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MagistrateDismissedElection Petition (Tuwan Ward County Assembly Election) - dated 8th April 2013· [2013] KEMC 61 (KLR)

James Gichuhi Wanyoike v Francis Obingo Were & 2 others [2013] KEMC 61 (KLR)

Magistrates' Court (election petition jurisdiction)
21 August 2013
4,483 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a challenge to the Tuwan Ward election, ruling that minor clerical errors did not change who won.

What this practically means

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Executive summary

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This first-instance election petition, decided by M. N. Gicheru, CM, challenged the election of Francis Obingo Were as County Assembly Representative for Tuwan Ward, Trans-Nzoia County, in the 4th March 2013 elections, in which the 1st respondent polled 5,486 votes against the petitioner's 3,410 per Form 36. The petitioner sought nullification and a fresh election, having abandoned prayers for recount, scrutiny and retally. Three contested issues were framed at pre-trial: disenfranchisement, compliance with the Constitution and the Elections Act, and whether any irregularities affected the result. The court found no disenfranchisement, noting a turnout of 82.02% (84.69% after correction) and the four supporting deponents' failure to prove registration or non-voting. On compliance, the court applied the Supreme Court's burden-of-proof guidance in Raila Amolo Odinga v IEBC, holding the petitioner had to prove non-conformity and its effect on validity; his failure to call any of his 22 polling station agents reduced his affidavit evidence to hearsay, and public acts are presumed regularly done. The only proved irregularity was transpositional errors in Form 36, explained as inadvertent and affecting all candidates equally; after correction the 1st respondent still led by a stated margin of 1,758 votes. Under section 83 of the Elections Act the errors did not affect the result. The petition was dismissed with no order as to costs, the court finding it not wholly without merit. Right of appeal within 30 days was explained.

Key legal issues

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01

Disenfranchisement

Holding

Not proved; high voter turnout of 82-84.69% inconsistent with disenfranchisement and the four deponents failed to verify their registration

Reasoning

The voter turnout recorded was 82.02% (84.69% after correction), which the court held was inconsistent with disenfranchisement. The four deponents did not prove they were registered or that they did not vote; only a scrutiny would have established this, and none took place. Possession of a voter's card is not proof of registration. The failure of EVID did not invalidate manual voting, which the law expressly permits.

p. 7
02

Compliance with the Constitution and Elections Act

Holding

Election was conducted in accordance with the Constitution and the Elections Act; petitioner bore and failed to discharge a heavy burden of proof

Reasoning

The burden lay on the petitioner to prove non-compliance and its effect on validity, per the Supreme Court in Raila Amolo Odinga v IEBC. Failure to call any of his 22 polling station agents as witnesses or affidavit evidence rendered his affidavit evidence hearsay. Acts of public bodies are presumed regularly done. The only proved irregularity was transpositional errors in Form 36, which the 2nd respondent explained as inadvertent and affecting all candidates equally.

p. 9
03

Effect of irregularities on the result / section 83 Elections Act

Holding

The transpositional errors did not affect the result; the first respondent would still have won by a margin of 1,758 votes

Reasoning

After correction of the transpositional errors in Form 36, the first respondent still had 1,758 more votes than the petitioner. Section 83 of the Elections Act bars nullification where non-compliance did not affect the result. With or without the errors the first respondent remained the clear winner, so the election could not be declared void.

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, with the evidential burden shifting thereafter
  • An election shall not be declared void for non-compliance with written law if the election was conducted in accordance with constitutional principles or the non-compliance did not affect the result
  • Manual voting is lawful where electronic voter identification fails; the Elections Act and Regulations do not outlaw manual identification

Court orders

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  1. 1.Petition 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 (2010)Articles 38 and 81
  • Elections ActAct No. 24 of 2011; sections 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 – VS – IEBC & others
    Election Petition no 5 of 2013
Jurisdiction invoked
Elections Act (Act No. 24 of 2011) and Election (Parliamentary and County Elections) Petition Rules 2013 - petition challenging election of County Assembly Representative for Tuwan Ward, Trans-Nzoia County

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 61 (KLR)", Case Analysis (2013). Election Petition (Tuwan Ward County Assembly Election) - dated 8th April 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/61/eng@2013-08-21

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