Jeremiah Kuloba v Joseph Magudah Okhaba & 2 others [2018] KEMC 22 (KLR)
The bottom line
#A Bungoma election court dismissed a petition challenging the Township Ward MCA election, ruling the challenger failed to prove any irregularities affected the result.
What this practically means
#Executive summary
#Key legal issues
#Whether irregularities and illegalities were committed in the election
No irregularities or illegalities proved; key petitioner witnesses disbelieved as their testimony was contradicted by ODM agents and presiding officers and by signed form 36As
The court contrasted each petitioner witness with the ODM agent and presiding officer at the same polling station, noting that the witnesses signed form 36A without comment, admitted contradictions in cross-examination, and raised no formal complaints. The court found the allegations of interference with assisted voters, missing seals, extra ballots and manipulation to be unsubstantiated hearsay.
Whether the respondents committed election offences including bribery, violence and conspiracy
Not proved; allegations lacked corroboration, particulars or reports to police
Bribery, violence and conspiracy are criminal offences requiring proof beyond reasonable doubt. The petitioner's sole testimony on bribery lacked other supporting witnesses, police complaints or investigations; violence allegations lacked mention of perpetrators or victims; conspiracy allegations named no participants and amounted to mere hearsay.
Whether scrutiny and recount supported the petition
It did not; recounted totals (3,759 for Petitioner and 3,743 for 1st Respondent across scrutinised stations) confirmed the result, and KIEMS-versus-cast-vote discrepancies were explained by complementary identification
The scrutiny of 23 polling stations disclosed only minor discrepancies of a vote or two, which did not alter the outcome. Missing rejected-ballot figures in form 36B were typographical. The 39-vote KIEMS gap was explained by manual identification permitted under section 44 of the Election Act.
Validity of the 1st Respondent's election
The election complied with the Constitution and electoral law; the 1st Respondent was validly elected
Having found no proved irregularities, offences or non-compliance, and the recount confirming the declared results, the court held that the 1st Respondent was validly elected and declared Member of County Assembly for Township Ward.
Legal principles established
#- The petitioner bears the burden of proving non-compliance, malpractice or irregularities in an election
- Standard of proof in election petitions is above balance of probability but below beyond reasonable doubt
- Election offences such as bribery attract the criminal standard of proof
- Voters not identified by KIEMS may be identified through complementary mechanisms under section 44 of the Election Act
Court orders
#- 1.The petition be and is hereby dismissed with costs
- 2.The instruction fees for the 1st Respondent capped at Kshs. 250,000 and the instruction fees of the 2nd and 3rd Respondent capped at Kshs. 250,000
- 3.The total costs shall be taxed
- 4.The Respondents shall share the security deposit in the ratio of 1:1 as between the 1st respondent and the 2nd and 3rd Respondents
- 5.A certificate of determination in accordance with section 86(1) of the Election Act, 2011 to issue to the IEBC and the Speaker of the County Assembly of Bungoma
- 6.The Petitioner be supplied with certified copies of the proceedings and judgment upon payment of the requisite fees
- Jurisdiction invoked
- Election petition challenging return of a Member of County Assembly under the Elections Act, 2011 (s. 83, s. 86(1))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Kuloba v Joseph Magudah Okhaba & 2 others [2018] KEMC 22 (KLR)", Case Analysis (2018). Petition 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/22/eng@2018-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.