|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI
CIVIL CASE NO. 4 OF 2016
IN THE MATTER OF the Elections Ordinance Cap 29B
AND IN THE MATTER OF the Election for three Members of Parliament for the Constituency of South Tarawa held on
30 December 2015 and 7 January 2016
[TAABIA KABAUA
[IARETO KABUNARE Petitioners
[
BETWEEN [AND
[
[KOURABI NENEM, Elected Member of
[Parliament for the Constituency of
[South Tarawa Respondent
Before: The Hon Mr Justice Vincent Zehurikize
20, 21, 2 & 23 September 2016
5 October 2016
22 November 2016
14 & 24 February 2017
Ms Taoing Taoaba for Petitioners
Mr Banuera Berina for Respondent
JUDGMENT
BACKGROUND
The petitioners who were voters in the South Tarawa constituency brought this petition against the respondent who was one of the three
Members of Parliament elected for that constituency in the General Elections held on
30 December 2015 and 7 January 2016.
It is alleged in the petition that the election of the respondent was not a legal one and thus should be avoided on the grounds that it involved corrupt and illegal practices committed by the respondent himself and his agents/supporters.
The alleged acts are that he provided transport and food to the voters. That he also provided yagona, all this for the purposes of inducing the voters to vote for him.
The particulars of the alleged corrupt and illegal practices were set out in paragraphs 9 to 16 of the petition as follows:
In support of the above complaints the petitioners filed 12 affidavits and at the trial they called and examined only 10 deponents. The petitioners did not themselves swear any affidavits in support of their petition.
In reply to the petition the respondent denied the allegations contained in the petition.
(a) However, as regards the allegation of providing kava at St Tiantaake Maneaba the respondent contended that the kava provided during the function was given as a fine for the executive committee which was fined two kilos of kava and that there was nothing mentioned in the maneaba about him providing the kava.
(b) As to the allegation of providing transport to the voters of the Assembly of God Church on 30 December 2015, besides denying the allegation, the respondent contends that if the agent did provide transport it was not for every voter in general. That it was meant for the respondent’s supporters to ensure that all of them cast their votes on the Election Day. That the agent announced before any one boarded, the truck was provided by the respondent so that those who wanted to vote for him would ride on it. That the truck did not influence any person.
As regards food and drinks it is the respondent’s case that these were provided to those on the truck only if they wished and only on the understanding that those using the truck were his supporters.
(c) As regards the bags of rice and tins of corned beef which were provided to Assembly of God, the respondent contends that this was done in late November 2015 before the publication of the election notice. And that none was provided on 3 January 2016 as alleged.
In short, save for what he admits as hereinabove, the respondent denied committing any of the alleged corrupt and illegal practices either by himself or his agents.
In support of the reply the respondent filed nine affidavits, but at the trial only five deponents, including himself, were examined.
ISSUES
For the trial, Ms Taoing Taoaba Counsel for the petitioners and
Mr Banuera Berina Counsel for the respondent agreed on the following issues namely:
Before resolving the issues as per the evidence adduced by the parties, I wish to first set out the law I consider applicable to election petitions in Kiribati.
THE LAW
Legislative Provisions
The jurisdiction to hear and determine election petitions is vested in this Court by virtue of the provisions of s.60 of the Constitution. Under subsection (2) of s.60 the petition challenging the validity of the election of a member of Parliament (Maneaba ni Maungatabu) may be brought by any person entitled to vote in the electoral district, and at the election, to which the petition relates or by any person who was a candidate in that district at that election or by the Attorney General.
It is by virtue of s.60(2) of the Constitution that the petitioners who were merely voters in the constituency could properly bring this petition.
The management and conduct of the elections are provided for in the Elections Ordinance Cap 29B.
In particular Part III of the Ordinance is relevant to Election Petitions. Section 60 of the Constitution is operationalized, inter alia, by s.35 of the Election Ordinance especially in that the election petition may be presented within one month after the date of publication of the result of the election.
Section 37 of the Ordinance is of particular significance as it provides the procedure at hearing of an election petition. I will shortly come back to its meaning and effect.
Section 19 of the Ordinance provides for the grounds upon which the election of a candidate may be avoided. I will shortly come back to this section as well.
