Ephantus Kariithi Mwangi v I.E.B.C. & another [2013] KEMC 60 (KLR)
The bottom line
#Kenya's Nanyuki court cancelled the Mugogodo East MCA election after finding IEBC's results forms were unreliable, ordering a fresh election.
What this practically means
#Executive summary
#Key legal issues
#Whether there was conspiracy between IEBC officials and the 2nd respondent
No conspiracy proved
The petitioner and his witnesses adduced no evidence of conspiracy; the petitioner himself conceded in cross-examination that he had no evidence of conspiracy. The 2nd respondent's uncontroverted evidence was that he went home after voting and only went to the tallying centre at 9.30 p.m., so he could not have conspired with any IEBC official.
Whether ballot boxes were received at the tallying centre with broken seals and whether this affected results
Some seals were broken but this did not affect the results
The court's own record of serial numbers showed one broken seal each on boxes from three polling stations. The Returning Officer's explanation of breakage in transportation was reasonable; each box had five seals, so access to contents was not possible. No evidence showed how breakage affected results.
Whether the form 35s presented in court were the genuine ones and whether discrepancies affected the results
The form 35s were not genuine and the discrepancy affected the results
All three of the 2nd respondent's polling station agents, who swore they had signed the forms, denied in oral evidence signing the form 35s produced in court. The presiding officers also failed to record reasons for refusals to sign as required by regulation 79. The forms were therefore not genuine and bore invalid results.
Whether the petitioner was supplied with form 35 declarations of results
Non-supply proved, contrary to regulation 79(2)(c), amounting to lack of transparency
No evidence was tendered to contradict the petitioner's assertion that form 35s were not supplied; the 1st respondent did not call the presiding officers of the three polling stations to rebut it. Form 35 for Ngenia Secondary School was never supplied even as ordered.
Whether the elections were conducted transparently, fairly and justly and whether the 2nd respondent was validly elected
The elections were not free and fair and the 2nd respondent was not validly elected; results declared null and void
Form 36 was dated after form 38 (the certificate of results), meaning the 2nd respondent was issued a certificate before results were declared; form 38 was unsigned by the Returning Officer; form 35s were not genuine; and agents signed documents they did not understand. The cumulative irregularities affected the integrity of the results in a narrowly won election.
Court's jurisdiction over nomination/qualification disputes
No jurisdiction; such disputes lie with IEBC
The challenge to the 2nd respondent's academic qualification is a nomination dispute reserved to IEBC under Article 88(4) of the Constitution and Section 74 of the Elections Act, and cannot be entertained by the election court.
Legal principles established
#- An election shall not be declared void for non-compliance with written law unless the election was not conducted substantially in accordance with electoral principles or the non-compliance affected the result
- The standard of proof in election petitions is higher than a balance of probabilities but lower than beyond reasonable doubt
- A petitioner alleging non-conformity with electoral law must prove both the non-compliance and that it could affect the validity of the election
- Non-compliance with mandatory provisions governing declaration forms (form 35), including absence of candidate or agent signatures without recorded reasons, invalidates the results contained therein
- An election court must determine whether a declared winner was validly elected even where the process cannot be validated
Court orders
#- 1.Declaration that the elections and results of Mugogodo East Ward for Member of County Assembly held on 4th March 2013 are null and void
- 2.Declaration that the 2nd respondent was not validly elected as Member of County Assembly for Mugogodo East Ward
- 3.A fresh election shall be conducted for Member of County Assembly for Mugogodo East Ward
- 4.A certificate to be issued to the Commission in accordance with Section 86(1) of the Elections Act 2011
- 5.Petitioner to be paid his full costs by the respondents, to be taxed by the registrar under rule 35(1) of the Election (Parliamentary and County Election) Petition Rules 2013
- 6.Security deposited to be released to the petitioner pursuant to rule 36(1) of the elections rules
- 7.Certified copies of the judgment and proceedings to be supplied to the parties
- Jurisdiction invoked
- Elections Act 2011 (election petition for Member of County Assembly, Mugogodo East Ward)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ephantus Kariithi Mwangi v I.E.B.C. & another [2013] KEMC 60 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/60/eng@2013-09-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.