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MagistrateDismissedElection Petition No. 2 of 2013· [2013] KEMC 11 (KLR)

Salesio Mugambi M’Itonga v William Kirimi Magiri & 2 others [2013] KEMC 11 (KLR)

Chief Magistrate's Court at Meru
20 August 2013
RKR. N. Kimingi
4,396 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Meru court dismissed an election petition over a wrong ballot photo, ruling photographs aren't legally required on county assembly ballot papers.

What this practically means

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Executive summary

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The Petitioner, who stood for Abogeta West County Assembly Ward Representative in the 4 March 2013 election, challenged the election of the 1st Respondent on the ground that the IEBC printed a stranger's photograph against the Petitioner's name on the ballot papers despite requests and notices, allegedly causing voters to reject him in protest and rendering the election unfair, discriminatory and void. The 1st Respondent did not enter appearance and was excluded under Rule 14(3); the 2nd and 3rd Respondents conceded the factual issues but denied that a photograph was legally required on County Assembly ballots or that the error materially affected the result. Agreeing the legal issues would be determined on affidavits and written submissions, the court applied the burden and standard of proof from the Raila Odinga Supreme Court decision: the petitioner had to prove non-compliance and its material effect, to a standard above balance of probability but below beyond reasonable doubt. The court held that Form 30 prescribed no photograph for County Assembly ballots, photographs being required only for presidential and gubernatorial elections, so the IEBC's inclusion of photographs was voluntary; it distinguished Ali Omar (party symbol) as involving a mandatory requirement. On the evidence, the Petitioner's correct name and Vision Party symbol appeared on the ballot, no voter was denied assistance, the mix-up was human error and not discriminatory, and did not affect the outcome. The petition was dismissed, the 1st Respondent declared validly elected, each party ordered to bear its own costs, a Section 86(1) certificate to issue, and the Petitioner's KShs. 100,000/= security to be released subject to no appeal on costs within 14 days.

Key legal issues

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01

Whether ballot papers for County Assembly Ward Representative were legally required to bear candidates' photographs

Holding

No; Regulation 68 requires photographs only 'where applicable', i.e. presidential and gubernatorial ballots

Reasoning

Form 30 prescribed for County Assembly Ward elections contains no provision for a photograph. The Elections Act 2011 and Regulations 2012 were enacted after the Constitution 2010 and conform to its standards. Photographs are provided only for presidential and gubernatorial ballots. The IEBC's decision to include photographs was voluntary, so its omission or error could not constitute statutory non-compliance.

p. 7
02

Whether the wrong photograph materially affected the election outcome

Holding

It did not; voters could identify the Petitioner by name and party symbol

Reasoning

The ballot instructed voters to mark against the candidate's name and party symbol. The Petitioner's name and his party's symbol (Vision Party) appeared correctly. No voter or agent sought presiding officers' assistance and was denied; witnesses who abstained were literate and could identify the name and symbol. The mix-up was normal human error, not a deliberate act, and no discrimination was proved.

p. 8
03

Burden and standard of proof in election petitions

Holding

The petitioner bears the burden of proving non-compliance and its material effect, to a standard above balance of probability but below beyond reasonable doubt

Reasoning

Following the Supreme Court's guidance in Raila Odinga, a petitioner alleging non-conformity with electoral law must raise firm and credible evidence of the IEBC's departure from the prescriptions of the law and show the failure affected the validity of the election. The standard is higher than the ordinary civil balance of probability.

p. 5

Legal principles established

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  • A petitioner alleging non-conformity with electoral law must prove both the non-compliance and that it affected the validity of the election, to a standard above balance of probability but not beyond reasonable doubt
  • Photographs are not a legal requirement on ballot papers for County Assembly Ward Representative elections under Form 30 of the Elections (General) Regulations 2012; they are required only for presidential and gubernatorial ballots

Court orders

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  1. 1.The Petition is dismissed; the court finds the 1st Respondent was validly elected
  2. 2.Each party to bear its own costs for the petition
  3. 3.Certificate under Section 86(1) to issue
  4. 4.KShs. 100,000/= deposited by the Petitioner as security be released to him if the 2nd and 3rd Respondents have not filed an appeal on the issue of costs within 14 days

Authorities

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Legislation

  • Constitution of Kenya 2010Article 10(2)(b)
  • Constitution of Kenya 2010Article 38(2)
  • Constitution of Kenya 2010Article 81(e)
  • Constitution of Kenya 2010Article 82(2)
  • Constitution of Kenya 2010Article 83(3)
  • Elections Act 2011Section 83
  • Elections Act 2011Section 86(1)
  • Elections (General) Regulations 2012Regulation 68 (incl. 68(4)(b))
  • Elections (General) Regulations 2012Regulation 72
  • Elections (General) Regulations 2012Form 30, Form 18, Part VIII (Regulation 34)
  • Elections (Parliamentary and County Elections) Petition Rules 2013Rule 14(3), Rule 21(b)

Cases cited (12)

  • Ali Omar & Electoral Commission of Kenya v Julius Daraka Mbuzi & Another
    Mombasa Court of Appeal Case No. 50 of 2006 (Unreported)
  • Johoho v Nyange and Another
    (2008) 3 KLR 500
  • Ntwiga v Musyioka & 3 others
    (2008) 2 KLR (EP) 276
  • Karauri v Kangethe & Another
    (2008) KLR (EP) 135
  • Raila Odinga & Others v IEBC & Others
    Petitions Nos. 3, 4 & 5 of 2013
  • Mohammed Jahaz v Shariff Nassir A Taib
    Election Petition No. 9 of 1983
  • Francis Chach Ganya & Others v Attorney General and others
    (2012) eKLR
  • Agbaye v Fashola
    (2008) 6 MWLR (PT 1082)
  • The Cape Party v The Electoral Commission & Congress of the People
    No. 1 of 2009
  • Kilbourne v City of Carpinteria
    56 Cal App 3d 11
  • Buhari v INEC
  • Olusola Adeyeye v Simon Oduoye
    (2010)
Jurisdiction invoked
Election petition under the Constitution and Elections Act 2011, heard under the 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, "Salesio Mugambi M’Itonga v William Kirimi Magiri & 2 others [2013] KEMC 11 (KLR)", Case Analysis (2013). Election Petition No. 2 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/11/eng@2013-08-20

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