Then sections 21, 23, 27, 30, 31 and 32 of the Ordinance create various electoral offences and prescribe punishments thereon upon conviction. By reference s.33 of the same Ordinance incorporates the provisions of the Penal Code for some further electoral offences.
Lastly sections 24, 25, 26 and 28 define which persons are deemed to have committed the various electoral offences under the Ordinance. I will not set out in full provisions of all the sections I have mentioned above except where it becomes necessary as hereunder.
I indicated above that I would come back to the provisions of s.37 and s.19 of the Elections Ordinance. I will start with s.19 of the Ordinance which states:
“19(1) No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected.
(2) Where on an election petition it is shown that corrupt or illegal practices or illegal payments committed or made in reference to the election for the purpose of promoting or procuring the election of any person thereat have so extensively prevailed that they may be reasonably supported to have affected the result, the Court may declare his election, if he has been elected, to be void and he shall be incapable of being elected to fill the vacancy for which the election was held”.
As intimated above this section provides for the grounds upon which an election may be set aside.
The section must be read as a whole in order to determine whether the ground raised is capable of having the election of a candidate avoided. None of the two subsections can be read in isolation.
What is stated in subsection 1 is qualified in subsection 2 to the extent that the petitioners must not only prove that any corrupt or illegal practice was committed by the candidate or his agents, but also show that the corrupt or illegal practices so extensively prevailed that they may be reasonably supported to have affected the result of the election.
In other words there must be evidence to show that the alleged corrupt or illegal were massively prevalent. The evidence must also reasonably support the conclusion that such malpractices did in fact affect the result of the election in order for the election to be avoided.
The word “supported” used in subsection 2 should not be read as “supposed” as I observed in one of the counsel’s submission. It is not a spelling mistake nor a typing error as one would think at first sight. It was deliberately used by the legislature. Its import is that it must also be shown, by evidence, that the extensively prevalent malpractices reasonably supported a factual and legal conclusion that they affected the result of the election. It cannot be just a matter of “supposing” but it is a question of evidence “supporting” the aforesaid important conclusion.
I would dare say that the legislature was alive to the fact that in any election some malpractices may occur, but they can only affect the outcome of the election if they affected the results in a substantial manner. In my view the reason behind this is that the election of a candidate is a reflection of the will of the people and as such it should not be set aside so lightly.
Lastly, I wish to state that the view that section 19(1) and (2) of the Ordinance must be read together is not without precedent. It was so considered by this Court in Patrick Tatireta and Others –v- Anote Tong KIHC 1 of 2003.
I will now turn to s.37 of the Ordinance which states:
“37. Subject to this Ordinance, and without prejudice to any power to make rules under the Constitution, the Chief Justice may from time to time make rules for regulating the practice and procedure to be observed in relation to election petitions, and subject to such rules the procedure at the hearing of an election petition shall, as near as circumstances will admit, be the same, and the Court shall have the same powers, jurisdiction, and authority, as if the Court were hearing a civil action; and witnesses may be subpoenaed and sworn in the same manner, as near as circumstances will admit, as in the hearing of a civil action in the Court, and shall be subject to the same penalties for perjury”.
Meaning of S.37 on Standard of Proof in Election Petitions
The clear meaning of the provisions of the above section is that in conducting and determining election petitions this Court sits in its civil jurisdiction. There cannot be any doubt, therefore, that an election petition is considered as one of the many types of civil disputes. The standard of proof applicable to petitions must therefore be as near as possible to that applicable in civil disputes.
The case of Martin Boutu –v- Taunga Smith and Tawita Temoku Civil Case Nos 2 and 3 of 2003 was brought to my attention. In that case there appeared to be a proposition that the proof of the offences in election petitions must be that of beyond reasonable doubt. This was a decision of the High Court of Kiribati.
Also brought to my attention is the decision in Jamie Vokia –v- Baddley Deves; HCCC 25 of 1997 of the High Court of Solomon Islands in which
Hon Muria CJ had this to say on standard of proof:
“An election petition is a civil case and, although it is as such, where allegations of corrupt or illegal practices are made, the standard of proof is that the grounds must be proved to the entire satisfaction of the Court ------ certainly in allegations of corrupt or illegal practices there must be clear and cogent proof to satisfy the Court of such allegations. It is something more than balance of probabilities”.
