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MagistrateDismissedElection Petition No. 01 of 2013· [2013] KEMC 45 (KLR)

Sharif Abduldadir Abderhman v Abdallah Chikophe & 2 others [2013] KEMC 45 (KLR)

Principal Magistrate's Court at Garsen
16 August 2013
6,791 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an election petition challenging the election of Manase Samuel Guyo as County Assembly Representative for Kipini East Ward, Garsen Constituency, in the 4th March 2013 general election. The petitioner, the incumbent and runner-up with 811 votes against the 3rd respondent's 1,107, alleged thirteen instances of electoral malpractice and non-compliance, including barring of his agents, denial of Forms 35 and 36, unsealed ballot boxes, falsification of votes at Kipini Primary School Stream II, and disenfranchisement of voters. Three issues were agreed at pre-trial conference. The court found almost all allegations unproved - blanket assertions, contradicted by sworn rebuttal evidence, or unsupported by witnesses. Two irregularities were proved: failure of the deputy presiding officer at Kipini Primary School Stream II to sign Form 35, and unauthorised alteration of Form 35 by presiding officer Agnes Matata, which the court investigated by ordering a recount of that stream. The recount showed 99 votes had been taken from the petitioner, but even restored he would have had 910 votes against 1,107, a margin of 197, so the non-compliance did not substantially affect the result under Section 83 of the Elections Act, applying both quantitative and qualitative tests. The court nonetheless found both presiding officers guilty of election offences under Section 59 and directed notification of the DPP, IEBC and the County Assembly Speaker under Section 87. The petition was dismissed with costs to the respondents.

Key legal issues

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01

Whether the election was conducted in compliance with electoral laws

Holding

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

Reasoning

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.

p. 11
02

Whether the proved non-compliance affected the result substantially

Holding

No - even after the recount restored 99 votes to the petitioner, the 3rd respondent retained a margin of 197 votes

Reasoning

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.

p. 13
03

Whether any election offence was committed by the respondents or their agents

Holding

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

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.The petition is dismissed
  2. 2.The petitioner to pay costs to the Respondents
  3. 3.A recount of votes at Kipini Primary School Stream II was conducted (ordered and carried out on 8th July 2013)
  4. 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

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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, "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.