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MagistrateDismissedElection Petition dated 2nd April 2013 (filed 3rd April 2013)· [2013] KEMC 90 (KLR)

Emmanuel Okore Sanko & another v Paul Cheruiyot Kones & 2 others [2013] KEMC 90 (KLR)

Chief Magistrate's Court (Election Petition)
1 August 2013
TCThripsisa Wanjiku Cherere
2,392 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court dismissed an election petition, ruling that ballot paper errors do not overturn an election unless they actually changed the result.

What this practically means

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Executive summary

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This is a first-instance election petition challenging the election of the 3rd respondent as County Representative for Bunyala South Ward in the 4th March 2013 General Elections. Two losing candidates petitioned: the 1st petitioner complained that instead of UDF party (a pair of capped hands), UDM party (a flag) appeared against his name on the ballot paper; the 2nd petitioner, an independent candidate, complained that his party symbol was missing. Both sought annulment of the results, fresh elections, general damages and costs. The IEBC conceded the anomalies but argued candidates were identifiable by name and photograph, and denied any postponement. The court identified five issues and applied the heightened election-petition standard of proof restated in Raila Odinga v IEBC (Petition No. 5 of 2013). It found the anomalies undisputed but immaterial: the petitioners' names and photographs were correctly printed, forms 35 showed each petitioner winning several polling stations, and voters therefore identified them despite the anomalies. Section 83 of the Elections Act barred nullification where non-compliance did not affect the result. The claimed postponement rested on an unverified newspaper cutting, and the court held it lacked jurisdiction over the legitimate-expectation claim. RE K.A. Thabiti was distinguished. The petition was dismissed; the 3rd respondent declared validly elected, a certificate ordered to the Speaker of the Busia County Assembly, and petitioners ordered jointly and severally to pay the respondents' costs.

Key legal issues

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01

Whether ballot paper anomalies (wrong party name/symbol for 1st petitioner; missing symbol for 2nd petitioner) invalidated the election

Holding

The anomalies did not invalidate the election because they did not affect the result; candidates' names and photographs were correctly printed, enabling identification of voters

Reasoning

The court applied section 83 of the Elections Act. Candidates' names and photographs were correctly printed, enabling voter identification. The petitioners won several polling stations, showing voters could identify them. The purpose of printing name, photo, party colour and symbol is to aid voter identification, particularly in high-illiteracy regions like Budalang'i, but the anomalies shown did not change the outcome.

p. 5
02

Whether the election was postponed

Holding

No evidence that the election was postponed; the newspaper cutting was unverified

Reasoning

The only evidence was a Nation Media Group cutting authored by Isaac Ngwiri, who was not called to verify it. The returning officer testified elections can be postponed only by court order or Kenya Gazette notice, and the 91-voter turnout showed the election took place. Legitimate expectation also failed, the court lacking jurisdiction over judicial review-type claims reserved to the High Court.

p. 4
03

Whether RE K.A. Thabiti applied

Holding

Distinguished: in that case the symbols had been exchanged between rival candidates, unlike here

Reasoning

The petitioners relied on RE K.A. Thabiti, but the court found it distinguishable because there the petitioner's symbol was printed against his rival's name, whereas here the anomalies did not interchange candidates' symbols and did not affect identification or the result.

p. 5

Legal principles established

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  • No election shall be declared void for non-compliance with written law if the election was conducted in accordance with constitutional principles or the non-compliance did not affect the result
  • The standard of proof in election petitions is higher than a mere balance of probability

Court orders

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  1. 1.Declaration that the 3rd Respondent was validly elected as County Representative for Bunyala South Ward, with a certificate to be issued 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 2nd April 2013 and filed on 3rd April 2013 is dismissed
  3. 3.The respondents' costs of the Petition shall be borne by the Petitioners jointly and severally

Authorities

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Legislation

  • Elections Actsection 83
  • Elections Actsection 86(1)
  • Election (Parliamentary and County Elections) Petition Rules, 2013rules 12 and 15
  • Constitutionprinciples underlying elections

Cases cited (2)

  • Raila Odinga & others v IEBC & others
    Petition No. 5 of 2013
  • RE K.A. THABITI
    [1967] E.A 722
Jurisdiction invoked
Elections Act and the Election (Parliamentary and County Elections) Petition Rules, 2013, for a County Representative election petition

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, "Emmanuel Okore Sanko & another v Paul Cheruiyot Kones & 2 others [2013] KEMC 90 (KLR)", Case Analysis (2013). Election Petition dated 2nd April 2013 (filed 3rd April 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/90/eng@2013-08-01

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