Wycliffe Tabani Wepukhulu v Florence Fulano Wekesa & 2 others [2013] KEMC 39 (KLR)
The bottom line
#The Kimilili Magistrate's Court dismissed an election petition challenging the Maeni Ward result, ruling that minor irregularities did not change the outcome.
What this practically means
#Executive summary
#Key legal issues
#Whether agents were excluded from polling and counting centres
Allegation dismissed; petitioner's own agents signed Form 35 at all stations and the absence of an agent cannot by itself invalidate proceedings
The petitioner acknowledged his agents signed Form 35 in all polling stations without recording dissatisfaction. Regulation 62(3) provides that the absence of an agent cannot by itself invalidate the proceedings at a polling station. Respondents deponed that agents were present at all centres and were accorded cooperation upon production of authorisation letters.
Whether discrepancy between votes cast in the County Assembly election and other elections demonstrated malpractice
Dismissed; voters may choose to vote in some elective positions and not others, so tallies need not match
The court associated itself with Ogola J in Justus Gesito v IEBC, holding that a voter may elect not to participate in a certain election but vote in others; the number of votes across elections cannot be used to gauge malpractice. No documentary evidence supported the allegation and no recount basis was laid.
Whether use of manual tallying contrary to electronic systems invalidated the election
Dismissed; manual results in Form 35 are the final results and electronic transmission is only provisional
Relying on Regulation 87 and the Supreme Court's opinion in the Raila Odinga case, the court held that electronic results transmission is only for provisional results and the actual final result is the manual return in Form 35. Resorting to manual identification when BVR kits failed did not undermine the integrity of the exercise.
Whether voter bribery and treating were proved
Dismissed; not proved to the requisite standard and no one was charged
The 1st respondent denied involvement and Lillian Simiyu and Agnes Simiyu gave exculpatory accounts. The court noted voting is a strictly personal decision under the secret ballot and that under the secret ballot one can never tell if a voter actually voted for the person who allegedly bribed them. No reports of offences were made to the 2nd and 3rd respondents.
Whether alterations on Form 35 affected the result substantially
No; alterations totalling about ten votes against a margin of over 100 did not affect the result
The court found the unsigned Form 35 and uncountersigned cancellations were procedural anomalies; good practice dictates countersigning but the regulations do not specify consequences. Applying the quantitative test, the alterations were insignificant against the margin. The court cited Githinji JA's dissent in the Nyamwaya case on post-election anomalies.
Legal principles established
#- An election shall not be declared void for non-compliance where the election was conducted in accordance with constitutional principles or the non-compliance did not affect the result
- The burden of proof in an election petition lies on the petitioner, on a standard above balance of probability but below beyond reasonable doubt, though allegations of criminal electoral offences must be proved beyond reasonable doubt
- Scrutiny and recount will only be ordered where a foundation and basis has been laid
- In assessing whether non-compliance affected the result, the court may apply quantitative and qualitative tests or both
Court orders
#- 1.The petition is dismissed
- 2.The petitioner to pay costs to the respondents
- Jurisdiction invoked
- Election Act No. 24 of 2011 (election petition for County Assembly Ward election)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wycliffe Tabani Wepukhulu v Florence Fulano Wekesa & 2 others [2013] KEMC 39 (KLR)", Case Analysis (2013). Election Petition No. 01 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/39/eng@2013-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.