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MagistrateDismissedMalindi Election Petition (County Assembly Ward - Ganda) - application dated 19/8/2013

Joseph Kiponda v Independent Electoral & Boundaries Commission (IEBC) & another [2013] KEMC 58 (KLR)

Magistrates' Court (Election Court), Malindi
27 August 2013
1,809 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan election court refused to expand a vote recount, ruling that scrutiny applications must rest on real evidence for each polling station, not guesses.

What this practically means

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Executive summary

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This is a ruling of the Malindi election court (Y.A. Shikanda, Ag SRM) on an application dated 19/8/2013 by the petitioner, Joseph Ngumbao Kiponda, seeking review of the court's orders of 6/8/2013 and a scrutiny and recount of all votes cast in the County Assembly representative seat for Ganda Ward, Malindi Constituency, Kilifi County. The earlier ruling had ordered scrutiny and recount of only four polling stations. The application was brought under Article 159 of the Constitution, Rules 4, 5, 33(1) and 33(2) of the Election Petition Rules, 2013 and section 80(3) of the Elections Act, citing error apparent on the face of the record, discovery of new and important matter, and the interests of justice. The court first held that, although the Rules contain no express review procedure, it possessed jurisdiction under the overriding objective and Article 159(2)(d). On the merits it found no error apparent was identified; the anomalies from the recount of four stations were not new evidence relating to other stations, each of which stands on its own; and the petitioner's agents had signed most forms 35 without faulting the counting. Relying on Philip Ogutu, Rishad Hamid Ahmed Amana and Philip Munge Ndoro, the court held scrutiny requires a laid basis, is not a fishing expedition, and cannot rest on a hunch. The application was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court has jurisdiction to review its own orders in the absence of express provision for review in the Election Petition Rules
  2. 2.Whether the petitioner established the grounds upon which the application for review is based
  3. 3.Whether such grounds provide a sufficient basis for the court to order scrutiny and recount of votes in all the remaining polling stations

Key legal issues

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01

Jurisdiction to review own orders

Holding

The court held it has jurisdiction to hear the review application notwithstanding that the Election Petition Rules, 2013 do not expressly provide for review.

Reasoning

The court reasoned from Article 159(2)(d) of the Constitution, section 80(1)(d) of the Elections Act and Rule 4 of the Election Petition Rules on the overriding objective. Justice must be administered without undue regard to procedural technicalities, so the absence of express review provisions could not defeat an otherwise meritorious application; jurisdiction existed to determine the application on its merits.

p. 2
02

Error apparent on the face of the record

Holding

No error or mistake apparent on the face of the record was established.

Reasoning

Apart from pleading the ground in the application itself, the petitioner neither in his supporting affidavit nor in submissions identified the alleged mistake or error. The ground therefore failed as it was not substantiated at all.

p. 2
03

Discovery of new and important matter

Holding

Anomalies found in the recount of the four polling stations did not constitute new and important matter justifying scrutiny of the remaining stations.

Reasoning

The petitioner relied on anomalies revealed by the earlier recount of four polling stations. The court held each polling station stands on its own and is conducted by different officials, so a mistake in one cannot be imputed to another; new evidence had to relate to the remaining stations specifically. None was presented, so the results of the earlier recount could not found scrutiny of the rest.

p. 3
04

Sufficiency of basis for scrutiny and recount

Holding

The petitioner failed to lay a sufficient basis for scrutiny and recount; the application was a fishing expedition and was dismissed.

Reasoning

The court reiterated that scrutiny or recount orders are discretionary and require a foundation laid by the applicant, citing Philip Ogutu, Rishad Hamid Ahmed Amana and Philip Munge Ndoro. The petitioner's agents had signed most forms 35 and never faulted the counting in their evidence; the earlier ruling had explained the alterations on forms 35. Scrutiny cannot be granted on a hunch or to construct a case as one goes along.

p. 4

Legal principles established

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  • An order for scrutiny or recount may only be granted where the petitioner has laid a sufficient basis; it is not granted as a matter of course.
  • Scrutiny and recount cannot be used as a fishing expedition to uncover new or fresh evidence.
  • Each polling station stands on its own; anomalies in one station cannot justify scrutiny of others conducted by different officials.
  • Despite the absence of express review provisions in the Election Petition Rules, an election court retains jurisdiction to entertain review by virtue of the overriding objective and Article 159(2)(d).

Court orders

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  1. 1.The application dated 19/8/2013 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution; section 80(3) of the Elections Act; Rules 4, 5, 33(1) and 33(2) of the Elections (Parliamentary and County Elections) Petition Rules, 2013

Relief refused

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Review of the court's orders dated 6/8/2013

No mistake or error apparent on the face of the record was identified and no new and important matter was discovered

p. 2

Scrutiny and recount of votes in all remaining polling stations in Ganda County Assembly ward

No new evidence relating to the remaining polling stations was presented; the application was a fishing expedition and scrutiny cannot be based on a hunch

p. 4

Costs

The application is dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I am convinced that the application is properly before court and this court is clothed with the jurisdiction to hear and determine the application on merits.
p. 2Jurisdiction of election court to review its own orders
It is trite law that an order for scrutiny or recount can only be granted where the petitioner has laid a sufficient basis.
p. 3Sufficient basis for scrutiny and recount
A mistake of one election official in a polling station cannot be used to impute liability on another election official in a different polling station.
p. 3Polling stations to be assessed separately
As rightly submitted by the respondents, the application is a mere fishing expedition and this court is not prepared to assist the petitioner to fish for more evidence in support of his petition.
p. 3Scrutiny not a fishing expedition
a prayer for scrutiny and or recount cannot be based on a hunch or on the instincts of the petitioner but must be based on tangible evidence relating to each particular polling station.
p. 4Evidence-based scrutiny applications
The upshot of the above considerations is that the application dated 19/8/2013 lacks merit. The same is hereby dismissed with costs to the respondents.
p. 4Final orders - dismissal with costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Kiponda v Independent Electoral & Boundaries Commission (IEBC) & another [2013] KEMC 58 (KLR)", Case Analysis (2013). Malindi Election Petition (County Assembly Ward - Ganda) - application dated 19/8/2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/58/eng@2013-08-27

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