Johnbosco Mbuthu Makau & 2 others v Independent Electroral and Boundaries Commission (I.E.B.C.) & 2 others [2013] KEMC 71 (KLR)
The bottom line
#The Machakos court dismissed the Matungulu East election petition, confirming that general allegations and a recount that didn't change the result cannot overturn an election.
What this practically means
#Executive summary
#Key legal issues
#Credibility, fairness and freedom of the Matungulu East County Assembly election
The election was credible, free and fair; errors at Kinyui Girls polling station were minor and cured by the recount
The only specific discrepancy cited was the omission of the 2nd petitioner's votes at polling station 049-Kinyui Girls Secondary School, leaving 179 votes unaccounted for. The court-ordered recount, with which both parties expressed satisfaction, restored the same ordering of candidates, and discrepancies between forms 35 and 36 were minor errors not affecting the result. Agents of all candidates signed forms 35, signifying participation and acceptance of the results.
Validity of the 3rd respondent's election
The 3rd respondent was validly elected
The petitioners bore the burden of proving non-compliance with electoral law and that it affected the result to a standard higher than the civil balance of probability. Their evidence was generalized, relying on unparticularized allegations of intimidation, violence and bribery. The recount slightly favoured the 3rd respondent. Section 83 of the Elections Act precludes nullification where the election followed constitutional principles and non-compliance did not affect the result.
Proof of electoral offences (intimidation, threat of violence, bribery)
Not proved; generalized allegations with no particulars fail
The petitioners pleaded intimidation, threat of violence and bribery but gave no specifics of who bribed whom, where oathing occurred, or how the ejection of Hon. Moffat Maitha from the tallying centre affected the result. Maitha's role vis-à-vis the petitioners' candidature was not stated and he did not swear an affidavit. Following the Sirat case, bribery must be described in sufficient detail and a nexus established with the candidate or his agent.
Legal principles established
#- The standard of proof in election petitions is higher than in ordinary civil cases on a balance of probability but lower than the criminal standard of beyond reasonable doubt
- A petitioner must prove non-compliance with electoral law and that the non-compliance affected the result of the election
- Allegations of bribery and electoral offences must be proved with specific particulars establishing a nexus between the offence and the candidate or his agents
- Non-compliance that does not affect the result does not void an election (Section 83, Elections Act 2011)
Court orders
#- 1.The petition is dismissed
- 2.It is declared/ordered that the 3rd respondent Wilson Mutiso Kasimu was elected fairly and the elections as held were credible
- 3.The respondents are awarded costs in regard to any lawful and accurate expenses incurred in the petition
- Jurisdiction invoked
- Original jurisdiction over election petitions under the Elections Act 2011 and the Constitution following the 4th March 2013 General Election (petition for Matungulu East County Assembly seat)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnbosco Mbuthu Makau & 2 others v Independent Electroral and Boundaries Commission (I.E.B.C.) & 2 others [2013] KEMC 71 (KLR)", Case Analysis (2013). Election Petition (Matungulu East County Assembly) 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/71/eng@2013-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.