Joseph Kiponda v Independent Electoral & Boundaries Commission(Iebc) & Stephen Bahati Mlanda (Election Petition 1 of 2013) (Civ) [2013] KEMC 56 (KLR)
The bottom line
#A Kenyan court upheld the Ganda Ward election result, ruling that the losing candidate failed to prove his claims of bribery, intimidation, and ballot errors.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to include the nickname 'Joseppe' on the ballot paper infringed the petitioner's rights
No infringement; the ballot paper must bear the name as in the register of voters, and no prejudice was shown
The petitioner did not specify which constitutional right was infringed nor canvass it in submissions, and the court doubted its jurisdiction over constitutional rights claims under Article 165(3)(b). 'Joseppe' did not appear on the petitioner's ID, nomination certificate or register of voters. A candidate seeking a nickname on the ballot must effect a deed poll name change. Photographs on the ballot enabled identification and no voter testified of confusion.
Whether allegations of bribery, intimidation, threats and campaigning by IEBC officials were proved
Not proved; evidence was hearsay, contradictory or untested, and incidents were not reported to relevant authorities
Bribery requires clear and unequivocal proof, and being an electoral offence attracting criminal sanctions must be proved beyond reasonable doubt. Witnesses contradicted their affidavits (PW12), shifted positions (PW8), or admitted not seeing the perpetrators (threat witness). Affidavits not subjected to cross-examination, such as Sada Ali's, carry little weight. Complaints were never made to the Electoral Code of Conduct Enforcement Committee or police, and the chief agent never confirmed receiving reports.
Whether failure of electronic voter identification devices invalidated the election
No; voting proceeded and no evidence showed manipulation or denial of the franchise
The devices failed country-wide and manual registers were used. The petitioner led no evidence of rigging, of being uniquely prejudiced, or of voters being denied the vote. Following Raila Odinga, technology had not achieved reliability as a permanent foundation of Kenya's electoral process, and non-compliance not affecting the result does not void an election under section 83 of the Elections Act.
Effect of the scrutiny and recount of votes in four polling stations
Discrepancies and uncountersigned alterations on forms 35 were noted but the outcome and winner remained unchanged
The partial scrutiny ordered in four polling stations revealed counting irregularities and uncountersigned alterations, and reduced the 2nd respondent's aggregate from 1,548 to 1,509 and the petitioner's from 1,255 to 1,254. Applying the quantitative and qualitative tests from Dickson Daniel Karoba and Morgan v Simpson, the errors were not fundamental, did not affect the result, and the margin still favoured the 2nd respondent, so the will of the electorate prevailed.
Whether the petitioner discharged the burden and standard of proof
He did not; the presumption of proper conduct was not rebutted
The presumption is that elections were properly conducted unless the contrary is proved. The petitioner's witnesses produced hearsay, contradictions and uncorroborated claims; no voters were called to confirm intimidation or confusion; bribery allegations lacked cogent proof. Applying Joho, cogent, credible and consistent evidence was required, and none was forthcoming.
Legal principles established
#- Where a person alleges infringement of a constitutional right, the claimant must state which right has been infringed, under which provision and in what manner
- A ballot paper can only contain the name of a candidate as it appears in the register of voters; a nickname requires a deed poll name change
- Failure of electronic voter identification devices does not, without proof of actual manipulation or denial of the vote, vitiate an election
- Where an election is conducted substantially in accordance with the law, errors not affecting the result do not vitiate it
- In an election petition the burden of proof lies on the petitioner; the standard is higher than balance of probabilities but lower than beyond reasonable doubt, and allegations of election offences must be proved beyond reasonable doubt
Court orders
#- 1.The Petition is dismissed
- 2.The Petitioner shall bear the costs of the petition, capped at Kshs. 800,000/- in total pursuant to Rule 34 of the Elections (Parliamentary and County Elections) Petition Rules, 2013
- 3.A certificate in accordance with section 86(1) of the Elections Act shall issue
- 4.The sum of Kshs. 100,000/- deposited by the petitioner as security shall be held by the court pending determination of the costs payable either by agreement or taxation
- 5.Declaration that the 2nd respondent, Stephen Bahati Mlanda, was validly elected as the Ganda Ward County Assembly Representative in the general elections held on 4/3/2013
- Jurisdiction invoked
- Elections Act, 2011 (election for County Assembly Representative for Ganda Ward); Article 38(3)(c), Article 81 and Article 88 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kiponda v Independent Electoral & Boundaries Commission(Iebc) & Stephen Bahati Mlanda (Election Petition 1 of 2013) (Civ) [2013] KEMC 56 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/56/eng@2013-09-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.