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MagistratePartially AllowedNot stated in the judgment· [2017] KEMC 93 (KLR)

Hassan Jimal Abdi v Ibrahim Noor Hussein & 2 others [2017] KEMC 93 (KLR)

Magistrates' Court (Election Court)
6 November 2017
5,099 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan election court ordered a vote recount after finding visible tampering on result forms, showing altered election documents can trigger scrutiny.

What this practically means

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Executive summary

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This is a ruling by the Senior Resident Magistrate, A.K. Mokoross, in an election petition arising from the August 2017 election for Member of County Assembly, Batalu Ward, Wajir North Constituency. The petitioner, who came second with 946 votes against the 1st respondent's 1,099, applied under Articles 177(1) and 193(2)(a) of the Constitution, Section 82 of the Elections Act and Rules 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 for a recount and scrutiny of votes at Basineja Centre and Batalu Primary polling stations, and for the KIEMS report and polling station diaries. He alleged that Forms 36A were altered after agents signed them, that the Basineja form recorded 464 votes garnered against 439 votes cast, that the 153-vote margin was narrow, and that voting continued past closing time at Batalu. The respondents attributed the discrepancies to human error and denied manipulation. The court examined the Forms 36A, 35A and 34A and found discernible superimposed alterations that were not countersigned, an explanation covering only Basineja and not Batalu, and, given the concentration of the 1st respondent's votes in the disputed stations, construed the margin as narrow. Applying the Munya, Odinga, Kabogo and Wasike authorities, the court found a prima facie case and sufficient reasons and granted recount and scrutiny of both stations, to be conducted at the IEBC warehouse under court supervision with advocates present, ordered production of the KIEMS report and diaries within 14 days, and made costs of the application costs in the cause.

Key legal issues

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01

Whether a prima facie case for recount and scrutiny was established on allegations of altered Forms 36A

Holding

Yes - the court examined Forms 36A and found visible tampering with superimposed figures, unexplained as regards Batalu, and uncountersigned alterations.

Reasoning

The court examined the annexed Forms 36A and found discernible alterations: figures superimposed over original numbers in both Basineja and Batalu forms. The respondents' explanation (a clerk falling asleep) only addressed Basineja, not Batalu. Despite assertions that alterations were made in the presence of agents, the forms were not countersigned, which the court found troubling and consistent with the concerns in William Kabogo Gitau v George Thuo.

p. 8
02

Whether the discrepancy between votes garnered (464) and votes cast (439) in Basineja warranted scrutiny

Holding

The discrepancy was admitted; respondents attributed it to human error, but the supporting forms (34A and 35A) showed similar uncountersigned alterations, sustaining the petitioner's ground.

Reasoning

Respondents admitted the 464 vs 439 discrepancy in Form 36A, explaining it as an error corrected to match other seats' totals of 464. The petitioner countered that Forms 35A and 34A were themselves altered to show 464. The court's examination confirmed similar alterations and the same lack of counter-signature, undermining the respondents' explanation.

p. 9
03

Whether the margin of victory (153 votes) was narrow enough to justify a recount

Holding

Yes - because the 1st respondent's votes were concentrated in the disputed stations, the margin was properly construed as narrow.

Reasoning

Form 36B showed Batalu Ward had 12 polling stations; the 1st respondent got fewer than 5 votes in nine of them, drawing nearly all his votes (502 Batalu, 464 Basineja, 128 Kurrow) from stations including those in dispute. Questioning the disputed stations' results therefore put the 153-vote margin in doubt, justifying scrutiny and recount.

p. 9
04

Whether the unsigned replying affidavit of the 1st respondent should be disregarded

Holding

No - the defect was excused as a technicality under Article 159 of the Constitution and the affidavit considered.

Reasoning

The replying affidavit purportedly sworn by the 1st respondent was commissioned by a competent advocate but bore no signature of the deponent. As no party raised the issue, the court found the error excusable under Article 159 and, suspecting the served copies were duly signed, considered the averments in the interest of a just decision.

p. 4

Legal principles established

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  • The right to scrutiny and recount does not lie as a matter of course; the applicant must establish a basis to the satisfaction of the court, which may be by pleadings and affidavits
  • Alterations or cancellations on statutory electoral forms ought to be countersigned by the concerned official
  • The decision to grant scrutiny and recount is discretionary but judicial, requiring logical and necessary reasons
  • Where a winning candidate's votes come almost entirely from the disputed polling stations, the victory margin must be construed as narrow

Court orders

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  1. 1.An order for a recount of the votes received by the candidates at Basineja Centre Polling Station and Batalu Primary Polling station
  2. 2.An order for scrutiny of the votes cast at Basineja Centre Polling Station and Batalu Primary Polling Station
  3. 3.That the 3rd respondent provides the Petitioner with the Kenya Integrated Elections Management Systems (KIEMS) report and the polling station diary for Basineja Centre Polling Station and Batalu Primary Polling station within 14 days of the ruling
  4. 4.That the exercise of recount and scrutiny be done at the IEBC warehouse under the direct supervision of the court on a date to be agreed upon
  5. 5.That advocates for all the parties be present during the recount and scrutiny
  6. 6.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 177(1), 193(2)(a), 81, 86, 159
  • Elections Act 2011Sections 80(1)(d), 82(1)
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rules 28, 29
  • Advocates ActSection 5

Cases cited (5)

  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
  • Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission and 2 others [2017] eKLR
    [2017] eKLR
  • Charles Ong'ondo Were v Joseph Oyugi Magwanga & 3 others
    Election Petition (Homa Bay) No. 1 of 2013
  • William Kabogo Gitau v George Thuo & 2 others [2010] eKLR
    [2010] eKLR
  • Philip Mukwe Wasike v James Lusweti Mukwe & 2 others
    Bungoma High Court Petition No. 5 of 2013; [2013] eKLR
Jurisdiction invoked
Articles 177(1) and 193(2)(a) of the Constitution of Kenya, Section 80(1)(d) and Section 82 of the Elections Act 2011, Rules 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017

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, "Hassan Jimal Abdi v Ibrahim Noor Hussein & 2 others [2017] KEMC 93 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/93/eng@2017-11-06

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