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MagistrateDismissedElection Petition Number No. 1 of 2017· [2017] KEMC 40 (KLR)

Joseph Kibiego Koech v Gabriel Mibei & 2 others [2017] KEMC 40 (KLR)

Principal Magistrate's Court at Kilgoris
20 December 2017
2,629 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This interlocutory-style ruling by the Principal Magistrate's Court at Kilgoris (D.K. Matutu, Senior Resident Magistrate) disposed of an oral application made by the Petitioner, Joseph Kibiego Koech, at the close of trial of his election petition for Angata Barrikoi Ward. Counsel Mr. Abobo sought a recount of ballots at Oldoinyo Orok Primary School Polling Station 067, alleging that more votes were cast than the number of registered voters, and relied on paragraph 21(b) of the Petition and paragraph 16(b) of the supporting affidavit regarding a KIEMS discrepancy. All three Respondents opposed, arguing that recount does not lie as a matter of course, that no cogent evidence supported the alleged irregularity, that the margin of victory was wide, and that the application was in substance a bid for scrutiny of KIEMS data which had not been pleaded. The court framed four issues and distilled the applicable principles principally from the Supreme Court's decision in Gatirau Peter Munya v Dickson Mwenda Kithinji, holding that a recount is discretionary, must be grounded in pleadings or evidence, and is confined to establishing vote numbers and tallying, anything beyond that amounting to scrutiny. On the evidence, Forms 36A and 36B showed votes cast at both streams of the polling centre did not exceed registered voters, and the Forms were signed by party agents without complaint. The court found the wide margin between the parties and the absence of a demonstrated basis weighed against a recount, and that the Petitioner was really seeking scrutiny which featured nowhere in the pleadings. It held a recount would be an exercise in futility and would not serve the ends of justice. The application for recount was dismissed; the Petition was directed to proceed to submissions, with costs to abide the outcome of the Petition.

Key legal issues

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01

Whether the Petitioner laid a legal and factual basis for a recount of votes at Oldonyo Orok Polling Station 067

Holding

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.

Reasoning

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.

p. 5
02

Whether the application, though made at the close of trial, was properly framed as a recount

Holding

The application was in substance a request for scrutiny of KIEMS records, which was not pleaded and had not been sought.

Reasoning

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.

p. 4
03

Whether the timing of the application, after parties closed their cases, defeated it

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application for recount is hereby disallowed and consequently stands dismissed.
  2. 2.The Petition shall proceed to submissions stage which shall be on date to be set immediately hereafter.
  3. 3.Costs shall abide in the outcome of the Petition.

Authorities

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Legislation

  • Elections ActCap 7; Sections 58, 59; Section 82(1)
  • Constitution of Kenya 2010Article 81; Article 50
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 33; Rule 33(4)
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 28

Cases cited (8)

  • Gatirau Peter Munya vs Dickson Mwenda Kithinji and 2 Others
    Petition No. 2B of 2014
  • Hassan Mohammed Hassan vs IEBC
    Petition No 6 of 2013
  • Harun Meitamet Lempaka vs. Lemanken Aramat
    2013
  • Justus Gesito Mugali M'mbaya vs. IEBC and 2 Others
    Election Petition (Kakamega) No 6 of 2013
  • Charles Ong'ondo Were vs. Joseph Oyugi Magwanga and 3 Others
    Election Petition (Homabay) No. 1 of 2013
  • Hassan Ali Joho vs. Nyange and Another
    Election Petition (Mombasa) No. 1 of 2005
  • Richard Kalembe Ndile vs Patrick Musimba Mweu and 2 Others
    Election Petition Machakos Nos 1 and 7 of 2013
  • Nicholas Kiptoo Arap Salat vs. IEBC and 7 Others
    Supreme Court Petition No. 23 of 2014
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

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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, "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.