Francis Mwaniki Ngunga v Oliver Nzeki Munyaka,Returning Officer Machakos Town Constituency & Independent Electoral and Boundaries Commission (Election Petition 3 of 2013) (Civ) [2013] KEMC 27 (KLR)
The bottom line
#A Machakos court nullified the Mua Ward election because missing ballot counterfoils made thousands of votes impossible to verify.
What this practically means
#Executive summary
#Key legal issues
#Whether the ballot box at Kathome polling station was properly sealed
The box was properly sealed; broken or loose seals were attributed to weak seals and movement, and no candidate solely benefited from the recount variations
The court observed the seals and considered the presiding officer's and agents' testimony that sealing was witnessed and properly done. The recount variations were minor and distributed among six of eight candidates, so no tampering to benefit a particular candidate was evident. An intention to tamper would have been apparent in the recount results, which it was not.
Whether the petitioner's agents' failure to sign form 35 invalidated the results
It did not; under regulation 79(6) refusal or failure to sign the declaration does not by itself invalidate the announced results
The court found the agents signed the record of seals early and left in celebration after their candidate was announced winner at the station. A Wiper party agent signed form 35 on the party's behalf, which the court found permissible under section 30 of the Elections Act, and the court disbelieved the claim of forgery of PW3's signature. Regulation 79(6) saved the results from the non-signature.
Whether the missing counterfoils in two polling stations affected the result
Yes; the lack of counterfoils in stations 029 stream 2 and 033 (Katelembo) stream 2 was material and substantial and not curable under section 83, vitiating the election
Counterfoils validate the presence of ballot papers in a ballot box; without them the source of the votes cannot be verified. No explanation was given for the missing counterfoils or the unfiled form 35 for Katelembo stream 2. Although the 1st respondent led by 114 votes after recount, the court held the failure to account for votes in two stations materially affected the result and rendered the election not free and fair.
Standard of proof in election petitions
The standard is above a balance of probability and below beyond reasonable doubt, and a petitioner must prove both the irregularity and that it affected the result
Relying on the Supreme Court decision in Raila Odinga v IEBC and Morgan v Simpson, the court restated that where a petition alleges irregularities or non-compliance, the petitioner must not only prove them but also prove they affected the result; minor breaches that do not affect the result are excused under section 83 of the Elections Act.
Whether issues arising during scrutiny/recount but not pleaded could be determined
Yes; election petitions are inquisitorial and the court may consider unpleaded evidence of glaring irregularities such as missing counterfoils
Facing divergent High Court authorities, the court followed the line in Justus Mungumbu Omiti v Walter Nyambati Osebe and Thomas Musau v IEBC that all issues with potential to affect the result must be interrogated whether pleaded or not, since the object is to ascertain the will of the voters. The missing counterfoils were held too serious to ignore even if not specifically pleaded.
Legal principles established
#- An election will be vitiated where irregularities are material and substantially affect the result; the lack of counterfoils renders the source of votes unverifiable and is not curable under section 83 of the Elections Act
- The refusal or failure of a candidate's agent to sign a declaration of results does not by itself invalidate the announced results (regulation 79(6))
- A ballot paper marked for more than one candidate must be rejected as the voter's intention cannot be ascertained
Court orders
#- 1.Declaration that the election of the 1st respondent as Member of County Assembly for Mua Ward is null and void
- 2.Certificate to issue under section 86(1) of the Elections Act
- 3.Fresh elections to be held in Mua Ward
- 4.3rd respondent to pay costs to the petitioner and 1st respondent not exceeding a total of KShs 500,000, to be assessed at a later stage
- 5.Security deposited by the petitioner to be refunded upon expiry of the appeal days
- 6.Recount and scrutiny of votes previously conducted under section 82(1) of the Elections Act confirmed as part of the determination
- Jurisdiction invoked
- Elections Act, 2011 (No. 24 of 2011) - election petition for Member of County Assembly, Mua Ward
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Mwaniki Ngunga v Oliver Nzeki Munyaka,Returning Officer Machakos Town Constituency & Independent Electoral and Boundaries Commission (Election Petition 3 of 2013) (Civ) [2013] KEMC 27 (KLR)", Case Analysis (2013). Election Petition No. 3 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/27/eng@2013-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.