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MagistrateDismissedElection Petition No 1 of 2017· [2017] KEMC 53 (KLR)

Walter Shiundu Murunga v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 53 (KLR)

Magistrates' Court (Election Petition), Butali
7 December 2017
3,655 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out an election petition because the losing candidate could not prove his claims, showing hearsay and unexplained documents will not overturn an election.

What this practically means

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Executive summary

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Walter Shiundu Murunga petitioned against the IEBC, the Returning Officer for Likuyani Constituency and Kennedy Kiliwaki, seeking nullification of the 8th August 2017 election for Member of County Assembly, Sango Ward, on grounds of non-compliance with electoral law, manipulation of voters and erroneous entries in form 36B, and a fresh election. His application for recount and tallying had earlier been dismissed on 30th October 2017. At trial the petitioner testified and relied on a form 36B (Pexhibit 1) showing him with 1756 votes, whereas the form 36B produced by the 1st and 2nd Respondents (Exhibit 2) showed him with 1986 votes and the 3rd Respondent with 2547 votes. In cross-examination the petitioner admitted the figures on Exhibit 2, admitted his agents signed some forms 36A, admitted no formal complaint of irregularities was lodged, and conceded other allegations were hearsay relayed by persons not called as witnesses. The Returning Officer denied issuing Pexhibit 1 or any form 36B to the petitioner. The court held the legal burden of proof lay on the petitioner to a standard above balance of probability but below beyond reasonable doubt, citing Raila Odinga v IEBC; that the petitioner's petition never pleaded how he obtained Pexhibit 1, contradicting his own plea that he was never issued the forms; that the court could not authenticate Pexhibit 1; and that affidavits of deponents not called to testify could not be considered. The court found the election free, fair and lawful, upheld the election of the 3rd Respondent, dismissed the petition with costs of Kshs. 300,000/= to the 1st and 2nd Respondents and Kshs. 250,000/= to the 3rd Respondent, and granted 30 days' stay of execution on costs.

Key legal issues

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01

Burden and standard of proof in election petitions

Holding

The petitioner bore the legal burden of proving the alleged irregularities to a standard above balance of probability but below beyond reasonable doubt, and failed.

Reasoning

Relying on Raila Odinga v IEBC, the court held the petitioner had to adduce evidence supporting his allegations, including proof of how he obtained his exhibit (form 36B Pexhibit 1). His testimony admitted the vote counts on the respondents' form 36B, he reported no formal complaint, and no corroborating witness was called. Cross-examination of respondents' witnesses sought to shift the burden to them, which was misconceived.

p. 5
02

Discrepancy between the petitioner's form 36B and the respondents' form 36B

Holding

The court was satisfied with the form 36B produced by the 1st and 2nd Respondents (Exhibit 2) and could not confirm the authenticity of the petitioner's Pexhibit 1.

Reasoning

The petitioner pleaded in paragraphs 2 and 3 of the petition that he was never issued forms 36A and 36B, yet paragraph 16 of his supporting affidavit claimed a form 36B was issued to him with erroneous entries. No averment in the petition explained how he obtained Pexhibit 1. The petitioner himself admitted in cross-examination that he garnered 1986 votes and the 3rd Respondent 2547 votes, consistent with Exhibit 2. Authenticity verification would require investigation by another arm of government.

p. 5
03

Weight of untested affidavits and hearsay

Holding

Affidavits of deponents not called as witnesses (Ronald Masinde and Silas Wafula) were disregarded; uncorroborated hearsay allegations were rejected.

Reasoning

The petitioner admitted that most allegations beyond paragraph 16 were hearsay relayed to him by Athony or Silas, neither of whom testified. Affidavits filed in support but whose deponents did not appear for cross-examination cannot be considered. Generalities without specifics unsupported by evidence cannot invalidate an election.

p. 6

Legal principles established

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  • The legal burden of proof in election petitions lies with the petitioner, to a standard higher than a balance of probability but lower than beyond reasonable doubt.
  • A party's admission of the contents of a document during cross-examination binds that party and cannot be resiled from.
  • A petitioner's case must be pleaded in the petition; averments in affidavits unsupported by the petition, and affidavits of deponents not called as witnesses, cannot found a decision.

Court orders

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  1. 1.Election of 8th August 2017 for MCA Sango Ward upheld; 3rd Respondent declared duly elected
  2. 2.Petitioner's Petition dismissed with costs of Kshs. 300,000/= all-inclusive to the 1st and 2nd Respondents and Kshs. 250,000/= to the 3rd Respondent
  3. 3.Stay of execution on costs for 30 days granted on application by petitioner's counsel

Authorities

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Legislation

  • Constitution of Kenya2010 (electoral principles)
  • Elections Act2012 (as cited in the judgment)
  • Elections (General) Regulations2012, Regulations 69, 75, 79, 81, 83
  • Elections Offences Act2016

Cases cited (2)

  • Raila Odinga Vs. IEBC & 3 others
    Supreme Court Petition No. 5 of 2013
  • Martha Wangari Karua & Another Vs. Independent Electoral and Boundaries Commission & 3 others
    [2017]
Jurisdiction invoked
Original election petition jurisdiction under the Constitution, Elections Act, 2011 and Election Offences Act, 2016 (magistrate's court election petition, 2017 General Election)

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, "Walter Shiundu Murunga v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 53 (KLR)", Case Analysis (2017). Election Petition No 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/53/eng@2017-12-07

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