Robert Bisakaya Wanyera v Nathan Obwana & 3 others [2013] KEMC 52 (KLR)
The bottom line
#A Kenyan court cancelled a county assembly election because IEBC result forms were irregular, even though a recount confirmed the winner ahead by 144 votes.
What this practically means
#Executive summary
#Key legal issues
#Whether the electoral process was free, fair and transparent
The process was not: Forms 35 were unauthenticated, alterations were not countersigned, the original Form 35 was withheld, Form 36 was unsigned and contained admitted errors, and the Returning Officer kept the verified Form 36 from the court
Forms 35 are primary documents feeding Form 36. The court compared originals in ballot boxes with copies filed and found discrepancies, e.g. station 061 whose original lacked IEBC stamp, officer names and agent signatures while the copy had them. Two stations had different ballot box seal serial numbers at scrutiny from the polling day diaries. Doubt remained about authenticity of the Forms, portraying lack of transparency by the 2nd Respondent.
Whether bribery, violence and locking out of the agent were proved
None was proved to the required standard
Only PW3 mentioned bribery by Mildred Barasa, with no corroborative evidence and no nexus to the 1st Respondent. The assault victim never reported to police and had no P3 form; no other witness mentioned the Kakala shoot-out. The agent was outside only 1½ hours while two Ford-Kenya agents were inside, so no prejudice arose.
Whether the irregularities substantially affected the results
Yes; the irregularities fundamentally affected the electoral process and results
Scrutiny and recount did not cure the doubts. Unauthenticated Forms, an unsigned Form 36, failure to produce the verified Form 36 and absence of counterfoils undermined certainty of the declared results. The court applied both the qualitative and quantitative approach, finding the flaws fatal notwithstanding the 1st Respondent's 144-vote lead after recount.
Whether the election should be nullified and who bears costs
The election was declared null and void, fresh elections ordered, and costs awarded against the 2nd and 3rd Respondents only
No illegality was proved against the 1st Respondent or his agents, and no deliberate wrong was proved against the 4th Respondent. Costs were therefore confined to the 2nd and 3rd Respondents, being the IEBC and the Returning Officer whose conduct created the doubt.
Legal principles established
#- Uncertainty in entries made in Form 35, the primary document feeding Form 36, casts doubt on the result of the election from the polling station it emanates from
- Failure to produce the original Form 35 and verified Form 36, unexplained alterations not countersigned, and absence of counterfoils cast doubt on results and portray lack of transparency; such irregularities are fatal
- An election is a process; if any one of its activities is flawed through failure to comply with the law, it affects the quality of the electoral process
- A candidate leading after scrutiny and recount does not save an election where the process was fundamentally flawed
Court orders
#- 1.Results for Lwandanyi ward for Member of County Assembly declared null and void
- 2.Certificate to issue as per Section 86(1) of the Elections Act 2011
- 3.Fresh elections to be held
- 4.2nd and 3rd Respondents to bear the costs of the petition
- Jurisdiction invoked
- Election petition challenging election of Member of County Assembly under the Constitution of Kenya 2010 and the Elections Act 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Bisakaya Wanyera v Nathan Obwana & 3 others [2013] KEMC 52 (KLR)", Case Analysis (2013). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/52/eng@2013-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.