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MagistratePartially AllowedElection Petition No. 1 of 2013· [2013] KEMC 64 (KLR)

Mohamed Billow Mohamed v Idris Abdi Bilal & 2 others [2013] KEMC 64 (KLR)

Chief Magistrates Court at Garissa
30 August 2013
BNB. J. Ndeda
5,286 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a Garissa ward election because falsified results at one polling station could have changed the narrow outcome.

What this practically means

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Executive summary

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This first-instance election petition challenged the election of Idris Abdi Bilal as Ward Representative for Balambala Ward, Garissa County, in the 4th March 2013 general election. The petitioner, Mohamed Billow Mohamed, alleged that the 2nd Respondent Returning Officer initially declared him the winner with 784 votes against 743, but later declared the 1st Respondent elected; that results from Buradansa polling station were falsified (63 votes recorded as zero); and that the Form 35 for Buradansa was forged. Four issues were agreed by consent: validity of the election, the votes each candidate garnered at Buradansa, relief, and costs. The court, on its own motion under section 82(1) of the Elections Act, ordered scrutiny and recount of three contested polling stations. Scrutiny of Abdigap and Balambala tallied correctly, but Buradansa revealed over 30 rejected votes, foreign ballot papers without counterfoils, missing ballot papers and tampered seals. The presiding officer and deputy presiding officer both disowned the Buradansa Form 35, which was unsigned, bore a forged agent's signature, and whose original was missing. Applying the proportionality, public interest and harm tests, and the standard of proof above balance of probability but below criminal certainty, the court held the irregularities were not trivial and were not curable under section 83 of the Elections Act, given the narrow margin between the candidates. The court nullified the election, ordered fresh elections, directed a certificate to the Speaker, and awarded equal costs to the petitioner and 1st Respondent, payable by the 2nd and 3rd Respondents.

Key legal issues

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01

Validity of the election of the 1st Respondent as Balambala Ward Representative

Holding

The election was nullified because irregularities at Buradansa polling station materially affected the result

Reasoning

The court found a forged Form 35, an unsigned Form 35 without reasons, conflicting announcements of results, missing ballot papers, tampered seals and the presiding officer disowning the very results she presided over. With only 21 votes separating the candidates, these anomalies materially affected the outcome and the election could not be said to have been conducted substantially in accordance with the law.

p. 9
02

Standard and burden of proof in election petitions

Holding

The burden lies on the petitioner to a standard higher than balance of probability but lower than beyond reasonable doubt, and the petitioner discharged it

Reasoning

The court accepted the standard proposed by the 2nd and 3rd respondents' counsel per John Kiarie Waweru v Beth Wambui Mugo, but distinguished it because in that case the petitioner failed to attain the standard, whereas here the narrow 21-vote margin combined with proven anomalies carried the petitioner's case beyond the balance of probability.

p. 7
03

Effect of scrutiny and recount

Holding

Scrutiny supplements the totality of the evidence and revealed disastrous results at Buradansa, confirming the anomalies

Reasoning

The court held scrutiny was meant to supplement and not supplant the evidence tendered. Scrutiny of Abdigap and Balambala stations tallied well, but Buradansa revealed over 30 rejected votes, foreign ballot papers without counterfoils, missing ballot papers and tampered seals, leaving the court unable to determine the true tally.

p. 7

Legal principles established

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  • Even a small irregularity in one polling station is enough to nullify an entire election if it substantially affects the result, particularly in a closely contested election.
  • Non-compliance that defies constitutional electoral principles and affects the result cannot be cured by section 83 of the Elections Act.

Court orders

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  1. 1.Nullification of the election of the 1st Respondent as Ward Representative of Balambala Ward
  2. 2.Order for fresh elections to enable the will of the people of Balambala ward to prevail
  3. 3.A certificate to issue to the relevant speaker in line with section 86(1)(2) of the Elections Act 2011
  4. 4.Award of costs of the suit to the petitioner and 1st respondent in equal shares, to be borne by the 2nd and 3rd respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 38, 81, 86
  • Elections Act 2011sections 59(J)-(M), 82(1), 83, 84, 86(1)(2), 87(1)
  • Electoral (Parliamentary and County) Petitions Rules 2013Rule 34
  • Independent Electoral and Boundaries Commission Act 2011null
  • Universal Declaration of Human RightsArticle 21
  • International Covenant on Civil and Political RightsArticle 25

Cases cited (7)

  • John Kiarie Waweru Vs. Beth Wambui Mugo and two others
    (2208) eKLR
  • Joash Wamangoli Vs. I.E.B.C. and 3 others
    HEP No. 6 of 2013 (Eklr)
  • Dickson Daniel Karaba vs. Hon. John Ngata Kariuki and 2 others
    Election Petition No. 3 of 2008
  • Thomas Mutinda Musau & 2 others Vs. the I.E.B.C and 2 others
    HEP No. 2 of 2013
  • Morgan & others Vs. Samson and another
    (1974) 3 A KLR 722
  • John Vs. Nyange (No. 4)
    2008 3 KLR Cp 500
  • Toolit Simon Akeche Vs. Oulonya Jacob L. Okeri and another
    EP No. 1 of 2011 U.G. HC 56 (unreported)
Jurisdiction invoked
Elections Act 2011 and the Electoral (Parliamentary and County) Petitions 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 Billow Mohamed v Idris Abdi Bilal & 2 others [2013] KEMC 64 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/64/eng@2013-08-30

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