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MagistrateDismissedElection Petition No. 1 of 2013· [2013] KEMC 98 (KLR)

Jeremiah Kioko Kyalo v Independent Electoral & Boundaries Commission & 2 others [2013] KEMC 98 (KLR)

Chief Magistrate's Court at Machakos
19 July 2013
3,431 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos court upheld the Matungulu North MCA election, ruling that minor errors that don't change the result cannot invalidate a Kenyan election.

What this practically means

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Executive summary

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This first-instance election petition challenged the Matungulu North County Assembly election of 4th March 2013, in which the 3rd respondent, Peter Munywoki Nzoka, was declared the winner. The petitioner, who polled second, sought nine reliefs including a recount, nullification of the election, declaration of himself as duly elected, a fresh election, and reporting of election offences. The court directed a recount of all votes cast, which was conducted between 14th and 16th May 2013 with parties' participation and satisfaction recorded. Three agreed issues were framed: whether the election was credible, free and fair; whether the 3rd respondent was validly elected; and what remedies, if any, should follow. The court found that the admitted tallying error at Kitsimani Primary School, polling station No. 020, where votes for all candidates were doubled, was a human error giving no candidate undue advantage and was cured by the recount. Candidate rankings were unchanged, though the 3rd respondent's lead narrowed. Four disputed ballots were adjudicated individually, two allowed for the petitioner. Citing section 83 of the Elections Act and authorities including the Supreme Court's decision in Raila Odinga, the court held that the petitioner bore the burden of proving non-compliance that affected the validity of the election to a standard higher than in ordinary civil cases. The petitioner's allegations of intimidation, violence and bribery were unsupported by any medical or police evidence, and his other allegations were generalized. The petition was dismissed in its entirety with costs to the respondents.

Key legal issues

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01

Whether the election was credible, free and fair

Holding

Yes - the constitutional and legal requirements were met; the tallying error at Kitsimani Primary School was a human error that doubled all candidates' votes equally and did not affect the outcome

Reasoning

The court assessed the whole electoral process from opening of polling stations through voting, security, counting, tallying and declaration. Lighting was provided via gas lamps, agents signed form 35 authenticating participation, and police manned stations. The admitted doubling error at polling station 020 affected all candidates proportionately and was cured by the court-ordered recount, which left candidate rankings unchanged.

p. 5
02

Whether the 3rd respondent was validly elected

Holding

Yes - the petitioner failed to discharge the burden of proving non-compliance that affected the validity of the election

Reasoning

Citing the Supreme Court in Raila Odinga, the petitioner had to prove both non-compliance and its effect on the result. The allegation of assault on Hon. Moffat Maitha lacked evidentiary value - no nexus to the petitioner, no medical report or police report. Generalized allegations of malpractice could not meet the elevated standard of proof applicable to election petitions.

p. 7
03

Whether any other remedies should be granted

Holding

No - consequential reliefs fall with the failure of the first two issues

Reasoning

The petitioner had left the residual remedies to the court. Having failed to prove that the election was not free and fair or that the 3rd respondent was not validly elected, there was no foundation for the reliefs of nullification, fresh election, or reporting of election offences.

p. 7
04

Adjudication of disputed ballots

Holding

Two ballots allowed for the petitioner, two declared spoilt

Reasoning

The court examined four disputed ballots: two bearing ticks or marks within the box in favour of the petitioner were allowed as falling within 'any other mark'; one with two ticks for two candidates was spoilt for ambiguity; one bearing none of the stipulated marks was spoilt. Even so, the petitioner's tally of 1127 did not change his position behind the 3rd respondent.

p. 5

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 and the non-compliance did not affect the result (section 83, Elections Act)
  • In assessing an electoral process the court is not solving a mathematical puzzle; it must ask whether the grounds sufficiently challenge the entire electoral process so that it was not transparent, free and fair
  • A petitioner alleging non-conformity with electoral law must not only prove the non-compliance but that it affected the validity of the election; acts of public bodies are presumed regularly done
  • The standard of proof in election petitions is higher than in ordinary civil cases - on a balance of probabilities but below criminal proof - and allegations of electoral malpractice such as bribery require a higher proof

Court orders

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  1. 1.The petition is dismissed in its entirety
  2. 2.The respondents are awarded reasonable costs of the petition

Authorities

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Legislation

  • Constitution of Kenya
  • Elections Actsection 83
  • Elections Actsection 63 (undue influence)
  • Elections (Parliamentary and County Elections) Petition RulesRule 17

Cases cited (3)

  • Benard Shinali Masika v Dr Boni Khalwale & 2 Others
    Election Petition No. 2 of 2008
  • Raila Odinga v The Independent Electoral and Boundaries Commission & Others
    Petition No. 5 of 2013
  • John Kiarie Waweru v Beth Wambui Mugo, S.K. Njuguna & Electoral Commission of Kenya
    Election Petition No. 13/08
Jurisdiction invoked
Petition challenging the election of a Member of the County Assembly under the Constitution of Kenya and the Elections Act, 2011 read with 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, "Jeremiah Kioko Kyalo v Independent Electoral & Boundaries Commission & 2 others [2013] KEMC 98 (KLR)", Case Analysis (2013). Election Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/98/eng@2013-07-19

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