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MagistrateDismissedElection Petition No 1 of 2013· [2013] KEMC 89 (KLR)

Tadeyi Mukudi Muliro v Paul Cheruiyot Kones & 2 others [2013] KEMC 89 (KLR)

Chief Magistrate's Court (Election Petition)
1 August 2013
1,991 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Busia court upheld the Bunyala North Ward election, ruling that a misspelled candidate name did not affect the result because voters identified candidates by photo, party name, and symbol.

What this practically means

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Executive summary

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This is an election petition challenging the election of the 3rd respondent as County Representative for Bunyala North Ward in the 4th March 2013 General Elections. The petitioner, who contested on a UDF ticket, alleged his name was misprinted on the ballot paper as 'MUKDUDI. T. MULIRO' instead of 'MUKUDI. T. MULIRO', that the 1st respondent declined to rectify this despite notification, and that the election had been postponed. He sought annulment of the results, fresh elections, general damages and costs. The 1st and 2nd respondents conceded the misprint but maintained the elections were free, fair, transparent and credible, noting the petitioner was identifiable by party symbol, party name and photograph. The 3rd respondent sought a declaration of valid election. The court framed five issues and, applying the elevated standard of proof in election petitions from Raila Odinga v IEBC, found the ballot anomaly proved but immaterial: the petitioner's party symbol, name and photograph were correctly printed, and given the high illiteracy in Budalang'i, voters relied on those identifiers. The alleged postponement rested on an unverified computer printout whose author was not called, and the 91% voter turnout contradicted postponement. Section 83 of the Elections Act barred invalidation since the anomaly did not affect the result. The court distinguished Re K.A. Thabiti, where exchanged party symbols had occurred. The petition was dismissed, a certificate of the 3rd respondent's election was directed to be issued to the Speaker of the Busia County Assembly, and the petitioner was ordered to bear the respondents' costs.

Key legal issues

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01

Whether the misspelling of the petitioner's name on the ballot paper invalidated the election

Holding

No - the ballot contained sufficient alternative identifiers (party symbol, party name, photograph) by which voters could identify the petitioner, so the anomaly did not affect the result

Reasoning

The court applied section 83 of the Elections Act, holding that non-compliance does not void an election unless it affected the result or breached constitutional principles. The ballot carried the petitioner's party symbol, party name and photograph, which voters - especially in a region of high illiteracy - relied on rather than the spelling of the name. The petitioner conceded these identifiers were correctly printed.

p. 4
02

Whether the election for Bunyala North Ward was postponed

Holding

No - the computer printout was unverified hearsay and the 91% voter turnout indicated no postponement

Reasoning

The petitioner relied on a printout of a press briefing allegedly by the IEBC chairperson, but its author, Isaac Ngwiri, was not called to verify authenticity. Elections could only be postponed by court order or Gazette notice. The high voter turnout of 91% in Budalangi Constituency supported the conclusion that the election was not postponed.

p. 3
03

Standard of proof applicable in election petitions

Holding

Higher than a mere balance of probability, as restated in Raila Odinga v IEBC

Reasoning

The court adopted the standard articulated in the Supreme Court's Raila Odinga decision, requiring the petitioner to discharge an elevated burden before an election can be invalidated, and found the petitioner failed to meet it.

p. 2
04

Whether the doctrine of legitimate expectation could found relief in this court

Holding

No - the alleged postponement having failed, the doctrine did not apply, and in any event judicial review of administrative action falls within the High Court's realm

Reasoning

The court found no evidence of postponement, so legitimate expectation did not arise. It further held that even if the doctrine applied, this court lacked jurisdiction over review of administrative action, which lies with the High Court.

p. 3

Legal principles established

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  • An election shall not be declared void for non-compliance with written law where the election was conducted in accordance with constitutional principles or the non-compliance did not affect the result
  • Costs follow the event - the unsuccessful party pays the successful party

Court orders

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  1. 1.A declaration that the 3rd Respondent was validly elected as County Representative for Bunyala North Ward; a certificate to that effect to be issued forthwith and served upon the Speaker of the Busia County Assembly in accordance with section 86(1) of the Elections Act
  2. 2.The petition dated 19th March 2013 dismissed
  3. 3.The respondents' costs of the petition to be borne by the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010principles of the electoral system (as referenced)
  • Elections Actsection 83
  • Elections Actsection 86(1)
  • Elections (Parliamentary and County Elections) Petition Rules, 2013rules 12 and 15

Cases cited (3)

  • Raila Odinga & others v IEBC & others
    Petition No. 5 of 2013
  • MAHEO VS BABU UDAI PRATAP SINGH & OTHERS
    1966 AIR 824, 1966 SCR(2) 564
  • RE K.A.THABITI
    [1967] E.A 722
Jurisdiction invoked
Election of a County Representative under the Elections Act 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, "Tadeyi Mukudi Muliro v Paul Cheruiyot Kones & 2 others [2013] KEMC 89 (KLR)", Case Analysis (2013). Election Petition No 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/89/eng@2013-08-01

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