Walter Shiundu Murunga v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 53 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Burden and standard of proof in election petitions
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.
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.
Discrepancy between the petitioner's form 36B and the respondents' form 36B
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.
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.
Weight of untested affidavits and hearsay
Affidavits of deponents not called as witnesses (Ronald Masinde and Silas Wafula) were disregarded; uncorroborated hearsay allegations were rejected.
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.
Legal principles established
#- 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
#- 1.Election of 8th August 2017 for MCA Sango Ward upheld; 3rd Respondent declared duly elected
- 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.Stay of execution on costs for 30 days granted on application by petitioner's counsel
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.