I entirely agree with the above holding. It is of high persuasive authority especially given the fact that he was applying the provisions of s.66 of the National Parliament (Electoral Provisions) Act which are similar to s.19 of our Elections Ordinance.
Bearing in mind the provisions of s.37 of the Ordinance which vests civil jurisdiction in the High Court and with powers and authority as the Court does when hearing a civil action, I have no difficulty in finding that the standard of proof in an election petition is not beyond reasonable doubt, but on higher degree of the balance of probabilities.
The allegations of corrupt and illegal practices are very serious. They can lead to prosecution for the various offences under the Ordinance and as such there must be clear and cogent proof to satisfy the Court of the commission of such allegations.
It appears the mix up in the standard of proof was brought about by the penal provisions of Ss 21, 23, 27, 30, 31 and 32 as already listed above. Under these provisions any person can be charged and prosecuted for any of the above offences. In that case Court would sit in exercise of its criminal jurisdiction. A charge would be preferred against the accused. If he pleads not guilty, the prosecution would bear the burden of proving the guilt of the accused and the standard thereof would be proof of his guilt beyond reasonable doubt.
Such proceedings are not part of the election petition. They would be separate criminal proceedings and the accused need not be a candidate where the election is being sought to be avoided. They are simply criminal cases.
I will now proceed to consider the various allegations of corrupt and illegal practices raised in this case.
RESOLUTION OF ISSUES
As already indicated the petitioners raised eight complaints. I will consider each complaint separately to determine whether there was evidence to establish any corruption or illegal practices.
It is contended that on Sunday 27 December 2015 three days before the first round of election, the respondent between 8am and 9pm
at
St Tiantaake Maneaba in Temaiku did provide four packets of yagona to the members of St Tiantaake group. That the four packets are
valued at $100.
In a bid to prove this allegation the petitioners relied on the affidavit evidence of Tiibora Teitikai (PW1) and Biita Auria (PW2).
PW2 is a member of the group and states that he was present when the respondent visited them. The purpose of the function was to celebrate the completion of the maneaba. When he arrived he found the respondent and his wife had arrived.
It is clear according to this witness that the respondent had been invited because in paragraph 11 of his affidavit he states that he was not surprised to see him because he had been told that the respondent would be there during their botaki.
In paragraph 12 he states that though the programme had been changed from Saturday to Sunday the respondent had adjusted to the change. This to me indicates that those who invited him informed him of the change of date.
He explains how committee members were fined for coming late after the arrival of the respondent – the invited guest. He then goes into detail on how yagona was procured from the respondent.
The giving of this yagona is not denied by the respondent. It is argued that as an invited guest he was by custom obliged to come with something. That since this was an election time he felt the gift should not be so direct and that is why it was disguised as a fine to the committee members which he simply sponsored.
Neither PW2 nor PW1 who was not a member of the group but who kept outside around the maneaba as if on a spy mission, claimed that the yagona was announced as having come from the respondent. The whole transaction was hushed up lest it could be misunderstood to have been intended to influence the members of the group.
The practice of imposing fines was discussed in the case of
Patrick Tatireta and Others –v- Anote Tong (2003 KHC 1.) The Court did not find any corrupt motive in the payment. The Court did not find that those present in the maneaba
would have been influenced in casting their votes by what they observed.
In the instant case I do not find any evidence compelling me to find that there was any corrupt motive on the part of the respondent. It is clear to me that he was conscious of the legal prohibitions during the election time and tried to avoid being caught in the election cobweb. He even made sure that there would be no mention that yagona had come from him. May be the inquisitive PW1 and PW2 could have noticed its source.
But what is important is whether there was corrupt motive on the part of the respondent. It appears none.
In Teatao Teannaki –v- Teburoro Tito HCCC No. 30 of 1994 this Court expressed the view that what must be considered is the respondent’s state of mind, that is, did he provide the gift for the purpose of corruptly influencing people to vote for him or was his intention merely to comply with Kiribati customs?
