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MagistrateDismissedElection Petition (Gichugu) – not stated in judgment· [2013] KEMC 42 (KLR)

Wilson Waweru Wambugu v Iebc & 3 others [2013] KEMC 42 (KLR)

High Court of Kenya (Election Court, Gichugu)
20 September 2013
5,090 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed an election petition because the candidate could not prove that voting errors changed the result of the ward election.

What this practically means

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Executive summary

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This first-instance election petition concerned the election of Jamlick Kariuki Kiura as Member of County Assembly for Njukiini Ward, Kirinyaga County, in the 4 March 2013 general election. The petitioner, Wilson Waweru Wambugu, who finished second, sought production of ballot papers, a scrutiny and recount, and a declaration that Kariuki was not duly elected and the election was void. Partial scrutiny and recount of Kanjuu streams 1 and 2 and Ngiriambu streams 1 and 2 had already been allowed in an earlier ruling. The court framed five issues covering the freeness and fairness of the election, alleged victimisation of the petitioner's agents, compliance by electoral officials, complaints lodged, and the effect of counting and tallying on form 36. The court admitted a 'new' form 36 produced during cross-examination, holding election petitions are statutory proceedings governed without undue regard to technicalities. It found the discrepancies between the two forms 36 minor and excusable, the second form being the valid final one; that the petitioner's agent was effectively replaced within an hour and malpractice was not corroborated; that the respondent's witness Ngaire had deponed a false affidavit and was unworthy of credit; and that scrutiny changed the margin only from 80 to 66 votes. Invoking the s.83 Elections Act saving clause, the court held the election reflected the will of the voters and Kariuki was validly elected. The petition was dismissed with each party bearing its own costs, a s.86 certificate to issue, and the petitioner's security deposit to be refunded.

Key legal issues

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01

Admissibility of the 'new' form 36 produced during cross-examination

Holding

The new form 36 was properly admitted; the election court may receive material assisting justice and the Returning Officer, having referred to it, lost the argument for exclusion.

Reasoning

Election petitions are statutory proceedings; common law and equity apply only as far as the Elections Act permits. Section 80(1)(d) requires the court to decide matters without undue regard to technicalities. Omari chose to rely on a form 36 not on the record, so it could not be excluded; the court admitted it in the interest of justice.

p. 6
02

Discrepancies between the two forms 36

Holding

Discrepancies were minor and excusable; the second form 36 was the final and valid one and did not prejudice the petitioner.

Reasoning

The only material difference was the transposition of Kariuki's 70 votes at Ngiriambu stream 2 as 7 votes, which prejudiced Kariuki, not Waweru, whose votes were unchanged. Form 36 is not static; clerical errors arising from the speed of information flow are excusable where the final form corresponds with forms 35.

p. 7
03

Alleged ejection of the petitioner's agent and malpractices at Kanjuu stream 1

Holding

Not proved; the petitioner's sole eyewitness was uncorroborated and the respondent's witness Ngaire was discredited for a false affidavit.

Reasoning

Wachira's claim of ejection at Kariuki's behest lacked corroboration in material particulars; Nyaga explained the ejection as for influencing voters. Ngaire lied in his affidavit about being agent in stream 1. Waweru was effectively represented across all 22 polling stations after a replacement arrived within an hour.

p. 10
04

Effect of scrutiny and recount on the results

Holding

Scrutiny produced insignificant changes; Kariuki lost 14 votes but the margin of 66 remained decisive; the result reflected the will of the voters.

Reasoning

Before scrutiny Kariuki led 1247 to 304 in the four stations; after scrutiny 1233 to 304. The overall margin under the final form 36 fell from 80 to 66 votes. No evidence showed unlawful polling, counting or tallying; the results in the highest-turnout stations delivered Kariuki's victory naturally.

p. 9
05

Whether the petitioner was denied his constitutional right to compete in a free and fair election

Holding

No; the petitioner was not denied his right and his agents were not victimised.

Reasoning

There was no evidence the petitioner lacked agents in the 22 polling stations of Njukiini Ward; Wachira was replaced within about an hour, and the petitioner was effectively represented throughout.

p. 11

Legal principles established

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  • The standard of proof in an election petition is higher than a balance of probabilities but not beyond reasonable doubt
  • An election petition is a statutory proceeding to which common law and equity apply only to the extent permitted by the Elections Act
  • Non-compliance will not void an election unless it affects the result (s.83 Elections Act saving clause)
  • An election court should receive material assisting it to do justice, without undue regard to technicalities
  • The bedrock principle of election dispute resolution is to ascertain and give effect to the intent of the voters

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs of the petition
  3. 3.A certificate of determination under Section 86 of the Elections Act 2011 to issue forthwith
  4. 4.Security deposited be refunded to the petitioner
  5. 5.Right of appeal within 30 days explained
Jurisdiction invoked
Elections Act, 2011 and Election Petition Rules 2013 (election petition for Member of County Assembly, Njukiini Ward)

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, "Wilson Waweru Wambugu v Iebc & 3 others [2013] KEMC 42 (KLR)", Case Analysis (2013). Election Petition (Gichugu) – not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/42/eng@2013-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.