Feisal Abdinoor Issack v IEBC & 2 others [2018] KEMC 3 (KLR)
The bottom line
#A Mandera court threw out an election petition filed two days late, confirming the winner and awarding respondents Kshs 2 million in costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was filed within the constitutional 28-day window
The results were declared on 10th August 2017; the 28-day period expired on 6th September 2017, so the petition filed on 8th September 2017 was time-barred and a nullity
Article 87(2) of the Constitution, section 77(1) of the Elections Act and rule 19 of the Petition Rules prescribe a mandatory 28-day period from declaration of results. The returning officer testified that results were declared and a certificate issued on 10th August 2017. Filing on 8th September 2017 was two days late, and the court has no discretion to extend the period for filing a petition.
Whether voter bribery was proved against the 3rd Respondent
Not proved; the petitioner's evidence was hearsay and his witnesses could not link any bribery to the 3rd Respondent or to the result
Bribery is a criminal offence under section 9 of the Election Offences Act and must be proved beyond reasonable doubt. The petitioner did not witness any bribery and did not call the agents who allegedly did. PW2 and PW3 did not know who gave or received the money, nor whether the givers were the 3rd Respondent's agents, nor whether bribery affected the result, particularly as multiple elections were on the same ballot.
Whether presiding officers were relatives of the 3rd Respondent and biased
Not proved; no evidence of relationship or actual bias benefiting the 3rd Respondent
The allegation was denied and the petitioner bore the burden of proving it. He conceded in cross-examination that he had no evidence that the persons he named were relatives of the 3rd Respondent, and no evidence of actual bias or that any alleged bias benefited the 3rd Respondent. Suspicion alone cannot nullify an election.
Whether irregularities at Geneva White House polling station and unstamped/unsigned forms 36A vitiated the election
No proof of the pleaded irregularities; the forms 36A issue was not pleaded and could not be entertained
The petitioner produced no evidence of the alleged unauthorized stamp or of any stamped ballot papers and was not at the polling station. The complaint about unstamped or unsigned forms 36A emerged only at the hearing, was not specifically pleaded, and the court therefore declined to determine it. Even proved, procedural irregularities alone do not vitiate an election.
Whether the petitioner's right to vote was violated and whether that affected the result
Any violation could not affect the result given the 3,431-vote margin, and the proper forum for a rights violation is the constitutional court
The petitioner knew of his transfer as early as May 2017 and had no proof his complaint letter was received. Even if his vote were added, the margin would reduce by only one vote. The margin of 3,431 votes was negligible as to his single vote and could not justify nullification.
Legal principles established
#- The legal burden of proof in election petitions lies on and remains with the petitioner throughout
- Allegations of election offences must be proved beyond reasonable doubt
- The 28-day constitutional timeline for filing an election petition is mandatory and admits no discretion; an out-of-time petition is a nullity
- Procedural and administrative irregularities do not by themselves vitiate an election
- A court will not make findings on matters not specifically pleaded
- Mere perception or suspicion is insufficient to nullify an election
Court orders
#- 1.The petition was struck out as a nullity, having been filed out of time
- 2.A declaration that Hon Adan Maalim Abdullahi, the 3rd Respondent, was validly elected as Member of County Assembly for Township Ward in the election held on 8th August 2017
- 3.Costs of the petition awarded to the respondents, assessed at Kenya Shillings two million (Kshs 2,000,000) to sufficiently compensate the three Respondents
- Jurisdiction invoked
- Article 87(2) of the Constitution, section 77(1) of the Elections Act 2011 and the Elections (Parliamentary and County) Petition Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Feisal Abdinoor Issack v IEBC & 2 others [2018] KEMC 3 (KLR)", Case Analysis (2018). Election Petition, Township Ward, Mandera East Constituency (2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/3/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.