Eliud Musikongo Tenge v Nyongesa Sospeter Erastus & 2 others [2018] KEMC 10 (KLR)
The bottom line
#A Bungoma court dismissed a Kenyan election challenge because vote errors were accidental and the winner would have won anyway.
What this practically means
#Executive summary
#Key legal issues
#Discrepancies in forms 36A and 36B and the gazetted results
The form 36B totals omitted Kisioyi primary polling station votes for all candidates due to an inadvertent manual summation error; the error did not affect the outcome and the 1st Respondent remained the winner
The Returning Officer explained that results were entered manually into an excel sheet without auto-sum and Kisioyi polling station was omitted. Adding Kisioyi votes (85 for petitioner, 152 for 1st Respondent) to the form 36B totals reproduces the tallying centre figures of 1314 and 1392. The court found no deliberate inaccuracy and held the oversight did not affect the result since the winner remained the winner even without Kisioyi.
Alleged bribery and treating by the 1st Respondent
Bribery and treating not proved; the evidence of PW4 and PW8 was generalized and uncorroborated
The two witnesses did not name any person bribed, produced no photographs, did not report to a police station, and their claims were rebutted by the presiding officer at St Jude. Bribery being a criminal electoral offence required cogent and credible evidence which was not adduced. The court found it incredible that the 1st Respondent would bribe voters openly near a polling station.
Denial of access by agents to polling stations and statutory forms
Not proved; claimant agents failed to prove accreditation and presiding officers testified agents were not barred
PW2, PW3 and PW7 did not produce accreditation documents or oath of secrecy to prove they were agents; DW5, an ANC agent, explained he left before signing after celebrations. Presiding officers testified that agents were admitted upon identification and none was refused access or prevented from signing forms.
Unsigned and unstamped forms 36A as irregularities
Only 2 of the 17 forms 36A were unsigned by agents; signature is required only of agents or candidates if present and nothing turns on the omission
The form 36A itself provides that agents or candidates sign if present. Presiding officers explained agents were admitted on identification and that the stamped original was sent to the Returning Officer, copies in court being carbon copies. The presiding officer's remarks on the two unsigned forms disclosed no irregularity.
Whether the declared results reflected the will of the people of West Bukusu Ward
Yes; the election was conducted in accordance with the principles of the Constitution and the Elections Act and the petitioner did not prove his grounds to the required standard
Voting was peaceful and unchallenged at the 17 polling stations; forms 36A were accurately captured and the 1st Respondent declared winner with 1392 votes against the petitioner's 1314. The tallying error was inadvertent, affected all candidates equally, and did not affect the result, so section 83 of the Elections Act precludes nullification.
Legal principles established
#- The burden of proof in election disputes lies on and remains with the petitioner throughout the case, though the evidential burden may shift with the weight of evidence
- The standard of proof in election petitions is higher than balance of probabilities but lower than beyond reasonable doubt; allegations of a criminal or quasi-criminal nature require proof beyond reasonable doubt
- Under section 83 of the Elections Act, an election shall not be declared void for non-compliance where the election was conducted in accordance with constitutional principles or the non-compliance did not affect the result
- Bribery as an electoral offence must be proved by cogent and conclusive evidence and cannot be established by presumption
- Nothing turns on the failure of agents to sign statutory forms where the form indicates agents or candidates sign 'if present'
Court orders
#- 1.The petition is dismissed with costs to the 1st Respondent and to the 2nd and 3rd Respondents
- 2.Declaration that the 1st Respondent is the duly elected Member of County Assembly for West Bukusu Ward
- 3.The Returning Officer is to reconstitute form 36B afresh with the correct tallies for all candidates and gazette the right tally for the 1st Respondent and serve copies of the form 36B to the other contestants on request
- 4.Instruction fees capped at Kshs.500,000/- for the 1st Respondent and Kshs.500,000/- for the 2nd and 3rd Respondents, total costs to be taxed by the court
- 5.The security deposit to be shared equally between the 1st Respondent and the 2nd and 3rd Respondents upon taxation of costs
- 6.A certificate of determination to issue to the Speaker Bungoma County Assembly and copy to IEBC and the Hon. The Chief Justice
- Jurisdiction invoked
- Elections Act 2011 and Constitution of Kenya 2010 (Articles 38, 81(e), 86) - election petition for the Member of County Assembly, West Bukusu Ward
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Musikongo Tenge v Nyongesa Sospeter Erastus & 2 others [2018] KEMC 10 (KLR)", Case Analysis (2018). Election Petition (Bungoma) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/10/eng@2018-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.