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MagistrateDismissedElection Petition (Vihiga), petition dated 25th March 2013· [2013] KEMC 22 (KLR)

Irene Mwihaki Asikoye v Independent Electoral & Boundaries Commission & 2 others [2013] KEMC 22 (KLR)

Chief Magistrate's Court (Election Court), Vihiga
16 August 2013
2,780 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Vihiga election court dismissed the West Bunyore Ward petition, finding no proof of irregularities and upholding the declared election result.

What this practically means

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Executive summary

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This first-instance election petition, decided by Ag. Senior Principal Magistrate Grace A. Mmasi at Vihiga on 16 August 2013, challenged the 4 March 2013 election for the West Bunyore County Assembly Ward. The petitioner alleged that the 3rd Respondent lacked the requisite academic qualifications, was wrongly declared winner, engaged in voter bribery, scaremongering and illegal campaigning, and that results declared at the tallying centre varied from polling station results. She also sought scrutiny of votes. By consent, the parties framed five issues. The court reiterated that the petitioner bore the burden of proving irregularities and their effect on the outcome, to a standard higher than balance of probabilities but below beyond reasonable doubt. On the qualifications issue, the court held that section 22(2A) of the Elections Act, as amended in 2012, exempted County Assembly candidates from the post-secondary qualification requirement for the first elections, and that a challenge to the amendment's constitutionality was outside the election court's jurisdiction. The petitioner's evidence on assisted voting was contradictory; bribery witnesses were discredited; the transposition errors in the provisional results had been rectified in the final gazetted results; and no accredited agent was excluded. Scrutiny was refused because it was never applied for during the hearing, contrary to section 82(1) of the Elections Act, following the Nyeri High Court decision in Peter Gichuki Kang'ara v IEBC. The petition was dismissed with costs to the Respondents capped at Kshs. 100,000.

Key legal issues

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01

Assisted voting irregularities at Esibila Polling Station

Holding

Not proved; the petitioner gave contradictory sworn testimony about how many people were assisted, by whom and when

Reasoning

PW1 gave inconsistent versions of the alleged assistance by Joel Andiva - first three people before she voted, later six people between 9.00am and 1.00pm - and conceded her first version was untrue despite being made under oath. No report was made to the presiding officer or police at the station, whose names she did not know. The court could not adopt any reliable version of her evidence.

p. 3
02

Lack of academic qualifications by the 3rd Respondent

Holding

Not a bar; the 2012 amendment to the Elections Act exempted County Assembly candidates from the qualification requirement for the first elections, and the court was not a constitutional court to entertain the challenge to the amendment

Reasoning

Section 22(2A) inserted in 2012 provided that section 22(1)(b) and section 24(1)(b) should not apply for elections of Parliament and County Assembly representatives in the first elections, save for presidential and gubernatorial positions. The petitioner conceded on cross-examination she would not have come to court on this issue had she known of the provision. The constitutional challenge to the amendment was outside the election court's jurisdiction.

p. 4
03

Variance between votes declared at the tallying centre and those at polling stations

Holding

No variance proved; transposition errors in the provisional form 36(b) were rectified in form 36(c), and the petitioner confirmed the forms were in order

Reasoning

Under section 39 of the Elections Act the 1st and 2nd Respondents may prepare provisional and final results, and under Article 86(c) the 2nd Respondent must collate, verify and lawfully declare results. In cross-examination the petitioner confirmed there was no variance between forms 35 and 36 as exhibited, and PW2's testimony on misheard declarations was discredited.

p. 4
04

Allegations of voter bribery, scaremongering and illegal campaigning

Holding

Not proved; the bribery witnesses were discredited or admitted the money exchanged was for agents' meals, and no report was made to presiding officers or police

Reasoning

PW7 admitted he was himself arrested for allegedly bribing voters; PW3 conceded the money exchanged was TNA agents' money for lunch and supper; PW9 never identified who bribed whom nor reported the matter. None of the bribed voters testified. Scaremongering and illegal campaigning were never proved at all.

p. 4
05

Exclusion of agents and unsigned form 35

Holding

Not proved; no accredited agent was locked out, and agents were duty bound not to sign form 35 if they noted irregularities

Reasoning

Under Regulation 85(1) and section 30(1) of the Elections Act the Returning Officer need not admit more than one party agent per station; Regulation 62(3) provides absence of agents does not invalidate proceedings; Regulation 74 requires accreditation 48 hours before counting. On unsigned forms, Regulation 79(3) required agents to record reasons for refusal, so non-signing was not itself an irregularity.

p. 5
06

Double voting and exclusion of voters at Essalwa Polling Station

Holding

Not proved; the alleged double voters' testimony did not support the claim and no voter testified to being locked out

Reasoning

The alleged double voter never alluded in testimony to voting twice; the ballot papers allegedly retained were never produced as exhibits. On exclusion, the presiding officer (DW8) testified that those on the queue at 5.00pm were allowed to vote and the station closed at 6.30pm, and no voter testified as having been locked out.

p. 5

Legal principles established

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  • The petitioner bears the burden of proving electoral irregularities/offences and that they affected the outcome; the standard of proof is higher than balance of probabilities but not beyond reasonable doubt
  • Scrutiny of votes may only be ordered on application by a party or on the court's own motion during the hearing of the petition, not as a final order after hearing
  • Absence of agents does not invalidate proceedings at a polling station, and no accredited agent was locked out in this case
  • Minor transcription/transposition errors corrected in the final results do not vitiate an election
  • For the first elections under the Constitution, the academic qualification requirement in section 22(1)(b) of the Elections Act did not apply to Parliamentary and County Assembly seats (save for President, Deputy President, Governor and Deputy Governor)

Court orders

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  1. 1.The Petition dated 25th March 2013 be and is hereby dismissed
  2. 2.The Petitioner shall pay the Respondents' costs which are capped at a total of Kshs. 100,000.00

Authorities

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Legislation

  • Constitution of Kenya 2010Article 38; Article 86(c)
  • Elections Act No. 24 of 2011Sections 22(1), 22(2), 22(2A), 24(1)(b), 30(1), 39, 42(a), 58(n), 58(o), 82(1)
  • Election (General) Regulations 2012Regulations 62, 62(3), 74, 79(3), 85(1)
  • Elections (Parliamentary and County Elections) Petition Rules 2013Rule 10(1)(e)
  • Independent Electoral Boundaries Commission Actnot specified

Cases cited (1)

  • Peter Gichuki Kang'ara vs IEBC and 2 Others
    Nyeri High Court HC EP No. 3 of 2013
Jurisdiction invoked
Constitution of Kenya 2010, Elections Act 2011, Election (General) Regulations 2012 and Elections (Parliamentary and County Elections) Petition Rules 2013 - election court jurisdiction over County Assembly Ward elections

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, "Irene Mwihaki Asikoye v Independent Electoral & Boundaries Commission & 2 others [2013] KEMC 22 (KLR)", Case Analysis (2013). Election Petition (Vihiga), petition dated 25th March 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/22/eng@2013-08-16

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