Sharif Abduldadir Abderhman v Abdallah Chikophe & 2 others [2013] KEMC 45 (KLR)
The bottom line
#A Kenyan court dismissed this election challenge because proven voting errors were too few to change the result, even though officials committed offences.
What this practically means
#Executive summary
#Key legal issues
#Whether the election was conducted in compliance with electoral laws
Most allegations of non-compliance were unproved; only two were established - failure of the deputy presiding officer to sign form 35, and alteration of results in form 35 at Kipini Primary School Stream II reducing the petitioner's votes by 99
The court went through each of the thirteen pleaded malpractices and found them either denied by sworn rebuttal evidence, based on blanket assertions, not pleaded in affidavits, or contradicted by the petitioner's own witnesses. The absence of an agent is by regulation not fatal, and an acknowledgement slip is not proof of registration. Only the failure to sign form 35 and the uncounter-signed alteration of form 35 were proved.
Whether the proved non-compliance affected the result substantially
No - even after the recount restored 99 votes to the petitioner, the 3rd respondent retained a margin of 197 votes
Applying the quantitative test, the recount showed the petitioner had 910 votes against the 3rd respondent's 1,107, a margin of 197 votes. The failure of the deputy presiding officer to sign form 35 was a procedural anomaly not affecting the declared results in the polling station. Qualitatively the court found the process fair, free and transparent.
Whether any election offence was committed by the respondents or their agents
Yes - the two presiding officers at Kipini Primary School committed election offences under Sections 59(5) and 59(a) and (g) of the Elections Act; the 3rd respondent was not culpable
Sylvano Mwaka failed to sign form 35 and failed to record statutory comments; Agnes Matata altered the petitioner's votes from 164 to 64 and redistributed the votes to other candidates so the total votes cast was not exceeded - a clear case of intentional manipulation. Under Section 87 of the Elections Act the court directed notification of the DPP, IEBC and the County Assembly Speaker.
Legal principles established
#- An election shall not be declared void for non-compliance unless it affected the result of the election
- The standard of proof in election petitions is above the balance of probability but not as high as beyond reasonable doubt
- An election court applies both quantitative and qualitative tests in assessing whether non-compliance substantially affected an election
- An election petition is a strictly statutory proceeding to which common law and equitable concepts do not apply
Court orders
#- 1.The petition is dismissed
- 2.The petitioner to pay costs to the Respondents
- 3.A recount of votes at Kipini Primary School Stream II was conducted (ordered and carried out on 8th July 2013)
- 4.Pursuant to Section 87 of the Elections Act, the Director of Public Prosecutions, the 2nd Respondent and the Speaker of the County Assembly to be notified of the commission of election offences by the two presiding officers, Sylvano Mwaka and Agnes Matata, for appropriate action
- Jurisdiction invoked
- Constitution of Kenya 2010 and Election Act No. 24 of 2011 (election court jurisdiction under Section 82 of the Elections Act and the Elections (Parliamentary and County Elections) Petition Rules, 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sharif Abduldadir Abderhman v Abdallah Chikophe & 2 others [2013] KEMC 45 (KLR)", Case Analysis (2013). Election Petition No. 01 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/45/eng@2013-08-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.