M’anyiri Hannington Gitaari v Alphaxard Kaumbuthu Chabari & Another [2013] KEMC 8 (KLR)
The bottom line
#A Kenyan court nullified the Igoji West Ward election because the IEBC put a stranger's photo on a candidate's ballot paper, treating candidates unequally.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner lodged a proper complaint
Yes - the petitioner notified a representative of the 3rd Respondent on the election morning; the law provides no other stated means of lodging such a complaint
The alleged telephone communications were undocumented and the advocate's letter of 7th March 2013 was belated. However, Regulation 65(8) permits inspection of ballot papers only on the morning of the election, and the law is silent on how complaints about ballot paper irregularities are to be lodged. The petitioner's evidence that he raised the issue with the 3rd Respondent's agents was unchallenged by Mr. Noor, so he cannot be faulted.
Whether candidate photographs are mandatory on county assembly ballot papers
No - Regulation 68(4)(b) 'where applicable' makes photographs discretionary for county assembly elections; Form 30 confirms this
Comparison of Form 30 (county assembly ballot papers) with Form 25 (presidential) and Form 29 (governor) shows photographs were not required for county assembly elections. The IEBC nonetheless made a lawful, discretionary decision to include photographs as a measure to augment ease of voting, which gave rise to promises to candidates.
Legal effect of embossing a stranger's photograph and whether it materially affected the result
The 3rd Respondent violated the petitioner's right to non-discrimination and equal benefit of the law and breached Article 81 principles; the irregularity materially affected the election, warranting nullification
No explanation was given for how a stranger's photograph appeared against the petitioner's name. The elements of transparency, accuracy and accountability under Article 81 were missing. Uncontroverted evidence of confusion by two witnesses, two candidates sharing the name 'Hannington', and the petitioner's nickname showed voters may have been misled. His 1,474 votes showed he was a serious contender on an unlevel playing field.
Legal principles established
#- A ballot paper is an integral part of an election and must not mislead voters
- Photographs of candidates are not a mandatory requirement on county assembly election ballot papers under Regulation 68(4)(b)
- Once the electoral body decides to include candidate photographs, it is constitutionally enjoined to accord equal treatment to all candidates, and failure gives rise to legitimate expectation
- An election conducted with a stranger's photograph passed as a candidate's is not conducted in accordance with Articles 27 and 81 of the Constitution and must be nullified
Court orders
#- 1.Nullification of the election for Igoji West County Ward to pave way for a fresh election
- 2.A certificate to issue forthwith pursuant to Section 86(1) of the Elections Act
- 3.Petitioner to get full costs against the 3rd Respondent
- 4.1st Respondent to get half costs of the petition as against the 3rd Respondent
- 5.Total costs for each party awarded costs capped at Ksh.400,000/-, to be taxed and certified by the court
- 6.Security deposited in court to be released to the petitioner unless otherwise ordered by a superior court
- Jurisdiction invoked
- Election petition for County Assembly Ward election under the Constitution (Articles 27, 38, 81, 88) and the Elections Act, Cap. 24, and Elections (Parliamentary and County Elections) Petition Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’anyiri Hannington Gitaari v Alphaxard Kaumbuthu Chabari & Another [2013] KEMC 8 (KLR)", Case Analysis (2013). Election Petition (Igoji West County Ward). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/8/eng@2013-09-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.