James Kiberenge Gatere & 3 others v I E B C & 2 others & 2 others [2018] KEMC 1 (KLR)
The bottom line
#A Kenyan court dismissed a challenge to the Ruguru Ward by-election, ruling the winning candidate's election was valid because no bribery or irregularities were proven.
What this practically means
#Executive summary
#Key legal issues
#Whether voter bribery by the 3rd Respondent or his agents was proved
Not proved; evidence was hearsay, general and uncorroborated, with no particulars of persons bribed and no connection established to the 3rd Respondent
Witnesses gave general, hearsay testimony without naming those bribed, without photographic or video corroboration meeting the statutory certificate requirements, and without linking the alleged bribery to the 3rd Respondent or his agents. Presiding officers called by IEBC denied witnessing or receiving reports of bribery. Bribery being a criminal offence, proof beyond reasonable doubt was required and was not met.
Whether voter intimidation and violence affected the election
Not proved; the security situation was not compromised and voting was not disrupted
The assault on observer Martha Miano occurred at a police station, not a polling station; she was not a registered voter in Ruguru Ward. Other incidents of alleged goon activity were not linked to the 3rd Respondent and did not prevent voters from voting. The court found no evidence the 3rd Respondent gained advantage from any violence or intimidation.
Whether assisted voters were improperly handled
Not proved; presiding officers satisfactorily explained compliance with Regulation 72
The petitioner alleging improper assistance did not name a single assisted voter or prove any was literate. The agent at the polling station raised no complaint and signed Form 36A. The court held petitioners failed to show which aspect of Regulation 72 was flouted.
Whether the 3rd Respondent conducted illegal campaigns and misused relief food
Not proved; presence at relief food distribution does not amount to campaigning
Relief food distribution was a conceded National Government exercise launched by a Cabinet Secretary. Petitioner witnesses contradicted each other materially, and the court found no cogent evidence that the 3rd Respondent distributed food to influence voters. The essential ingredient of influencing voting was not proved beyond reasonable doubt.
Admissibility and probative value of electronic evidence (photos, videos, screenshots)
Photographic and video evidence had no probative value as certificates under Section 106B of the Evidence Act did not meet statutory requirements
The person who produced the evidence did not own or control the computer used, did not state dates, serial numbers or the processing method, and the videos were not played in court. Following Suleiman Kasuti Murunga v IEBC, strict compliance with the law is required for electronic evidence.
Legal principles established
#- A petitioner must prove electoral malpractices and show they were of such magnitude as to substantially affect the result of the election
- The standard of proof in election petitions is higher than balance of probabilities but lower than beyond reasonable doubt; allegations of criminal or quasi-criminal nature (such as bribery) require proof beyond reasonable doubt
- Electronic evidence must strictly comply with the certificate requirements of Section 106B of the Evidence Act to have probative value
- Bribery allegations require clear and unequivocal proof of who gave the bribe, who received it, and that it was done to influence voting in favour of the candidate
Court orders
#- 1.The petition is dismissed in its entirety
- 2.Costs awarded to the respondents, capped at Kshs. 300,000/= each for the 1st and 2nd respondents and the 3rd respondent, to be assessed later
- 3.A Certificate of Determination of the Petition to issue to the IEBC and the Speaker of the County Assembly of Nyeri pursuant to Section 86(1) of the Elections Act
- Jurisdiction invoked
- Elections Act, 2011 and Elections (Parliamentary and County Elections) Petition Rules, 2017 (election of Member of County Assembly, Article 88 as read with Articles 248 and 249 of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kiberenge Gatere & 3 others v I E B C & 2 others & 2 others [2018] KEMC 1 (KLR)", Case Analysis (2018). Election Petition (Ruguru Ward MCA By-Election), Mukurwe-ini. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/1/eng@2018-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.