Francis Moenga Omesa & another v Iebc & 2 others [2018] KEMC 16 (KLR)
The bottom line
#A Kenyan court upheld the Ibeno Ward MCA election, ruling that minor procedural errors do not invalidate an election unless they actually change the result.
What this practically means
#Executive summary
#Key legal issues
#Whether the Ibeno ward MCA election was conducted in accordance with the constitutional principles of free and fair elections
The election was conducted in accordance with the law; it was accurate, verifiable, secure, accountable and transparent
The court analysed the oral and affidavit evidence of the petitioners' eight witnesses and the respondents' fifteen witnesses, together with a court-supervised scrutiny and recount of half the polling stations. The discrepancies found were minor and had no material effect on the outcome. Allegations of bribery, stuffing, denied voting and manipulation were unsupported by credible, tested evidence, and untested affidavits were accorded little value.
Whether the irregularities and illegalities alleged were so substantial as to affect the outcome
They were minor and could not have affected the result
The scrutiny and recount ordered by the court disclosed only minor discrepancies. Even excluding Nyamecheo 1 of 2 entirely, the 3rd respondent would still lead. The court applied the principle that not every non-compliance invalidates an election; only errors that are fundamental and affect the result justify nullification.
The evidentiary value of affidavits whose deponents were not called to testify
Such contents are of little or no value because they were not tested on cross-examination
Several deponents of supporting affidavits, including Robinson Maranga Ratemo, were not called to testify or be cross-examined. The court held untested affidavit content carries little or no evidential weight, reinforcing the requirement that allegations in election petitions be proved by tested evidence.
Effect of alterations on forms 36A and failure of an agent to sign
Alterations without proof of unlawful motive are not invalidating; an agent's refusal to sign cannot invalidate an election
The court held an amended document by itself does not speak to motive, and it was not shown that alterations were made after agents signed or to sabotage the democratic will. Agents cannot be compelled to sign form 36A and their refusal cannot invalidate an election.
Whether failure to announce MCA results in the prescribed order (regulation 75) invalidated the election
It did not; the petitioners were not prejudiced
Although the presiding officer at Nyankororo Primary School declared the MCA results last instead of third contrary to regulation 75 of the Elections (General) Regulations 2012, the court found no demonstration that the departure from the order of announcement interfered with the final result or prejudiced the petitioners.
Legal principles established
#- The burden of proving that an election was unconstitutional, illegal or null lies on the petitioner
- A petitioner must prove both non-compliance with electoral law and that the non-compliance affected the validity of the election; acts of public bodies are presumed regularly done
- Minor breaches and errors that do not fundamentally alter the outcome of an election should be excused or ignored
- An arithmetic error that does not alter the outcome is not a material irregularity
- An altered or amended document is not by itself evidence of illegality; an unlawful motive must be proved
- A party is bound by its pleadings and cannot ambush the other side with unpleaded grounds
- An agent's refusal to sign form 36A cannot invalidate an election
- There is no requirement that form 36A be stamped
- Electronic transmission and publication of results applies only to the presidential election, not to MCA elections
Court orders
#- 1.The petition is dismissed with costs to the respondents
- 2.Costs capped at Kshs.500,000 to the 3rd respondent and Kshs.300,000 to the 1st and 2nd respondents
- 3.A certificate of the determination to issue and the Speaker of the County to be notified accordingly
- 4.The judgment to be supplied to all the parties together with the other proceedings before close of business on 28/2/2018
- Jurisdiction invoked
- Original election petition jurisdiction over a Member of County Assembly election under the Constitution and the Elections Act (Election Petition Rules); petition filed under the election petition framework following the 8th August 2017 general election
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Moenga Omesa & another v Iebc & 2 others [2018] KEMC 16 (KLR)", Case Analysis (2018). Election Petition No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/16/eng@2018-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.