Kiponda Joseph Joseppe Ngumbao & another v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 19 (KLR)
The bottom line
#A Kenyan court cancelled a Ganda Ward election because results were declared on an invalid form, proving correct paperwork can decide elections.
What this practically means
#Executive summary
#Key legal issues
#Whether the election was conducted in accordance with the electoral laws
The election was not conducted in accordance with the Constitution and electoral laws; the failure to declare results in Form 36B before issuing the certificate was a grave illegality
The Court found the A4 Form 36B lacked serial number, IEBC logo, watermark, agent signatures and aggregate results, making results unverifiable. The 3rd respondent's own cross-examination confirmed no declaration was made on 10th August. Issuing the Form 36C certificate on 10th August without a valid declaration offended Articles 38 and 86 of the Constitution and rendered the election not verifiable, fair, credible or accountable.
Whether assisted voters were handled in accordance with the law
Assisted voting at Takaye Primary School Polling Station 3 was irregular; no Form 32 was availed
Regulation 72 requires Form 32 to be filled and the register marked for assisted voters. Scrutiny revealed a marked register for two assisted voters but no Form 32 was produced, so the 1st and 2nd respondents could not account for the assisted voters, compromising Article 86's requirements of transparency, accountability and verifiability.
Whether statutory form irregularities affected the result
The irregularities in Forms 36A, counterfoils and Polling Station Diaries did not affect the result but destroyed the credibility and verifiability of the results
Scrutiny revealed discrepancies between Forms 36A found in ballot boxes and those given to court, unexplained counterfoil surpluses, missing spoilt or rejected ballots and unstamped forms. The Court held these did not affect the result but failed the verifiability test, undermining the credibility and authenticity of the results.
Whether the 3rd respondent was validly elected
The 3rd respondent was not validly elected
Applying Section 83 of the Elections Act disjunctively as held by the Supreme Court in Raila 2, the petitioners proved substantial violation of constitutional principles. The invalid Form 36B declaration and premature certificate issuance offended Articles 38 and 86, so the election was null and void.
Timeliness of the petition
The petition was filed within time
The Form 35B (also referred to as Form 36B) was issued on 14th August 2017; the petition filed on 7th September 2017 was therefore within the constitutional 28-day period measured from that declaration.
Legal principles established
#- In election petitions where no criminal or quasi-criminal allegations are made, an intermediate standard of proof applies - above balance of probability but below beyond reasonable doubt
- A petitioner must prove both non-compliance with electoral law and that the non-compliance affected the outcome of the election
- The two limbs of Section 83 of the Elections Act apply disjunctively; proof of substantial violation of constitutional principles alone can void an election
- Affidavit evidence in an election petition must be subjected to cross-examination, failing which it has little probative value
- A declaration of election results must be made in a statutory form; a form lacking statutory features has no legal force
Court orders
#- 1.The petition succeeds and is allowed
- 2.The 3rd respondent was not validly elected as Member of County Assembly (MCA) for Ganda Ward and his election is declared null and void
- 3.The 1st and 2nd respondents to hold a fresh election in conformity with the Constitution, the Elections Act 2011 and all other laws governing elections
- 4.The 1st and 2nd respondents jointly and severally to pay the petitioners' costs, taxed by the Executive Officer, Malindi Law Court, capped at Kshs.2,000,000/-
- Jurisdiction invoked
- Election petition under the Constitution (Articles 38, 81, 83, 86, 88) and the Elections Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiponda Joseph Joseppe Ngumbao & another v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 19 (KLR)", Case Analysis (2018). Election Petition filed 16th July 2017 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/19/eng@2018-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.