Daniel Mark Oruta v Andrew Kengere Kimonge & 2 others [2018] KEMC 11 (KLR)
The bottom line
#The Ogembo court upheld the 2017 Chitago Borabu MCA election, ruling that unsigned or unstamped result forms do not invalidate results and that the petitioner failed to prove his claims.
What this practically means
#Executive summary
#Key legal issues
#Whether un-stamped forms 36A and unsigned agent signatures invalidate results
Lack of the official rubber stamp and failure by candidates' agents to sign form 36A do not invalidate the forms or the announced results
Regulation 79 requires only the Presiding Officer's signature for validity; Regulations 79(6) and 79(7) expressly provide that the absence or refusal to sign by a candidate or agent shall not by itself invalidate the announced results. Nearly all forms 36A produced were signed by Presiding and/or Deputy Presiding Officers.
Whether issues raised in evidence or submissions but not pleaded can be determined
The court declined to determine the issue of the allegedly non-original form 36B as it did not arise from the pleadings
Relying on Bwana Mohammed Bwana v Silvano Binko Bonaya, parties must confine themselves to their pleadings, and a court will not engage with matters not specifically pleaded. The form 36B issue emerged during the petitioner's evidence but was not in the petition.
Whether the election complied with Article 86 of the Constitution
The court was satisfied the election was conducted in accordance with the Constitution and electoral laws
PW1 and PW2 testified they were electronically identified and voted; agents were not intimidated and gained access to polling stations; forms 36A were signed by Presiding or Deputy Presiding Officers and results transposed onto form 36B used to declare results; a KIEMS identification problem was rectified with a 3-hour voting extension.
Whether the 1st Respondent was validly elected
The 1st Respondent was validly declared elected; the petitioner failed to discharge the legal burden of proof
In an election petition there is a presumption elections were properly conducted; the petitioner bears the burden and must prove to a standard above balance of probabilities but below beyond reasonable doubt, with cogent, credible and consistent evidence. The petitioner failed to demonstrate who compromised his agents or how, and failed to prove the alleged irregularities.
Legal principles established
#- Parties are bound by their pleadings and a court will not determine issues not pleaded
- Under Regulation 79, a statutory declaration form is valid once signed by the Presiding Officer, and refusal or failure of a candidate or agent to sign does not by itself invalidate the results
- There is a presumption that elections were properly conducted and the burden lies on the petitioner, who must prove the petition to a standard above balance of probabilities but below beyond reasonable doubt
- Costs follow the event and election courts are empowered by Rule 30 of the Election Petitions Rules 2017 and Section 84 of the Elections Act to make costs orders
Court orders
#- 1.The petition is dismissed
- 2.The Petitioner shall bear the costs of the petition, capped at Kshs. 300,000
- 3.A certificate in accordance with Section 86(1) of the Election Act shall issue
- 4.The sum of Kshs. 100,000 deposited by the petitioner as security shall be held by the Court pending determination of the costs payable either by agreement or taxation
- Jurisdiction invoked
- Election petition under the Constitution (Article 86), the Elections Act and the Election (Parliamentary and County Elections) Petitions Rules 2017, in respect of the election of Member of County Assembly for Chitago Borabu Ward
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Mark Oruta v Andrew Kengere Kimonge & 2 others [2018] KEMC 11 (KLR)", Case Analysis (2018). Election Petition No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/11/eng@2018-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.