Bakari Hassan Juma v Independent Electrol And Boundaries Commission (Iebc) & 2others [2013] KEMC 37 (KLR)
The bottom line
#A Kenyan court threw out a 2013 ward election petition because the challenger proved no specific irregularity that actually changed the result.
What this practically means
#Executive summary
#Key legal issues
#Standard and burden of proof in election petitions
The petitioner bears the legal burden of proving non-compliance with the law and that such non-compliance affected the validity of the election
Relying on Hoho v Nyange, Morgan v Simpson, Raila Odinga v IEBC and Opitz v Wrzesnewskyj, the court held that elections are presumed regular and the petitioner must raise firm and credible evidence of departure from the law; the petitioner's generalised allegations did not meet this standard.
Alleged failure of BVR and use of other registers
No evidence that any voter was turned away or that unregistered persons voted; failure of machines did not stop voting
Petitioner's witnesses confirmed voting continued on the manual register and no voter was denied the chance to vote; the 1st Respondent explained that voters were directed to other streams where their names appeared. The court found no substantial non-compliance.
Denial of agents' access and failure to supply forms 34 and 35
Agents were trained and present; copies of forms were posted at polling stations; no specific denial of access was proved
The petitioner did not identify the polling station where he or his agents were denied entry. The Respondents explained shortages of forms and that copies were posted at polling station doors, and PW8 admitted removal from the counting hall for an alleged electoral offence.
Alleged electoral offences
Not proved; the petitioner made generalised allegations without identifying who committed which offence and where
Electoral offences under Sections 58 and 59 of the Elections Act have serious implications if proved, but the petitioner's evidence amounted only to an inference drawn from non-supply of forms, with no specific identification of perpetrators or polling stations.
Prayer for scrutiny and recount
Refused because the petition mixed the prayer with other reliefs and failed to specify disputed polling stations
Rule 32(2) requires that a petitioner seeking recount seek no other determination, and Rule 33(4) confines scrutiny to polling stations where results are disputed. The petition identified no specific stations, casting the net too wide.
Legal principles established
#- Where a petitioner alleges non-conformity with electoral law, he must prove both the non-compliance and that it affected the validity of the election
- Election petitions must be proved by cogent, credible and consistent evidence
- A prayer for scrutiny and recount cannot be mixed with other reliefs, and scrutiny is confined to disputed polling stations
Court orders
#- 1.The petition is dismissed with costs to the 1st, 2nd and 3rd Respondents
- 2.A finding that the 3rd Respondent was validly elected as member of the county assembly for Shella Ward in Kilifi County
- Jurisdiction invoked
- Elections Act No. 24 of 2011 and Elections (Parliamentary and County Elections) Petition Rules 2013 (election for member of county assembly, Shella Ward)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakari Hassan Juma v Independent Electrol And Boundaries Commission (Iebc) & 2others [2013] KEMC 37 (KLR)", Case Analysis (2013). Election Petition (Shella Ward, Malindi Constituency). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/37/eng@2013-08-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.