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MagistrateDismissed· [2013] KEMC 2 (KLR)

Abdinoor Adan Abdikarim v Independent Electoral & Boundaries Commission & another [2013] KEMC 2 (KLR)

Chief Magistrate's Court (Election Petition)
17 July 2013
LKLinus Kassan
5,288 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a ballot paper printing error didn't invalidate an election because the losing candidate couldn't prove it actually changed the result.

What this practically means

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Executive summary

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The petitioner, a TNA candidate for the Ademasijida County Assembly Ward seat in the 4 March 2013 election, petitioned the magistrates' court seeking declarations that the election was not conducted in accordance with Articles 81, 86 and 88 of the Constitution and the Elections Act, that the 2nd respondent (a UDF candidate who won with 1,071 votes against his 348) was not validly elected, nullification of the election, and a fresh election. His complaint was that his photograph appeared twice on the ballot paper - once under his own details and again in the slot of the WDP candidate, Adan Noor Hussein - and that rumours that he had been disqualified confused voters. The respondents, including the returning officer for Wajir West, maintained the election was free and fair. The returning officer testified he learned of the anomaly at about 6:30 a.m. and instructed presiding officers to guide voters to use candidate names and party symbols. The court found the duplicate photograph was a printing error by IEBC that did not substantially affect the outcome: only five votes were spoilt, and even combining the petitioner's votes with the affected candidate's would not have changed the winner. The court held the petitioner failed to discharge the burden of proof applicable to election petitions, relying instead on unproven rumours, and that the proper complainant (the candidate whose photograph was missing) had accepted the results. The petition was dismissed with costs, with leave to appeal granted.

Key legal issues

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01

Effect of a printing error (duplicate candidate photograph) on ballot papers

Holding

The duplicate photograph was a printing error which did not invalidate the election; voters identified candidates by names and party symbols, and the officer mitigated the error by directing voters accordingly

Reasoning

The court found the error was a printing mistake attributable to IEBC, not the candidates. The returning officer directed presiding officers to guide voters to use names and party symbols, and only five votes were spoilt. Arithmetically, even combining the petitioner's votes with those of the affected third candidate would not have overtaken the winner, so the anomaly could not have changed the result.

p. 5
02

Whether rumours of disqualification swayed voters

Holding

Rumours cannot found a finding of invalidity without strict proof; no voter or agent was called to confirm being misled

Reasoning

The petitioner and his witnesses voted despite the alleged rumours and none was called to show a voter refrained from voting or voted differently. The petitioner's agents in all five polling stations were not called to contradict the evidence that voters were advised to use names and party symbols. The court treats rumours with caution and demanded proper evidence of their effect.

p. 6
03

Burden and standard of proof in election petitions

Holding

The burden lay squarely on the petitioner to prove the error occasioned him prejudice, which he failed to do

Reasoning

Citing the Supreme Court's decision in Raila Odinga v IEBC, the court applied a standard above the ordinary civil standard but below criminal proof. The petitioner relied on rumours and generalized assertions of voter confusion, without affidavits from voters, and had to prove the duplication caused material prejudice, which the vote tallies did not support.

p. 7

Legal principles established

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  • Not every non-compliance or omission in breach of election regulations invalidates an election; only substantial departure from the prescribed procedure does
  • The burden of proof in an election petition lies squarely with the petitioner, to a standard above the ordinary civil standard but below the criminal standard
  • A petitioner alleging malpractice must establish that it substantially and materially affected the outcome of the election
  • Generalized allegations and rumours are not sufficient evidence; election petitions require cogent, credible and consistent proof

Court orders

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  1. 1.The election petition is dismissed with costs
  2. 2.Leave to appeal is granted
  3. 3.Costs must be paid in the absence of an order for stay from the High Court (petitioner directed to seek stay at the High Court)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 81
  • Constitution of Kenya, 2010Article 86
  • Constitution of Kenya, 2010Article 88
  • Elections ActNo. 24 of 2011
  • Election Regulationsrule 70(1)

Cases cited (5)

  • John versus Nyangi and another
    3 KLR 513
  • Morgan versus Simpson
    (1974) 3 ALL ER 722
  • Raila Odinga versus IEBC and 5 others
    Supreme Court Election Petition No. 5 of 2013
  • John Kiarie Waweru versus Beth Mugo and 2 others
    (2008)
  • John Nyange and another
    (2008) 3 KLR (EP)
Jurisdiction invoked
Election Act, 2011 (election petition for county assembly ward)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abdinoor Adan Abdikarim v Independent Electoral & Boundaries Commission & another [2013] KEMC 2 (KLR)", Case Analysis (2013). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/2/eng@2013-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.