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MagistrateDismissedElection Petition No 10 of 2017· [2017] KEMC 105 (KLR)

Langat Donnie Kiptoo Arap v Sikuku Martin Simotwo, Constituency Returning Officer, Langata Constituency & 2 others [2017] KEMC 105 (KLR)

Magistrates' Court (Election Petition)
31 October 2017
AOA.M. Obura
3,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an election loser's bid for a vote recount because general allegations, without naming specific polling stations, were not enough.

What this practically means

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Executive summary

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This ruling by Hon. A.M. Obura (Mrs), SPM, resolves two interlocutory applications dated 5th October 2017 filed by Langat Donnie Kiptoo Arap, the Petitioner who lost the 8th August 2017 MCA election for South C Ward, Langata Constituency, to the 3rd Respondent, Abdi Osman Khale, by 245 votes (7,065 to 6,820). The first application sought scrutiny and recount of votes in all polling stations in the Ward, alleging discrepancies in Forms 36A and 36B, unsigned forms, missing results, and a Presiding Officer found with unsealed ballot materials. The second sought an order compelling the 1st and 2nd Respondents to avail election materials, including KIEMS kits and voter registers, in aid of the scrutiny application. The Respondents opposed both, contending the applications were premature, unparticularised fishing expeditions and that some allegations were new grounds not pleaded in the Petition. The court applied Sections 80(4)(a) and 82 of the Election Act and Rules 28 and 29 of the 2017 Petition Rules, and the Supreme Court's guidance in Gatirau Peter Munya, holding that scrutiny and recount are discretionary, must be couched in specific terms identifying polling stations, and require a sufficient evidential basis, ideally after witness testimony. The Petitioner's generalized allegations across 41 polling stations did not meet this threshold. Both applications were dismissed with costs in the cause, with liberty to renew the applications later in the petition.

Key legal issues

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01

Whether sufficient basis was laid for scrutiny and recount of votes before the hearing of the petition

Holding

The application was dismissed; scrutiny cannot be ordered on general allegations without specific polling stations and evidence, and the Petitioner may revisit the application later in the petition.

Reasoning

The court distinguished scrutiny from recount and applied the principle that scrutiny is ordered only where a petitioner lays a sufficient basis, ideally after witnesses have testified. The Petitioner sought scrutiny of all 41 polling stations without specifying which attracted malpractice. The margin of 245 votes between the winning and losing candidates was considered against the disputed allegations, which required evidence. Ordering scrutiny as couched would be a fishing expedition.

p. 5
02

Whether the second application for production of election materials could stand independently

Holding

It was dismissed as dependent on the first application; the 1st and 2nd Respondents undertook to avail relevant documents at the main hearing.

Reasoning

The court held the second application hinged entirely on the success of the scrutiny and recount application. Having dismissed the first application, there was no basis to consider the second. Further, the Respondents undertook to avail the Form 36As and relevant documents at the main hearing, and the Petitioner remained at liberty to revisit the application at a later stage of the petition.

p. 5

Legal principles established

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  • Scrutiny and recount are not available as of right; the discretion must be exercised judiciously on evidence, and the application must specify the polling stations involved
  • Not every allegation of discrepancy or malpractice warrants scrutiny; genuine human error in elections is inevitable
  • A narrow margin of victory increases the likelihood that scrutiny or recount will be ordered even without demonstrated basis

Court orders

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  1. 1.Dismissal of both the Petitioner's Notice of Motion applications dated 5th October 2017
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 38(2)(a), 50, 81(e)(iii)(iv)(v), 86(a)-(d), 159(2)(d)(e), 259(1)
  • Election Act, 2011Sections 39, 80(1)(d), 80(4)(a), 63, 82
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rules 28 and 29

Cases cited (6)

  • Justus Gesito Mugali M'Mbaya v IEBC & 2 Others
    Election Petition No. 6 of 2013 Kakamega
  • Wavinya Ndeti v I.E.B.C. & 4 Others
    Machakos Election Petition No. 4 of 2013
  • Charles Ong'ondo Were v Joseph Oyugi Magwanga & 3 Others
    Homa Bay Election Petition No. 1 of 2013
  • Peter Gichuki Kingara v IEBC & 2 Others
    Nyeri Election Petition No. 3 of 2013
  • Rishad H. A. Amana v IEBC & 2 Others
    Malindi Election Petition No. 6 of 2013
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
Jurisdiction invoked
Article 38, 50, 81(e), 86 and 159(2)(d) of the Constitution of Kenya, 2010; Sections 39, 80 and 82 of the Election Act, 2011; Rule 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, "Langat Donnie Kiptoo Arap v Sikuku Martin Simotwo, Constituency Returning Officer, Langata Constituency & 2 others [2017] KEMC 105 (KLR)", Case Analysis (2017). Election Petition No 10 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/105/eng@2017-10-31

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