Francis Amenya Ndubi v Independent Electoral Boundaries Commission (IEBC) & 2 others [2018] KEMC 5 (KLR)
The bottom line
#A Kenyan court upheld an MCA election, ruling that minor clerical errors did not change the result, and dismissed the challenge with no costs awarded.
What this practically means
#Executive summary
#Key legal issues
#Competence of the petition under Rule 8(1) of the Elections (Parliamentary and County Elections Petition) Rules 2017
The petition was admitted to full hearing; the court declined to strike it out, invoking Article 159(2)(d) so all parties could ventilate their issues.
The Respondents argued the petition failed to state the declared results and the date of declaration as required by Rule 8(1), rendering it fatally defective, relying on Martha Karua and Amina Hassan Ahmed. The court held it had been guided by Article 159(2)(d) in admitting the petition, and that each party has an unfettered right to a fair and just determination, so the competency challenge failed.
Whether the Ekerenyo Ward MCA election should be nullified
No. The election was conducted substantially in accordance with the Constitution and the Elections Act; the errors were minor human errors that did not affect the outcome.
The court found the Returning Officer conducted the election in compliance with Article 81 principles. Errors at KEA DEB and Ikonge stream 6 were explained as human error; if corrected, the 3rd Respondent would still win with a wider margin (1182 vs 1122). The Petitioner failed to prove the anomalies altered the result or undermined election integrity. Reliance was placed on Opitz (Supreme Court of Canada), Chikati and Ranguma, and the numerical test under Section 83 of the Elections Act.
Whether evidence of unpleaded polling stations could be considered
No. Evidence adduced on polling stations not pleaded (Nyamotaro, Maagonga, Nyameko, Ekerenyo, Omorare, etc.) was inadmissible; parties are bound by their pleadings.
The court held that only matters pleaded could be considered, relying on the Supreme Court's alignment with the Indian Supreme Court decision in Arikala Narasa Reddy. The Petitioner had pleaded only the KEA DEB primary school polling station issue, and his testimony on other stations travelled beyond the pleadings and supporting affidavit, so it was excluded from the final determination.
Prayer for scrutiny and recount
Refused. Cases had closed, the pleaded allegations (posting errors in Form 36B, non-signing of Forms 36A) could not ground scrutiny, and the prayer lacked specificity.
The court held scrutiny is discretionary but requires a sufficient, specific basis, citing Rashid Hamid Amana, and that a petitioner must not launch a fishing expedition to discover new evidence. Since parties had closed their cases and the allegations were general and incapable of grounding scrutiny, the prayer could not be granted.
Costs
Each party to bear its own costs, following the Supreme Court's reasoning in the 2017 Presidential Election Petition on not burdening taxpayers with costs against the IEBC.
The Petitioner sought costs against the Respondents on the basis that costs follow the event. The court, relying on the Supreme Court's holding that the IEBC is a heavily publicly funded organ and burdening taxpayers would be a grave matter, and considering the Petitioner's unfettered right to petition, ordered each party to bear its own costs and issued a validity certificate to the 3rd Respondent.
Legal principles established
#- A petitioner alleging non-conformity with electoral law must prove both the non-compliance and that it affected the validity of the election.
- Minor administrative errors and human imperfections do not, by themselves, vitiate an election.
- Refusal or failure of a candidate's agent to sign Form 36A does not invalidate the announced results.
- Parties are bound by their pleadings; evidence on matters not pleaded is inadmissible.
- Scrutiny is discretionary and requires a sufficient, specific basis; it must not be a fishing expedition.
Court orders
#- 1.The petition is dismissed.
- 2.Each party to bear its own costs.
- 3.A certificate issued to the 3rd Respondent, Thaddeus Nyabaro, as the validly elected Member of County Assembly for Ekerenyo Ward.
- 4.The proceedings and the judgement be typed and certified copies thereof be supplied to the parties as appropriate.
- 5.The order for release of the security for costs will be considered after the period to file an appeal has elapsed/expired.
- Jurisdiction invoked
- Articles 1, 2, 22, 23, 38, 87 and 88 of the Constitution of Kenya; Sections 75 and 76 of the Elections Act; Elections (Parliamentary and County Elections Petition) Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Amenya Ndubi v Independent Electoral Boundaries Commission (IEBC) & 2 others [2018] KEMC 5 (KLR)", Case Analysis (2018). Election Petition No. 01 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/5/eng@2018-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.