In the instant case the respondent is not pleading custom, but as
Mr Berina argued that if he had done so he would have been protected by the Anote Tong case. But still even in absence of custom,
I am unable to see how his acts can be said to have been tainted with the purpose of corruptly influencing people. No credible evidence
was adduced to prove such purpose. There is no evidence to show that the people present were in any way influenced.
All in all I find that this ground cannot succeed. There is no evidence on which an inference can be made that he acted with corrupt intention.
It is the petitioners’ complaint that on the said voting day between 6am and 6pm one Ioram, the respondent’s agent transported voters of the aforesaid church to the polling station and after voting he drove them to the home of the respondent where foods and drinks were served to them.
In support of this ground the petitioners relied on the affidavit evidence of Tokanikai (PW2). On this issue her evidence is to the effect that on the voting day one Ioram who was the respondent’s agent came with a truck and took them to the polling station and after they had cast their votes they were put on the same truck and driven to the respondent’s home for foods and drinks.
The respondent’s reply to this is that the truck was intended to transport the respondent’s voters. That every candidate was providing transport to their supporters to enable them cast their vote. This is the effect of the evidence of Ioram Winiuea (DW1) and the respondent (DW5).
I am alive to the fact that DW1 in swearing some three affidavits over the same issue in a bid to tie up with DW5, did discredit himself. Because of this the whole of his evidence becomes suspect and would not be relied on. It is not credible evidence.
But on the other hand the evidence of PW3 does not show that there was any condition attached to going by the truck brought to them by Ioram. In paragraph 3 of her affidavit she simply states that on the voting day Ioram came with a truck which took them to the polling station to vote. Then in paragraph 4 she avers that on the way to the polling station they were told that after voting they should board the same truck and go to the home of the respondent for free food and drinks.
I do not find that transporting people to the polling station per se does influence their choice to vote. This witness does not allege that she was influenced by the transport nor any of the members of the church was affected in their choice. They simply went on the truck to the polling station. If this group was composed of voters who did not support the respondent at best they can be said to have fluked the lift to go and vote for candidates of their choice and as such have nothing to complain about.
On this issue the respondent avers in his affidavit that he instructed those who were organizing trucks not to mention his name unless someone particularly wanted to know. That the transport was not provided to influence voting but to make it easy for people to move to the polling station.
There is no dispute that all candidates provided transport. PW3 does not allege that they were told to vote for the respondent since they had boarded the truck provided by him.
In conclusion I do not find any corrupt purpose in providing transport. The respondent did not act corruptly.
In the same view I do not see any corrupt intention for people going to home of the candidate after casting their vote. It is not alleged that the respondent was rewarding those who had voted for him or was inducing the voters to again vote for him in future. According to PW3 the group was simply given food and drinks.
On the other hand the evidence of DW5, the respondent, is that when people came to his home he was naturally obliged to give them some drinks and something to eat. He said that he did not provide any food because he had not prepared any meals as there was nothing to celebrate yet.
Section 25 of the Elections Ordinance defines persons to be deemed guilty of treating. The essential element under that section is that the person must have acted corruptly. No evidence has been adduced to prove that the respondent acted corruptly when he provided some entertainment to people who came to his home. I am unable to infer any corrupt intention on the part of the respondent. Consequently I do not find any merit in this ground.
It is alleged that on 1 January 2016 between 8 and 9pm the respondent through his agent one Iaekana provided two packets of yagona to the members of the said Catholic Church. The allegation is founded on the affidavit of one Toorea Tetabea. But unfortunately Toorea Tetabea did not appear in Court to be examined, thus he could not own the affidavit nor enable the evidence to be tested by way of cross examination. The affidavit was not adopted as evidence to be relied on by Court. Consequently this ground collapses for lack of evidence.
It is contended that on 1 January 2016 at about 8pm at Teaoraereke, the respondent through his agent Maniira Timon gave the sum of $30 to the owner of Nei Nouo Kava Bar, Nei America Toka.
This ground was based on the affidavit of one Teitirenga Matia. This deponent happens to be one of the two people that did not come to Court to give evidence. The deponent could not own the affidavit and have it adopted as part of the petitioners’ evidence in support of the petition.
Such evidence could not be tested in cross examination and as such cannot be relied on. It follows, therefore, that this ground also fails for lack of evidence.
