Salim Ali Sheikh v Independent Electoral And Boundaries Commission (Iebc) & 2 others [2013] KEMC 51 (KLR)
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
#Key legal issues
#Whether the election was free, fair and credible despite tallying errors
The election was free, fair, transparent and credible and carried out in substantial compliance with the Constitution and governing written law
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.
Whether allegations of ballot stuffing and denial of agent access were proved
Neither ballot stuffing nor disenfranchisement through agent exclusion was established
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.
Whether unsigned Form 35 documents invalidate results
Failure of agents to sign Form 35 does not by itself invalidate the results
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.
Whether the 3rd Respondent was validly elected
The 3rd Respondent was validly elected
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.
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.The Petition is dismissed
- 2.The Petitioner and the 1st and 2nd Respondents will each bear their own costs of the Petition
- 3.The Petitioner will pay costs of the Petition to the 3rd Respondent assessed at Kshs. 300,000/-
- 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.