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MagistratePartially AllowedNot stated in judgment· [2013] KEMC 96 (KLR)

Japheth Kirimi Kobia v Julius Kabira Ambau & 2 others [2013] KEMC 96 (KLR)

Magistrates' Court (Election Court)
31 May 2013
CMC.M. Maundu
2,267 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 allowed a vote recount and inspection of voter registers, but refused access to documents unrelated to the disputed ward election.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 3rd May 2013 in an election petition concerning the county representative election for Athiru Ruujine Ward. The petitioner, who polled 2,394 votes against the 1st Respondent's 3,701, sought release of forms 34, marked registers of voters, a recount of votes in all polling stations, and forms 34 for the other five elective posts, contending his votes were under-recorded and the 1st Respondent's inflated, and that marked registers would reveal dead or absent voters recorded as having voted. All respondents opposed, arguing the application was misconceived, overtaken by events, a fishing expedition, and that scrutiny could only be ordered if the petition's sole ground were tallying. During hearing, counsel for the petitioner abandoned most prayers, leaving prayers 3, 4, 6 and 7. The court held that wrong citation of the enabling provision was not fatal, as justice must be dispensed without undue regard to technicalities. Applying Rule 33(1) and (2) of the Elections (Parliamentary and County Elections) Petition Rules, 2013, and following Masinde v Buire, it found that the admitted tabulation errors furnished sufficient grounds for scrutiny, and that scrutiny is not confined to petitions grounded solely on tallying. Prayer 6 was refused as a fishing exercise, forms 34 relating only to presidential results. Prayers 3 and 4 were granted, costs were reserved to the cause, and scrutiny was directed to proceed simultaneously with the hearing fixed for 24th to 28th June 2013.

Key legal issues

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01

Whether scrutiny/recount may be ordered where the petition raises grounds other than tallying

Holding

Yes; sufficient grounds suffice. Admitted irregularities in tabulation were sufficient grounds for scrutiny.

Reasoning

Rule 33(1) & (2) allows a party at any stage to apply for scrutiny to establish the validity of votes, provided sufficient reason is shown. The petitioner alleged under-recording of his votes, and the 1st Respondent admitted tabulation problems. Both parties accepted irregularities existed, and their extent could only be ascertained through scrutiny.

p. 4
02

Effect of wrong statutory citation

Holding

The application survived despite the wrong citation of Section 80 of the Elections Act as the orders sought were clear and no party was prejudiced.

Reasoning

The court held it is its duty to dispense justice without undue regard to technicalities. Since the orders sought were clear and no party could claim prejudice from the wrong provision being cited, the application would not fail on that account.

p. 4
03

Access to forms 34 for other elective posts

Holding

Refused; forms 34 relate to presidential results and the request was a fishing exercise outside the court's petition.

Reasoning

The court found no sufficient grounds for prayer 6. The court lacked purpose for documents relating to presidential results since it was seized only of the ward representative petition; the demand amounted to a fishing expedition.

p. 4

Legal principles established

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  • An order for scrutiny or recount requires sufficient grounds and is not automatic
  • Scrutiny is not limited to petitions whose only ground is recount/tallying; what is required is sufficient grounds
  • Courts should dispense justice without undue regard to technicalities such as wrong citation of the legal provision

Court orders

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  1. 1.Prayer 3 granted: petitioner to be provided with copies of all marked registers for inspection and audit
  2. 2.Prayer 4 granted: recount/scrutiny of votes ordered
  3. 3.Scrutiny of the votes to be done simultaneously with the hearing of the petition
  4. 4.Prayers 1, 2, 5, 6 and 7 not granted; prayer 6 expressly refused
  5. 5.Costs of the application to be in the cause
  6. 6.Hearing fixed for 24/6/2013 to 28/6/2013; parties to file issues before the hearing date

Authorities

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Legislation

  • Elections ActSection 80
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 32(1) and (2)
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 33(1) and (2)

Cases cited (2)

  • Masinde Vrs Buire and Another
    Election Petition No. 9 of 1993
  • Ole Lempaka vrs Komen & another
    Election Petition No. 33 of 1993
Jurisdiction invoked
Section 80 of the Elections Act, 2011 (as cited in the application); Rule 33(1) & (2) of 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, "Japheth Kirimi Kobia v Julius Kabira Ambau & 2 others [2013] KEMC 96 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/96/eng@2013-05-31

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