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MagistratePartially AllowedElection Petition (Nairobi) – Member of County Assembly, South C Ward, Langata Constituency· [2017] KEMC 108 (KLR)

Langat Donnie Kiptoo Arap v Sikuku Martin Simotwo, Constituency Returning Officer, Langata Constituency & 2 others [2017] KEMC 108 (KLR)

Chief Magistrate's Court (Election Court), Nairobi
31 October 2017
A)A.M. Obura (Mrs)
2,158 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

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A Nairobi election court ordered the IEBC to preserve KIEMS kit data and give a petitioning candidate supervised read-only access, even after the kits were reconfigured.

What this practically means

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Executive summary

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The Petitioner, the Jubilee Party candidate for Member of County Assembly for South C Ward, Langata Constituency, moved the court by Notice of Motion dated 5th September 2017 seeking preservation and safekeeping of the KIEMS kits used in the 8th August 2017 election, pending hearing of his Petition challenging the return of the ODM candidate. He alleged discrepancies in Forms 36A and 36B, transmission failures, unsigned forms, and a presiding officer found with unsealed ballot materials after polling day. The 1st and 2nd Respondents opposed, contending the kits had been recalled and re-configured pursuant to the Supreme Court's orders annulling the presidential election, so the data was unavailable and any order would be incapable of performance. The court held that the duty to preserve and safely store election data is a mandatory constitutional and statutory duty resting on the IEBC, anchored in Article 86(d) of the Constitution, Rule 16 of the Election Petitions Rules 2017 and Rule 17 of the Elections (Technology) Regulations 2017; re-configuration of the kits did not excuse the Commission, which was expected to have extracted and archived the data. Declining to order preservation of the physical kits as literally sought, the court, applying the Karua and Wenyatau Mohamed decisions, allowed the application in the form of directions that the IEBC preserve the data extracted from the KIEMS kits for the relevant polling stations, grant the Petitioner read-only access within two days (31st October to 2nd November 2017) in the presence of all parties or their agents. Costs were reserved to the cause.

Key legal issues

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Preservation and safekeeping of KIEMS kits and electoral data pending hearing of an election petition

Holding

The court declined to order physical preservation of the kits but ordered preservation of the extracted data and read-only access for the Petitioner

Reasoning

The application literally sought preservation of the kits pending hearing of the application, not the Petition, and the kits had been re-configured for the fresh presidential poll. However, Rule 16 of the Petitions Rules, Article 86(d) of the Constitution and Rule 17 of the Elections (Technology) Regulations 2017 impose a mandatory duty on the IEBC to retain and safely archive election data for three years. The court, following the Karua decision, directed preservation of the data with read-only access within a set time and in the presence of all parties.

p. 4

Legal principles established

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  • The duty to preserve and safely store election data and materials is a constitutional and statutory duty resting on the IEBC, and re-configuration of KIEMS kits does not relieve the Commission of it
  • A party may be granted read-only access to data extracted from KIEMS kits within a specified timeframe and in the presence of all parties

Court orders

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  1. 1.The application for preservation is allowed
  2. 2.The 2nd Respondent shall preserve the data extracted from the KIEMS kits with respect to the polling stations mentioned in the judgment
  3. 3.The 2nd Respondent shall allow the Petitioner read only access to the preserved information within two days (31st October 2017 to 2nd November 2017)
  4. 4.The exercise is to be undertaken in the presence of all parties or their agents
  5. 5.Costs shall be in the cause

Authorities

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Legislation

  • Elections ActSections 2, 75(1A), 76(1), 80, 82
  • Elections (Parliamentary and County Elections) Rules, 2017Rules 15, 16
  • Elections (Technology) Regulations, 2017Rule 17
  • Civil Procedure Act, Cap 21Sections 3, 3A
  • Constitution of Kenya, 2010Article 86(d)
  • Public Archives and Documentation Service Act
  • Kenya Information and Communications Act, 1998

Cases cited (2)

  • MARTHA WANGARI KARUA & ANOTHER V INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 3 OTHERS
    [2017] EKLR
  • ABDIRAHMAN HUSSEIN WENYATAU MOHAMED & ANOTHER -V- IEBC & 2 OTHERS
    Nairobi High Court Election Petition No. 3 of 2017
Jurisdiction invoked
Sections 75(1A), 76(1), 80 & 82 of the Elections Act 2011; Sections 8, 12, 28 of the Elections (Parliamentary and County Elections) Rules, 2017; Sections 3 and 3A of the Civil Procedure Act, Cap 21

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 108 (KLR)", Case Analysis (2017). Election Petition (Nairobi) – Member of County Assembly, South C Ward, Langata Constituency. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/108/eng@2017-10-31

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