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MagistrateAllowedElection Petition (application dated 19/9/2017) - Nyando Constituency, Kisumu· [2017] KEMC 111 (KLR)

Julius Ochieng Omoro v Independent Electoral & Boundaries Commission & 3 others [2017] KEMC 111 (KLR)

Chief Magistrate's Court at Kisumu (Election Petition)
30 October 2017
JNJ. K. Ng'arng'ar
1,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed vote recount and scrutiny in a Kisumu ward election, confirming you can seek these at any petition stage if you show a factual basis.

What this practically means

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Executive summary

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This ruling by the Chief Magistrate's Court at Kisumu determines an application dated 19 September 2017 in an election petition challenging the election of the 4th respondent for the Kano East/Wawidhi Ward in Nyando Constituency. The petitioner sought scrutiny or recount of votes at Luora, Nyakongo, Olasi, Kanyangoro, Kuth Awendo, Sare, Waradho and Kongwedhi Polling Stations, plus production of VR machines to verify the number of people who voted, alleging irregularities, alterations of results and tampering with counting and tallying. All respondents opposed the application; the 4th respondent filed grounds of opposition describing it as frivolous and a fishing expedition, while the Returning Officer deponed that the elections were conducted in accordance with the Constitution, the Elections Act and related regulations, and that the petitioner had not exercised his right under Rule 80 to seek a recount at the polling station. Relying on the Supreme Court's principles in Gatirau Peter Munya v Dickson Mwende Kithinji, the court held that a recount or scrutiny may be sought at any stage before determination, provided the applicant establishes a basis by pleadings, affidavits or evidence, and that the exercise is confined to the specific disputed polling stations. Finding that the petitioner had identified specific numerical alterations that could only be verified by scrutiny and recount, and invoking Charles Ong'ondo Were v Joseph Oyugi Magwagwa on expeditious disposal, the court allowed the application as presented. The scrutiny and/or recount will proceed before the hearing of witnesses, with parties to agree on logistics. No costs order was recorded.

Key legal issues

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01

Threshold for scrutiny and recount of votes in an election petition

Holding

The applicant made out a case for recount and/or scrutiny limited to the clearly identified polling stations; both processes may proceed simultaneously.

Reasoning

The court applied the Supreme Court's principles in Gatirau Peter Munya v Dickson Mwende Kithinji, which permit a recount/scrutiny application at any stage after filing and before determination, on a basis established by pleadings, affidavits or evidence. The petitioner had alleged that votes were added to or deducted from candidates, a matter that can only be verified by scrutiny and/or recount confined to the identified polling stations.

p. 3
02

Efficient disposal of election petitions through scrutiny and recount

Holding

Conducting scrutiny and recount before the hearing of witnesses facilitates expeditious disposal and reduces the number of witnesses.

Reasoning

Relying on Charles Ong'ondo Were v Joseph Oyugi Magwagwa, the court held that scrutiny and recount serve the expeditious disposal of election petitions and may determine some contested issues, reducing the witnesses to be called.

p. 3

Legal principles established

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  • A party seeking scrutiny or recount must establish a basis for it through pleadings, affidavits or evidence, and the exercise should be limited to the specific disputed polling stations.

Court orders

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  1. 1.The application dated 19/9/2017 is allowed as presented
  2. 2.Scrutiny and/or recount of votes in the identified polling stations will proceed before the hearing of witnesses
  3. 3.The parties will be called upon to agree on the logistics of the scrutiny and/or recount exercise

Authorities

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Legislation

  • Elections (Parliamentary and County Elections) Petition Rules 2017Rules 28 and 29
  • Elections ActSection 82
  • Elections Act 2011Sections 39, 44 and 44A
  • Independent Electoral and Boundaries Commissions Act, 2011Sections 4 and 25
  • Elections (General) Regulations, 2012Rule 80
  • Constitution of KenyaArticles 38, 81 and 86

Cases cited (2)

  • Gatirau Peter Munya -vs- Dickson Mwende Kithinji and 2 others
    Supreme Court Petition No. 2B of 2014
  • Charles Ong'ondo Were -vs- Joseph Oyugi Magwagwa
    Homa Bay No. 1 of 2013
Jurisdiction invoked
Rules 28 and 29 of the Elections (Parliamentary and County Elections) Petition Rules 2017 and Section 82 of the Elections Act

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, "Julius Ochieng Omoro v Independent Electoral & Boundaries Commission & 3 others [2017] KEMC 111 (KLR)", Case Analysis (2017). Election Petition (application dated 19/9/2017) - Nyando Constituency, Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/111/eng@2017-10-30

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