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MagistrateDismissedElection Petition (Kapchok Ward, Kacheliba Constituency) — Notice of Motion dated 25th September 2017 (petition number not stated in the judgment)· [2017] KEMC 69 (KLR)

James Apareng Karumet v Independent Electoral and Boundaries Commission (Iebc) & 2 others [2017] KEMC 69 (KLR)

Magistrates' Court (Election Petition Court)
24 November 2017
7,463 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 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

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Executive summary

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This is a ruling delivered on 24th November 2017 by Senior Resident Magistrate V. O. Adet in an election petition challenging the election of the Member of County Assembly for Kapchok Ward, Kacheliba Constituency, held on 8th August 2017. The petitioner, a KANU candidate who garnered 2,591 votes against the 3rd Respondent's 2,740, moved the court by notice of motion dated 25th September 2017 seeking access to and scrutiny of extensive election materials (KIEMS kits and logs, ballot boxes, Forms 33, 35, 36A, 36B and 36C, polling station diaries, packets of spoilt, rejected and counted votes, counterfoils and manual voter registers) from seven disputed polling stations, supervised scrutiny by the Registrar, and leave to file further affidavits in support of the petition out of time. The respondents opposed, arguing the petition timelines are strict, some materials had already been supplied, the KIEMS kits were unavailable, the scrutiny request was a fishing expedition, and the further affidavits would introduce new witnesses and issues, causing prejudice. The court applied the Supreme Court's Munya, Adama and Raila Odinga principles, holding that scrutiny does not lie as a matter of course, must be specific and foreshadowed in the pleadings, and cannot be granted at the pre-trial stage on untested evidence. It further held that witness affidavits must be filed with the petition and that admission of additional evidence is discretionary, to be refused where it would prejudice respondents or defeat the constitutional imperative of timely resolution. The application was dismissed with costs, save that the 1st and 2nd Respondents were ordered to file and serve polling station diaries for the seven disputed stations within seven days.

Key legal issues

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01

Leave to file further affidavits out of time in an election petition

Holding

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

Reasoning

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.

p. 11
02

Access to and scrutiny of election materials at the pre-trial stage

Holding

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

Reasoning

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.

p. 12
03

Limited order for polling station diaries

Holding

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

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 1.The Petitioner's notice of motion dated 25th September 2017 is dismissed with costs
  2. 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

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 19, 20, 22, 23(3), 35(1), 38, 50, 81, 82, 86, 87(1), 87(2), 88, 140, 159(2)(b), 159(2)(d), 159(2)(e), 249, 258
  • Elections Act, 2011Sections 39, 44, 76(1)(a), 80, 82(1)
  • Independent Electoral and Boundaries Commission Act, 2011Section 27
  • Access to Information Act, 2016Sections 2 and 4
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rules 4, 5, 9, 12(3)(4), 15(6)(7), 17(1), 19(1), 21, 29, 33
  • Elections (Technology) Regulations, 2017Regulations 15, 16 and 17
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 51 rule 1

Cases cited (20)

  • Gatimu Peter Munya v Dickson Mwenda Kithinji
    Petition No. 2b of 2014 [2014] eKLR
  • Nathif Jama Adama v Abdikhaim Osman Mohammed and 3 others
    Petition No. 3 of 2014 [2014]
  • Raila Odinga and 5 others v IEBC and 3 others
    Petition No. 3, 4 and 5 of 2013
  • Raila Odinga and anor v IEBC and 2 others
    Presidential Petition No. 1 of 2017 [2017] eKLR
  • Hassan Mohammed Hassan and another v IEBC and 2 others
    [2013] eKLR
  • Nicholas Kiptoo Arap Salat v IEBC and 7 others
    [2015] eKLR, Petition No. 23 of 2014
  • Rashid H. A. Amana v IEBC and 2 others
    [2013] eKLR
  • Mwirigi Muthuri v John Mbaabu Murithi and 2 others
    [2013] eKLR
  • Philip Osore Ogutu v Michael Aringo and 2 Others
    Busia High Court Petition No. 1 of 2013
  • Hassan Abdalla Albeity v Abu Mohammed Abu Chiaba and another
    [2013] eKLR
  • Robinson Simiyu Wanga and Another v IEBC and 2 others
    Kitale Election Petition No. 1 of 2017
  • Michael Njenga Mutotho v Jane Njeri Wanjiku Kihara and 2 others
    [2008] KLR 10
  • Republic v Chief Justice of Kenya and 6 others Ex-parte Moijo Mataiya Ole Keiuwa
    Nairobi HCMCA No. 1298 of 2004 [2010] eKLR
  • Chris Munga N Bichange v Richard Nyagaka Tongi and 2 others
    [2015] eKLR
  • Wavinya Ndeti v Independent Electoral and Boundaries Commission and 4 others
    null
  • Joel Makori Onsando Kunga and Anor v Independent Electoral and Boundaries Commission and 4 others
    null
  • Ferdinard Ndugu Waititu v Independent Electoral and Boundaries Commission and 8 Others
    Election Petition Number 1 of 2013
  • Peter Gichukii Kinga'ra v Independent Electoral and Boundaries Commission and 2 others
    Election Petition (Nyeri) No. 3 of 2013
  • Phillip Muge Ndolo v Omar Mwinyi Shimbwa & 2 others
    [2013] eKLR
  • Martha Wangari Karua and Anor v Independent Electoral and Boundaries Commission and 3 others
    [2017] eKLR
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

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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, "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.