James Apareng Karumet v Independent Electoral and Boundaries Commission (Iebc) & 2 others [2017] KEMC 69 (KLR)
The bottom line
#A Kenyan court dismissed a losing candidate's request to inspect election materials because he gave no specific evidence, showing scrutiny requests must be precise and well-grounded.
What this practically means
#Executive summary
#Key legal issues
#Leave to file further affidavits out of time in an election petition
Leave declined; the proposed affidavits were not filed with the petition as required by Rule 12(3)(4) and their admission would introduce new witnesses and issues, cause prejudice and defeat the constitutional timelines for electoral disputes
Article 87(2) of the Constitution and section 76(1)(a) of the Election Act require petitions to be filed within 28 days with supporting affidavits. The court adopted the Raila Odinga (2013) guidelines: admission of additional evidence is discretionary, must not introduce massive evidence changing the nature of the petition, and must not unfairly disadvantage respondents. Relying on Robinson Simiyu Wanga and Mututho, the court held election petitions are special pleadings where each minute counts, and declined the leave sought.
Access to and scrutiny of election materials at the pre-trial stage
Refused; the Petitioner had been supplied with Forms 36As, 36Bs, 36Cs and some diaries, had expanded the list of items sought (moving the goalposts), and had laid no sufficient basis for scrutiny on untested evidence
Applying the Munya and Adama principles from the Supreme Court, scrutiny does not lie as a matter of course and must be foreshadowed in pleadings with a sufficient basis. Citing Ndolo and Kinga'ra, the court held the application was general rather than specific and constituted an attempt to fish for evidence. The allegations on KIEMS discrepancies rested on untested evidence and, per Mwirigi Muthuri, scrutiny cannot be ordered at the pre-trial stage on such a basis.
Limited order for polling station diaries
The only relief granted was an order that the 1st and 2nd Respondents file and serve polling station diaries for the seven disputed stations within 7 days
Despite dismissing the application, the court exercised its discretion to order supply of the polling station diaries for the specific stations in dispute, as these had not all been supplied, within seven days of the ruling.
Legal principles established
#- The right of scrutiny and recount of votes in an election petition does not lie as a matter of course; the party seeking it must establish a basis to the satisfaction of the trial court, by pleadings, affidavits or evidence adduced during the hearing
- At the time of filing an election petition, the affidavits of all intended witnesses must be filed with the petition; further affidavits are admitted only at the court's discretion where no prejudice is caused and the constitutional imperative of timely resolution is preserved
- An application for scrutiny must be clear, concise and specific, and a party is bound by its pleadings; evidence outside the pleadings must be disregarded
Court orders
#- 1.The Petitioner's notice of motion dated 25th September 2017 is dismissed with costs
- 2.The 1st and 2nd Respondents are ordered to file and serve the Petitioner with polling station diaries for Konyao Secondary School streams 1 and 2, Lokasur Nursery School, Kapoyen Nursery School, Napatiro Primary School, and Ngotut Primary School streams 1 and 2 within 7 days from the date of delivery of the ruling
- Jurisdiction invoked
- Articles 19, 20, 22, 23(3), 35, 50, 81, 86, 140, 159 and 258 of the Constitution; sections 39, 44 and 82 of the Election Act; section 27 of the IEBC Act; sections 2 and 4 of the Access to Information Act; Elections (Parliamentary and County Elections) Petitions Rules; Elections (Technology) Regulations; Order 51 rule 1 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Apareng Karumet v Independent Electoral and Boundaries Commission (Iebc) & 2 others [2017] KEMC 69 (KLR)", Case Analysis (2017). Election Petition (Kapchok Ward, Kacheliba Constituency) — Notice of Motion dated 25th September 2017 (petition number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/69/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.