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MagistrateDismissedElection Petition No. 1 of 2017· [2017] KEMC 22 (KLR)

Richard Kathurima Muriungi v Independent Electrol and Bounderies Commission & 2 others [2017] KEMC 22 (KLR)

Senior Resident Magistrate's Court at Githongo
20 December 2017
29,846 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~119 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an election challenge because the losing candidate offered hearsay allegations instead of proof that any mistakes changed the result.

What this practically means

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Executive summary

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The petitioner, the Jubilee Party candidate for Member of County Assembly, Abothuguchi Central Ward, challenged the election of the 3rd respondent declared on 10th August 2017, alleging that the election was not administered impartially, that data in the KIEMS kits and forms 36A, 36B and 36C was inconsistent, that votes were inflated, and that the 3rd respondent engaged in bribery, treating, voter intimidation and undue influence. He sought a recount, scrutiny and audit, declarations that the election was invalid and a fresh election. The respondents denied all allegations and relied on Section 83 of the Elections Act. The parties agreed five issues. The court found that the legal burden rested on the petitioner to prove both non-compliance and its effect on the result, to a standard above balance of probability, with electoral offences requiring proof beyond reasonable doubt. The bribery and undue-influence allegations rested on hearsay, with no witnesses identifying bribers or establishing any nexus to the 3rd respondent. The court ordered a partial recount and scrutiny, which disclosed discrepancies of at most 5 votes against a winning margin of 274 votes; these could not have affected the result and could not be extrapolated to other polling stations. Forms 36A tallied with the KIEMS printouts and bore the agents' signatures without remarks. Applying Section 83 of the Elections Act and Munya v Dickson Mwenda Githinji, the court dismissed the petition, upheld the election of the 3rd respondent, and awarded costs to the respondents, to be assessed.

Key legal issues

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01

Whether the Abothuguchi Central Ward election of 8th August 2017 was conducted in accordance with the Constitution, the Elections Act and applicable regulations

Holding

The election was valid; the petitioner's allegations of constitutional and statutory breaches were unproved, being based on hearsay and conjecture, and the forms 36A tallied with the KIEMS kit printouts

Reasoning

The court examined the petitioner's claims of delay, counting in the absence of agents, seal discrepancies and transmission discrepancies and found them unproved. All 44 forms 36A were signed by the petitioner's agents without remarks, the polling station diaries contained no adverse remarks, and the scrutiny and recount confirmed accuracy. The petitioner did not give examples of discrepant results and produced no alternative tabulation of his own.

p. 47
02

Whether there was voter bribery, treating and undue influence by the 3rd respondent

Holding

The allegations of bribery and undue influence were not proved; the witnesses had no personal knowledge, gave no names of bribers or bribed voters, and no nexus to the 3rd respondent was established

Reasoning

PW1 admitted he had no personal knowledge of the identities of those buying votes; PW2 did not witness bribery and never reported it to police or IEBC; PW3 relied on information from others. The court applied the principle that proof of bribery requires clear and unequivocal evidence connecting the act to the candidate or his agents, and that suspicion is insufficient.

p. 31
03

Whether discrepancies found on scrutiny and recount affected the result

Holding

Discrepancies of at most 5 votes, against a winning margin of 274 votes, could not have affected the result and did not warrant nullification under Section 83 of the Elections Act

Reasoning

The court ordered a partial recount of one quarter of the polling stations which confirmed the forms 36A were accurate. Only minor one-vote differences were found in a few stations. Applying Chabanga and Markio Tado, the court held that even if the adversely affected votes were added to the petitioner, the 3rd respondent would still have won by a large margin.

p. 51
04

Whether the petitioner was entitled to the prayers in the petition

Holding

The petition was dismissed; the petitioner failed to prove his case to the required standard

Reasoning

Having failed on the substantive issues of compliance and electoral offences, the petitioner could not obtain the declarations, recount, scrutiny orders or fresh election. Costs followed the event.

p. 51

Legal principles established

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  • Under Section 83 of the Elections Act, an election shall not be declared void for non-compliance where the election was conducted substantially in accordance with the principles of the Constitution or where the non-compliance did not affect the result
  • The legal burden of proof in an election petition rests on the petitioner, who must prove not only non-compliance but that it affected the validity of the election; the evidential burden then shifts
  • The standard of proof in election petitions is above a balance of probabilities though not as high as beyond reasonable doubt; allegations of electoral offences must be proved to the higher standard
  • Minor arithmetical discrepancies that do not fundamentally alter the outcome cannot justify nullification of an election

Court orders

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  1. 1.The petition challenging the election of the Member of County Assembly for Abothuguchi Central Ward is dismissed
  2. 2.The election of the 3rd respondent (Ayub Bundi Solomon) is upheld
  3. 3.The petitioner shall meet the costs of the petition, to be assessed
Jurisdiction invoked
Original jurisdiction as an election court under Articles 87 and 105 of the Constitution and Part VI of the Elections Act, No. 24 of 2011

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, "Richard Kathurima Muriungi v Independent Electrol and Bounderies Commission & 2 others [2017] KEMC 22 (KLR)", Case Analysis (2017). Election Petition No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/22/eng@2017-12-20

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