Richard Kathurima Muriungi v Independent Electrol and Bounderies Commission & 2 others [2017] KEMC 22 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Abothuguchi Central Ward election of 8th August 2017 was conducted in accordance with the Constitution, the Elections Act and applicable regulations
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
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.
Whether there was voter bribery, treating and undue influence by the 3rd respondent
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
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.
Whether discrepancies found on scrutiny and recount affected the result
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
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.
Whether the petitioner was entitled to the prayers in the petition
The petition was dismissed; the petitioner failed to prove his case to the required standard
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.
Legal principles established
#- 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
#- 1.The petition challenging the election of the Member of County Assembly for Abothuguchi Central Ward is dismissed
- 2.The election of the 3rd respondent (Ayub Bundi Solomon) is upheld
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.