Joseph Kibiego Koech v Gabriel Mibei & 2 others [2017] KEMC 40 (KLR)
The bottom line
#A Kenyan court refused a vote recount because the candidate showed no evidence of irregularities and hadn't asked for the deeper scrutiny he actually needed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner laid a legal and factual basis for a recount of votes at Oldonyo Orok Polling Station 067
No basis was laid; the alleged irregularity (more votes cast than registered voters) was disproved by Forms 36A and 36B, which showed votes cast in both streams did not exceed registered voters.
The court examined the pleaded irregularity in Paragraph 21(b) of the Petition and the affidavit paragraph 16(b) on KIEMS discrepancies. Form 36A showed Station 067-1 had 696 registered voters with 540 votes cast, and Station 067-2 had 697 registered voters with 553 valid votes cast. The Forms were signed by party agents without complaint. The assertion that more votes were cast than registered was unsupported by the paper trail, and the wide margin between the parties weighed against a recount.
Whether the application, though made at the close of trial, was properly framed as a recount
The application was in substance a request for scrutiny of KIEMS records, which was not pleaded and had not been sought.
Counsel for the Petitioner disclosed that the purpose was to dispel fears that KIEMS captured fewer votes than were actually cast. Relying on M'mbaya v IEBC, the court held recount is confined to establishing numbers and tallying; examination of KIEMS data amounts to scrutiny, which must be separately sought and grounded in pleadings. The Petitioner was therefore asking for more than a recount.
Whether the timing of the application, after parties closed their cases, defeated it
Timing alone did not defeat the application since the law permits recount at any stage before determination, though it ought to have been brought earlier.
The court rejected the 2nd and 3rd Respondents' submission that a recount would take parties back to square one and breach fair-hearing rights under Article 50. It held the Petitioner was entitled to apply at any stage before determination, but observed the application ought to have been brought earlier so the ballot boxes could be secured and the matter dealt with at the interlocutory stage.
Legal principles established
#- The right to a recount does not lie as a matter of course; the applicant must establish a basis to the satisfaction of the elections court, by pleadings, affidavits or evidence.
- Recount is limited to establishing the number of votes garnered by each candidate and the tallying of such votes; examination of electoral misconduct or of KIEMS data is scrutiny.
Court orders
#- 1.The application for recount is hereby disallowed and consequently stands dismissed.
- 2.The Petition shall proceed to submissions stage which shall be on date to be set immediately hereafter.
- 3.Costs shall abide in the outcome of the Petition.
- Jurisdiction invoked
- Elections Act Cap 7 and the Elections (Parliamentary and County Elections) Petition Rules, 2017, in respect of elections for members of county assembly - Angata Ward; Article 81 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kibiego Koech v Gabriel Mibei & 2 others [2017] KEMC 40 (KLR)", Case Analysis (2017). Election Petition Number No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/40/eng@2017-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.