Another ground of the petition is that on 2 January 2016 between 7am to 10pm at Tebikenikora Eita, the respondent through his agent Ioram, provided two bags of rice and two tins of corned beef to the Assembly of God members.
In support of this ground the petitioners presented the evidence of PW3 Tokanikai and PW4 Teauabo Taareka.
In reply the respondent averred that these supplies were made to the Church long before the election notice was published and long before he left Tarawa. It is his argument that if the Church consumed them on the alleged date then that was their choice beyond his control.
It is not disputed that the rice and corned beef was given to the church. The issue is when did this happen. The burden is on the
petitioners to prove that the rice and beef were given to the church on or around
2 January 2016 or at least during the election period after publication of the election notice. The standard of proof thereof must
be to the satisfaction of the Court – i.e. a higher degree of balance of probabilities.
I begin with the evidence of PW4. It is stated in paragraph 4 of the affidavit:
“I recalled that on Sunday the 3 January 2016 after the church ceremony was over, it was announced in the church that Kourabi had brought to the church members two big corned beef and two bags of rice. At that time our church was holding an Annual General Meeting and some members from the outer islands also came to attend. They all lived at the church maneaba in Tebikenikora”.
Then in paragraph 5 it is stated:
“The announcement was done by the Church Secretary General
Akamatang Eritai. The announcer also told the members to go to the maneaba to eat them”.
From the above it is clear that the deponent does not disclose when the two bags of rice and two big tins of corned beef were received by the church. What is clear is that on this date the church was holding an Annual General Meeting which attracted members from the outer islands. They had to be fed as they all lived at the church maneaba. It was a day of feasting.
The possibility that the church management having received this apparently large amounts of food and kept it for this occasion cannot be ruled out. It is not alleged that on that date the respondent delivered these provisions. The only logical conclusion is that rice and beef were supplied earlier and were utilized to feed the outer islanders who stayed at the church maneaba and for feasting on the day of the Annual General Meeting.
The respondent’s version has not been rebutted. It appears to be a more credible piece of evidence. Further the announcement, in which it is alleged that the name of the respondent was disclosed as the donor of the food, was made by the church General Secretary and not the respondent’s agent. The announcement, if it influenced voters, cannot be attributed to the respondent who provided the food long before the election prohibited period.
PW3 more or less in paragraph 3 of her affidavit repeats what PW4 averred in paragraphs 4 and 5 already referred to above.
This witness simply added a detail to the effect that the beef and rice had been given to the church by Kourabi through his agents. She does not disclose who these agents were and when the foods were given to the church.
Such bold statements are too bare to prove that the foods were supplied during the prohibited time. It cannot be imagined and it is not alleged that on 3 January 2016 the respondent could have cooked food and delivered it for feasting or to maintain the visitors at the church maneaba for the days the members from the outer islands were staying at the church.
The evidence fell short of proof that the rice and beef were supplied on or around 3 January 2016 or at least during the election period. Consequently this ground cannot be sustained. It fails.
It is the petitioners’ complaint that on Monday 4 January 2016 between 10am and 10pm at Nanikai the respondent through his agent Ruatoa provided ½ kilo of yagona to members of the church and another half to his group in Bairiki.
The petitioners based their ground on the affidavit evidence of
Tawaiki Teabike (PW6) to demonstrate that Ruatoa who was an agent of the respondent gave a half kilo of kava to him which he in turn
gave to the members of the group.
It is interesting to note that the said agent who allegedly came to the maneaba did not directly give the kava to the members of KUC and announce that it was from the respondent.
Instead the story is that when PW6 went out to smoke he met Ruatoa who gave him the packet of kava saying it was for the group.
It is PW6’s averment in paragraph 8 of his affidavit that he was not sure whether the members of the group knew the kava was from the respondent. But says that they must have known the source since the brand of kava known as ‘Rabi Juice’ was from the respondent.
Later in paragraph 10 of the affidavit the witness states that he actually gave the kava to his wife who in turn gave it to the wife of the chairperson of the group. The group drank the kava two days later.
I find this kind of evidence most wanting. With several change of hands, the source of this kava might never have been known by the people who drank it two days later. This kind of evidence is most suspect and it would not be safe to rely on it.
I did not come across the evidence where another half kilo was given to a group in Bairiki. I will therefore not dwell much on that.
