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MagistratePartially AllowedElection Petition No. 3 of 2017· [2017] KEMC 49 (KLR)

Kiponda Joseph Joseppe Ngumbao & another v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 49 (KLR)

Chief Magistrate's Court (Election Court), Malindi
29 November 2017
5,837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan election court ordered scrutiny of Ganda Ward election materials due to missing and defective forms, but refused to void the MCA's election without a full hearing.

What this practically means

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Executive summary

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This ruling of the Magistrates' Court at Malindi (Hon. C.O Nyawiri, SRM) disposes of four applications arising from Election Petition No. 3 of 2017 challenging the election of the Member of County Assembly for Ganda Ward, Kilifi County, held on 8 August 2017. By consent, the applications dated 16/10/2017 and 27/10/2017 were allowed, extending time for the Respondents to file responses and deeming documents filed out of time as duly filed, with costs in the cause. On the contested application dated 17/10/2017 seeking recount and scrutiny of votes, the Court drew the doctrinal distinction between recount (limited to the number of votes) and scrutiny (extending to the validity of votes). Examining the record, the Court observed that Form 36B for Ganda Ward was never filed, several Forms 36A were missing, un-stamped or unsigned, the biometric registers and KIEMS data were never availed, and the Respondents did not rebut the alleged 1854 unlawful votes against margins of 499 and 717. Applying Articles 86 and 38(2) of the Constitution and section 82(1) of the Elections Act, the Court ordered scrutiny of specified materials in ten named polling stations, to be conducted after witnesses have testified. The Petitioner's application dated 30/10/2017 for summary judgment - premised on the alleged absence of a Form 36B declaration before issuance of the Form 36C certificate and inflated vote counts in eleven polling stations - was dismissed: applying DT Dobie and Job Kilach, the Court held the Respondents' assertions raised triable issues requiring a full hearing, with costs to the Respondents.

Key legal issues

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01

Threshold for scrutiny and recount in election petitions

Holding

The Petitioner laid a sufficient basis for scrutiny on account of missing Forms 36A and 36B, un-stamped and unsigned forms, unavailed registers and KIEMS data, and an unexplained margin of votes

Reasoning

The Court examined the record itself and noted Form 36B for Ganda Ward was not filed, Form 36A for Gandani and Kijiwe Tanga polling stations was missing or un-stamped, and biometric registers and KIEMS data were never availed. The alleged 1854 aggregate votes without lawful results against margins of 499/717 was unrebutted. Applying Article 86's requirements of accuracy, verifiability and accountability, scrutiny was warranted.

p. 5
02

Whether summary judgment can issue where the Respondents claim Form 36B was completed and the election was credible

Holding

No - triable issues were raised

Reasoning

The Respondents asserted that Form 36B was completed before issuance of the Form 36C certificate and that the election was free, fair and verifiable. The Court, applying DT Dobie and Job Kilach principles, held summary judgment is a draconian measure granted only in the clearest cases; the respondents' denials raised fairly arguable issues requiring a full hearing.

p. 13
03

Distinction between scrutiny and recount

Holding

The two remedies are conceptually different even though often used interchangeably

Reasoning

Citing the Kakamega petition authorities, the Court explained that recount is limited to establishing the number of votes gained by candidates, whereas scrutiny extends to the validity of the votes and the integrity of the electoral materials, justifying the wider documentary examination ordered.

p. 7

Legal principles established

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  • Scrutiny and recount are conceptually different remedies: recount is limited to establishing the number of votes while scrutiny extends to the validity of such votes
  • An election court has wide jurisdiction to order scrutiny of votes on its own motion or on application under section 82(1) of the Elections Act
  • Summary judgment should be granted only in the clearest cases; a trial must be ordered where a triable or fairly arguable issue exists

Court orders

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  1. 1.By consent, extension of two days for the 3rd Respondent to file and serve response to petition and witness affidavit, and leave to file further replying affidavit and additional witness affidavits within two days
  2. 2.Costs of the applications dated 16/10/2017 and 27/10/2017 to be costs in the cause
  3. 3.The 1st and 2nd Respondents' joint response dated 12/10/2017 and witness affidavits filed 13/10/2017 deemed duly filed within time
  4. 4.Order for scrutiny of specified electoral materials (KIEMS soft copy, Form 36B, Forms 36A, polling station diaries, registers, counterfoils, spoilt and rejected ballots) in respect of Takae, Mere, Gandeni, Milimani, Kijiwe Tanga and Mashamba polling stations in Ganda Ward
  5. 5.Scrutiny exercise to be conducted after all or same of the witnesses to the petition shall have testified
  6. 6.Application dated 30/10/2017 (summary judgment) disallowed with costs to the Respondents
Jurisdiction invoked
Article 86 and 87 of the Constitution 2010; sections 80(4)(a) and 82 of the Elections Act 2011; Rules 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules 2017

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, "Kiponda Joseph Joseppe Ngumbao & another v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 49 (KLR)", Case Analysis (2017). Election Petition No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/49/eng@2017-11-29

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