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MagistratePartially AllowedElection Petition filed 4th April 2013 (Kibirichia Ward)· [2013] KEMC 32 (KLR)

John Mbaabu Murithi v Jacob Mwirigu Muthuri & 2 others [2013] KEMC 32 (KLR)

Magistrates' Court (Election Court)
4 June 2013
3,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed vote scrutiny and recount in an election petition before any witnesses testified, but refused to pause the case because strict constitutional deadlines apply.

What this practically means

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Executive summary

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John Mbaabu Murithi petitioned against the election of the Kibirichia Ward representative, alleging irregularities in counting and tallying, and moved the court by notice of motion under Rule 32 of the Election (Parliamentary and County Elections) Petition Rules 2013 for scrutiny and recount of all ballots in the ward. He relied on alleged discrepancies across numerous Forms 35, alterations without counter-signing, missing votes, and a divergent Form 35 for Kibirichia Girls Secondary polling station. The respondents opposed, arguing scrutiny required a hearing first, that scrutiny had not been pleaded, and that the petitioner was on a fishing expedition. The magistrate held that Rule 33(1) permits a scrutiny application at any stage upon sufficient reason, that failure to cite Rule 33 was a technical, non-fatal error under Article 159(2)(d) and Order 51 Rule 10, and that the unaltered-by-petitioner Forms 35 showing uncounter-signed alterations formed part of the evidence and spoke for themselves. Noting the burden lay on the petitioner to prove irregularities materially affecting the outcome, the court found scrutiny would assist in ascertaining the truth and ordered scrutiny of specified electoral documents under its supervision, with recount to follow automatically. Later the same day the court granted the 1st respondent leave to appeal and typed proceedings upon payment of fees, but declined a stay of proceedings because the constitutional three-month timeline for concluding the petition could not accommodate an adjournment. By consent, issues were framed and hearing and scrutiny fixed to commence on 25th June 2013, with ballot boxes to be delivered on 21st June 2013. No costs order was made at this interlocutory stage.

Key legal issues

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01

Whether scrutiny and recount can be ordered before hearing of witnesses

Holding

Yes; Rule 33(1) permits an application at any stage, and the Forms 35 annexed by the parties, showing uncounter-signed alterations and discrepancies, constituted sufficient reason.

Reasoning

The court held that scrutiny is not automatic but requires good reason. Although the respondents argued that evidence had to be tested first, Rule 33(1) allows an application at any stage. The Forms 35 filed by all parties form part of the evidence and 'speak for themselves'; the uncontroverted discrepancy over Kibirichia Girls Secondary Forms 35 and the alterations evident on their face justified ordering scrutiny to establish the truth.

p. 4
02

Whether failure to cite Rule 33 in the application was fatal

Holding

No; it was a technical error cured by Article 159(2)(d) and Order 51 Rule 10.

Reasoning

The application cited Rule 32 only, but Rule 33 specifically governs scrutiny. The court held the omission to be a technical, non-fatal error, invoking the overriding objective under Order 51 Rule 10 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution favouring substantive justice.

p. 4
03

Burden of proof regarding alleged irregularities

Holding

The burden lies on the petitioner to prove irregularities that substantially and materially affected the outcome.

Reasoning

The court noted that the petitioner alleged the irregularities gave the 1st respondent undue advantage. It confirmed the burden rests squarely on the petitioner, who must prove the irregularities were of such magnitude as to affect the result; scrutiny would assist the court in investigating the truth of the allegations.

p. 4

Legal principles established

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  • An application for scrutiny can be made at any stage of the proceedings, but sufficient reason must be shown; the order is not automatic.

Court orders

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  1. 1.Scrutiny of all documents and materials to be delivered to court by the 3rd respondent pursuant to Rule 21 of the Election Petition Rules 2013, including presiding officers' statements, written complaints, spoilt and rejected ballot papers, counted ballot papers, statements of rejected ballots, and original Forms 35 and 36 and statutory forms for Kibirichia Ward
  2. 2.Scrutiny to be effected under the court's supervision and/or an officer appointed by the court
  3. 3.Leave granted to the 1st respondent to appeal against the ruling
  4. 4.Typed copies of proceedings and ruling to be supplied to the 1st respondent's advocate upon payment of copying fees
  5. 5.Refusal of stay of proceedings; parties to proceed with pre-trial conference as scheduled
  6. 6.By consent, hearing of the petition and counting/scrutiny to commence on 25th June 2013 on a daily basis; ballot boxes delivered to court on 21st June 2013 at 12 noon; decision to call witnesses to depend on outcome of scrutiny/recount

Authorities

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Legislation

  • Elections Acts.82(1)
  • Election (Parliamentary and County Elections) Petition Rules 2013Rules 21, 32(1), 33(1), 33(2)
  • Constitution of Kenya 2010Article 159(2)(d)
  • Civil Procedure RulesOrder 51 Rule 10

Cases cited (10)

  • High Court Nairobi Election Petition No. 5 of 2008
  • High Court Nairobi Election Petition No. 7 of 1983
  • High Court Nairobi Election Petition No. 5 of 1983
  • High Court Nairobi Election Petition No. 6 of 1988
  • High Court Nairobi Election Petition No. 1 of 2008
  • Ali Hassan Joho v Nyoge & another, Mombasa High Court Election Petition No. 1 of 2005
  • High Court Nairobi Election Petition No. 9 of 1993
  • High Court Nairobi Election Petition No. 41 of 1993
  • High Court Nairobi Election Petition No. 13 of 2008
  • William Maina Kamandea v Margaret Wanjiru Kariuki & 2 others, Nairobi Election Petition No. 5 of 2008
Jurisdiction invoked
Elections Act 2011 s.82; Election (Parliamentary and County Elections) Petition Rules 2013, Rules 32 and 33

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, "John Mbaabu Murithi v Jacob Mwirigu Muthuri & 2 others [2013] KEMC 32 (KLR)", Case Analysis (2013). Election Petition filed 4th April 2013 (Kibirichia Ward). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/32/eng@2013-06-04

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