In response, the respondent avers in paragraph 24, inter alia, that he was not involved in kava giving in Nanikai nor did he authorize anybody to give kava to anyone in Nanikai or Bikenibeu.
It was the duty of the petitioners to prove to the satisfaction of the Court that indeed Ruatoa was an agent of the respondent and had his consent or authority to give out kava to the group. No proof was attempted in this regard.
When s.19(1) of the Elections Ordinance is read alone, it gives the impression that the election is not valid merely if any corrupt or illegal practice is committed by the candidate elected.
But the element of agency begins to come out in subsection 2 when it talks of corrupt or illegal practice being committed or made for purposes of promoting or procuring the election of any person.
But further the issue of agency comes out more clearly in section 24 of the Ordinance. Section 24 is to the effect that every person who directly or indirectly, by himself or by any other person on his behalf commits any of the prohibited acts is deemed to be guilty of bribery.
It follows therefore a candidate’s election can only be avoided on account of acts by other persons if it is proved that they were acting on his behalf for purposes of promoting or procuring his election. This must be an agent acting on behalf of the candidate with his consent or authority. This agent could be formally appointed by the candidate. His agency status can also be inferred from his conduct and any other facts that show that indeed the person was for all intents and purposes an agent of the candidate.
If the legislature wanted the illegal acts committed by any person claiming to be doing so on behalf of a candidate to be attribute to that candidate, it would have done so in clear terms. They did not do so. So for any person’s election to be avoided by the acts of other people, that candidate must have authorized, consented and approved of those acts.
In the instant case it was not shown that Ruatoa was an agent of the respondent when he allegedly gave ½ kilo of kava to the group in secrecy as PW6 painted it. Consequently this ground also fails.
It is alleged that on 6 January 2016 at Bikenibeu at about 9pm the respondent through his agent Ioatia provided one kilo of yagona to a youth group of Mackenzie Point.
The petitioners presented the evidence of David Teuaia (PW5) in support of the above ground. It is his evidence that on 6 January 2016 one Ioatia the respondent’s agent brought one kilo of kava to him and his friends – 20 in number. They drank the kava that night while playing dart. They had not asked for the kava. It was just brought to them by the said agent.
In a bid to refute the above allegations the respondent adduced the evidence of Taaboki Torea (DW3) who is also a resident of Mackenzie Point. He averred in paragraph 4 of his affidavit that him together with PW5 the said David Teuaia and one Matatia were respondent’s supporters during these elections.
He said that Matatia was their senior in the campaigns for the respondent. That they asked him to get them some refreshments. They even contributed his bus fare to go to Antenon – home of the respondent.
When he came back they all gathered, including PW5, to discuss strategies and how they could further support for the respondent. In other words the kava was refreshment for the supporters during the meeting. DW3 wondered how PW5 could turn around and use this occasion to give evidence against the very person he supported.
The burden is on the petitioners to satisfy Court that the version of
David Teuaia is more believable than that of Taaboki Torea. One way of doing this was to make David swear an affidavit in rebuttal
but did not. Another way was to put DW3 to ask during cross examination. This was not done.
In cross examination DW3 told Court that his affidavit was in reply to that of PW5, but there was no attempt to demonstrate that his affidavit in reply was false.
More scrutiny of David’s affidavit is quite revealing. He said that he knows Kourabi’s supporters at Mackenzie Bikenibeu where he lives. Iotia and Matatia are some of the respondent’s supporters.
He usually hangs out with them at a place where there is no house but just an hammock for dart and volley. They got all these from Kourabi. That he at one time promised them he would meet their needs. Consequently they asked him for a dart board and a volley ball net and he promised to get them.
He went further to say in paragraph 6 that the respondent said:
“He also said that we don’t have any problem since he has supporters with us and we could just ask them for whatever we need”. Surely this is how the kava in issue came to them. PW5 and the others asked for kava for refreshments as they plan for the respondent and they got it.
We with this kind of association with the respondent, I am inclined to agree with DW3 that indeed David (PW5) was one of the close supporters of the respondent and could not be heard to complain that the group of which he was an insider got kava from Kourabi. I believe it was one sort of refreshment during one of their campaign sessions. For reasons best known to him David simply changed sides. His affidavit is suspect and worthless. This ground of the petition is devoid of any merit.
