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MagistratePartially AllowedElection Petition No 2 of 2017· [2017] KEMC 26 (KLR)

Wilson Pkerer Chekeruk v Loporna Pyatich Lonyangatodo & 2 others [2017] KEMC 26 (KLR)

Principal Magistrates Court at Kapenguria
20 November 2017
VAV. O. Adet
1,392 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 granted scrutiny of election materials only for the polling station specifically mentioned in the petition, refusing the rest as a fishing expedition.

What this practically means

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Executive summary

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This ruling by the Principal Magistrates Court at Kapenguria (V. O. Adet, Senior Resident Magistrate) determined a Notice of motion dated 29 September 2017 filed by the petitioner in Election Petition No 2 of 2017 concerning the election for the Member of County Assembly of Masool Ward, Sigor Constituency, West Pokot County. The petitioner sought orders compelling the 2nd and 3rd Respondents to deliver to court the KIEMS kits and voters registers on trial days in respect of Amolem Primary School and Lokarkar Primary School Mobile Polling Stations, contending that registered voters were denied the vote for lack of biometric data and that the Respondents refused alternative identification. The Respondents opposed, arguing no basis had been laid, the request was a fishing expedition not anchored in the petition, and that section 82 of the Elections Act governs scrutiny. Applying Hassan Mohammed Hassan, the court held that scrutiny orders are discretionary but judicious and must be grounded in the pleadings. Since paragraph 6 of the petition specifically pleaded that voters at Amolem Primary School were turned away, the application was allowed in respect of that station. As to Lokarkar, the petition only alleged that agents were thrown out, not that voters were turned away, so no basis was laid and that relief was refused. Costs were granted in the cause.

Key legal issues

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01

Whether the petitioner laid a basis for scrutiny/access to electoral materials

Holding

The petitioner laid a sufficient basis only in respect of Amolem Primary School Mobile Polling Station, where the pleadings alleged voters were turned away; no basis was laid for Lokarkar

Reasoning

The court held that scrutiny orders are discretionary and judicious, and that the request must be anchored in the petition. Paragraph 6 of the petition pleaded that voters at Amolem Primary School were denied a chance to vote, which anchored the claim. However, for Lokarkar the petition only alleged that the petitioner's agents were thrown out, not that voters were turned away, so no basis existed for orders concerning that station.

p. 3

Legal principles established

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  • The decision to grant scrutiny and recount is discretionary but must be exercised judiciously, on a sound, logical and necessary basis
  • An application for scrutiny must be anchored in the pleadings, otherwise it amounts to a fishing expedition

Court orders

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  1. 1.The 2nd and 3rd Respondents to deliver to court the electronic voting gadgets (KIEMS KIT) and the voters register on the trial days in respect of Amolem Primary School Mobile Polling Station Code No. 037 in Masool Ward Sigor Constituency, West Pokot County
  2. 2.Cost of the application shall be in the cause

Authorities

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Legislation

  • Elections Actsection 82(1)
  • Elections Actsection 82(2)
  • Elections (Parliamentary and County Elections) Petition RulesRules 4 and 5
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Martha Wangari Karua and Anor Vs IEBC and three others
    HC EP No 2 of 2017 (Kerugoya)
  • Hassan Mohammed Hassan and another vs IEBC and 2 others
    [2013] eKLR
  • Nicholas Kiptoo Arap Salat vs IEBC and 7 others
  • Gitirau Peter Munya Vs Dickson Mwenda Kithinji and 2 others
    [2014] eKLR
  • Jacob Mwirigi Muthuri V John Mbaabu Murithi and 2 others
    [2013] eKLR
  • Rishad H. A Amana Vs IEBC and 2 others
    [2013] eKLR
  • Phillip Osore Ogutu vs Michael Aringo and 2 others
    Busia High Court election Petition No 2 of 2013
Jurisdiction invoked
Rules 4 and 5 of the Elections (Parliamentary and County Elections) Petition Rules, 2013; section 82 of the Elections Act, 2011; Article 159 of the Constitution of Kenya

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, "Wilson Pkerer Chekeruk v Loporna Pyatich Lonyangatodo & 2 others [2017] KEMC 26 (KLR)", Case Analysis (2017). Election Petition No 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/26/eng@2017-11-20

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