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MagistrateDismissedElection Petition No. 1 of 2013· [2013] KEMC 36 (KLR)

Eric Soita Patroba v Martin Wafula Wawire & 2 others [2013] KEMC 36 (KLR)

Senior Principal Magistrate's Court at Webuye
26 September 2013
21,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~85 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, who scored 2150 votes against the 1st respondent's 2539 in the 4 March 2013 Sitikho Ward County Assembly election, petitioned for scrutiny, a recount, nullification of the election and a declaration that the 1st respondent was not validly elected, alleging manipulation of Forms 35 and 36, votes exceeding registered voters, exclusion of his agents, failure of BVR/EVID/RTS technology, double registration, voter bribery, violence and intimidation. The court first disposed of a preliminary objection on limitation, holding that the 28-day period runs from the Gazette declaration of 13 March 2013, so the petition filed on 10 April 2013 was in time. A scrutiny and recount ordered by the court confirmed the 1st respondent won with 2580 votes to the petitioner's 2499. The court held that although the electronic systems failed by about 95%, resort to a manual system was lawful under Article 86 and Regulation 59(2), and the manual process complied with the Elections Regulations. Errors in Form 36 entries for four polling stations, four uncountersigned alterations on Forms 35, unsigned Forms 35 at Kakimanyi and Nambalayi, and cases of double registration were all found proved but none affected the outcome under Section 83 of the Elections Act. Allegations of bribery, violence and intimidation rested on hearsay and were unreported; they failed. The court found the election was conducted substantially in accordance with the law and that the 1st respondent was validly elected. The petition was dismissed with capped costs to the respondents, and a certificate under Section 86 of the Elections Act was ordered to issue.

Key legal issues

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01

Timeliness of the petition

Holding

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

Reasoning

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.

p. 23
02

Whether the failure of BVR, EVID and RTS systems breached constitutional principles of a free, fair, accurate, secure, verifiable and accountable electoral system

Holding

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

Reasoning

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.

p. 24
03

Effect of incorrectly filled Form 36 entries, uncountersigned alterations on Forms 35, unsigned Forms 35 and double registration on the election result

Holding

None of these irregularities affected the outcome; scrutiny and recount confirmed the 1st respondent won with 2580 votes against the petitioner's 2499

Reasoning

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.

p. 37
04

Alleged election offences: bribery, violence, intimidation, campaigning at polling stations

Holding

Not proved; the petitioner's allegations rested largely on hearsay and were never reported to police, IEBC or recorded on Forms 35

Reasoning

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

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  • 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

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  1. 1.The preliminary objection on the timeliness of the petition dismissed
  2. 2.The petition dismissed for lack of merit
  3. 3.A certificate under section 86 of the Elections Act to issue
  4. 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. 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

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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, "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.