Rights and highlight some of the remedies that this Honourable Court can grant to uphold and enforce bill of rights.
11. Article 27 of the Constitution provides for equality and freedom from discrimination and in particular provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.
12. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity respected and protected.
12. Article 28 of the Constitution provides that every person has inherent dignity and the right to have that dignity respected and protected.
13. Article 47 of the Constitution states that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
14. Article 48 of the Constitution states that the state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.
15. Article 258 of the Constitution provides that every person has the right to institute court proceedings, claiming that the constitution has been contravened.
THE FACTS
14. Article 48 of the Constitution states that the state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.
15. Article 258 of the Constitution provides that every person has the right to institute court proceedings, claiming that the constitution has been contravened.
THE FACTS
16. The Petitioner being a registered voter in Nairobi within the Republic of Kenya duly exercised his right as a voter on the 4th of March 2013 and participated in the General Elections in Kenya as enshrined in Article 38 of the Constitution of Kenya.
17. On perse dates after the said elections, the results of the Elections started streaming in and were projected on screens at the Bomas Tallying Centre.
17. On perse dates after the said elections, the results of the Elections started streaming in and were projected on screens at the Bomas Tallying Centre.
18. The Petitioner having scrutinized the numbers that were streaming in before the Electronic tallying system collapsed and the results that were announced thereon after is of the strong view that the outcome of the general election has been fraudulently manipulated with the results that his rights under Article 10, 38 and 81 of the Constitution of Kenya 2010 have been infringed and or threatened with infringement.
19. Owing to the above, the Petitioner drew a letter to the 1st Respondent on the 8th of March 2013 requesting that several information which were in the power, possession and/or custody of the 1st Respondent be released to him.
20. The documents requested for included the following:
19. Owing to the above, the Petitioner drew a letter to the 1st Respondent on the 8th of March 2013 requesting that several information which were in the power, possession and/or custody of the 1st Respondent be released to him.
20. The documents requested for included the following:
i. All form 34, 35, and 36 from all polling stations and constituencies all over the country in relation to the presidential elections;
ii. All the results that were declared electronically at the Bomas Tallying Centre;
iii. The log files for all short messages that were declared electronically received from Safaricom;
iii. The log files for all short messages that were declared electronically received from Safaricom;
iv. All software contracts between the 1st Respondent and all firms that provided software services to them in connection with the just concluded general elections.
v. Serial numbers of all handheld transmission devises that were actually configured and made ready for use as aforesaid and the constituencies in which they were meant to be used.
v. Serial numbers of all handheld transmission devises that were actually configured and made ready for use as aforesaid and the constituencies in which they were meant to be used.
vi. Serial numbers of all handheld transmission devises that were configured and the constituencies in which they were meant to be used
vii. The Green book
vii. The Green book
viii. Provisional register of all registered voters
ix. Final register of all registered voters
21. A similar letter was relayed to the 2nd Respondent who’s services were relied on by the 1st Respondent to relay information from all polling stations where the following documents were requested for:
i. The numbers of all handheld transmission devices that were used to electronically transfer date from polling stations to the tallying centre.
i. The numbers of all handheld transmission devices that were used to electronically transfer date from polling stations to the tallying centre.
ii. Print out of all messages that were sent through all handheld transmission devices that were used to electronically transfer data from the polling stations.
iii. All contracts signed between the 1st and 2nd Respondent in connection with the just concluded general election.
iii. All contracts signed between the 1st and 2nd Respondent in connection with the just concluded general election.
iv. Record of all information transmitted to the 2nd Respondent Server on the 4th and 5th days of March 2013.
22. The Petitioner relied on his right to information under Article 35 to request for the said documents but the 1st and 2nd Respondent’s have ignored his requests despite the Petitioner undertaking to bear all costs and expenses in connection with the processing and production of the information sought, upon being notified of the cost.
23. The notice period issued by the Petitioner was two (2) days which have already expired without any communication from the 1st and 2nd Respondent.
22. The Petitioner relied on his right to information under Article 35 to request for the said documents but the 1st and 2nd Respondent’s have ignored his requests despite the Petitioner undertaking to bear all costs and expenses in connection with the processing and production of the information sought, upon being notified of the cost.
23. The notice period issued by the Petitioner was two (2) days which have already expired without any communication from the 1st and 2nd Respondent.
24. The Petitioner wishes to file a Petition at the supreme court to challenge the presidential election process and wishes to rely on the said information being with held by the Respondents.
25. The said petition should be filed within Seven days of the announcement of the results a time which expires on the 16th March 2013.
25. The said petition should be filed within Seven days of the announcement of the results a time which expires on the 16th March 2013.
26. If the said documents are not released to the Petitioner his rights will remain infringed.
VIOLATIONS OF THE CONSTITUTION AND FUNDAMENTAL RIGHTS AND FREEDOMS
VIOLATIONS OF THE CONSTITUTION AND FUNDAMENTAL RIGHTS AND FREEDOMS
27. Violation of Article 10 of the Constitution
The 1st and 2nd Respondent’s actions of declining to issue the information sought by the applicant contravened the Principles of good governance, integrity, transparency and accountability.
28. Violation of Article 27 of the Constitution
the 1st and 2nd Respondent attempt to bar the Respondent from accessing information needed to protect his fundamental rights and freedoms is a violation of the Petitioner’s right to Equality before the law.
