Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateDismissedElection Petition Number 3 of 2013· [2013] KEMC 51 (KLR)

Salim Ali Sheikh v Independent Electoral And Boundaries Commission (Iebc) & 2 others [2013] KEMC 51 (KLR)

Chief Magistrate's Court at Mombasa
25 September 2013
3,632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed an election challenge, ruling that tallying errors by election officials don't overturn results unless they actually change who won.

What this practically means

#

Executive summary

#
This was an election petition challenging the election of Patrick Peter Muriuki Siminyu as Member of the County Assembly for Tudor Assembly Ward, Mvita Constituency, in the 4th March 2013 General Election. The Petitioner, Salim Ali Sheikh, who finished second, sought nullification of the election, a recount and scrutiny of votes, a fresh election, or in the alternative a declaration that he was the winner. Eight agreed issues were framed for determination. The Petitioner alleged ballot stuffing, exclusion of his agents from polling stations, and denial of 116 votes at Burhaniya Primary School Stream 2, where Form 35 recorded only 16 votes for him. The Court ordered scrutiny and recount of three streams under the supervision of the Deputy Registrar, which confirmed the tallying error: the Petitioner's votes at Burhaniya rose from 16 to 114 and he gained 98 votes overall, while the 3rd Respondent lost one vote. The corrected totals were 2320 votes for the Petitioner against 2402 for the 3rd Respondent, a margin of 82 rather than the announced 181 votes. The Court held the error was human error not rising to substantial non-compliance; that the Wiper Party was represented by agents at all stations; and that unsigned Forms 35 did not invalidate results under Rule 79 of the Elections (General) Regulations, 2012. Following the Rishad Hamid Ahmed Amana case, the election was found free, fair and credible and the 3rd Respondent validly elected. The Petition was dismissed with a tailored costs order, and the earlier ruling directing the DCIO to investigate PW5 and an IEBC official was left standing.

Key legal issues

#
01

Whether the election was free, fair and credible despite tallying errors

Holding

The election was free, fair, transparent and credible and carried out in substantial compliance with the Constitution and governing written law

Reasoning

Scrutiny and recount ordered by the Court at three streams showed the Petitioner gained 98 votes and the 3rd Respondent lost one; the discrepancy of 16 versus 114/116 votes at Burhaniya Stream 2 was a human error by a tired Presiding Officer who worked past 1.00 am. Even after correction the 3rd Respondent led by 82 votes. The error did not amount to non-compliance materially affecting the result.

02

Whether allegations of ballot stuffing and denial of agent access were proved

Holding

Neither ballot stuffing nor disenfranchisement through agent exclusion was established

Reasoning

No witness established stuffing of ballot papers. The Petitioner presented no formal list of his agents to the IEBC; the Wiper Party had agents at every station, and polling halls were too small to accommodate an agent per candidate. Witnesses who were ejected were readmitted, and some signed Form 35 without recording irregularities.

p. 5
03

Whether unsigned Form 35 documents invalidate results

Holding

Failure of agents to sign Form 35 does not by itself invalidate the results

Reasoning

Some agents left polling centres before close of voting, and some Forms lacked signatures from all parties' agents. Rule 79(6) and (7) of the Elections (General) Regulations, 2012 provides that such refusal, failure or absence does not by itself invalidate announced results. The Court adopted that position.

p. 6
04

Whether the 3rd Respondent was validly elected

Holding

The 3rd Respondent was validly elected

Reasoning

After scrutiny and recount the final tallies were 2402 votes for the 3rd Respondent and 2320 for the Petitioner, a margin of 82 votes rather than the announced 181. The declared winner remained ahead notwithstanding the admitted tallying error, so the expressed will of the electorate of Tudor Assembly Ward was not negated.

p. 6

Legal principles established

#
  • A candidate whose party was represented by agents at polling stations cannot complain that his interests were not catered for where he is not an independent candidate
  • Under Rule 79 of the Elections (General) Regulations, 2012, the refusal or failure of a candidate or agent to sign a declaration form does not by itself invalidate the announced results
  • Elections conducted by human beings cannot be 100% perfect; mere human error not affecting the result does not nullify an election if there was substantial compliance

Court orders

#
  1. 1.The Petition is dismissed
  2. 2.The Petitioner and the 1st and 2nd Respondents will each bear their own costs of the Petition
  3. 3.The Petitioner will pay costs of the Petition to the 3rd Respondent assessed at Kshs. 300,000/-
  4. 4.The earlier ruling of 2nd July 2013 stands: the DCIO Mombasa to investigate PW5 and the concerned IEBC official once the Petition has been fully heard and determined and take necessary action
Jurisdiction invoked
The Elections Act, 2011 (election petition jurisdiction over election of Member of County Assembly)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Salim Ali Sheikh v Independent Electoral And Boundaries Commission (Iebc) & 2 others [2013] KEMC 51 (KLR)", Case Analysis (2013). Election Petition Number 3 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/51/eng@2013-09-25

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