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MagistrateDismissedElection Petition No. 1 of 2013· [2014] KEMC 3 (KLR)

William Kinyanyi Onyango v Independent Electoral and Boundaries Commission (IEBC) & 2 others [2014] KEMC 3 (KLR)

Chief Magistrates Court at Nairobi, Milimani Commercial Courts
21 March 2014
10,958 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~44 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a challenge to a 2013 county ward election because the petitioner could not prove the alleged irregularities actually changed the results.

What this practically means

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Executive summary

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This is a retried election petition in the Chief Magistrates Court at Nairobi, Milimani, in which William Kinyanyi Onyango challenged the election of Robert Mbatia as County Representative for Kariobangi South (1429), Uhuru Ward in the 4th March 2013 General Election, and sought a declaration that the 3rd respondent was not duly elected, nullification of his certificate, and costs. The petitioner alleged that the results were altered, doctored and incomplete; that forms 35 bore unexplained alterations; and that malpractices occurred, including a Kikuyu community queue, voter bribery through allotment letters, ferrying of ballot boxes by non-IEBC persons, barring of voters, voting without identity cards, issuance of multiple ballot papers, denial of forms 35 to agents, and unsupervised counting. The petitioner called five witnesses; the respondents called IEBC officials, the returning officer and the 3rd respondent. The court framed four issues and confined itself to the pleadings. It found that the alterations on the forms 35 were confined to the upper part, were explained as corrections arising from mishandling of rejected votes, and did not materially affect the outcome; that the results were complete; and that none of the alleged malpractices was proved, much resting on inadmissible hearsay from agents not called as witnesses or on mere suspicion. Applying section 83 of the Elections Act and the burden and standard of proof, the court dismissed the petition with costs to the respondents, capping costs at Kshs 1,800,000/-, and held the 3rd respondent duly and validly elected with 14,049 votes against the petitioner's 9,167.

Key legal issues

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01

Whether the announced results were altered, doctored or incomplete

Holding

The alterations on the forms 35 were on the upper part (spoilt, rejected and total votes cast), were explained by the returning officer as corrections arising from mishandling of rejected votes, did not touch individual candidates' results, and did not materially affect the outcome; the results were complete

Reasoning

The court examined all 38 forms 35 filed and found overwriting only on the upper part of the forms. The returning officer explained the corrections as arising from mishandling of rejected votes. Since the individual candidates' results were untouched, the alterations could not have favoured any candidate, and the petitioner did not demonstrate how the results were materially affected. Full results were on file and no alternative results were produced.

p. 10
02

Whether the alleged malpractices (Kikuyu queue, voter bribery via allotment letters, ferrying of ballot boxes, barring of voters, voting without ID cards, multiple ballot papers, denial of forms 35, agents told to sleep) were proved

Holding

None of the alleged malpractices was proved; key allegations rested on hearsay from agents not called as witnesses, mere suspicion, or evidence that was retracted or immaterial to the county assembly election

Reasoning

The petitioner's own agents confirmed orderly elections and agreement with the results on the checklists. The bribery witness distanced the 3rd respondent from the allotment letters. Allegations of barred voters and ferrying of ballot boxes were unsupported because the sources were not called as witnesses. The evidence of multiple ballot papers related to the presidential, not county assembly, election. Hearsay evidence is inadmissible.

p. 13
03

Whether the 3rd Respondent was validly elected

Holding

The 3rd Respondent was duly and validly elected, having garnered 14,049 votes against the petitioner's 9,167 in an election conducted in accordance with the law

Reasoning

Having found that the petitioner failed to prove irregularities, non-compliance or malpractices materially affecting the election, the court held that the election was conducted in accordance with the law. The final tally in form 36 showed the 3rd respondent with a clear majority, and the will of the people of Kariobangi South, Uhuru Ward had to be respected.

p. 14
04

Whether the court could determine matters not pleaded, including the serial numbers of forms 35

Holding

The court is bound by the pleadings and would not determine matters not pleaded; even so, the identical serial numbers on both sets of forms indicated no forgery, and the earlier scrutiny ruling on that issue stood

Reasoning

Relying on authority that decisions must rest strictly on pleadings, the court declined to pronounce on matters outside the petition, including the argument about a form 35 serial number used in several streams. That issue had already been decided in the ruling on scrutiny delivered on 27th February 2014, and the court found no basis to depart from that finding.

p. 13

Legal principles established

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  • Decisions of a court must be rendered strictly on the pleadings filed; a court cannot determine matters not pleaded even where evidence is led on them
  • The petitioner in an election petition bears the burden of proving both non-compliance with the law and that the non-compliance affected the validity of the election
  • Alterations on electoral forms do not by themselves invalidate an election unless shown to materially affect the integrity or outcome of the results
  • No election is perfectly conducted; only errors constituting non-compliance that materially affect the outcome warrant nullification
  • Under section 83 of the Elections Act, an election shall not be declared void for non-compliance unless it affected the results or was not conducted in accordance with constitutional principles
  • Where criminal conduct such as bribery is alleged in an election petition, the standard of proof is high and requires proof of commission of the offence and that the irregularities affected the outcome

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition are awarded to the respondents, capped at Kshs 1,800,000/- to be borne by the petitioner
  3. 3.The 1st and 2nd Respondents shall be paid a maximum of Kshs 1,000,000/-
  4. 4.The 3rd Respondent shall be paid a maximum of Kshs 800,000/-

Authorities

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Legislation

  • Elections Actsection 83
  • Elections (General) Regulations 2012Rule 79(3)
  • Election General RegulationsRegulation 83

Cases cited (8)

  • Jared Odoyo Okello vs IEBC and 3 others (EP No. 1 of 2013) Kisumu
  • Mahamud Muhumed Sirat vs Ali Hassan Abdurahman and 2 others (2010) eKLR
  • Raila Odinga and 5 others vs The IEBC & 3 Others, Election Petition Number 5 of 2013
  • Hosea Mundui Kiplagat vs Sammy Komen Mwaita and 2 others, E.P No. 11 of 2013 Eldoret
  • Joho vs Nyange (2008) 3 KLR at 500
    (2008) 3 KLR at 500
  • IEBC & Another vs Stephen Mutinda Mule & 3 others CA No. 219 of 2013 Nairobi
    CA No. 219 of 2013
  • Manson Oyongo Nyamweya vs James Omingo Magara & 2 Others, E.P No. 3 of 2008 Kisii
  • Rozaah Akinyi Buyu vs Independent Electoral and Boundaries Commission and 2 others, Civil Appeal No. 40 of 2013 (2014) eKLR
    Civil Appeal No. 40 of 2013 (2014) eKLR
On appeal from
High Court
null
Jurisdiction invoked
Election petition challenging election of a County Assembly Ward Representative under the Constitution and the Elections Act (petition court given jurisdiction over election of county representatives)

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, "William Kinyanyi Onyango v Independent Electoral and Boundaries Commission (IEBC) & 2 others [2014] KEMC 3 (KLR)", Case Analysis (2014). Election Petition No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/3/eng@2014-03-21

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