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MagistrateDismissedElection Petition (Wajir), filed 28.3.2013· [2013] KEMC 99 (KLR)

Abdinoor Adan Abdikarim v Independent Electoral & Boundaries Commission & another [2013] KEMC 99 (KLR)

Magistrates' Court (Election Petition)
17 July 2013
LKLinus Kassan
5,288 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Wajir court ruled that a ballot printing error did not invalidate the election because the losing candidate could not prove it actually changed the result.

What this practically means

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Executive summary

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The petitioner, a defeated TNA candidate for the Ademasijida County Assembly Ward seat in the 4 March 2013 general election, petitioned the court to declare that IEBC had not conducted the election in accordance with Articles 81, 86 and 88 of the Constitution and the Election Act, to nullify the election of the 2nd respondent (a UDF candidate who won with 1,071 votes against the petitioner's 348), and to order a fresh election. His complaint was that a printing error caused his photograph to appear twice on the ballot paper - in his own slot and in the slot of the WDP candidate, Adan Noor Hussein, whose own photo was missing - fuelling rumours that he had been disqualified and confusing voters. IEBC and the 2nd respondent maintained the election was free and fair, evidence showing that the anomaly was detected at 6:30 a.m. and presiding officers directed voters to rely on candidates' names and party symbols. Applying John v Nyangi and Morgan v Simpson, the court held the printing error was a minor irregularity that did not substantially depart from prescribed procedure. The court found the most prejudiced party was the candidate whose photo was omitted, and he had accepted the results. Applying Raila Odinga v IEBC, the court held the petitioner failed to discharge the elevated burden of proof, resting instead on unproved rumours and generalized allegations from relatives. The petition was dismissed with costs, with leave to appeal within 30 days granted.

Key legal issues

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01

Effect of a ballot-paper printing error on the validity of an election

Holding

The printing error was a minor irregularity that did not invalidate the election

Reasoning

The court accepted the petitioner's photo appeared twice, but held the error was a printing mistake by IEBC, not the candidates. Voting proceeded with nearly 90% turnout, only five spoilt votes, and voters were guided to rely on names and party symbols. Arithmetically, even votes allegedly lost could not have changed the winner's margin. Citing John v Nyangi, minor breaches are ignored.

p. 8
02

Whether rumours of disqualification improperly influenced voters

Holding

Rumours require strict proof and none was adduced

Reasoning

The petitioner's own witnesses voted despite the alleged rumours; no voter testified that the rumour caused them to vote differently; his agents in all five polling stations did not corroborate the claim. The court held courts must be careful relying on consequences of rumours in electoral disputes.

p. 6
03

Who bore the prejudice of the ballot anomaly

Holding

The candidate whose photo was missing (the WDP candidate) was the proper complainant, but he accepted the results

Reasoning

The third candidate, whose slot carried the petitioner's photo and whose own photo was missing, was the candidate most disadvantaged. He complained but conceded defeat after IEBC's explanation. The petitioner could not capitalize on another candidate's grievance.

p. 8

Legal principles established

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  • Not every breach of election regulations invalidates an election; only substantial non-compliance or one affecting results does
  • The standard of proof in election petitions is above the ordinary civil standard but below the criminal standard
  • A petitioner alleging prejudice from a ballot irregularity bears the burden of proving the prejudice
  • Generalized allegations and rumours are insufficient evidence in election petitions

Court orders

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  1. 1.The election petition is dismissed with costs
  2. 2.Right of appeal within 30 days
  3. 3.Leave to appeal granted
  4. 4.Costs must be paid absent an order staying proceedings; petitioner directed to seek stay at the High Court

Authorities

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Legislation

  • Constitution of KenyaArticle 81
  • Constitution of KenyaArticle 86
  • Constitution of KenyaArticle 88
  • Election Act2011
  • IEBC Act and regulations
  • Election regulationsrule 70(1)

Cases cited (5)

  • John versus Nyangi and another
    3 KLR 513
  • Morgan versus Simpson
    (1974) 3 ALL ER 722
  • Raila Odinga versus IEBC and 5 others
    Supreme Court Election Petition No.5 of 2013
  • John Kiarie Waweru versus Beth Mugo and 2 others
    (2008)
  • John Nyange and another
    (2008) 3 KLR (EP)
Jurisdiction invoked
Election Act 2011 and Constitution of Kenya 2010 (Articles 81, 86, 88) - election petition for the Ademasijida Ward county assembly seat

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, "Abdinoor Adan Abdikarim v Independent Electoral & Boundaries Commission & another [2013] KEMC 99 (KLR)", Case Analysis (2013). Election Petition (Wajir), filed 28.3.2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/99/eng@2013-07-17

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