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MagistratePartially AllowedElection Petition No 1 of 2013· [2013] KEMC 91 (KLR)

Erick Soita Patroba v Martin Wafula Wawire & 2 others [2013] KEMC 91 (KLR)

Magistrates' Court (Election Petition), Webuye
24 May 2013
1,152 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan election court confirmed that voters challenging election results can access IEBC's election documents, and IEBC must justify any refusal with concrete statutory grounds.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 10 April 2013 in an election petition concerning the county assembly election for Sitikho Ward held on 4 March 2013. The petitioner, invoking Articles 35 and 38 of the Constitution, section 4 of the Election Act 2011 and Rules 4 and 33 of the Elections (Parliamentary & County Elections) Petition Rules 2013, sought orders compelling IEBC to supply certified copies of the principal register of voters for Sitikho Ward and of statutory forms 33 and 35 signed by the presiding officer, plus costs. The 1st respondent opposed the application as frivolous and an abuse of the petition rules, and attacked the supporting affidavits under section 3 of the Oaths and Statutory Declarations Act. The 2nd and 3rd respondents filed grounds of opposition showing the principal register and form 35 had already been supplied (annexed as OBA 2 and OBA 3), and that forms 33 were inside sealed ballot boxes which could not lawfully be opened without a court order under regulations 86(1) and 93 of the Election (General) Regulations 2012. In a supplementary affidavit the petitioner sought the marked rather than the principal register. The magistrate held that under Article 35 as read with section 27(3) and (4) of the IEBC Act the petitioner is entitled to information in IEBC's possession, IEBC having proved none of the four statutory grounds for refusal. Guided by section 80(1)(d) of the Election Act, the court entertained the new prayer and ordered IEBC to supply certified copies of the marked register. Prayers for the principal register and form 35 were disallowed as overtaken by events; forms 33 may be copied when the ballot boxes are opened during the scrutiny and recount already ordered. No orders as to costs were made and leave to appeal within 14 days was granted.

Key legal issues

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01

Right of access to information held by IEBC in an election petition

Holding

The petitioner is entitled to documents in IEBC's possession under Article 35 of the Constitution as read with section 27(3) and (4) of the IEBC Act, since IEBC proved none of the conditions permitting refusal

Reasoning

The court held that IEBC can only decline an information request where the request is unreasonable, the information is at a deliberative stage, prescribed fees are unpaid, or a confidentiality requirement is unsatisfied. The respondents' only explanation was that forms 33 were inside sealed ballot boxes, which did not establish any of these grounds, so the petitioner's entitlement to the information stood.

p. 2
02

Whether the supplementary prayer for the marked register could be granted though not in the original motion

Holding

Yes - under section 80(1)(d) of the Election Act the court decides matters without undue regard to technicalities, and the petitioner is entitled to certified copies of the marked register

Reasoning

The court acknowledged the marked register prayer was new and absent from the original application. Invoking section 80(1)(d) of the Election Act 2011, which requires matters be decided without undue regard to technicalities, the magistrate treated the supplementary affidavit's clarification as properly before the court and ordered IEBC to supply certified copies of the marked register.

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03

Whether orders already satisfied (principal register and form 35) should issue

Holding

No - those prayers were disallowed as overtaken by events since the documents had already been supplied and annexed as OBA 2 and OBA 3

Reasoning

The respondents demonstrated compliance through the affidavit of Oduol Bernard Arwings annexing the principal register and form 35. Orders would serve no purpose where the documents were already with the petitioner, so the court declined to grant relief that had become academic while preserving the petitioner's right to copy forms 33 during scrutiny.

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04

Access to forms 33 sealed inside ballot boxes

Holding

The forms cannot be released by IEBC breaking seals; the petitioner may copy them when ballot boxes are opened during the scrutiny and recount already ordered

Reasoning

Regulation 93 of the Election (General) Regulations 2012 prohibits opening ballot boxes without a court order. Since the court had already ordered scrutiny and recount in an earlier ruling, the magistrate directed that the petitioner's access to forms 33 be effected through that process rather than by a fresh production order against IEBC.

p. 2

Legal principles established

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  • Under Article 35 of the Constitution as read with section 27(3) and (4) of the IEBC Act, a petitioner has a right to information in IEBC's possession, and IEBC may only decline on the limited statutory grounds
  • The burden lies on IEBC to prove the conditions justifying refusal of information
  • Election courts decide matters before them without undue regard to technicalities under section 80(1)(d) of the Election Act, permitting a new prayer for the marked register to be entertained
  • Ballot boxes may not be opened without a court order; forms sealed inside may be accessed only through scrutiny and recount already ordered by the court

Court orders

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  1. 1.The application in respect of the principal register and form 35 is disallowed as overtaken by events, those documents having already been supplied to the petitioner
  2. 2.IEBC to supply the petitioner with certified copies of the marked register
  3. 3.If the marked register and forms 33 are inside the ballot boxes brought to court for scrutiny and recount, the petitioner may make copies when the ballot boxes are opened during scrutiny
  4. 4.No orders as to costs
  5. 5.Leave to appeal within 14 days granted

Authorities

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Legislation

  • Constitution of Kenya 2010Article 35(1)
  • Constitution of Kenya 2010Article 38(2)
  • Election Act 2011Section 4
  • Election Act 2011Section 80(1)(d)
  • IEBC ActSection 27(3) & (4)
  • Elections (Parliamentary & County Elections) Petition Rules 2013Rules 4 and 33
  • Election (General) Regulations 2012Regulations 86(1) and 93
  • Oaths and Statutory Declarations Act (Cap 15)Section 3
Jurisdiction invoked
Articles 35 and 38 of the Constitution of Kenya 2010; section 4 of the Election Act 2011; Rules 4 and 33 of the Elections (Parliamentary & 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, "Erick Soita Patroba v Martin Wafula Wawire & 2 others [2013] KEMC 91 (KLR)", Case Analysis (2013). Election Petition No 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/91/eng@2013-05-24

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