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MagistrateDismissedNot stated in judgment· [2017] KEMC 7 (KLR)

Nunda Fred Ndigwa v Matundura Ismael Bosire & 2 others [2017] KEMC 7 (KLR)

Chief Magistrate's Court (Election Petition Court)
22 December 2017
2,742 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a challenge to a Bogiakumu ward election, ruling that small procedural errors don't invalidate results unless they actually changed the outcome.

What this practically means

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Executive summary

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The petitioner, Nunda Fred Ndigwa, contested the election for member of County Assembly, Bogiakumu ward, held on 08/08/2017, in which the 1st Respondent, Ismael Bosire Matundura, was declared elected with 2,612 votes. The petitioner filed 46 grounds alleging irregularities, principally failures by presiding officers to record reasons why candidate agents did not sign or complete details on forms 36A at several polling stations, an alteration of figures at Mosando primary school polling station 2 of 2, an assault on his chief campaigner, and 8 unexplained votes in form 36B. He sought declarations of invalidity, scrutiny and recount (later abandoned), a finding of criminal electoral malpractice, and fresh elections. The respondents denied all irregularities and maintained the election was lawful. The court framed three issues: compliance with constitutional electoral principles, whether irregularities warranted nullification, and consequential relief. Applying section 83 of the Elections Act disjunctively as settled in Munya and the 2017 Raila Odinga petition, and the elevated standard of proof, the court held that no cogent evidence showed substantial departure from constitutional principles or result-affecting irregularities; the assault was unrelated to an electoral offence, unsigned agent declarations are excused by Regulation 79(7), and the 8 votes could not alter the outcome. The petition was dismissed with costs to the respondents, and the Ksh.100,000 security deposited was ordered shared equally among the respondents.

Key legal issues

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01

Whether the Bogiakumu MCA election complied with constitutional and statutory electoral principles

Holding

The election was conducted substantially in accordance with the Constitution and the law

Reasoning

The court applied Articles 81(e), 86 and section 83 of the Elections Act disjunctively as settled by the Supreme Court. Procedural or administrative errors occasioned by human imperfection do not vitiate an election; the petitioner's complaints about unsigned forms 36A and unrecorded reasons by presiding officers did not demonstrate substantial departure from constitutional principles nor affect the result.

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02

Whether the alleged irregularities (unsigned forms 36A, alterations, unexplained 8 votes, violence) warranted nullification

Holding

No substantial irregularities or illegalities were proved to warrant nullification

Reasoning

The alleged assault, though subject of criminal proceedings, was not shown to be an electoral offence or to have disrupted voting. The 8 unexplained votes would not change the result even if awarded to the petitioner. Respondents' evidence showed no irregularities, and the absence of agent signatures is excused by Regulation 79(7).

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03

Costs, including capping and application of security for costs

Holding

Security deposited to be applied as costs shared equally among respondents

Reasoning

Relying on section 84 of the Elections Act and Rules 30 and 31(3) of the Elections (Parliamentary and County Elections Petitions) Rules 2017, and the rationale in Kidero v Waititu that costs capping encourages genuine petitioners, the court directed the Ksh.100,000 security be shared equally among the respondents.

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Legal principles established

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  • Section 83 of the Elections Act should be applied disjunctively: an election is invalidated only if it substantially departed from constitutional principles or the irregularities affected the result
  • A petitioner seeking nullification must adduce cogent and credible evidence of the grounds pleaded
  • Absence of an agent at the signing of a declaration form does not by itself invalidate results
  • Standard of proof in election petitions absent criminal allegations is above balance of probabilities but below beyond reasonable doubt

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition awarded to the Respondents
  3. 3.The security for costs of Ksh.100,000 deposited by the petitioner to serve as costs to be shared equally among the respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 38, 81(e), 86; Chapter Seven
  • Elections ActSections 83, 84
  • Evidence Act (Cap 80)Section 107
  • Elections (General Regulations)Regulation 79(7)
  • Elections (Parliamentary and County Elections Petitions) Rules 2017Rules 30, 31(3)

Cases cited (7)

  • Col. DR. KIZA BESIGYE –VS- ATTORNEY GENERAL
    Constitutional Petition No. 13 of 2009 (Uganda)
  • GATIRAU PETER MUNYA VS DICKSON MWENDA GITHINJI & 2 OTHERS
    (2014) eKLR
  • RAILA AMOLO ODINGA & STEPHEN KALONZO MUSYOKA –VS- IEBC & OTHERS
    Presidential Election Petition No.1 of 2017
  • HASSAN ABDALLA ALBEITY –VS- ABU MOHAMMED ABU CHIABA & ANOTHER
    Petition No. 9 of 2013; (2013) eKLR
  • Raila Odinga case (2013)
  • GEORGE MIKE WANJOHI – VS- STEPHEN KARIUKI
    Supreme Court Petition No.2A of 2014
  • EVANS ODHIAMBO KIDERO & 4 OTHERS –VS- FERDINAND NDUNG'U WAITITU & 4 OTHERS
    Supreme Court Petition No. 18 of 2014
Jurisdiction invoked
Election petition under Chapter Seven of the Constitution of Kenya 2010, Section 83 of the Elections Act and the Elections (Parliamentary and County Elections Petitions) Rules 2017

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, "Nunda Fred Ndigwa v Matundura Ismael Bosire & 2 others [2017] KEMC 7 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/7/eng@2017-12-12

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