Cosmas Foleni Kenga v I.E.B.C & 2 others [2017] KEMC 46 (KLR)
The bottom line
#The Kilifi Election Court upheld the election of the Tezo Ward MCA, ruling that vague, unproven complaints and minor clerical errors cannot overturn a Kenyan election.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was harassment and intimidation of voters attributable to the Respondents
- 2.Whether polling clerks and presiding officers were partisan in favour of the 3rd Respondent
- 3.Whether there was lack of security at polling stations affecting the conduct of the election
- 4.Whether the failure to stamp Forms 36A in four polling stations vitiated the election
- 5.Whether the Bofa Primary School Polling Station anomalies (excess votes/clerical error) invalidated the results
- 6.Whether scrutiny and recount of votes should be ordered
Key legal issues
#Standard of proof in election petitions
Election petitions are no ordinary suits; the burden rests on the petitioner and the standard is above balance of probabilities
Relying on the Supreme Court's decision in Raila Odinga (2013) and comparative authorities from Uganda, India and Nigeria, the court held that the petitioner bears the legal burden, the evidential burden shifts with the effectiveness of discharge, and allegations must be proved to the required standard. The petitioner's evidence of harassment, partisanship and insecurity was found generalized, hearsay and uncorroborated, falling short of that standard.
Substantial compliance / effect of irregularities
Minor breaches and innocent clerical errors do not void an election unless they affect the result
Following Morgan v Simpson, Fitch v Stephenson and Joho v Nyange, and section 83 of the Elections Act, the court distinguished innocent errors from deliberate irregularities. The Bofa Primary School error (230 instead of 3 votes) was a genuine clerical error captured correctly by the KIEMS kit and signed by 11 agents including the petitioner's agent; it did not affect the result.
Scrutiny and recount
Scrutiny and recount cannot be granted where the petitioner has not pleaded the specific polling stations and votes in dispute and laid a sufficient basis
Applying Nathif Jama Adama, Jacob Mwirigi Muthuri, Rishad Amana, Hassan Mohamed Hassan, Philip Osore Ogutu, Salat and Arikala Narasa Reddy, the court held that scrutiny requires polling stations with disputed results to be signalled in the pleadings. The only possible candidate, Bofa, was satisfactorily explained. Ordering scrutiny on this record would be an abuse of process and a fishing expedition.
Partisan officials and unproven agency
Allegations of partisan presiding officers, harassment and insecurity failed for want of specificity, corroboration and proof of agency
The petitioner's witnesses gave sweeping, vague statements; none visited more than one polling station; key assertions were based on hearsay from voters who did not testify. Alleged wrongdoers were not proved to be agents acting within the authority of the Respondents. No call logs or police reports substantiated the claims of failed complaints of insecurity.
Legal principles established
#- The validity of an election is gauged by whether it was conducted in substantial compliance with electoral law; minor or non-fault irregularities are excused
- The burden of proof in election petitions lies on the petitioner
- A petitioner alleging bias or partisanship of election officials must plead full particulars and call evidence; general, vague allegations fail
- Scrutiny and recount require a pleaded, sufficient basis; innocent clerical errors do not impeach an election result
- A recount cannot be ordered as a roving or fishing inquiry without precise pleadings of material facts
Court orders
#- 1.A finding that the 3rd Respondent, Thomas Mumba Chengo, was validly elected as Member of County Assembly for Tezo Ward, County of Kilifi
- 2.Dismissal of the petition
- 3.Costs awarded to the Respondents
- 4.The deposit of Kshs 100,000/= to remain in Court till the assessment of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election dispute over the election of a Member of County Assembly, Tezo Ward, under the Constitution (Articles 38, 86, 88, 140) and the Elections Act, 2011 (section 83); heard under the Election Petition Rules, 2017
Relief refused
#Access to electoral materials within seven days of filing
Petition dismissed in its entirety for failure to meet the burden and standard of proof
Declaration that the 3rd Respondent was not duly elected and the election was null and void
No evidence of non-compliance affecting the result; election conducted in substantial compliance with the law
Scrutiny, recount and re-tallying of votes cast in Tezo Ward
Petitioner failed to plead and lay a sufficient basis; evidence was sketchy, generalized and would amount to a fishing expedition
Declaration of which candidate was validly elected / order for fresh election
Court found the declared winner validly elected
Costs
Costs follow the event. Costs awarded to the Respondents, and the deposit of Kshs 100,000/= to remain in Court till the assessment of costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, I make a finding that the 3rd Respondent, THOMAS MUMBA CHENGO was validly elected as the Member of County Assembly of Tezo Ward for the County of Kilifi and as it were, the people of Tezo Ward have spoken. I dismiss the petition.
Costs follow the event. The court awards costs to the Respondents and direct that the deposit of Kshs100,000/= to remain in Court till the assessment of Costs.
No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.
Irregularities which can be attributed to innocent mistake or an oblivious human error cannot constitute a reason for impeaching an election result.
the petitioner is obligated to give full particulars in his petition and call evidence in support of his allegation and prove the same to the required standards failure whereof the allegations are nothing more than malice and made in bad faith.
It would be an abuse of process to allow a party to use scrutiny for purposes of chancing on new evidence. Scrutiny should not be looked upon as a lottery.
Issues in the judgment
#The coram lists the presiding officer as 'SPM' while the signature block reads 'SENIOR PRINCIPAL MAGISTRATE'; the rank is consistent in substance but styled differently
The judgment inconsistently identifies the elected candidate Thomas Mumba Chengo as both the 2nd and 3rd Respondent; the reliefs sought refer to the '3rd Respondent' as the winning candidate while the witness listing says 'THOMAS MUMBA CHENGO (2ND RESPONDENT)'
Witness name inconsistently rendered as 'RENISON BIDII KALAMA' (oral evidence) and 'RENSON BIDII KOMBE' (affidavit references)
Bofa Primary School figures stated inconsistently: KIEMS captured '313' in the 1st Respondent's evidence but '318' in the analysis
Alhaji Waziri Ibrahim v Shehu Shagari is listed twice in the citations list
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cosmas Foleni Kenga v I.E.B.C & 2 others [2017] KEMC 46 (KLR)", Case Analysis (2017). Election Petition No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/46/eng@2017-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.