Peter Kipkirui Langat v Robert Kipkirui Metet & 2 others [2013] KEMC 28 (KLR)
The bottom line
#A Kenyan court confirmed that clerical mistakes during vote counting do not overturn an election unless they actually changed the result.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who was validly elected as Member of County Assembly Silibwet Township Ward in the election held on 4th March 2013?
- 2.Whether the 2nd Respondent had powers to revoke the certificate of results issued to the Petitioner.
- 3.What led to the cancellation of the certificate of results issued to the Petitioner by the 2nd Respondent?
- 4.What consequential declarations, orders, and reliefs the Court should grant based on the determination of the petition.
Key legal issues
#Who was validly elected as MCA for Silibwet Township Ward
The 1st Respondent was validly elected, having garnered the most votes both per the corrected results (4649 v 4535) and the court-ordered recount (4642 v 4632).
Form 35 for Njerian Primary School polling station showed results that, once correctly posted to Form 36, gave the 1st Respondent the majority. The initial declaration of the Petitioner resulted from an error in transposing Women Representative results into the MCA Form 36. The court-ordered recount confirmed the corrected figures, and the court found the 1st Respondent to be the voters' choice.
Whether the 2nd Respondent had power to revoke the certificate issued to the Petitioner
The 2nd Respondent breached Section 74 of the Election Act by revoking the certificate after results had been declared, but the breach did not materially affect the outcome and was done in good faith.
Once results had been declared, disputes arising were excluded from the Returning Officer's mandate under Section 74, so revocation was a breach. However, applying the materiality test, the breach did not affect the voters' will; the correction reflected the true tally, was made in good faith, and the recount confirmed the 1st Respondent's victory.
Cause of the cancellation of the Petitioner's certificate
The cancellation resulted from an inadvertent human error in posting Women Representative results into the MCA Form 36 for Njerian Primary School polling station, detected upon a complaint by the 1st Respondent's agents.
Clerks working through the night fatigued transposed results of candidates for Women Representative into the MCA Form 36. The error was detected after the 1st Respondent's party agents complained, the forms were checked against Form 35, the tallies were confirmed thrice, and the certificate was corrected on the advice of IEBC's legal department. The declaration at the County Hall, a gazetted tallying centre, was lawful under Regulation 84.
Consequential orders and reliefs
The petition was dismissed; the election met constitutional and statutory standards and the 1st Respondent's election was to be certified.
Having found no proved irregularities or electoral offences, and that minor errors did not affect the result, the court held the election free and fair, dismissed the petition with costs, and directed issuance of a certificate of the 1st Respondent's election under Section 86(1) of the Election Act for service on the Speakers of the Senate, National Assembly and Bomet County Assembly.
Legal principles established
#- The burden of proof in an election petition rests on the petitioner throughout, who must prove both non-compliance and that it materially affected the result.
- A non-compliance that does not affect the result of an election is not a ground for nullification under Section 83 of the Election Act.
- Irregularities attributable to innocent mistake or obvious human error cannot be a ground for impeaching an election result.
- Generalized complaints of electoral malpractice are insufficient to invalidate an election; the petitioner must establish irregularities that affected the voters' will.
Court orders
#- 1.A certificate to the effect that the 1st Respondent was validly elected shall be issued forthwith and served upon the Speaker of the Senate, National Assembly and Bomet County Assembly in accordance with Section 86(1) of the Election Act.
- 2.The petition is dismissed with costs to the Respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya, 2010; Election Act, 2011; Elections (Parliamentary and County Elections) Petition Rules, 2013
Relief refused
#Declaration that the Petitioner was the validly elected candidate for Member of County Assembly, Silibwet Township Ward
The recount and the corrected results established that the 1st Respondent garnered the most votes; the Petitioner failed to prove irregularities affecting the outcome.
Declaration that the certificate of results issued to the 1st Respondent is invalid and void ab initio
The certificate was validly issued after correction of an inadvertent clerical error that did not materially affect the result.
Costs of the petition borne by the Respondents
The petition was dismissed with costs to the Respondents.
Costs
The petition was dismissed with costs to the Respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This petition is devoid of merit and is hereby dismissed with costs to the Respondents.
A certificate to the effect shall be issued forthwith and shall be served upon the Speaker of the Senate, National Assembly and BometCounty Assembly in accordance with Section 86(1) of the Election Act.
This court holds the view that it did not affect the will of the voters and in revoking the certificate issued to the Petitioner the 2nd Respondent acted in good faith and had no intention of subverting the democratic exercise by the voters of Silibwet Township Ward to elect a person of their choice.
It is not enough for the petitioner to point irregularities that took place during the elections .The Petitioner must establish that the irregularities were of such nature that it affected the exercise by voters of the particular electoral area, of their will to choose a candidate of their choice.
The standard of proof is higher than the balance of probabilities and lower than beyond reasonable doubt
Issues in the judgment
#The judgment contains inconsistent figures for the initial tally: the background states the Petitioner garnered 4696 votes and the 1st Respondent 4391, while the 2nd and 3rd Respondents' corrected tally gives 4535 and 4649 respectively, and the recount is described with slightly different totals in two places.
The recount results are reported inconsistently within the judgment: one passage gives the Petitioner 4632 votes while another gives 4532 votes for the same recount.
The bench is described as an 'Ag Senior Resident Magistrate' but the court heading says 'Senior Principal Magistrate's Court'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kipkirui Langat v Robert Kipkirui Metet & 2 others [2013] KEMC 28 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/28/eng@2013-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.