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MagistrateDismissedNot stated in judgment· [2013] KEMC 72 (KLR)

Robert Bisakaya Wanyera v Nathan Obwana, Caleb S.Gekonde, Independent Electoral Boundaries Commission & Lorna Nanjala Khaemba (Election Petition 1 of 2013) (Civ) [2013] KEMC 72 (KLR)

Magistrates' Court (Election Court, Sirisia)
15 May 2013
RNR. B. Ngetich
939 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Acting Chief Magistrate sitting as an election court at Sirisia dealt with an application dated 10th April 2013 in a petition challenging the election of the Member of County Assembly for Lwandanyi ward. The petitioner sought orders for scrutiny, recount and retallying of all votes in all polling stations in the ward. Counsel for the petitioner argued that the 2nd respondent announced only one vote for the petitioner at Lwandanyi primary school polling station when Form 35 indicated 271 votes, that other candidates were given nil results, and that there were mathematical errors, such that the 73-vote margin could be overturned. The 1st respondent, through Ms Rono, conceded the petitioner garnered 271 votes and argued the totals in Form 35 were a true reflection signed by all agents. The 2nd, 3rd and 4th respondents, through Mr Akenga, argued the application was vexatious, a replica of the petition, and that no basis for recount had been established. In reply, counsel for the petitioner invoked rule 33(2), which requires 'sufficient reason' rather than demonstrated irregularity. The court held that the alleged discrepancies and the pleaded allegations of bribery, rigging and undue influence are matters requiring trial evidence before a finding on sufficient reason for scrutiny can be made. It declined the prayers at that stage and dismissed the application with costs to the respondents.

Key legal issues

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01

Whether sufficient reason was shown for scrutiny and recount under rule 33(2)

Holding

The court declined to order scrutiny or recount at the interlocutory stage because the alleged errors and discrepancies raised issues requiring trial evidence

Reasoning

The petitioner relied on alleged entries in Forms 35 and 36, discrepancies between the tallying centre announcements and polling station results, and mathematical errors. The court found these are contested factual matters that can only be resolved on evidence adduced by all parties, and that it would be more appropriate to decide the question of scrutiny after hearing the full evidence at trial rather than on the application as filed.

p. 2
02

Timing of scrutiny/recount application relative to the petition

Holding

Such an application may properly be brought under rule 33(2), but the relief sought mirrored prayer (a) of the petition and overlapped with the substantive allegations

Reasoning

Prayer (a) of the petition already sought scrutiny and recount, and the petition also raised allegations of bribery, rigging and undue influence which require evidence. The respondents argued the application was a replica of the petition. The court accepted the application was properly made under rule 33(2) but held that the sufficiency of reason could not be determined without evidence, effectively leaving the matter to the trial.

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Legal principles established

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  • Findings on alleged election offences or malpractice can only be made after evidence has been adduced at trial
  • An application for scrutiny and recount requires demonstration of sufficient reason before the court will grant it

Court orders

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  1. 1.Prayers sought in the application dated 10th April 2013 for scrutiny, recount and retallying of votes declined
  2. 2.The application dismissed with costs to the respondents

Authorities

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Legislation

  • Elections ActNo. 24 of 2013
  • Election Rulesrule 33(2)
  • Constitution of Kenyageneral reference
Jurisdiction invoked
Elections Act No. 24 of 2013 and the Election Rules, rule 33(2) (disputed county assembly election, original election court jurisdiction)

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, "Robert Bisakaya Wanyera v Nathan Obwana, Caleb S.Gekonde, Independent Electoral Boundaries Commission & Lorna Nanjala Khaemba (Election Petition 1 of 2013)  (Civ) [2013] KEMC 72 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/72/eng@2013-05-15

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