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MagistrateOtherNot stated in the judgment as provided· [2013] KEMC 34 (KLR)

John Mbaabu Murithi v Jacob Mwirigi Muthuri & 2 others [2013] KEMC 34 (KLR)

Magistrates' Court (Election Court), Meru Law Courts
4 September 2013
681 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Meru election court can order a vote recount on its own initiative where evidence suggests tampering, even when a party raised the issue late.

What this practically means

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Executive summary

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In an election petition concerning Kibirichia Ward, the petitioner, through written submissions highlighted on 30 August 2013, sought scrutiny and recount of ballot papers without specifying a particular polling station. The 1st respondent maintained no basis had been laid, while the 2nd and 3rd respondents argued the petitioner had waived the right to make a fresh application, it being too late in the proceedings. The background was that the petitioner's pre-trial application dated 20 May 2013 for scrutiny and recount of all ballot papers had been allowed by the court but overturned on appeal in HC E.P. No. 2 of 2013, in which the High Court indicated the petitioner could re-apply; he never did. The court held that scrutiny and recount can only be dealt with before a judgment date is set, under section 82(1) of the Elections Act, and that raising the issue in submissions was improper. However, guided by P.K. Kariuki J in William Maina Kamanda v Margaret Wanjiku Kariuki & 2 Others, the court held that scrutiny may be ordered at any stage before final judgment, including on the court's own motion where a basis is laid. Because PW2 alleged that Form 35 for Marurui Primary School had been altered in favour of the 1st respondent, the court, duty-bound to investigate the truthfulness of allegations, ordered partial scrutiny and recount limited to Marurui Primary School, polling station No. 087, to verify vote tallies against Form 35, and directed the 3rd respondent to deliver all materials for that station under Rule 21 of the Election Petition Rules, 2013. No costs order was made.

Key legal issues

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01

Power of the election court to order scrutiny and recount during the hearing

Holding

The court may order scrutiny and recount on its own motion or on application during the hearing, provided a basis is laid, and may do so before final judgment.

Reasoning

Section 82(1) of the Elections Act empowers the election court, on its own motion or on application during the hearing of a petition, to order scrutiny of votes in such manner as it determines. The petitioner's earlier scrutiny order was overturned on appeal and he never re-applied; raising scrutiny only in submissions was late. However, PW2's allegation that Form 35 for Marurui Primary School was altered laid a basis, and the court was duty-bound to investigate the truthfulness of allegations. It therefore ordered scrutiny on its own motion, limited to that polling station.

p. 2
02

Timing of scrutiny and recount applications

Holding

The issue of scrutiny and recount must be dealt with before the judgment date is set; raising it in submissions was improper, though the court's own-motion power remained.

Reasoning

The petitioner had applied pre-trial for scrutiny of all ballot papers; that order was overturned by the High Court, which noted he could re-apply. He did not. The respondents argued waiver and lateness. The court agreed scrutiny cannot be raised for the first time in submissions after evidence closed, but held that its statutory power to order scrutiny suo motu where a basis appears was still exercisable before final judgment.

p. 1

Legal principles established

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  • An order of scrutiny can be made at any stage of the hearing before final judgment, on the court's own motion or where a basis is laid.

Court orders

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  1. 1.Partial scrutiny and recount limited to Marurui Primary School (polling station No. 087) to determine the number of votes garnered by each candidate and whether the results tally with Form 35
  2. 2.All documents and materials in respect of polling station No. 087 (Marurui Primary School) to be delivered to court by the 3rd respondent, pursuant to Rule 21 of the Election (Parliamentary and County Elections) Petition Rules, 2013
Jurisdiction invoked
Section 82(1) of the Elections Act; Rule 21 of the Election (Parliamentary and County Elections) Petition Rules, 2013

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 Mwirigi Muthuri & 2 others [2013] KEMC 34 (KLR)", Case Analysis (2013). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/34/eng@2013-09-04

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