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MagistrateDismissedElection Petition No. 1 of 2013 (Tuwan Ward)· [2013] KEMC 59 (KLR)

James Gichuhi Wanyoike v Francis Obingo Were & 2 others [2013] KEMC 59 (KLR)

Magistrates' Court (Election Petition)
21 August 2013
MGM. N. Gicheru
4,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an election petition because the challenger proved some errors but could not show they changed who won the election.

What this practically means

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Executive summary

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The petitioner challenged the election of Francis Obingo Were as County Assembly Representative for Tuwan Ward, Trans-Nzoia County, in the 4 March 2013 elections, seeking nullification and a fresh election. The parties agreed three issues: whether there was disenfranchisement, whether the election was conducted in accordance with the Constitution and the Elections Act, and whether any irregularities affected the result. The petitioner relied on his own affidavit and four witnesses who claimed they were registered but could not vote; the respondents explained the failure of electronic identification, the lawful resort to manual registers, and inadvertent transpositional errors in Form 36 at several polling streams. The court found no disenfranchisement given the 82-85% turnout, the witnesses' failure to verify registration, and absence of complaints. The burden of proving the ten grounds lay on the petitioner to a standard above a balance of probabilities; his failure to call any polling station agents rendered his affidavit evidence hearsay. The only proved irregularity - transposition errors in Form 36 - was explained as inadvertent, affected all candidates, and, after correction, the first respondent still won by a wide margin. Applying section 83 of the Elections Act, the election could not be declared void. The petition was dismissed with no order as to costs, the court finding the petition not wholly without merit. A right of appeal within 30 days was explained.

Key legal issues

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01

Disenfranchisement

Holding

Not proved; high voter turnout and unverified registration claims defeated the allegation

Reasoning

Voter turnout was 82.02% (84.69% after correction), which the court held inconsistent with disenfranchisement. The four deponents never verified their registration under section 6 of the Elections Act, never complained to IEBC officials, and no scrutiny was undertaken. Possession of a voter's card is not proof of registration.

p. 7
02

Compliance with the Constitution and the Elections Act

Holding

The election was conducted substantially in accordance with the law; the only proved irregularity was inadvertent transpositional errors in Form 36

Reasoning

The petitioner bore the burden on all ten grounds but called only four witnesses on disenfranchisement. Failure to call any of the agents at the 22 polling stations rendered his affidavit evidence hearsay. The returning officer explained the transpositional errors as inadvertent, caused by tired officials transferring results from manual forms 35 in the wrong candidate order, affecting all candidates equally.

p. 8
03

Effect of irregularities on the result

Holding

The transpositional errors did not affect the result; after correction the first respondent still won by 1,758 votes, engaging section 83 of the Elections Act

Reasoning

Corrected figures gave the first respondent 5,279 votes against the petitioner's 4,521. The winner would have been the same with or without the errors, so section 83 barred nullification. The court also noted the petitioner admitted he would not have won even if the errors were rectified.

p. 9

Legal principles established

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  • A petitioner alleging non-conformity with electoral law must prove both the non-compliance and that it affected the validity of the election, on a standard above a balance of probabilities
  • Under section 83 of the Elections Act, an election shall not be declared void for non-compliance where the election was conducted in accordance with constitutional principles or the non-compliance did not affect the result
  • Manual voting and use of manual registers is lawful where electronic voter identification fails, the Elections Act not outlawing manual voting
  • Elections are presumed regularly conducted; the burden lies on the petitioner to prove otherwise

Court orders

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  1. 1.The petitioner's petition is dismissed
  2. 2.No order as to costs
  3. 3.Right of appeal within 30 days explained

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 38 and 81
  • Elections ActSections 6, 83, 84
  • Election Regulations 2012Rules 59(2), 61(4)(a), 62(3), 62(6), 66(2), 69(4)
  • Elections (Parliamentary and County Elections) Petition Rules 2013Rule 34

Cases cited (1)

  • Raila Amolo Odinga v IEBC & others
    Election Petition No. 5 of 2013
Jurisdiction invoked
Election petition under the Constitution and the Elections Act (No. 24 of 2011)

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, "James Gichuhi Wanyoike v Francis Obingo Were & 2 others [2013] KEMC 59 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013 (Tuwan Ward). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/59/eng@2013-08-21

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