Patrick Ngari Njeru v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 24 (KLR)
The bottom line
#The Embu election court dismissed a challenge to a Mavuria Ward MCA election because the losing candidate could not prove any irregularity changed the result.
What this practically means
#Executive summary
#Key legal issues
#Whether the election for MCA Mavuria Ward was substantially conducted in accordance with the Constitution and electoral laws
Yes. The election was free and fair, by secret ballot, free from violence, intimidation, improper influence or corruption, conducted by an independent body, and the voting method was simple, accurate, verifiable, secure, accountable and transparent
The twenty-two complaints by the Petitioner's nine agents were seriously and substantially answered by the affidavits of the Returning Officer and the Presiding Officers, whose annexures included Forms 36A signed by the very agents claiming denial of entry. No ballots marked on the back for the third Respondent were found at scrutiny. No objections under rule 78 were raised to rejected ballots, and there is no legal requirement that polling station agents accompany ballot boxes to the tallying centre.
Whether the errors and omissions in nine of the forty-six polling stations affected the result of the election
No. Even after the consented scrutiny and recount, the third Respondent emerged with the highest number of valid votes cast; the margin did not change in substance
Scrutiny increased the Petitioner's votes from 3029 (as pleaded for the third Respondent) only marginally and the gap increased rather than closed; the 229 rejected votes did not seal the gap. The missing materials were secondary documents derived from primary materials which were available, and credible explanations were given for the anomalies (court order locking up materials, broken plastic seals from handling and transportation).
Applicable standard and burden of proof in election petitions
The Petitioner bears the burden to prove the grounds to a standard higher than in ordinary civil cases but below the criminal standard, near beyond reasonable doubt where malpractice is alleged
Relying on Mbowe v Elilifoo and Raila Odinga (2013), the court held the Petitioner had to discharge the initial burden before the Respondents bore any evidential burden. The Petitioner's allegations, including claimed ballots counted for the third Respondent with names on the back, were not substantiated at scrutiny.
Whether the court should be guided exclusively by the scrutiny results as submitted by the third Respondent
No. All evidence properly on record, including affidavits, must be considered together with the scrutiny results
The court held it would be unjust to ignore evidence properly on record simply because the parties had consented to scrutiny as the method of resolving the dispute. The consent did not displace the affidavits filed and served.
Scope of scrutiny - whether wholesale scrutiny beyond the disputed polling stations was proper
Ideally scrutiny should be confined to polling stations whose results are disputed under rule 29(4); the wholesale scrutiny here gave the Petitioner more than he bargained for and yielded nothing favourable to him
Instead of confining scrutiny to the ten or so polling stations where malpractice was alleged, scrutiny covered all 46 ballot boxes. Even this unlimited scrutiny, complete with liberty to take photographs, did not yield anything favourable to the Petitioner; the margin increased by 2 votes.
Legal principles established
#- The burden of proof in an election petition lies on the Petitioner to a standard higher than a balance of probabilities but below the criminal standard; where fraud or election offences are alleged, a very high degree of proof is required
- An election is not vitiated by breach of rules or mistakes at the poll provided the election was conducted in accordance with the law as to elections and the breach or mistake does not affect the result
- Section 83 of the Elections Act as it stood at the time of the 8th August 2017 election (before amendment by Act No. 34 of 2017) is to be construed disjunctively, and legislation does not apply retrospectively
- An affidavit properly filed and served is part of the court record and cannot be ignored; it would be unjust to decide a case on the results of scrutiny exclusively
Court orders
#- 1.The petition is dismissed with costs to the Respondents
- 2.Costs capped at Kshs. 500,000/= with half going to the first and second Respondents and the other half to the third Respondent
- 3.Costs to be assessed in the usual manner if not consented to
- 4.Certificate of validity of election to issue to the Chief Executive Officer, Independent Electoral and Boundaries Commission
- 5.Stay of execution on costs allowed for 30 days
- 6.Copy of proceedings and judgment to be availed by 2.3.18 in the afternoon
- Jurisdiction invoked
- Original election petition jurisdiction under the Constitution and the Elections Act, 2011 read with the Elections (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Ngari Njeru v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 24 (KLR)", Case Analysis (2018). Election Petition (Member of County Assembly, Mavuria Ward, Embu County), filed 6th September 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/24/eng@2018-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.