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MagistratePartially AllowedElection Petition No. 1 of 2017· [2018] KEMC 27 (KLR)

Michael Ondong Agunda & 2 others v Independent Electroral & Boundaries Commission & 2 others [2018] KEMC 27 (KLR)

Chief Magistrate's Court at Migori
23 February 2018
3,438 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Three voters of Kwa Ward in Suna East Constituency petitioned the Chief Magistrate's Court at Migori under Election Petition No. 1 of 2017, challenging the election of Odhiambo Beatrice Adhiambo as MCA. They sought preservation of Kiems Kits and ballot boxes, examination of Kiems operators, scrutiny and audit of votes and Kiems Kits against Forms 36A, invalidation of tainted votes, a declaration that the 3rd Respondent was not validly elected, and a fresh election. Four petitioners' witnesses alleged bribery, violence, extra ballots, double voting by clerks, misleading of illiterate voters, and discrepancies between Kiems Kit and Form 36A figures; the respondents' witnesses, including the Returning Officer and presiding officers, denied the allegations. Applying a standard of proof higher than civil but lower than criminal, the court found the individual malpractice allegations unproved. However, both ICT experts agreed Kiems Kit figures must tally with Forms 36A. A recount revealed that Pemo Polling Station's Form 36A recorded 576 voters while the Kiems Kit SD Card recorded 521 identified voters, a 55-vote discrepancy that went unexplained. The court held the 1st Respondent failed its duty to count and transmit accurate figures and that the declaration of the 3rd Respondent as winner lacked transparency, credibility and verifiability. The court granted prayers (f) and (g), declaring the 3rd Respondent not validly elected and ordering a fresh election in Kwa Ward, with the 1st Respondent to bear the petitioners' and the 3rd Respondent's costs.

Key legal issues

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01

Proof of electoral malpractices (bribery, violence, double voting, extra ballots)

Holding

The alleged malpractices were not proved to the required standard; individual allegations failed for want of corroborating witnesses or evidence

Reasoning

PW-1 could not link the alleged briber to the 3rd Respondent, whose agents were identified. The Presiding Officer denied violence or armed intruders. The food arrangement was a paid, ordinary rural arrangement. The allegedly misled illiterate voters, the clerks who allegedly voted twice, and recipients of extra ballots never testified or filed affidavits, leaving the court unable to find the irregularities proved with certainty.

p. 5
02

Kiems Kit versus Form 36A figures

Holding

Both ICT experts agreed voters must be identified by the Kiems Kit, so an unexplained variance indicates irregularity

Reasoning

PW-4 (petitioners' ICT expert) and DW-1 (1st Respondent's ICT officer) agreed that a person cannot vote without Kiems Kit identification and that Kit figures must tally with Form 36A, Form 36A being the primary document. DW-4, the Presiding Officer, confirmed in his affidavit that only Kiems-identified voters could vote. The court therefore accepted that any unexplained excess of Form 36A figures over Kit figures signals irregularity.

p. 6
03

Effect of the Pemo Polling Station discrepancy found on recount

Holding

The 55-vote unexplained variance between Form 36A (576) and the Kiems Kit SD Card (521) rendered the election non-transparent and the 1st Respondent in breach of duty

Reasoning

During the recount and verification of 22/01/2018, Form 36A for Pemo showed 576 voters noted while the Kiems Kit SD Card showed 521 identified, a 55-vote discrepancy that was unexplained and contradicted the evidence of both ICT experts and the Presiding Officer. Given the small number of voters at the station, the court could not ignore it, and held the 1st Respondent failed in its duty to count and transmit accurate figures.

p. 6
04

Validity of the 3rd Respondent's election

Holding

The declaration of the 3rd Respondent as winner lacked transparency, credibility and verifiability; the election was invalidated and a fresh election ordered

Reasoning

Basing itself on the findings on the second to fourth issues, the court found the election/results marred with impropriety and illegalities. Although irregularities were established in only one polling station, the court reasoned that this could not validate the declaration. It granted prayers (f) and (g), declaring the 3rd Respondent not validly elected and directing a fresh election in Kwa Ward.

p. 6

Legal principles established

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  • The standard of proof in an election petition is higher than in civil proceedings but lower than in criminal proceedings
  • An unexplained variance between Kiems Kit figures and Form 36A figures is a sign of irregularity

Court orders

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  1. 1.A declaration that the 3rd Respondent was not validly elected as the MCA for Kwa Ward
  2. 2.An order that a fresh election be held in Kwa Ward (prayer (g) of the Petition dated 24th August 2017)
  3. 3.The 1st Respondent shall bear the costs of the petition incurred by the petitioners as well as the 3rd Respondent
Jurisdiction invoked
First-instance election petition under the Elections Act and the Constitution (Magistrates' Court election jurisdiction)

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, "Michael Ondong Agunda & 2 others v Independent Electroral & Boundaries Commission & 2 others [2018] KEMC 27 (KLR)", Case Analysis (2018). Election Petition No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/27/eng@2018-02-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.