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MagistrateDismissedElection Petition (Sirisia) – Petition dated 5th September, 2017

Daniel Makecho Ndalila Muyelele v Barasa Tony Khaoya & 2 others [2018] KEMC 17 (KLR)

High Court of Kenya (Election Court)
2 February 2018
9,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~37 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, an unsuccessful Ford Kenya candidate, challenged the election of Barasa Tony Khaoya as Member of County Assembly for Lwandanyi Ward, Sirisia Constituency, in the 8th August 2017 general election, alleging voter bribery, violence, intimidation, illegal campaigning, denial of agent access, and discrepancies in statutory forms. He sought scrutiny, a recount, verification of Forms 36A and 36B, declarations that the election was unconstitutional and void, and his own declaration as the validly elected candidate. The Respondents maintained the election complied with the Constitution and electoral law. The court condensed the dispute into three issues: electoral offences by the 1st Respondent, contravention by the 2nd and 3rd Respondents, and materiality of any non-compliance. Applying the Raila Odinga standard and Morgan v Simpson, the court held the burden rested on the Petitioner to a standard above balance of probabilities but below criminal proof. Bribery and violence allegations failed as hearsay, uncorroborated and lacking nexus to the 1st Respondent. Statutory forms presented by IEBC were treated as the official record; erasures, arithmetic variances, missing comments and the erroneous Form 36C were minor administrative errors that did not affect the result. The petition was dismissed with costs of Kshs. 400,000 apportioned between the Respondents, the security deposit shared equally, and a certificate under Section 86(1) of the Elections Act ordered to issue.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st Respondent committed Electoral offences and Malpractices in the Elections held on 8th August, 2017 in respect of Lwandanyi Ward of Sirisia Constituency
  2. 2.Whether the 2nd and 3rd Respondents conducted the August 8th Elections in contravention of the Constitution and the Electoral Laws in respect of the said Ward
  3. 3.If the said Elections were not carried out in accordance with the Principles of the Constitution and Written Law, whether the said non-compliance materially affected the outcome of the results

Key legal issues

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01

Whether the 1st Respondent committed electoral offences including bribery and violence

Holding

Not proved; allegations were hearsay and unsupported by cogent evidence or nexus to the 1st Respondent

Reasoning

The Petitioner gave hearsay information from agents who never testified; no police reports, OB numbers, medical evidence or corroboration was produced; witnesses declined bribes and could not link those dishing money to the 1st Respondent; alleged perpetrators' names did not appear on statutory forms.

p. 7
02

Whether the election was conducted in contravention of the Constitution and electoral law

Holding

Statutory forms showed only minor administrative irregularities; the election was conducted substantially in accordance with constitutional principles

Reasoning

Erasures need not be countersigned; missing presiding officer comments and arithmetic variances did not affect results; errors were attributed to fatigue given six elective posts managed simultaneously; erroneous Form 36C satisfactorily explained by the Returning Officer.

p. 16
03

Whether any non-compliance materially affected the result

Holding

It did not; variances were minimal and none favoured the 1st Respondent

Reasoning

Small arithmetic discrepancies and uncountersigned erasures on Forms 36A and 36B did not alter the outcome; agents signed forms without objection, attracting a presumption of regularity of their acts.

p. 11

Legal principles established

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  • A petitioner must prove both non-compliance with electoral law and that it affected the result before an election is nullified
  • The standard of proof in an election petition is higher than a balance of probabilities but below criminal standard
  • Original statutory forms presented by IEBC prevail as the official record of the election
  • Elections conducted by human beings are not vitiated by mere administrative errors that do not affect the outcome

Court orders

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  1. 1.Petition dated 5th September, 2017 dismissed
  2. 2.Declaration that Barasa Tony Khaoya was validly elected as Member of County Assembly for Lwandanyi Ward of Sirisia Constituency
  3. 3.Certificate under Section 86(1) of the Elections Act to issue
  4. 4.Petitioner to pay costs of Kshs. 400,000/- apportioned Kshs. 200,000/- to the 1st Respondent and Kshs. 200,000/- to the 2nd and 3rd Respondents
  5. 5.Security deposit by Petitioner to be shared equally: Kshs. 50,000/- to the 1st Respondent and Kshs. 50,000/- to the 2nd and 3rd Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Election Petition under the Constitution and the Elections Act, governed by Rule 9 of the Elections (County and Parliamentary Elections) Petitions Rules, 2017

Relief refused

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Orders for scrutiny and recount

Scrutiny/recount application already dealt with by ruling of 18th January 2018; allegations unsubstantiated

p. 12

Declaration that the 1st Respondent was involved in electoral malpractices and was not validly elected

Petitioner failed to prove bribery, violence or other offences to the required standard

p. 8

Declaration that the Petitioner was the validly elected candidate

Election found substantially in accordance with the Constitution

p. 16

Nullification of the electoral process and fresh election

Irregularities were minor administrative errors that did not affect the result

Costs

Petitioner to pay costs totalling Kshs. 400,000/- (Kshs. 200,000/- to the 1st Respondent and Kshs. 200,000/- to the 2nd and 3rd Respondents); security deposit shared equally Kshs. 50,000/- each to the 1st Respondent and to the 2nd and 3rd Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Court finds that Barasa Tony Khaoya was validly elected as Member of County Assembly Lwandanyi Ward of Sirisia Constituency. Accordingly the Petition herein dated 5 th September, 2017 is hereby dismissed.
p. 16disposition - dismissal of petition and validation of election
A certificate under the Provisions of Section 86(1) of the Elections Act to issue.
p. 16final orders - certificate
I order the Petitioner to pay costs totaling Kshs. 400,000/= to be apportioned as follows
p. 17costs order
Where a party alleges non-conformity with the Electoral Law, the Petitioner must not only prove that there has been non-compliance with the Law, but that such failure of Compliance did affect the validity of the Elections.
p. 5burden and effect of non-compliance
If the Election was conducted so badly that it was not substantially in accordance with the Law as to Elections, the election is vitiated, irrespective of whether the result was affected or not.
p. 5test for vitiating an election (Morgan v Simpson)
For the offence of Bribery to be proved, evidence must be adduced to show that the bribe was offered and received to influence a voter to vote for a particular candidate.
p. 8proof of bribery

Issues in the judgment

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minor

Judgment dated 02/2/2018 in certificate but final submissions recorded as heard on 12th February, 2018 - internal date inconsistency

minor

Petition describes evidence of Godwin Kasuti (PW3) but PW4 describes rescuing PW2 while text elsewhere refers to beating of Godwin Kasuti (PW3) - witness numbering confusion

minor

List of polling stations with anomalies skips item (xvii), numbering (xviii) twice

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Daniel Makecho Ndalila Muyelele v Barasa Tony Khaoya & 2 others [2018] KEMC 17 (KLR)", Case Analysis (2018). Election Petition (Sirisia) – Petition dated 5th September, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/17/eng@2018-02-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.