Samuel Kago Mungai Kimari & another v Miliam Wanjiru & 2 others [2013] KEMC 46 (KLR)
The bottom line
#A Nairobi court dismissed a challenge to the Ngei Ward election, ruling that minor errors do not invalidate results unless they change who won.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was the tallying process lawfully and justly carried out?
- 2.Was the voting process carried out in accordance with the law?
- 3.Were any ballot papers found outside stream one of voting at Lions Clinic polling station?
- 4.Did the 1st Respondent carry out her mandate as required by law?
- 5.Were the provisional results for the County Ward Representatives' election in Ngei ward lawfully transmitted?
- 6.Were the agents of the Petitioners allowed entry into the polling stations as required by law?
- 7.Were the ballot boxes inspected by the Petitioners' agents prior to voting?
- 8.Did the 1st Respondent properly fill and tally forms 34 and 35 in respect of the votes cast?
- 9.Were the announced results of the Ngei Ward a true reflection of the totals in forms 34 and 35?
- 10.Did any anomalies or breaches materially affect the overall results of the Ngei Ward elections?
- 11.Who won the Ngei County Ward Representative's election?
- 12.Who gets the costs of this petition?
Key legal issues
#Burden and standard of proof in election petitions
The burden lies on the Petitioner, who must prove allegations to a standard above balance of probabilities but below beyond reasonable doubt, with a higher degree where electoral offences are alleged
Relying on Raila Odinga v IEBC and Bernard Shinali Masaka v Bonny Khalwale, the court held that a petitioner must lay firm and credible evidence of departures from the law and show the non-compliance affected the validity of the election; mere proof of irregularities is insufficient.
Alterations and overwritings on forms 35
The presiding officer was negligent in failing to countersign an overwriting, but the error did not affect the totals and did not invalidate the election
DW2 admitted an uncountersigned overwriting changing 0 to 6. The court agreed with Muchelule J in William Odhiambo Oduol that alterations should be countersigned, and found the presiding officer's conduct negligent, but held the procedures were otherwise fairly followed and the totals unaffected.
Failure of electronic transmission of results
The failure did not prejudice the Petitioners as the system failed countrywide and the results were provisional only
Article 81(e)(v) requires efficient administration, but Regulation 82(2) makes electronically submitted results provisional and subject to confirmation under Regulation 73. Judicial notice was taken of the nationwide failure, and the 2nd Petitioner failed to show prejudice.
Denial of access to polling stations for agents
The agents locked out lacked requisite authorization or badges and were later admitted; the candidates could not transfer blame to presiding officers
Under Regulation 62(1)(c) and 62(4), agents must display official badges or authorization. The evidence showed the locked-out agents lacked credentials, were later admitted, and signed the opening declarations. Regulation 79(7) provides that absence of agents does not invalidate results.
Alleged ballot papers found outside the polling station
The claim was hearsay, as the alleged finder (Mr. Onyango) was not called as a witness and the papers were not produced
The 2nd Petitioner did not personally see the ballot papers, did not call the witness or the OCS Huruma, and the papers were never produced or identified as relating to any particular electoral post. IEBC officials in charge of the streams denied receiving such reports.
Materiality of irregularities under Section 83 of the Elections Act
The established alterations were immaterial and could not change the outcome; the 3rd Respondent won by 1,940 votes
Following Besigye v Museveni, Mbowe v Eliufoo and Joho v Nyange, the court applied the materiality test: irregularities must be of such magnitude as to affect the result. The margin of victory was large and no evidence showed votes materially interfered with.
Scrutiny, tallying and re-count
Refused because no formal application laying a basis was made despite directions
Section 82(1) permits scrutiny even without application, but the Petitioners' failure to lodge the directed formal application indicated no basis. The court adopted Majanja J's Wavinya Ndeti holding against fishing expeditions.
Forms 34 and presidential tallying
The court lacks jurisdiction to examine forms 34 relating to the presidential tally
Forms 34 related to the presidential election tallying, which falls outside the jurisdiction of the court in a county ward representative election petition.
Legal principles established
#- A petitioner seeking to annul an election bears the legal burden of proving the allegations, to a standard higher than a balance of probabilities but below beyond reasonable doubt
- Under the materiality test, irregularities must be shown to have affected the outcome of the election before results can be nullified; innocent mistakes or human error do not invalidate an election
- An alteration and an overwriting are the same in law; alterations on forms 35 should be countersigned and stamped by the maker
- Hearsay evidence is inadmissible in election petitions
- Failure to transmit provisional results electronically does not invalidate an election under Section 83 of the Elections Act
Court orders
#- 1.The petition was dismissed as devoid of merit
- 2.Costs of the petition awarded to the Respondents, capped at a maximum of Kshs. 1 Million pursuant to Rule 34(1)(a) of the Elections (Parliamentary and County Elections) Petition Rules 2013 - Kshs. 600,000 to the 1st and 2nd Respondents and Kshs. 400,000 to the 3rd Respondent
- 3.The sum deposited in court to remain deposited pending taxation of the Respondents' costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- The Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2013 - election for the County Ward Representative of Ngei Ward, Mathare Constituency
Relief refused
#Nullification of the election of the 3rd Respondent as County Ward Representative for Ngei Ward
The Petitioners did not prove irregularities of such magnitude as to affect the outcome of the election
Prayer for scrutiny, tallying and re-count
No formal application laying a basis for scrutiny was ever lodged despite directions to do so
Costs
Costs of the petition awarded to the Respondents, with a maximum of Kshs. 1 Million specified: Kshs. 600,000 to the 1st and 2nd Respondents and Kshs. 400,000 to the 3rd Respondent; the sum deposited in court to remain deposited pending taxation.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
So, the Petitioners are required to prove the allegations of electoral malpractices to the standard that is higher than that of a balance of probabilities that is applicable in civil cases but lower than that applicable in criminal cases i.e. that of proof beyond any reasonable doubt.
Irregularities which can be attributed to an innocent mistake or an obvious human error cannot constitute a reason for impeaching an election result.
The Court does not see any distinction between the two. The overwriting had the effect of changing an entry of figure 0 to figure 6.This is in fact an alteration.
The second petitioner's evidence regarding the votes found outside stream 1 is therefore purely hearsay evidence and cannot hold water based on Section 65 of the Evidence Act.
The duty to ensure that an agent is authorized must remain with the candidate and the 2nd Petitioner can therefore not transfer blame to the presiding officer for his agent being locked out of the polling station for lack of the requisite authorization.
Consequently the petition filed by the Petitioners is devoid of merit and is hereby dismissed.
This court therefore holds that the maximum amount of costs that shall be paid to the Respondents is Kshs. 1 Million (one Million). The 1 st and 2nd Respondents shall be paid a maximum of Kshs. 0.6 Million (thus six hundred thousand only) while the 3 rd Respondent shall be paid a maximum of Kshs.0.4 Million (thus four hundred thousand only) in view of the fact that he had two counsels representing him.
Issues in the judgment
#The judgment alternately refers to the 1st Respondent as both the Returning Officer for Mathare constituency and Ngei ward and appears to misdirect allegations at the '2nd Respondent' when discussing the Returning Officer's mandate
The title of the presiding judicial officer is printed with a spelling error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kago Mungai Kimari & another v Miliam Wanjiru & 2 others [2013] KEMC 46 (KLR)", Case Analysis (2013). Election Petition No. 4 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/46/eng@2013-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.