Hesborn Arao Nyakundi v Fred Nyachae Omayo & 2 others [2018] KEMC 9 (KLR)
The bottom line
#A Kenyan court upheld the 2017 Magwagwa Ward election, ruling that minor clerical errors did not change the result or justify nullifying the vote.
What this practically means
#Executive summary
#Key legal issues
#Whether the electoral process complied with the Constitution and election laws
The election was conducted substantially in accordance with the law; errors were minor and did not affect the result.
The court weighed the totality of the evidence, including the 2nd Respondent's admissions of posting errors at Nyabwororo, Getare and Nyakenyomisia stations. It found the errors were innocent human error, regretted by the Returning Officer, and that correcting them would not change the outcome. Agents signed forms 36A in 17 of 21 polling stations, evidencing satisfaction.
Whether the 1st Respondent was validly elected
Yes - the 1st Respondent was validly elected and a certificate would issue.
Applying Black's Law Dictionary's definition of 'valid' as legally sufficient, the court held the election was free, fair and credible and accurately represented the will of the Magwagwa Ward electorate, in compliance with Article 81 of the Constitution. The alleged mistakes and irregularities did not materially tamper with or fundamentally affect the result.
Whether the petitioner proved fraud and false entries
No - there was no evidence of fraud by the 2nd and 3rd Respondents.
The petitioner alleged falsification of entries in forms 36A and 36B contrary to Section 6(a) of the Election Offences Act. The court found the discrepancies (such as Nyabwororo's 154 versus 54 votes) were admitted transposition errors, that no cogent evidence of fraud was tendered, and criminal allegations were not proved to the required beyond-reasonable-doubt standard.
Whether evidence on unpleaded matters (assisted voting, polling station diaries) could be considered
No - parties are bound by pleadings; such evidence could not found relief.
Relying on Raila Amolo Odinga v IEBC (2017) and Arikala Narasa Reddy, the court held that in the absence of pleadings, evidence produced cannot be considered. The allegations of massive assisted voting and polling diary irregularities were raised in evidence and submissions but not pleaded with particularity, and were therefore disregarded.
Legal principles established
#- Minor administrative errors and human error in statutory forms do not by themselves vitiate an election unless they affect the result.
- A petitioner alleging non-conformity with electoral law must prove both the non-compliance and that it affected the validity of the election.
- Failure or refusal of a candidate or agent to sign form 36A does not invalidate the results announced.
- Parties are bound by their pleadings and evidence not grounded in pleadings cannot be considered.
- Scrutiny and recount require a sufficient, specific basis and cannot be used as a fishing expedition.
- Technical typographical errors that do not go to the root of a petition should be overlooked under Article 159(2)(d).
Court orders
#- 1.The petition is dismissed for lack of merit
- 2.Declaration that the 1st Respondent, Fred Nyachae Omayio, is the validly elected Member of County Assembly for Nyamira, Magwagwa Ward
- 3.Issuance of a certificate to the 1st Respondent as the validly elected Member of County Assembly for Magwagwa Ward
- 4.Each party to bear its own costs of the petition
- 5.Proceedings be typed and parties be given certified copies of the proceedings and judgment
- 6.The issue of costs for the interlocutory applications and release of the security for costs to be handled after the expiry of the appeal period; parties to file necessary applications to be considered on merit
- Jurisdiction invoked
- Election petition for Member of County Assembly under the Constitution of Kenya 2010, the Elections Act 2011 and the Elections (Parliamentary and County Elections) Petition Rules 2017; court guided by Article 159(2)(d)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hesborn Arao Nyakundi v Fred Nyachae Omayo & 2 others [2018] KEMC 9 (KLR)", Case Analysis (2018). Election Petition dated 6th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/9/eng@2018-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.