Mohamed Twaher Abdulkarim v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2018] KEMC 18 (KLR)
The bottom line
#A Kenyan court nullified the Shella Ward MCA election after finding the vote was marred by serious procedural failures, ordering a fresh election.
What this practically means
#Executive summary
#Key legal issues
#Assisted voters without Form 32
Irregular, unprocedural and illegal assisted voting that compromises Article 86 of the Constitution.
Regulation 72 requires Form 32 to be filled and the register marked for assisted voters. Despite a marked register showing 39 assisted voters across three polling stations, no Form 32 was availed by the 1st and 2nd Respondents, so the assisted voters could not be accounted for, defeating transparency, accountability and verifiability.
Invalidity of statutory forms (Forms 36A, 36B, 35B)
Unsigned, unstamped and unofficial forms render the declared results unverifiable; results from affected stations should be excluded.
Scrutiny revealed Forms 36A unstamped or with erased, uncountersigned vote alterations; two Forms 36B (A4 and A3) and a Form 35B of doubtful provenance. The Returning Officer's printer-defect explanation was found dishonest and unsupported by an incident report or production of all Forms 36A, violating Articles 38 and 86.
Issuance of certificate (Form 36C) before declaration in Form 36B
Grave violation of Articles 38 and 86; declaration of the 3rd Respondent as winner on 10th August 2017 before statutory declaration was improper.
Form 36C was issued on 10th August 2017 before any Form 36B declaration. The 3rd Respondent admitted in cross-examination he received the certificate without Form 36B and did not know declaration must be in a prescribed form, confirming no verifiable declaration occurred on 10th August 2017.
Late opening and early closing of polling stations
Denial of registered voters' political right to vote under Article 38, affecting the results.
Respondents' witnesses admitted late openings due to logistical failures, including a misplaced ballot box. Scrutiny showed eleven polling stations opened late and/or closed earlier than extended hours, making it impossible to determine how many disenfranchised voters left without voting.
Allegations of intimidation/ejection of agents, unregistered voters voting, denial of verification, and ODM campaigning
Not proved for lack of evidence.
The Petitioner laid no evidence in support of these allegations and provided no names or lists of unregistered voters, so they were dismissed.
Validity of the 3rd Respondent's election
Not validly elected; election nullified.
Applying Raila 2 and Section 83 of the Elections Act disjunctively, the Petitioner proved substantial violations of constitutional principles – assisted voters, failure to declare in Form 36B, invalid statutory forms and late opening of polling stations – which made the election unverifiable, unfair, non-credible and unaccountable.
Legal principles established
#- In election petitions the standard of proof is intermediate – above balance of probability but below beyond reasonable doubt.
- A petitioner must prove not only non-compliance with electoral law but that it affected the outcome of the election.
- Affidavits whose deponents are not called for cross-examination carry little or no probative value.
- A statutory form not signed by its author is worthless and its results must be excluded from the final tally.
- The two limbs of Section 83 of the Elections Act apply disjunctively – proof of substantial violation of constitutional principles alone can void an election.
Court orders
#- 1.The petition succeeds and is allowed.
- 2.The 3rd Respondent was not validly elected to the position of Member of County Assembly (MCA) for Shella Ward and his election is declared null and void.
- 3.The 1st Respondent to hold a fresh election in conformity with the Constitution and the Elections Act 2011 and other laws governing elections in Kenya.
- 4.The 1st and 2nd Respondents to jointly and severally pay costs to the Petitioner to be taxed by the Executive Officer of Malindi Law Courts, capped at Ksh.2,000,000/-.
- Jurisdiction invoked
- Elections Act 2011 and Elections (Parliamentary and County Elections) Petition Rules, 2017 – first-instance election petition for Member of County Assembly, Shella Ward
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Twaher Abdulkarim v Independent Electoral & Boundaries Commission (IEBC) & 2 others [2018] KEMC 18 (KLR)", Case Analysis (2018). Election Petition (Malindi), 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/18/eng@2018-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.