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MagistrateDismissedPetition Number 1 of 2013· [2013] KEMC 24 (KLR)

David Nyabuto Ombui v Independent Electoral and Boundaries Commission & 2 others [2013] KEMC 24 (KLR)

Chief Magistrate's Court at Kisii
30 July 2013
AOA.C.A. Ong'injo
4,826 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisii court dismissed an election petition because the candidate could not prove that a printing error on some ballot papers changed the election result.

What this practically means

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Executive summary

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This is a first-instance election petition decided by the Chief Magistrate's Court at Kisii arising from the Bokimonge Ward County Assembly election held on 4th March 2013. The petitioner, David Nyabuto Ombui, sought scrutiny of ballot papers from seven named polling stations, declarations that the election was flawed, irregular and a nullity, that his constitutional rights were violated, that the 3rd respondent was not validly elected, and an order compelling the IEBC to conduct a fresh election. He relied on the fact that his photograph was missing from some ballot booklets, appearing instead twice with the photo of another candidate, David Nyabuto Machoka, and on alleged high illiteracy levels and excess votes cast at Tongeri Primary School polling station. The 1st and 2nd respondents admitted the anomaly as a teething problem, but adduced unshaken evidence from presiding and returning officers that properly printed booklets were quickly substituted and voting proceeded smoothly. The 3rd respondent, who garnered 2,229 votes against the petitioner's 442, argued the margin could not have been affected. The court framed five issues and held that the anomaly was promptly corrected, caused no voter confusion, did not favour the 3rd respondent, and that the affidavit evidence of non-testifying deponents carried little weight. The Tongeri votes-versus-voters issue was unpleaded and in any event a totalling error that did not benefit the 3rd respondent. The petition was dismissed with costs equivalent to the security deposited, shared equally among the respondents, a certificate to issue under section 86(1) of the Elections Act, and leave to appeal was granted to the petitioner.

Key legal issues

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01

Whether the missing photograph of the petitioner on some ballot papers rendered the Bokimonge Ward election irregular

Holding

The anomaly was admitted but was rectified almost immediately, did not cause confusion among voters and did not favour the 3rd respondent; the election was proper and regular.

Reasoning

The court found there was no mix-up of photos but that one aspirant's photo appeared twice in some booklets. Presiding officers and returning officers (RW3, RW4, RW6, RW7) testified unshaken that properly printed booklets were substituted and voting continued. No supporter of the petitioner testified of confusion, and the margin of 2,229 votes against 442 showed the anomaly could not have altered the outcome.

p. 8
02

Whether unverified affidavits of non-testifying deponents could prove voter confusion

Holding

Affidavit evidence of deponents who fail to present themselves for cross-examination bears very little weight.

Reasoning

Paul Ombura Asiago and Mauti Wycliffe Gwaro deponed that the missing photo confused them into not voting for the petitioner, but neither testified for cross-examination. Their own literacy undermined the claim that illiterate voters were disenfranchised, and the presiding officers' unchallenged testimony showed the anomaly was corrected at Kenyenya and Tongeri stations.

p. 6
03

Whether allegations of illiteracy-induced disenfranchisement were proved

Holding

The petitioner failed to prove illiteracy levels even to the standard of balance of probability, leaving it to the respondents to disprove.

Reasoning

The petitioner alleged 30% illiteracy and that voters were confused by the missing photo, but adduced no substantive evidence. The two voter deponents were demonstrably literate, and Regulation 72 of the Elections (General) Regulations provides for assisted voting for illiterate voters, which respondents' witnesses testified was applied.

p. 7
04

Whether the court could determine the Tongeri polling station votes-versus-voters issue

Holding

The issue was not pleaded and could not be revisited; in any event the anomaly (a totalling error) did not benefit the 3rd respondent.

Reasoning

The court had already declined scrutiny by ruling of 20th June 2013 because the issue was unpleaded, following Justice Bosire's decision that parties are bound by their pleadings. Objections to raising the issue in cross-examination were upheld as an ambush. On form 36, the excess arose from a totalling mistake, and the 3rd respondent garnered only 6 votes there.

p. 8

Legal principles established

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  • A petitioner bears the initial burden of proof in an election petition before respondents are invited to bear the evidential burden.
  • Election petitions must be proved by cogent and credible evidence, not generalized allegations.
  • Parties are bound by and confined to their pleadings unless the pleadings are amended by leave or the parties agree on the unpleaded issues.

Court orders

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  1. 1.The petition is dismissed with costs to the respondents.
  2. 2.The costs shall be equivalent to the security deposited by the petitioner to be shared equally among the respondents.
  3. 3.A certificate to issue under and in accordance with section 86(1) of the Elections Act 2011.
  4. 4.Leave to appeal granted to the petitioner.
  5. 5.Copies of proceedings and certified copies of judgment to be supplied to parties upon payment of copying charges.
Jurisdiction invoked
Elections Act 2011 (election petition jurisdiction under Article 87 of the Constitution for County Assembly elections)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Nyabuto Ombui v Independent Electoral and Boundaries Commission & 2 others [2013] KEMC 24 (KLR)", Case Analysis (2013). Petition Number 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/24/eng@2013-07-30

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