Philip Muia Kimeu & 2 others v IEBC & & 2 others [2018] KEMC 14 (KLR)
The bottom line
#The Machakos election court upheld the Ekalakala Ward MCA election, ruling the petitioners failed to prove voter bribery beyond reasonable doubt.
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 election for Member of County Assembly for Ekalakala Ward was tainted with voter bribery and/or corrupt practices attributable to the 3rd respondent and/or his agents
- 2.Whether the alleged voter bribery, including the free maize milling services and posters, affected the outcome of the election and should vitiate the election
Key legal issues
#Alleged voter bribery at Itundumuini market on 7/8/2017
Not proved; PW1's claim of being an eyewitness was contradicted by his own agent PW4, destroying his credibility
PW1 claimed to have personally witnessed the bribery at Itundumuini market, but PW4 testified that PW1 was not present on 7/8/2017 and only arrived the following day after PW4's phone report. PW4 was himself an agent of PW1, and per Fredrick Otieno Outa v Jared Odoyo Okelo partisan testimony requires corroboration, which was absent. No written report was made to the returning officer as required by procedure.
Alleged bribery by Benjamin Mutinda at Makuyu market
Not proved; the account was materially contradictory and uncorroborated, and the 'neutral' witness was shown not to be neutral
PW3 claimed he called PW1 who came to Makuyu market and confronted Benjamin Mutinda, but PW1 testified to only one bribery incident (Itundumuini), so PW3's account lacked corroboration. PW3's claim of neutrality was undermined by the fact that he had PW1's telephone number and called him instead of reporting to authorities, leading the court to conclude the witness was not truthful.
Alleged bribery by Mrs Matei and Prisca at Zukini Primary School
Not proved; the evidence was hearsay from an unnamed supporter, from a partisan contestant with no corroboration
PW2 admitted he was told by an unnamed supporter that voters were being induced, which is hearsay. He watched from a distance and could not see the denominations. He was himself a losing contestant, did not corroborate his account, and failed to follow reporting procedures by calling the District Officer instead of the police who are ordinarily stationed at every polling station.
Free maize milling services and posters offering the same
Even assuming it was an inducement, it was not proved to have affected the outcome of the election
The free milling services were not disputed, but ownership of the posters was hotly contested and not proved. The beneficiary witnesses did not demonstrate that the service influenced their votes; PW5 prevaricated and both indicated they voted for the candidate of their choice. Applying the Raila (2013) standard and John Fitch v Tom Stephenson, an irregularity standing alone does not vitiate an election unless it affected the result and impeded the will of the electorate.
Legal principles established
#- Voter bribery is a criminal offence and allegations of it in an election petition must be proved beyond reasonable doubt
- Greater weight is given to non-partisan witnesses; a petitioner must present evidence not emanating from his own agents or supporters
- A petitioner must prove not only non-compliance with the law but that the non-compliance affected the validity of the election
- Courts strive to preserve an election where breaches did not affect the result
Court orders
#- 1.Declaration that the 3rd Respondent Mr. Stephen Mwanthi was duly and validly elected as the Member of County Assembly - Ekalakala Ward
- 2.Certificate of validity to issue to the 3rd Respondent and be transmitted to the Speaker of the County Assembly - Machakos County
- 3.Petition dismissed with costs to the Respondents
- 4.Costs of Kshs 1,000,000/- awarded to the Respondents, shared equally between the 1st and 2nd Respondents and the 3rd Respondent, payable by the Petitioners jointly and severally
- 5.Security for costs deposited to be released in the share of Kshs 50,000/- to the 1st and 2nd Respondents and Kshs 50,000/- to the 3rd Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election petition for Member of County Assembly under the Constitution (Article 81(e)), the Elections Act 2011 and the Election Petition Rules 2017
Relief refused
#Nullification of the Ekalakala Ward MCA election and relief sought by the petitioners
Petitioners failed to discharge the burden and standard of proof (beyond reasonable doubt for bribery) and failed to show the alleged malpractices affected the election outcome
Costs
Respondents awarded costs of Kshs 1,000,000/-, shared equally between the 1st and 2nd Respondents on the one hand and the 3rd Respondent on the other; Petitioners to pay jointly and severally; security deposit released Kshs 50,000/- each to the 1st/2nd and 3rd Respondents.
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.
It is therefore my finding that the third Respondent Mr. Stephen Nzue Mwanthi was duly elected as Member for County Assembly Ekalakala Ward in Machakos county.
a) That a Declaration be and is hereby issued that the 3 rd Respondent Mr. Steohen Mwanthi was duly and validly elected as the Member of County Assembly- Ekalakala Ward, Narok County
The Petitioners have failed to discharge their evidential and legal burden of proof relating to the malpractices they pleaded in their Petition.
The election was by and large free and fair and by secret vote.
Voter bribery is a criminal offence.
Issues in the judgment
#The concluding order refers the ward to 'Narok County' while the rest of the judgment and another order place Ekalakala Ward in Machakos county
The 3rd respondent's name is spelled inconsistently ('Stephen Nzue Mwanthi' and 'Steohen Mwanthi') in the final orders
Section 84 of the Election Act is referred to as 'Section 84 of the Election Act 2011' in the costs discussion but the Act is elsewhere cited without year, and the court misstates the section as providing that costs 'shall follow the cause'
PW2's name appears variously as 'Joshua Ngole' and 'Joshuah Nyolo' in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Muia Kimeu & 2 others v IEBC & & 2 others [2018] KEMC 14 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/14/eng@2018-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.