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MagistratePartially AllowedNot stated in the judgment· [2017] KEMC 80 (KLR)

John Osumba Olum v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 80 (KLR)

Magistrates' Court (Election Petition)
22 November 2017
957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered a vote recount in only 8 of 25 polling stations because the petitioner proved problems in those stations, not everywhere.

What this practically means

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Executive summary

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This is a ruling in an election petition challenging the election for Member of County Assembly, Kolwa East Ward, held on 8th August 2017. The petitioner filed a Notice of Motion on 12th September 2017 seeking seven orders, principally an audit, scrutiny, recount and re-tallying of votes in all 25 polling stations of the ward, deferring orders (e) and (f) pending witness testimony. Thirteen witnesses were lined up for the petitioner, one of whom (Hezron Opoyo Asudi) was dropped. The petitioner and his chief agent, Camlus Omondi Apunda, alleged electoral malpractices, irregularities and illegalities in all polling stations, but the court found these allegations generalized and unsupported by the evidence. Specific evidence, however, was led concerning eight polling stations: Buoye, Chiga, Kadiju, Okago, Rweya, Bungu, Orongo and Obino. This included testimony from PW7 Brian Otieno Omondi of an excess of 66 votes at Rweya polling station, evidence that petitioner's agents were not allowed to witness sorting and counting, and an account of lights going off during counting after which ballot piles were allegedly switched. Applying Rules 28 and 29 of the Election Petition Rules and the decision in Charles Ong'ondo Were v Joseph Oyugi Magwagwa, the court held that scrutiny cannot be ordered for all stations without proper basis and that sufficient cause established in a few stations cannot be extrapolated. The court ordered audit, scrutiny, recount and re-tallying confined to the eight identified polling stations, listed the materials to be scrutinized, granted the petitioner read-only access to the KIEMS SD Cards, provided for court-supervised scrutiny conducted in the presence of parties and agents, excluded the public, and allowed submissions at the close of the hearing. Costs were not addressed. The relief in respect of all 25 polling stations was refused.

Key legal issues

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01

Whether generalized allegations of electoral malpractices justify scrutiny and recount across all polling stations

Holding

No - the court found the allegations of malpractices in all stations to be too broad and unsupported, confining scrutiny to the eight stations where specific evidence was tendered

Reasoning

The petitioner and his chief agent made generalized allegations against all 25 stations. However, the only specific evidence (e.g., PW7's testimony of an excess of 66 votes at Rweya, agents barred from witnessing counting, lights going off during counting) related to eight stations. The court held sufficient cause had not been shown for all 25 stations and that a few stations cannot justify extrapolation.

p. 2
02

Whether the evidence laid a sufficient ground for scrutiny and recount in the identified polling stations

Holding

Yes - the court was satisfied sufficient ground was laid for the eight stations complained of, applying Rules 28 and 29 and the Charles Ong'ondo Were case

Reasoning

The court found specific testimony - excess votes at Rweya, agents prevented from witnessing counting and tallying, and an incident where lights went off during counting and ballot piles were switched - established sufficient ground to examine voting in the eight stations. Relying on Rules 28, 29 and Charles Ong'ondo Were v Joseph Oyugi Magwagwa, scrutiny and recount in the eight stations was 'unavoidable'.

p. 2

Legal principles established

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  • Scrutiny and recount cannot be granted for all polling stations without a proper basis established by evidence for each station
  • Sufficient cause established for a few polling stations cannot be extrapolated to all polling stations

Court orders

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  1. 1.That audit, scrutiny, recount and re-tallying of all election materials used and unused be conducted in 8 specified polling stations (Chiga, Rweya, Obino, Buoye, Orongo, Kadiju, Bungu and Okago primary school polling stations) in the Kolwa East Ward election of 8th August 2017
  2. 2.That the scrutiny shall cover specified election materials including the returning officer's written statements, the register of voters, copies of results, written complaints, packets of spoilt ballots, marked copy register, packets of counted and rejected ballot papers, polling day diary and statements showing rejected ballot papers
  3. 3.That the petitioner be granted read-only access to the SD Cards in the KIEMS kits for the specified polling stations to ascertain the number of voters who voted, with a report to be filed in court
  4. 4.That the scrutiny be conducted under the direct supervision of the court, assisted by the Executive Officer and two court assistants, in the presence of all parties, their advocates and two agents per polling station
  5. 5.That no supporters or members of the public shall be admitted during the scrutiny exercise
  6. 6.That upon completion of the scrutiny, parties will be at liberty to submit on the same at the end of the hearing

Authorities

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Legislation

  • Election Petition RulesRules 28 and 29
  • Elections ActNot specified (referred to as 'the Act')

Cases cited (1)

  • Charles Ong'ondo Were Vs Joseph Oyugi Magwagwa
    Homa Bay No.1 of 2013
Jurisdiction invoked
Election petition for Member of County Assembly, Kolwa East Ward, under the Elections Act and Election Petition Rules (Rules 28 and 29 invoked); scrutiny and recount jurisdiction

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, "John Osumba Olum v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 80 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/80/eng@2017-11-22

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