James Gichuhi Wanyoike v Francis Obingo Were & 2 others [2013] KEMC 61 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Disenfranchisement
Not proved; high voter turnout of 82-84.69% inconsistent with disenfranchisement and the four deponents failed to verify their registration
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.
Compliance with the Constitution and Elections Act
Election was conducted in accordance with the Constitution and the Elections Act; petitioner bore and failed to discharge a heavy burden of proof
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.
Effect of irregularities on the result / section 83 Elections Act
The transpositional errors did not affect the result; the first respondent would still have won by a margin of 1,758 votes
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.
Legal principles established
#- 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
#- 1.Petition dismissed
- 2.No order as to costs
- 3.Right of appeal within 30 days explained
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.