Charles Kimeli Korir v Ezekiel Juma & 2 others [2013] KEMC 19 (KLR)
The bottom line
#A Kenyan court ordered fresh elections after a recount revealed a dead tie, refusing to declare either candidate the winner.
What this practically means
#Executive summary
#Key legal issues
#Validity of contested ballot papers under regulation 77(2) of the Elections (General) Regulations
Contested votes were valid where the voter's intention was clearly discernible despite marks elsewhere than the proper place, slips of pen, or the candidate's name written in the marking space; votes marked for two candidates were void
The court examined each contested ballot in open court. Following regulation 77(2)(a)-(c), marks elsewhere than the proper place, minute slip-of-pen marks, and even the candidate's name written against that candidate did not void the vote where intention was clear and the voter not identifiable. But ballots with marks against two candidates were void under regulation 77(1)(b), deducting 2 votes from the 3rd respondent and 1 from the petitioner.
The five objected rejected ('stray') votes from Kimogoch Primary School
The five votes, though wrongly transferred into the county assembly ballot box, had been validly stamped 'I.E.B.C rejected' and remained rejected; the anomaly was not so pervasive as to vitiate the counted votes
The court accepted the 1st respondent's explanation that these were stray votes rejected in a different ballot box and wrongly placed. The agents at the polling station recorded no objection on Form 35. Once stamped rejected, their transfer could not validate them, and the anomaly was not so serious as to vitiate the counted votes.
Preliminary issue on the petition's competence for lack of material facts (Rule 10(1)(c) and (d))
The point was not competent at that stage; the petition and supporting affidavit did state the required particulars
The court found paragraph 5 of the petition and paragraphs 4 and 5 of the supporting affidavit gave the results, dates of declaration and the gazette notice, satisfying Rule 10(1)(c) and (d). The objection should have been raised by interlocutory application before or during pre-trial, adopting Karanja J's observation in the Kitale petition.
Effect of the recount tie and the appropriate remedy
With the rejected votes excluded, both candidates tied at 3212; no winner existed, so the election result was declared null and void with fresh elections ordered
Adopting Majanja J's principle that electoral dispute resolution ascertains and gives effect to the will of the voters, the court found no candidate commanded a majority after the corrected tally. Neither could be declared winner or issued a certificate; the proper course under section 86(1) of the Elections Act was to nullify the result and order fresh elections.
Legal principles established
#- Non-compliance with electoral law does not void an election where it did not affect the result
- A ballot marked for more than one candidate is void, subject to the saving in regulation 77(2)
- Ballot papers validly stamped 'I.E.B.C rejected' as stray votes cannot be validated by their later wrongful placement in another ballot box
- Where a recount yields no winner because of a tie, the appropriate remedy is nullification and fresh elections, not declaration of either candidate
Court orders
#- 1.Declared the result for Kabisaga Ward Member of County Assembly null and void
- 2.Directed that a certificate as per section 86(1) of the Elections Act 2011 issue accordingly
- 3.Declared that fresh elections be held within the time stipulated by law
- 4.Ordered each party to bear their own costs of the petition
- 5.Ordered the ballot boxes to be released to the 2nd respondent after counsel for the respondents examine the 2 rejected votes for the 3rd respondent at Chepkoiyo Primary School polling station before the Executive Officer
- Jurisdiction invoked
- Elections Act, sections 80(4) and 80(5) (election petition under Article 87 of the Constitution framework; Elections (Parliamentary and County Elections) Petition Rules 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Kimeli Korir v Ezekiel Juma & 2 others [2013] KEMC 19 (KLR)", Case Analysis (2013). Election Petition (Nandi/Mosop) 2013 – Kabisaga Ward Member of County Assembly. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/19/eng@2013-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.