Tadeyi Mukudi Muliro v Paul Cheruiyot Kones & 2 others [2013] KEMC 89 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the misspelling of the petitioner's name on the ballot paper invalidated the election
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
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.
Whether the election for Bunyala North Ward was postponed
No - the computer printout was unverified hearsay and the 91% voter turnout indicated no postponement
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.
Standard of proof applicable in election petitions
Higher than a mere balance of probability, as restated in Raila Odinga v IEBC
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.
Whether the doctrine of legitimate expectation could found relief in this court
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
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.
Legal principles established
#- 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
#- 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.The petition dated 19th March 2013 dismissed
- 3.The respondents' costs of the petition to be borne by the Petitioner
- Jurisdiction invoked
- Election of a County Representative under the Elections Act and the Elections (Parliamentary and County Elections) Petition Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.