Gideon Ndambuki Muthiani v Frank Kichoi & 2 others [2018] KEMC 25 (KLR)
The bottom line
#The Voi Election Court upheld Frank Kichoi's 2017 Chawia Ward MCA win, ruling the losing candidate failed to prove his bribery and rigging allegations.
What this practically means
#Executive summary
#Key legal issues
#Standard of proof for allegations of bribery and other electoral offences
Bribery allegations being criminal in nature required proof beyond reasonable doubt; the petitioner's hearsay claims from unnamed supporters fell far short
The petitioner conceded he attended none of the alleged bribery meetings, named no witnesses, and relied on unnamed supporters who swore no affidavits. The court applied the principle that allegations amounting to election offences must be proved beyond reasonable doubt, and that hearsay evidence carries insignificant probative value.
Whether the votes declared were inflated or results manipulated
No proof of inflation; scrutiny confirmed tallies were accurate for all stations scrutinised
The scrutiny report by the Executive Assistant confirmed all five ballot boxes were intact, Forms 36A were availed, and the votes tally was accurate. The petitioner did not demonstrate how alleged irregularities affected the margin between him and the 1st respondent (1,363 to 1,119).
Whether scrutiny of Kiems kits and election registers should have been ordered
Refused as an afterthought; scrutiny is discretionary and judicious and cannot be used to gather new evidence
The petitioner had only laid basis for scrutiny of ballot boxes and Forms 36A; he raised Kiems kits only at final submissions stage. The court held the petitioner could not hope to obtain scrutiny orders for materials never sought or justified, distinguishing the Supreme Court decision in Raila Amolo Odinga.
Failure to supply Forms 36A to the petitioner
IEBC not at fault where petitioner had no agents at many polling stations
Under Section 30 of the Elections Act agents are appointed by candidates or parties; it is not the electoral body's duty to provide agents. In the absence of the petitioner's agents at stations such as Mruru, Mwakitutu and others, IEBC could not be faulted for not handing over forms.
Legal principles established
#- Allegations amounting to electoral offences must be proved beyond reasonable doubt
- A petitioner must prove irregularities of a magnitude that affected the result (materiality test)
- Scrutiny cannot be used to discover new evidence
- Hearsay evidence has no probative value in an election petition
Court orders
#- 1.A declaration is hereby issued that the 1st Respondent Frank Kichoi was validly and duly elected as Member of County Assembly for Chawia ward in the election held on 8/8/2017
- 2.There would be no basis of issuing a declaration that the Petitioner Gideon Ndambuki Muthiani is the winner and/or duly elected Member of County Assembly for Chawia Ward
- 3.The instructions fees payable is capped at Kshs 500,000/- i.e Kshs 200,000 for the 1st respondent and Kshs 300,000/- for the 2nd and 3rd respondents
- Jurisdiction invoked
- Election petition for Member of County Assembly under the Constitution of Kenya 2010 and the Elections Act (Election (Parliamentary and County Elections) Petition Rules, 2017)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gideon Ndambuki Muthiani v Frank Kichoi & 2 others [2018] KEMC 25 (KLR)", Case Analysis (2018). Election Petition (Chawia Ward, Mwatate Constituency) filed 6/9/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/25/eng@2018-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.