Eric Soita Patroba v Martin Wafula Wawire & 2 others [2013] KEMC 36 (KLR)
The bottom line
#The Webuye Magistrate's Court upheld the Sitikho Ward election, ruling that proved irregularities were too minor to change the result.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the petition
The preliminary objection failed; the petition filed on 10/4/13 was within 28 days because time runs from Gazette declaration on 13/3/13, not the local announcement of 6/3/13
The court distinguished the local announcement by the Returning Officer at the tallying centre from the official declaration of results by IEBC in the Kenya Gazette. Relying on decided election petition cases (Waititu, Kores, Mwandiku), the 28-day period under Article 87(2) of the Constitution runs from the Gazette declaration. The objection was also held to be an interlocutory matter that should have been raised before the hearing began.
Whether the failure of BVR, EVID and RTS systems breached constitutional principles of a free, fair, accurate, secure, verifiable and accountable electoral system
The failure of the electronic systems was proved, but the resort to a manual system was lawful and the manual process substantially complied with the Constitution and regulations
The court found the electronic systems failed by about 95% (working only until 10 am). However, under Article 86 and Regulation 59(2), either electronic or manual methods are lawful, and the Supreme Court in the Raila Odinga case endorsed manual systems where technology fails. The court walked through Regulations 67(1), 69, 70, 72 and 76 and found compliance: empty boxes verified, registers marked off, agents present, assistance to illiterate voters witnessed, counting and announcement in the presence of agents.
Effect of incorrectly filled Form 36 entries, uncountersigned alterations on Forms 35, unsigned Forms 35 and double registration on the election result
None of these irregularities affected the outcome; scrutiny and recount confirmed the 1st respondent won with 2580 votes against the petitioner's 2499
The court applied Section 83 of the Elections Act. Errors in Form 36 affected both candidates and were clerical; the four uncountersigned alterations on Forms 35 were minimal; the unsigned Forms 35 for Kakimanyi and Nambalayi were valid under Regulation 79 given the presiding officer's explanation; double-registered voters appeared on the IEBC exemption list and no one voted twice. Scrutiny and recount by the court's Executive Officer confirmed the declared results within a margin of 8 and 5 votes.
Alleged election offences: bribery, violence, intimidation, campaigning at polling stations
Not proved; the petitioner's allegations rested largely on hearsay and were never reported to police, IEBC or recorded on Forms 35
The petitioner admitted on cross-examination that he did not witness most of the alleged offences, made no written complaints, and no agents recorded complaints on the Forms 35 they signed. Witnesses who alleged harassment did not report to police stations. The court found the presiding officer at Nambalayi acted properly in restricting a New Ford Kenya agent from witnessing assisted voters who were loudly demanding his assistance, as that amounted to campaigning at a polling station.
Legal principles established
#- An election shall not be void for non-compliance with written law where the election was conducted substantially in accordance with constitutional principles or the non-compliance did not affect the result (Section 83, Elections Act)
- The limitation period for an election petition runs from declaration of results in the Kenya Gazette, not from announcement at the tallying centre
- Where electronic electoral systems fail, a manual system may lawfully be used for the election
- Failure of an agent to sign Form 35 does not by itself invalidate the results of a polling station
- Costs follow the event in election petitions
Court orders
#- 1.The preliminary objection on the timeliness of the petition dismissed
- 2.The petition dismissed for lack of merit
- 3.A certificate under section 86 of the Elections Act to issue
- 4.Costs awarded to the respondents, capped at Kshs 300,000 for the 1st respondent and Kshs 300,000 for the 2nd and 3rd respondents, to be taxed by the court
- 5.Record of Appeal to be filed in 30 days (ROA IN 30 DAYS)
- Jurisdiction invoked
- Election petition in respect of a County Assembly election under the Constitution of Kenya 2010 (Articles 86 and 87), the Elections Act 2011 and the Election (Parliamentary and County Elections) Petition Rules 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eric Soita Patroba v Martin Wafula Wawire & 2 others [2013] KEMC 36 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/36/eng@2013-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.