Kennedy Mose Nyangwaya v Independent Electoral and Boundaries Commission & 2 others [2013] KEMC 20 (KLR)
The bottom line
#The Kisii Election Court dismissed a challenge to the Kiamokama Ward election, holding that minor errors do not invalidate results and ordered the petitioner to pay all costs.
What this practically means
#Executive summary
#Key legal issues
#Alleged recovered ballot papers collected by members of the public at Ibacho market
The alleged collected ballot papers were mere allegations; without forensic expert examination of their authenticity, and given their striking similarity in having been marked with the same sharp pointed blue biro contrary to the pens used in the election, they were forgeries.
The court noted PW7's admission that the ballot papers were never examined by a document examiner and had been handled by many people and tampered with. The respondents denied the papers originated from IEBC. The papers were marked with a similar blue biro, whereas IEBC used black ink and red pens. The court drew the only logical conclusion that the papers were a bunch of forgeries.
Discrepancies between forms 35 and 36 and non-signing of forms 35s
The admitted errors in forms 35s were human/transposition errors, insignificant and inconsequential, and did not invalidate the election; non-signing by agents is excused by Regulation 79(6)(7).
Relying on section 83 of the Elections Act and the Malinda Musau decision, the court held that errors which do not affect the final result cannot vitiate an election, and that the refusal or failure of an agent to sign a declaration form does not by itself invalidate the announced results. RW2 testified errors were corrected before posting to form 36 and disadvantaged no candidate.
Whether scrutiny and recount of votes should be ordered
No: the petitioner failed to establish a legal basis and sufficient evidence for scrutiny and recount, especially where there was a clear winner of 419 votes and no candidate disputed the results.
Under section 82(1) of the Elections Act the court may order scrutiny, but section 33(1) of the Petition Rules requires the petitioner to establish the legal basis and sufficient reasons. The petitioner, a voter who was not a candidate, admitted he could not tell who would have won if errors were rectified. The court asked what purpose recount would serve with a clear winner and no contestant disputing the results.
Allegations of voter bribery and barring of agents from polling stations
Voter bribery was not proved at all; the evidence of barring agents was uncorroborated hearsay and inadmissible, and there was no sufficient evidence that the petitioner was a chief agent.
PW2 admitted voters were only demanding to be bribed but no candidate bribed them and there was no tangible evidence. PW2's evidence that agents were chased away was his own uncorroborated account, bordering on hearsay. The petitioner lacked accreditation documents proving he was an agent, and his pleadings that he was barred from polling stations contradicted his claims of witnessing the tallying.
Validity of the election and election of the 3rd respondent
The election was substantially conducted in a free, fair and transparent manner in accordance with the Constitution, 2010, the Elections Act, 2011 and regulations, and the 3rd respondent was validly elected.
Having rejected the petitioner's evidence on the recovered ballot papers, the form 35 anomalies, bribery and barring of agents, the court found no basis to nullify the election. The 3rd respondent won with a margin of 419 votes, the results reflected the popular will of the people of Kiamokama Ward, and a validity certificate was ordered issued.
Legal principles established
#- Non-compliance with the law relating to an election, per se, is not a reason to declare an election void where the election was conducted in accordance with constitutional principles or the non-compliance did not affect the result.
- Election petitions are disputes in rem of great public importance and must be proved by cogent, credible and consistent evidence, not generalised allegations.
- The burden of proof in an election petition is higher than the balance of probability but lower than beyond reasonable doubt; the petitioner must show malpractices of such magnitude that they substantially and materially affected the result.
- A petitioner must establish the legal basis and provide sufficient reasons before an order for scrutiny and recount of votes can issue; it is not a matter of course.
- Anomalies being human and transposition errors and non-signing of forms 35s by candidates' agents do not vitiate an election if they do not affect the final results.
Court orders
#- 1.The petition is dismissed with costs to the respondents.
- 2.A finding that the elections held on 4th March 2013 for Kiamokama County Assembly Ward Representative were substantially conducted in a free, fair and transparent manner and in accordance with the Constitution, 2010, the Elections Act, 2011 and the regulations made thereunder, reflecting the popular political will of the people.
- 3.A finding that the 3rd respondent, KENNEDY MICHIRA MAINYA, was validly elected as the Member of County Assembly for Kiamokama County Assembly Ward.
- 4.A certificate as to the validity of the elections and the election of the 3rd respondent is issued forthwith for service upon IEBC, the 1st respondent, for appropriate notification to the relevant County Assembly Speaker.
- 5.The petitioner is condemned to pay the costs of the petition to all the respondents, jointly and/or severally, to be assessed as in civil proceedings under the Civil Procedure Act.
- 6.The court recommends to the office of the Director of Public Prosecutions to initiate investigations with a view to prosecuting the petitioner for an electoral offence under section 43 of the Elections Act, 2011.
- 7.The court recommends to the Director of Public Prosecutions investigations into the involvement of the petitioner, METHUSELA ONDIMU and NATHAN MAGORO ONDARA (PW3) in the alleged recovery of ballot papers for possible prosecution on commission of electoral offences under Section 58 of the Elections Act, 2011.
- Jurisdiction invoked
- Election petition for Kiamokama County Assembly Ward under the Constitution, 2010 and the Elections Act No. 24 of 2011 (first-instance election court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Mose Nyangwaya v Independent Electoral and Boundaries Commission & 2 others [2013] KEMC 20 (KLR)", Case Analysis (2013). Election Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/20/eng@2013-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.