This ground is premised on the affidavit evidence of
Ms Bwatatebwa Baikota (PW7) and Tokarateiti Takentebwebwe (PW8).
PW7 in her affidavit states that the day before the second round of election she received three packets/one and a half kilos of kava from Ituua as instructed by her husband’s brother one Itintoka. That he had earlier in the day tried to see her husband but it was not possible as he was asleep. Ituua instead talked to Itintoka, her brother in law.
When Ituua came back in the evening he gave the kava to her and she received it as instructed by Itintoka. She knew that the kava was from the respondent. She averred that no one and even husband had asked for the kava. It was Kourabi’s way of influencing the voters.
PW8 stated that he was asleep when Ituua first came and had gone fishing when the kava was brought. He joined the drinking party at his brother’s house where they usually drink from. He knew the kava had come from Ituua a well known agent of the respondent.
In reply the defence presented the evidence of Ituua Binataake (DW4). His evidence is that because he had political ambitions he became an active member of the Catholic Church group in Bonriki. He informed his friends about his intentions and PW8 and his wife PW7 are some of the people he confided with. As a result PW8 and his wife PW7 as friends and supporters always asked for favours from him. They would ask for kava or money for kava.
On the date in issue DW4 said that when he came home he found that PW8 had been there for kava. He then gave the kava to PW7. He denies ever giving the kava for the respondent’s election but for his election for the post of the Councillor. He was giving it to his friends and supporters.
Here again it is the question of which of the two versions should be believed – that of PW8 and his wife or of DW4. The burden of proof of this illegality is on the petitioners.
The fact that though he was a supporter of the respondent, DW4 was also a contestant in the Council elections is not disputed. He was not challenged in this in cross examination.
DW4 said that he was a member of the Catholic group and this is confirmed by PW8 in paragraph 3 of his affidavit. According to paragraph 12 of his affidavit DW4 gave the kava to the wife of PW8 and even asked her whether her husband had come to his house. That she said he had been there.
Given this scenario, it was prudent to call and examine Itintoka, the brother of PW8 to confirm that he had talked to Ituua in the morning and instructed him to give the kava to PW7 who would bring it to him – as PW7 claims.
Failure to call Itintoka as a witness left the whole affair as a business between Ituua on one side and Tokarateiti (PW8) and his wife (PW7) on the other as asserted by Ituaa (DW4).
The petitioners failed to remove the allegations that Ituua was an aspiring councilor candidate and that the couple (PW7 and PW8) were among his supporters who always came to his house for favours mainly in the form of kava or money for kava.
In other words it was not proved to the satisfaction of Court that this kava came from the respondent as opposed to DW4 who was out to popularize himself for the coming elections for councillorship. Consequently this ground also fails.
CONCLUSION
In view of the above findings it is clear that none of the eight grounds raised in this petition has been proved to the satisfaction of the Court. Therefore all the three issues raised by both Counsel are answered in the negative.
Consequently the petition is dismissed with the result that the respondent’s election is hereby confirmed. A Certificate to that effect shall be issued to the Electoral Commission.
COSTS
Costs ordinarily follow the event, but for good cause a successful party can be denied the costs.
This petition has unnecessarily delayed in this Court for more than a year. Firstly there were three applications i.e. Miscellaneous
Application No. 4/2016, No. 32/2016 and 93/2016 which initially staggered the case. According to the order for directions which
were issued on
30 March 2016, hearing could have taken off some time in May if the orders were complied with.
But there followed excuses on the respondent’s side. Either the respondent was busy with Government business or Counsel for the respondent was also overseas on Government delegations.
This state of affairs eventually pushed the case to some time in July/August 2016. A new excuse prompted by Mr Berina rose up indicating that there was possibility of settlement of the matter. This also squandered time until late September when hearing took off.
Given the peculiar circumstances of this case I do not find it appropriate to award costs to the successful party. Instead I make no order for costs.
In the premise the $5,000 which was deposited in Court as security for costs shall be returned to the petitioners.
Order accordingly.
Dated the 17th day of March 2017
THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/ki/cases/KIHC/2017/14.html