Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistratePartially AllowedElection Petition (Nandi/Mosop) 2013 – Kabisaga Ward Member of County Assembly· [2013] KEMC 19 (KLR)

Charles Kimeli Korir v Ezekiel Juma & 2 others [2013] KEMC 19 (KLR)

High Court of Kenya (Election Petition)
27 September 2013
7,016 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

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

#
This first-instance election petition challenged the declaration of the 3rd respondent as duly elected Member of County Assembly for Kabisaga Ward, Mosop Constituency, in the 4th March 2013 general election, where he had garnered 3219 votes against the petitioner's 3217. The main prayer - a recount - was ordered at interlocutory stage under rule 32 of the Election Petition Rules and conducted between 22nd and 25th July 2013 under the court's Executive Officer, the parties having agreed that the recount outcome would determine the petition. The Executive Officer returned 3095 undisputed votes plus 118 contested for the petitioner and 3115 plus 99 contested for the 3rd respondent. Examining the contested ballots in open court, the court applied regulation 77(2) of the Elections (General) Regulations: most contested votes were valid where the voter's intention was discernible, but three votes marked for two candidates (two for the 3rd respondent at Chepkoiyo Primary School and one for the petitioner at Cheloiyo Primary School) were rejected as void under regulation 77(1)(b). Five stray votes wrongly placed in the ballot box but stamped 'I.E.B.C rejected' were held to remain validly rejected. The respondents' preliminary objection that the petition lacked material facts was rejected as raised too late and unsupported. The corrected tally produced a tie of 3212 votes each; no winner could be declared. Holding the election otherwise free, fair and credible under section 83 of the Elections Act, the court declared the Kabisaga Ward result null and void, directed that a certificate issue under section 86(1), and ordered fresh elections, with each party bearing its own costs.

Key legal issues

#
01

Validity of contested ballot papers under regulation 77(2) of the Elections (General) Regulations

Holding

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

Reasoning

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.

p. 7
02

The five objected rejected ('stray') votes from Kimogoch Primary School

Holding

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

Reasoning

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.

p. 9
03

Preliminary issue on the petition's competence for lack of material facts (Rule 10(1)(c) and (d))

Holding

The point was not competent at that stage; the petition and supporting affidavit did state the required particulars

Reasoning

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.

p. 9
04

Effect of the recount tie and the appropriate remedy

Holding

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

Reasoning

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.

p. 10

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. 1.Declared the result for Kabisaga Ward Member of County Assembly null and void
  2. 2.Directed that a certificate as per section 86(1) of the Elections Act 2011 issue accordingly
  3. 3.Declared that fresh elections be held within the time stipulated by law
  4. 4.Ordered each party to bear their own costs of the petition
  5. 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.