Charles Nyaga Njeru v Independent Electoral & Boundaries Commission & another [2013] KEMC 41 (KLR)
The bottom line
#A Kenyan court kept the winner in office because vote-counting errors, though real, did not change who actually won the election.
What this practically means
#Executive summary
#Key legal issues
#Actual results at Kamachuku Primary School polling station
The court adopted the recount results: the petitioner 175 votes, the 2nd respondent 55 votes
Three forms 35 existed for the station with differing figures; the form inside the ballot box showed 176 and 55 votes. After a court-supervised recount, both parties signed the recount and incidence form confirming the results, and neither party objected to the exercise. The court therefore preferred the recount figures over the form 36 figures announced at the tallying centre.
Errors of entry in forms 35 and 36 and their materiality
Errors of entry existed but did not materially affect the outcome of the election
The court found errors of entry in forms 35 and 36, including the erroneous recording of 17 instead of 176 votes for the petitioner at Kamachuku and the discrepancy in the two forms 36. However, after the recount all candidates retained the same positions, and even crediting the petitioner with all contested votes he would still trail the 2nd respondent by 2 votes. The court held the irregularities were not of such magnitude as to affect the outcome.
Allegation that the returning officer opened the ballot box without a court order, an election offence
Not proved; no evidence linked the returning officer to the alleged offence
The court held that allegations of election offences attract the criminal standard of beyond reasonable doubt. The petitioner never swore an affidavit or led evidence that the returning officer opened the ballot box without a court order; no witness testified to it and there was no evidence that the seals on the box before the court differed from those affixed after counting.
Preparation of two forms 36 by the returning officer
A breach of Regulation 83 of the Election Regulations, but without effect on the outcome
The court found that Regulation 83 requires only one form 36 to be prepared to obviate disputes, and that preparing two was a breach. However, the results in the two forms did not demonstrate an intention to subvert the democratic exercise, and the petitioner never demonstrated how the preparation of two forms 36 affected the outcome or prejudiced him.
Validity of the election of the 2nd respondent
The 2nd respondent was validly elected; the petitioner failed to discharge his burden
The petitioner bore the burden of proving irregularities to the standard higher than a balance of probabilities and that they affected the result. He failed to lead cogent evidence of non-compliance affecting the outcome; the margin after recount widened from 11 to 29 votes in favour of the 2nd respondent, whose return was therefore upheld and a certificate directed under section 86(1) of the Elections Act.
Costs of the petition
Each party to bear its own costs, the petition having been filed in good faith and advancing the public interest
Although costs ordinarily abide the cause, the court found the petition was not filed maliciously; the petitioner came to court because of a genuine admitted error at Kamachuku. Costs are a matter of access to justice, so the court declined to burden the petitioner with costs, save that costs of the interlocutory application of 17/5/2013 be deducted from the security deposited.
Legal principles established
#- He who alleges bears the burden of proof; the petitioner must prove electoral malpractices and that they affected the outcome
- In election petitions the petitioner bears the burden of proving non-compliance and that it affected the validity of the election
- The standard of proof in election petitions is higher than a balance of probabilities but lower than beyond reasonable doubt, save where electoral offences are alleged
- Allegations of election offences must be proved beyond reasonable doubt
- Under section 83 of the Elections Act, an election shall not be declared void for non-compliance unless it affected the result
- Minor errors in an election that are not fundamental should be excused or ignored
Court orders
#- 1.The petition is dismissed
- 2.Orders (b), (c) and (d) sought in the petition are declined; order (a) was taken care of by the recount
- 3.Each party to bear its own costs
- 4.Costs awarded in the interlocutory application dated 17/05/2013, which should be reasonable, to be deducted from the security deposited and the balance, if any, refunded to the petitioner
- 5.A certificate to issue forthwith and be served upon the Speaker of the Senate, National Assembly and Tharaka Nithi County Assembly in accordance with Section 86(1) of the Elections Act 2011, having found that the 2nd respondent was validly elected
- Jurisdiction invoked
- Article 87 of the Constitution; Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Nyaga Njeru v Independent Electoral & Boundaries Commission & another [2013] KEMC 41 (KLR)", Case Analysis (2013). Election Petition (Tharaka Nithi), 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/41/eng@2013-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.