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MagistratePartially AllowedElection Petition (Igoji West County Ward)· [2013] KEMC 8 (KLR)

M’anyiri Hannington Gitaari v Alphaxard Kaumbuthu Chabari & Another [2013] KEMC 8 (KLR)

Magistrates' Court (Election Court)
4 September 2013
6,386 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The petitioner challenged the election of the 1st Respondent as County Assembly representative for Igoji West Ward in the 4th March 2013 elections, alleging that the 3rd Respondent (IEBC) embossed the photograph of a stranger, Julius Kimathi M'Mugwika, against his name on the ballot papers, causing confusion and his loss. The matter was disposed of by consent on affidavit evidence and submissions. Framing six agreed issues, the court applied the Supreme Court's guidance in Raila Odinga on burden and standard of proof: the petitioner bore the legal burden of proving non-conformity with electoral law and that it affected the result, to a standard above balance of probability but below beyond reasonable doubt. The court found the petitioner did raise the complaint on the election morning, there being no stated statutory means of lodging such complaints. It held that photographs are not a mandatory requirement on county assembly ballot papers under Regulation 68(4)(b), but having lawfully chosen to include them, the IEBC was constitutionally enjoined to treat all candidates equally. The unexplained embossment of a stranger's photograph violated the petitioner's rights under Article 27 and breached Article 81 principles of transparency, accuracy and accountability, giving rise to legitimate expectation on the part of candidates and voters. Distinguishing Agbaye v Foshola, the court found the irregularity materially affected the election and nullified the Igoji West Ward election to pave way for a fresh election, issuing a certificate under Section 86(1) of the Elections Act. The petitioner received full costs and the 1st Respondent half costs against the 3rd Respondent, capped at Ksh.400,000/- each, and the election security was released to the petitioner.

Key legal issues

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01

Whether the petitioner lodged a proper complaint

Holding

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

Reasoning

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.

p. 5
02

Whether candidate photographs are mandatory on county assembly ballot papers

Holding

No - Regulation 68(4)(b) 'where applicable' makes photographs discretionary for county assembly elections; Form 30 confirms this

Reasoning

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.

p. 6
03

Legal effect of embossing a stranger's photograph and whether it materially affected the result

Holding

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

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.Nullification of the election for Igoji West County Ward to pave way for a fresh election
  2. 2.A certificate to issue forthwith pursuant to Section 86(1) of the Elections Act
  3. 3.Petitioner to get full costs against the 3rd Respondent
  4. 4.1st Respondent to get half costs of the petition as against the 3rd Respondent
  5. 5.Total costs for each party awarded costs capped at Ksh.400,000/-, to be taxed and certified by the court
  6. 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

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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, "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.