Duncan Chege Gathogo v Alfred Ambani Muhindi & 2 others [2013] KEMC 57 (KLR)
The bottom line
#A Kenyan court dismissed a losing candidate's election petition, ruling he failed to prove alleged fraud actually changed the election result.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there were electoral malpractices and irregularities in the conduct of the Lower Savannah Ward County Assembly Representative election on 4/3/2013 thereby affecting the outcome of the election
- 2.Whether the official results returned by the 2nd & 3rd Respondents confirming the 1st Respondent the winner were credible, free and fair as set out in the Election Act
- 3.Whether the 1st Respondent was validly elected member of the Lower Savannah County Ward
- 4.Who should bear the costs
Key legal issues
#Whether bribery was proved against the 1st Respondent
Not proved; the money allegedly distributed was traced to Omondi, a candidate for another seat, and Ann Mbula, with no evidence linking them to the 1st Respondent
PW6 and PW7 were the only witnesses on bribery. Neither saw the 1st Respondent. Omondi was conducting his own campaign and there was no proof the money came from the 1st Respondent, who denied knowing Jane Kagai and Ann Mbula and produced his M-pesa statement. There was no evidence that the persons involved were his agents or that the money came from him.
Whether suppression of voters and irregularities affected the result
Not proved; the delayed stream was compensated by extending voting by 30 minutes, and no voter testified to being denied the vote
D.W.2 personally attended to the complaint of the missing stream at Edelvale, stopped voting for 30 minutes and extended voting by 30 minutes. No registered voter gave affidavit evidence of being frustrated from voting. The petitioner could not name a single voter in the alleged disadvantaged categories or show they would have voted for him.
Whether failure of electronic voter identification devices invalidated the election
No; the manual register was lawfully used and the elections were never envisaged as purely electronic
Section 44 of the Elections Act permits the Commission to use appropriate technology, and Regulation 69 provided for identification by manual or electronic register. The Supreme Court in Raila Odinga held that the Kenyan voting system is manual, and electronically transmitted results are only provisional, so non-transmission of provisional results cannot invalidate final results.
Whether the two sets of results (provisional Form 36 and final results) rendered the outcome non-credible
No; discrepancies were transcription errors corrected on audit, and the 1st Respondent led in both sets
D.W.2 explained that extreme exhaustion at the tallying centre caused transcription errors from Form 35s to Form 36. An audit was conducted, Form 35s re-tallied and corrected final results published. The margin changed from 1,176 to 805 votes, with the 1st Respondent leading in both. Corrections on Form 35s were countersigned and recounts were done where requested.
Legal principles established
#- The burden of proof in an election petition lies with the petitioner, who must discharge the initial burden before respondents are called upon to bear the evidential burden
- Irregularities or malpractices must be of such magnitude that they substantially and materially affected the outcome of the election before nullification
- Failure of electronic voter identification devices does not invalidate an election conducted under a manual voting system
Court orders
#- 1.The petition is dismissed
- 2.Costs awarded against the petitioner: Kshs.1,000,000.00 in total - Kshs.420,000/= to the 1st Respondent and Kshs.580,000/= jointly to the 2nd and 3rd Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election Act - election petition for Member of the County Assembly, Lower Savannah Ward, Embakasi Constituency
Relief refused
#Declaration that the 1st Respondent was not duly elected and that the election was void
Petitioner failed to prove electoral malpractices and irregularities to the required standard; bribery not proved and only one incident of double voting which was promptly dealt with
Examination of the electors' registers used in all polling stations
No evidential basis established that malpractices compromised the result
Declaration of which candidate was validly elected in the petitioner's favour
The court found the 1st Respondent validly elected
Costs
Respondents' costs awarded against the petitioner, fixed at Kshs.1,000,000.00 in total: 1st Respondent awarded Kshs.420,000/= and 2nd and 3rd Respondents jointly awarded Kshs.580,000/=
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.
The petition is dismissed.
I award the Respondents costs against the petitioner. All circumstances of this case considered, the costs awarded is Kshs.1,000,000.00
Arising from the above this court find that the Petitioner has not proved that there were malpractices and irregularities affecting the result of the ward elections.
From the foregoing, I am satisfied that the results returned were credible and generally reflected the will of the people of Lower Savannah.
the courts wills strive to pursue an election as being in accordance with the law, even where there have been significant breaches of official duties and election rule, providing the results of the election was unaffected by those breaches.
The Court will therefore not interfere with the overwhelming will of the people.
Issues in the judgment
#The judgment gives inconsistent dates for the meeting described by PW6, stating it occurred on 3/3/2013 in one place and 3/5/2013 in another
The judgment refers to 'Embakasi East Constituency' and 'Embakasi Constituency' interchangeably in describing the ward
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Chege Gathogo v Alfred Ambani Muhindi & 2 others [2013] KEMC 57 (KLR)", Case Analysis (2013). Election Petition (Lower Savannah Ward County Assembly Election, 4th March 2013) - Petition dated 8th April, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/57/eng@2013-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.