Obare Mochache Walter v Samwel Apoko Okwani & 2 others [2018] KEMC 12 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Replying affidavit of the 2nd respondent is a response to the petition.
- 2.Whether there existed two sets of results and if so the effect thereof on the election of the 1st respondent as Member of County Assembly Kiogoro ward.
- 3.Whether there were irregularities and illegalities in the conduct of the said election, and if so, whether they affected the integrity of the election and the declaration made by the 3rd respondent.
- 4.Whether the declaration of the 1st respondent as Member of County assembly elect of Kiogoro Ward was Valid.
- 5.What consequential orders, declarations and reliefs should the court grant if any?
Key legal issues
#Whether a replying affidavit not conforming to Rule 11(2) of the Elections (Parliamentary and County Election Petition) Rules, 2017 bars a respondent's participation
The non-conforming replying affidavit was a curable procedural technicality; denying the 2nd and 3rd respondents audience would be a drastic step contrary to Article 159(2)(d).
The court adopted the reasoning in Karanja Kabage v Joseph Kariambegu Nganga, where a response not conforming to the prescribed form was held not fatal, the requirements being regulatory rather than mandatory. The respondents had participated in the proceedings without objection from the petitioner, and the objection was raised too late. Article 159(2)(d) requires courts not to unduly pay attention to procedural technicalities, and no prejudice to the petitioner was demonstrated.
Whether two sets of results existed
The petitioner did not prove the existence of two sets of results; the public portal results corresponded with the declared results and were provisional in any event.
On cross-examination the petitioner admitted that the results downloaded from the IEBC public portal corresponded with the results declared and with Form 36B. His suggestion of a typographical error in the pleadings could not stand because he never sought to amend his pleadings. A petitioner is bound by its pleadings and cannot make a case outside them. The portal results were provisional and not final, so no two sets of results were established.
Whether irregularities and illegalities in the conduct of the election affected its integrity
The allegations of irregularities were general, unpleaded or unproven, and the petitioner did not meet the requisite standard of proof.
The allegation concerning presiding officer John Chogoo Auya failed because the 1st respondent has no control over IEBC employment and no proof of a written complaint existed. Claims about missing signatures and stamps were general and, in any event, there is no requirement under Regulation 79 of the Election (General) Regulations, 2012 for stamping Form 36A. Claims of violence and reconciliation errors were not pleaded with specificity, and the recount allegation lacked firm evidence.
Validity of the declaration of the 1st respondent as Member of County Assembly
The election complied with the Constitution and electoral law and reflected the will of the people; the declaration was valid.
Having found no proved irregularities or illegalities and no two sets of results, the court concluded that the election met the constitutional principles in Article 86 and the standards of section 83 of the Elections Act. The election was therefore free, fair, credible and verifiable, and the declaration of the 1st respondent reflected the will of the voters of Kiogoro ward.
Legal principles established
#- In election disputes the standard of proof is higher than a balance of probabilities but lower than beyond reasonable doubt.
- Generalized allegations are not the kind of evidence required in election petitions.
- Failure of a response to conform with the prescribed form is not fatal and does not warrant barring a respondent from election petition proceedings; the requirements are regulatory rather than mandatory.
Court orders
#- 1.The petition be and is hereby dismissed.
- 2.The 1st respondent is awarded costs of Kshs. 250,000.
- 3.The 2nd and 3rd respondents are awarded costs of Kshs. 250,000.
- 4.The security for costs deposited in court shall form part of the cost payable and shall be paid out on a pro-rata basis.
- 5.Pursuant to section 86 of the Election Act, a certificate of determination of this petition shall issue to the Independent Boundaries and Electoral Commission and the Speaker of County Assembly of Kisii.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election Act No. 24 of 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2017
Relief refused
#Finding that the 1st respondent was not validly elected as Member of County Assembly for Kiogoro Ward
The petitioner failed to prove two sets of results or irregularities and illegalities affecting the integrity of the election to the requisite standard.
Costs
The 1st respondent awarded costs of Kshs. 250,000; the 2nd and 3rd respondents awarded costs of Kshs. 250,000; security for costs deposited in court to form part of costs payable and be paid out on a pro-rata basis.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In election disputes the standard of proof is higher than a balance of probabilities but lower than beyond reasonable doubt.
Election petitions are no ordinary suits but disputes in rem of great public importance. They should not be taken lightly and generalized allegations are not the kind of evidence required in such proceedings
Related to the burden of proof is that fact that the petitioner is bound to prove the case it has pleaded. A petitioner is not permitted to make a case outside the pleadings and his affidavits and testimony must be consistent with and support the case pleaded.
a) The petition be and is hereby dismissed. b) The 1st respondent is awarded costs of Kshs.250, 000. c) The 2nd and 3rd respondents are awarded costs of Kshs.250, 000.
Issues in the judgment
#Paragraph numbering restarts in the Analysis and Determination section; paragraph 22 appears twice and the ruling on the 2nd and 3rd respondents' response is unnumbered between paragraphs 22 and 23.
The judgment inconsistently names the presiding officer alleged to be the 1st respondent's employee, as John Awiya in the evidence narrative and John Chogoo Auya in the analysis.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obare Mochache Walter v Samwel Apoko Okwani & 2 others [2018] KEMC 12 (KLR)", Case Analysis (2018). Election Petition No. 5 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/12/eng@2018-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.