Kiponda Joseph Joseppe Ngumbao & another v Independent Electoral and Boundaries Commission & 2 others [2017] KEMC 49 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Threshold for scrutiny and recount in election petitions
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
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.
Whether summary judgment can issue where the Respondents claim Form 36B was completed and the election was credible
No - triable issues were raised
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.
Distinction between scrutiny and recount
The two remedies are conceptually different even though often used interchangeably
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.
Legal principles established
#- 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
#- 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.Costs of the applications dated 16/10/2017 and 27/10/2017 to be costs in the cause
- 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.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.Scrutiny exercise to be conducted after all or same of the witnesses to the petition shall have testified
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.