Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateDismissedNot stated in the judgment (Election Petition application, Sango Ward)· [2017] KEMC 103 (KLR)

Walter Shiundu Murunga v Independent Electoral & Boundaries Commission & 2 others [2017] KEMC 103 (KLR)

Magistrates' Court (Election Petition)
23 October 2017
EMEvans W. Muleka
2,299 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court threw out an election petitioner's bid for a vote recount and IEBC data because he never asked for those remedies in his original petition.

What this practically means

#

Executive summary

#
The Petitioner, who lost the election for Member of County Assembly, Sango Ward, in the 8th August 2017 election, brought a Notice of Motion dated 6th September 2017 seeking two principal orders: (1) that the 1st Respondent (IEBC) supply KIEMS kit data, certified original forms 36A, polling station diaries, forms 32A and statements under Regulations 78 and 79 for ten polling stations in Sango Ward; and (2) that all ballot boxes used in Sango Ward be availed for a recount. The Petitioner alleged interference with the KIEMS system, fraud in filling forms 36A, 36B and 36C, and erroneous entries by the 2nd Respondent on the declaration form. All three Respondents opposed the application, arguing the reliefs were not pleaded in the main petition and that parties are bound by their pleadings. The court applied the principles in Gatisrau Peter Munya v Dickson Mwenda Kithinji and Arikala Narasa Ready, holding that scrutiny and recount must be confined to specific disputed polling stations, must be supported by pleaded material facts establishing a prima facie case, and must not be a fishing expedition. The petition contained no prayer for recount or scrutiny, the supporting affidavit annexed no evidence, and no polling stations were identified. The court also noted such applications ideally follow witness testimony. Concluding that the application sought to amend the petition through the back door, the court dismissed it in its entirety with costs to the 1st, 2nd and 3rd Respondents.

Key legal issues

#
01

Whether scrutiny and recount could be ordered before trial

Holding

No — the application was premature and lacked supporting evidentiary basis or identified polling stations

Reasoning

The court applied Munya, the Indian authority in Arikala Narasa Ready, and local decisions to hold that scrutiny requires a prima facie case, precise pleading of material facts, identified polling stations and ideally should follow witness testimony. The petitioner's supporting affidavit annexed no evidence and no polling stations were identified, so ordering scrutiny would be a fishing expedition and abuse of process.

p. 4
02

Whether access to KIEMS data and electoral materials could be ordered where not pleaded

Holding

No — the orders sought were not anchored in the petition and parties are bound by their pleadings

Reasoning

The court found no prayer in the petition for recount, scrutiny or access to electronic data. The application drew no life from the petition, was general rather than specific to polling stations, and gave no reasons for the materials sought. Agreeing with all three respondents' counsel, the court held there was no basis for the orders and that the application sought to amend the petition through the back door.

p. 4

Legal principles established

#
  • Scrutiny and recount, if granted, must be confined to specific disputed polling stations
  • A recount cannot be ordered as a fishing expedition; the petitioner must plead material facts with precision and establish a prima facie case
  • An application for scrutiny ideally follows testimony so the court can assess the veracity of allegations
  • Parties are bound by their pleadings; an application cannot be used to amend a petition through the back door

Court orders

#
  1. 1.The Notice of Motion dated 6th September 2017 is dismissed in its entirety
  2. 2.Costs awarded to the 1st, 2nd and 3rd Respondents

Authorities

#

Legislation

  • Constitution of Kenya 2010Articles 19, 20, 22, 23(3), 35, 81, 86, 140, 159, 258
  • Elections Act No. 24 of 2011Sections 39, 44, 80(a), 82
  • Independent Electoral and Boundaries Commission Act No. 9 of 2011Section 27
  • Access to Information Act
  • Elections (Technology) Regulations 2017Legal Notice No. 68
  • Elections (General) Regulations 2012Regulations 17, 78, 79
  • Elections (Parliamentary and County Elections) Petitions Rules 2017Rules 28, 29, 33(4)

Cases cited (8)

  • Gatisrau Peter Munya Vs. Dickson Mwenda Kithinji & 2 others
  • Dakianga Distributors Limited Vs. Kenya Seed Company Ltd (2015) eKLR
    (2015) eKLR
  • Arikala Narasa Ready Vs. Venkata Ram Reddy Reddygari & Another
    Civil Appeals No. 5710–5711 of 2012
  • Charles Ongrondo Were Vs. Joseph Oyugi
    Election Petition No. 1 of 2013
  • Richard Kalembe Ndile & Another Vs. Patrick Musimba Mweu & 2 others
    Election Petition No. 1 and 7 of 2013
  • Rishad H.A Amara Vs. I.E.B.C & 2 others
    Malindi Election Petition No. 6 of 2013
  • Hassan Mohamed Hassan Vs. I.E.B.C & 2 others
  • Supreme Court Petition No. 1 of 2017
    Petition No. 1 of 2017
Jurisdiction invoked
Articles 19, 20, 22, 23(3), 35, 81, 86, 140, 159 and 258 of the Constitution of Kenya 2010; Sections 39 and 44 of the Elections Act No. 24 of 2011; Section 27 of the IEBC Act; Elections (Technology) Regulations 2017 and Elections (General) Regulations 2012

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 103 (KLR)", Case Analysis (2017). Not stated in the judgment (Election Petition application, Sango Ward). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/103/eng@2017-10-23

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