Joel Nyabuto Omwenga & 2 others v Independent Electoral And Boundaries Commission & another [2013] KEMC 70 (KLR)
The bottom line
#Kenya's courts won't overturn an election over a wrong name on a ballot paper if voters could still clearly identify the candidate.
What this practically means
#Executive summary
#Key legal issues
#Whether the use of 'John' instead of 'Joel' on the ballot paper was an irregularity
It was a mere misnomer, not a substantial irregularity; the candidate was identifiable by his two other names, party, symbol and photograph
Applying the test from Davies v Elsby Brothers, the court found a reasonable person reading the ballot would identify the candidate from his two correct names, party name, symbol and photograph. The error originated from the candidate's own party, the Returning Officer flagged it, and a Gazette Notice published 15 days before the election gave the candidate opportunity to seek correction which he failed to use, amounting to waiver.
Whether the elections were free and fair and in accordance with the law
Yes; no evidence of violence, intimidation, corruption or malice, and no proof the misnomer affected the result
The court presumed elections are free and fair unless the contrary is shown. The burden was on petitioners to prove non-compliance that substantially affected the result. No agents were called to testify, no incidents appeared in the Polling Day Diary, and disenfranchisement was difficult to prove given secret ballot. The Returning Officer's alleged bias was unsupported by evidence.
Whether the election should be nullified and fresh elections ordered
No; the misnomer was minor non-compliance under Section 83 that did not affect the result
Following Joho v Nyange and Ibrahim v Shagari, the court held minor, innocent errors should be excused; only substantial non-compliance or errors affecting the result vitiate an election. The 2nd Respondent won with 9,044 votes against the 1st Petitioner's 343/353, and the results reflected the will of the electorate.
Who bears the costs
The Respondents, costs following the event under Section 84 of the Elections Act
Section 84 of the Elections Act mandates the court to award costs of and incidental to a petition. Since the petition was dismissed, costs followed the event and were awarded to the Respondents, with security deposited remaining in court pending assessment.
Legal principles established
#- The burden of proof in election petitions lies with the petitioner and the evidential burden shifts depending on effectiveness of discharge
- The standard of proof in election petitions is above balance of probability though not beyond reasonable doubt
- An election will not be nullified for non-compliance unless the non-compliance affected the result (Section 83, Elections Act)
- A mere misnomer in a candidate's name is tested by how a reasonable person reading the document would understand it
- A candidate must exercise due diligence in verifying his details in the Gazette Notice; failure amounts to waiver
Court orders
#- 1.The petition is dismissed in its entirety
- 2.Costs of the petition awarded to the Respondents
- 3.The sum deposited in court to remain deposited pending assessment of costs as per the Advocates Remuneration Order by the Respondents
- Jurisdiction invoked
- Constitution of Kenya 2010, Elections Act No. 24 of 2011 and Elections (Parliamentary and County Elections) Petition Rules 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joel Nyabuto Omwenga & 2 others v Independent Electoral And Boundaries Commission & another [2013] KEMC 70 (KLR)", Case Analysis (2013). Election Petition No. 2 of 2013 consolidated with Election Petition No. 6 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/70/eng@2013-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.