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Case Brief · caselaw.co.ke
MagistrateDismissedElection Petition (Chawia Ward, Mwatate Constituency) filed 6/9/2017· [2018] KEMC 25 (KLR)

Gideon Ndambuki Muthiani v Frank Kichoi & 2 others [2018] KEMC 25 (KLR)

Chief Magistrate's Court (Election Court), Voi
28 February 2018
10,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~41 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioner, who lost the 8 August 2017 Chawia Ward MCA election to the 1st respondent (1,363 votes to 1,119), petitioned for nullification, alleging voter bribery, intimidation of voters and agents, manipulation of results, and failure to furnish Forms 36A and display results from 15 polling stations. Interlocutory applications were disposed of by consent or ruling, including an extension of time to file responses, amendment of the petition, and a preliminary objection on compliance with Rule 8(1) of the Petition Rules. The court later allowed scrutiny of ballot boxes and Forms 36A for five polling stations, conducted by the Executive Assistant of Voi Law Courts, whose report found all boxes intact and tallies accurate. At trial, the petitioner and his two witnesses gave no direct evidence of bribery, intimidation or result manipulation; their accounts were based on unnamed informants and were squarely hearsay. The court held that allegations amounting to election offences require proof beyond reasonable doubt and that the petitioner bore the burden under Section 109 of the Evidence Act. Scrutiny revealed no variation in the votes. The court refused scrutiny of Kiems kits and registers as an afterthought, holding scrutiny cannot be used to discover new evidence, and distinguished the Supreme Court's Raila Odinga decision. Finding the petitioner had not discharged the burden of proof and that the election reflected the will of Chawia Ward voters, the court declared the 1st respondent validly elected and dismissed the petition with costs, capping instruction fees at Kshs 500,000.

Key legal issues

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01

Standard of proof for allegations of bribery and other electoral offences

Holding

Bribery allegations being criminal in nature required proof beyond reasonable doubt; the petitioner's hearsay claims from unnamed supporters fell far short

Reasoning

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.

p. 12
02

Whether the votes declared were inflated or results manipulated

Holding

No proof of inflation; scrutiny confirmed tallies were accurate for all stations scrutinised

Reasoning

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).

p. 16
03

Whether scrutiny of Kiems kits and election registers should have been ordered

Holding

Refused as an afterthought; scrutiny is discretionary and judicious and cannot be used to gather new evidence

Reasoning

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.

p. 15
04

Failure to supply Forms 36A to the petitioner

Holding

IEBC not at fault where petitioner had no agents at many polling stations

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 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. 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. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.