29. Violation of Article 28 of the Constitution.
The 1st and 2nd Respondent’s actions of neglecting the Petitioner’s plea to avail information are a violation of the Petitioner’s right to the Petitioner’s human dignity as the same is an abuse of the Petitioner’s right to information.
30. Violation of Article 35 of the Constitution
The 1st and 2nd Respondent’s action of deliberately refusing/ignoring/neglecting to give requisite documents to the applicant is a violation of the Applicant’s right to information as the information is required for enforcement of the Fundamental rights and freedoms of the Petitioner.
31. Violation of Article 47 of the Constitution
The 1st and 2nd Respondent’s actions of failing to release the Requisite documents is a violation of the Applicants right to fair Administrative action as the respondents should be barred by the law.
32. Violation of Article 48 of the Constitution.
The Respondents have barred the Petitioner from accessing information needed in enforcing the Petitioners rights hence they have denied the Petitioners right to Access justice.
PRAYERS
The 1st and 2nd Respondent’s actions of declining to issue the information sought by the applicant contravened the Principles of good governance, integrity, transparency and accountability.
28. Violation of Article 27 of the Constitution
the 1st and 2nd Respondent attempt to bar the Respondent from accessing information needed to protect his fundamental rights and freedoms is a violation of the Petitioner’s right to Equality before the law.
29. Violation of Article 28 of the Constitution.
The 1st and 2nd Respondent’s actions of neglecting the Petitioner’s plea to avail information are a violation of the Petitioner’s right to the Petitioner’s human dignity as the same is an abuse of the Petitioner’s right to information.
30. Violation of Article 35 of the Constitution
The 1st and 2nd Respondent’s action of deliberately refusing/ignoring/neglecting to give requisite documents to the applicant is a violation of the Applicant’s right to information as the information is required for enforcement of the Fundamental rights and freedoms of the Petitioner.
31. Violation of Article 47 of the Constitution
The 1st and 2nd Respondent’s actions of failing to release the Requisite documents is a violation of the Applicants right to fair Administrative action as the respondents should be barred by the law.
32. Violation of Article 48 of the Constitution.
The Respondents have barred the Petitioner from accessing information needed in enforcing the Petitioners rights hence they have denied the Petitioners right to Access justice.
PRAYERS
The petitioner therefore humbly asks for the following orders:
a. An order directing the 1st Respondent to release forthwith all the information in their possession that can be used to support the 1st Respondent’s claim, as listed herein below:
i. All form 34, 35, and 36 from all polling stations and constituencies all over the country in relation to the presidential elections;
i. All form 34, 35, and 36 from all polling stations and constituencies all over the country in relation to the presidential elections;
ii. All the results that were declared electronically at the Bomas Tallying Centre;
iii. The log files for all short messages that were declared electronically received from Safaricom;
iii. The log files for all short messages that were declared electronically received from Safaricom;
iv. All software contracts between the 1st Respondent and all firms that provided software services to them in connection with the just concluded general elections.
v. Serial numbers of all handheld transmission devises that were actually configured and made ready for use as aforesaid and the constituencies in which they were meant to be used.
v. Serial numbers of all handheld transmission devises that were actually configured and made ready for use as aforesaid and the constituencies in which they were meant to be used.
vi. Serial numbers of all handheld transmission devises that were configured and the constituencies in which they were meant to be used
vii. The Green book
vii. The Green book
viii. Provisional register of all registered voters
ix. Final register of all registered voters
b. An order directing the 2nd Respondent to release forthwith all the information in their possession as listed herein below:
i. The numbers of all handheld transmission devices that were used to electronically transfer date from polling stations to the tallying centre.
i. The numbers of all handheld transmission devices that were used to electronically transfer date from polling stations to the tallying centre.
ii. Print out of all messages that were sent through all handheld transmission devices that were used to electronically transfer data from the polling stations.
iii. All contracts signed between the 1st and 2nd Respondent in connection with the just concluded general election.
iii. All contracts signed between the 1st and 2nd Respondent in connection with the just concluded general election.
iv. Record of all information transmitted to the 2nd Respondent Server on the 4th and 5th days of March 2013.
c. Interest on (c), (d), (e) to the proposed claimant.
c. Interest on (c), (d), (e) to the proposed claimant.
d. Any other relief that this court may deem fit and just do grant to the proposed plaintiff.
WHICH PETITION is grounded on the Affidavit of ELIUD OWALLO annexed hereto and on such other or further grounds as may be adduced at the Hearing hereof.
Dated this ..........................................day of…….…..….………..…….. 2013
Dated this ..........................................day of…….…..….………..…….. 2013
RACHIER & AMOLLO
ADVOCATES FOR THE PETITIONER
ADVOCATES FOR THE PETITIONER
DRAWN & FILED BY:
RACHIER & AMOLLO
ADVOCATES
MAYFAIR CENTRE, 5TH FLOOR
RALPHE- BUNCHE ROAD
P O BOX 55645-00200
NAIROBI
RACHIER & AMOLLO
ADVOCATES
MAYFAIR CENTRE, 5TH FLOOR
RALPHE- BUNCHE ROAD
P O BOX 55645-00200
NAIROBI
TO BE SERVED UPON:
“If the Respondents do not enter an appearance within the time above mentioned such order may be made and proceedings taken as the court may think just and expedient.”