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MagistrateDismissedElection Petition (Kinondo County Assembly Ward) - number not stated in judgment· [2013] KEMC 63 (KLR)

Mohamed Khamis Mwasengeza v Independent Election & Boundaries Commission (Iebc) & 2 others [2013] [2013] KEMC 63 (KLR)

Magistrates' Court (Election Petition)
30 August 2013
EME.K. Usui Macharia
1,922 words in judgment
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The bottom line

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A Kwale magistrate upheld the 2013 Kinondo ward election results, ruling the losing candidate failed to prove any irregularities occurred.

What this practically means

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Executive summary

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The petitioner, who contested the Kinondo County Assembly ward seat on an ODM ticket in the 4th March 2013 general election, petitioned against the declaration of the 3rd respondent as the winner. He sought declarations that the election was null and void, a recount, scrutiny of forms 33-36, fresh elections and a declaration that he was the winner. He alleged denial of the right to appoint agents, failure of biometric voter identification rendering the election vulnerable, tampering with election materials, denial of access to polling stations and hearing of complaints, electoral offences, and voting by unentitled persons. The 1st respondent explained the EVID battery failures necessitating manual registers, maintained the election was free and fair, and denied all offences. The 3rd respondent denied the allegations. On the evidence, including cross-examination and a court-ordered recount at the Makongeni and Kilole polling stations, the court found the petitioner had agents present throughout and was not restricted in appointing them; three of his witnesses reported no offences; the recount showed a trivial 2-vote discrepancy in his favour which did not affect validity; the failure to state the election result under rule 10(1)(c) was not a mandatory requirement; and IEBC was entitled to revert to manual registers when the electronic system failed, the petitioner having failed to demonstrate ineffectiveness or error. The court found the election free, fair, transparent and credible, held the 3rd respondent validly elected, declined scrutiny and fresh elections, and dismissed the petition with costs to the respondents on 30th August 2013 at Kwale.

Key legal issues

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01

Freedom and fairness of the Kinondo ward election

Holding

The election was free, fair, transparent and credible; the petitioner failed to discharge his burden

Reasoning

The petitioner's own cross-examination showed he had trained agents present at polling stations, and three of his witnesses reported no offences, two affirming the elections were free and fair at their stations. A recount confirmed results, with only a trivial 2-vote discrepancy in the petitioner's favour. Mere allegation is not proof of irregularities.

p. 3
02

Agents' access to polling stations

Holding

The petitioner was not restricted in appointing or deploying agents

Reasoning

The petitioner admitted he was not restricted in using his individual agents; all agents confirmed they were trained, and at least one personal or party agent was present at any given time at Makongeni polling station. Any initial access delay was resolved after the petitioner's intervention.

p. 2
03

Failure of biometric voter identification and use of manual registers

Holding

Reverting to manual registers was lawful and did not render the election invalid

Reasoning

The Supreme Court in the 2013 presidential petition held that IEBC had discretion under the Constitution and electoral laws to use electronic or manual systems, and had no option but to revert to manual systems when technology failed. The petitioner did not demonstrate how or to what extent the manual system was ineffective or erroneous.

p. 3
04

Non-compliance with rule 10(1)(c) - failure to state the result of the election

Holding

The omission was not fatal and did not render the petition defective

Reasoning

The petitioner offended rule 10(1)(c) of the Elections (Parliamentary and County Elections) Petition Rules 2013 by failing to state the result of the election, but following Hassan Abdalla Albeity the requirement is not mandatory, so the omission did not defect the petition.

p. 3

Legal principles established

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  • A petitioner bears the initial burden of proof, above balance of probability but below beyond reasonable doubt
  • Failure or refusal of an agent to sign form 35 does not by itself invalidate results
  • IEBC may lawfully revert to manual registers where electronic voter identification or transmission fails

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs awarded to the respondents

Authorities

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Legislation

  • Elections (General) Regulationsregulation 79(6)(7)
  • Elections (Parliamentary and County Elections) Petition Rulesrule 10(1)(c)
  • Constitution of Kenyaprovisions on free and fair elections

Cases cited (3)

  • Raila Odinga and others v Independent Electoral and Boundaries Commission and others
    Petition Number 5 of 2013
  • Hassan Abdalla Albeity v Abu Mohamud Abu Chiaaba and the Independent Electoral and Boundaries Commission
    Election Petition Number 9 of 2013
  • Odinga and 5 others v Independent Electoral and Boundaries Commission and 4 others
    2013
Jurisdiction invoked
Election petition challenging the 4th March 2013 Kinondo County Assembly ward election under the Constitution and the Elections (Parliamentary and County Elections) Petition Rules 2013

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, "Mohamed Khamis Mwasengeza v Independent Election & Boundaries Commission (Iebc) & 2 others [2013] [2013] KEMC 63 (KLR)", Case Analysis (2013). Election Petition (Kinondo County Assembly Ward) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/63/eng@2013-08-30

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