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MagistrateDismissedElection Petition (Malindi) re Dabaso Ward MCA Election, 2017· [2018] KEMC 29 (KLR)

Dickson Karani Yaa v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 29 (KLR)

Chief Magistrate's Court at Malindi (Election Court)
19 February 2018
7,493 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Malindi Election Court dismissed a challenge to the Dabaso Ward MCA election, ruling that minor irregularities explained by IEBC did not change the result.

What this practically means

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Executive summary

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Dickson Karani Yaa petitioned against the Dabaso Ward Member of County Assembly election of 8 August 2017 in Kilifi County, seeking access to election materials, scrutiny and recount of all votes, a declaration that the 3rd Respondent was not duly elected, and consequential orders. The petition was grounded on an alleged 99-vote discrepancy, claims that votes announced at seven polling stations in Dabaso and Dongo Kundu primary schools differed from Forms 36A, unstamped forms, cancellations on one Form 36A, differing dates on Forms 36C, an allegedly forced agent signature, denial of entry to the tallying centre, and an IEBC portal display showing him leading. The court first considered scrutiny and recount. It found the petitioner's claim of divergent announcements rested on unnamed agents who were not called, rendering it inadmissible hearsay; in cross-examination he abandoned six of the seven stations, and his claimed five-vote lead could not bridge the 99-vote gap; unpleaded stations were raised without notice to respondents. Scrutiny and recount were refused as a fishing expedition. On nullification, the court found the unstamped forms validly signed by accredited agents, the cancellations normal tallying corrections, only one certificate (serial CA0030110054-1) issued, the deputy's announcement covered by the doctrine of necessity, and the remaining allegations unpleaded, uncorroborated or unsupported by evidence such as the KIEMS Kit. Applying section 83 of the Elections Act and the Munya standard, the court held the irregularities were explained and did not affect the outcome. The petition was dismissed with costs to the Respondents capped at Kshs. 3 million; ballot boxes were ordered unsealed and a section 86 certificate to issue.

Key legal issues

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01

Whether scrutiny and recount of votes should be ordered

Holding

Refused - no sufficient basis laid

Reasoning

The petitioner's claim that announcements at polling stations differed from Form 36A rested entirely on unnamed agents who were not called as witnesses, rendering it hearsay. In cross-examination he abandoned six of the seven disputed stations, and even his claimed five-vote lead could not overcome the 99-vote margin. Complaints about stations not pleaded were raised without notice to respondents. Ordering scrutiny would amount to a fishing expedition.

p. 7
02

Whether unstamped Forms 36A vitiate the election

Holding

No - the omission does not affect the integrity of the election

Reasoning

The forms bore signatures of polling officials and accredited agents including the petitioner's, plus the IEBC logo. The petitioner's agents were not identified or called to rebut the respondents' explanation of oversight, and the petitioner in cross-examination confirmed the forms were signed by accredited agents. The court accepted the explanation that failure to stamp was due to oversight and did not affect results.

p. 10
03

Whether cancellations on Form 36A for Dabaso Primary School Polling Station No. 1 were irregular

Holding

No malpractice or illegality found

Reasoning

The 1st Respondent explained cancellations were normal corrections at tallying, affecting all candidates. Other agents signed the form agreeing with the results. The petitioner's agent, who allegedly recorded a different figure, signed the form and was not called as a witness. The court found the explanation plausible since mistakes are expected and corrected at a tallying centre.

p. 10
04

Whether the differing dates on the Form 36C certificates invalidated the election

Holding

No - only one certificate was issued and the explanation was accepted

Reasoning

Both annexures bore the name and signature of the 1st Respondent and named the 3rd Respondent as winner; only one certificate with serial CA0030110054-1 was issued. The 2nd Respondent explained the dated document was an internal administrative record and the discrepancy a printing mishap. The issue was also not pleaded and the petitioner could not benefit from it.

p. 10
05

Whether the deputy returning officer making the announcement nullified the election

Holding

No - the doctrine of necessity applies

Reasoning

The 1st Respondent fell suddenly ill and his deputy announced the results. The petitioner did not demonstrate mischief, ill intention, or any effect on the outcome. The court held that sudden indisposition does not warrant nullification where the people's will must be upheld.

p. 11
06

Whether unpleaded allegations (forced signature of Form 36A, denial of entry to tallying centre, IEBC portal display) could sustain the petition

Holding

No - they were unpleaded, uncorroborated and unsupported by cogent evidence

Reasoning

The petitioner did not complain to authorities about the alleged forced signature, did not call the agent or any witness to corroborate, did not specify polling stations where agents were denied entry, and did not produce the KIEMS Kit to substantiate the portal claim. Blanket allegations without cogent evidence cannot sustain a petition, and he who alleges must prove.

p. 11

Legal principles established

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  • Failure to stamp Form 36A without any other allegation of irregularity does not invalidate it where the forms bear signatures of officers and accredited agents
  • Scrutiny and recount are not granted as of course; a petitioner must lay a basis in pleadings and evidence, and the court will not conduct a fishing expedition
  • Standard of proof in election petitions is higher than balance of probabilities but lower than beyond reasonable doubt

Court orders

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  1. 1.Prayer for scrutiny and/or recount of all votes in Dabaso Ward disallowed
  2. 2.Petition dismissed with costs to the Respondents, capped at Kshs. 3 million
  3. 3.Sealed ballot boxes be unsealed and the 1st and 2nd Respondents be at liberty to deal with them in the normal manner
  4. 4.Certificate of determination under section 86 of the Elections Act to issue to the IEBC and Speaker of the National Assembly
  5. 5.Certified copies of proceedings and judgment to be availed to the parties upon payment of requisite amount

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 86
  • Elections Act No. 11 of 2011Section 82(1)
  • Elections Act No. 11 of 2011Section 83
  • Elections Act No. 11 of 2011Section 86
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rule 28
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rule 29
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 33
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 33(4)
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 21

Cases cited (11)

  • Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others
    [2017] eKLR
  • Nicholas Kiptoo Arap Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2015] eKLR
  • Idris Abdi Abdullahi v Ahmed Bashane & 2 others
    [2017] eKLR
  • Phillip Mukwe Wasike v James Lusweti Mukwe & 2 Others
    [2013] eKLR
  • Peter Gichuki King'ara v Independent Electoral and Boundaries Commission & 2 Others
    eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Gideon Mwangangi Wambua & another v Independent Electoral & Boundaries Commission & 2 others
    [2013] eKLR
  • Rashad Hamid Amed Amana v IEBC
    Election Petition No. 6 of 2013 - Malindi
  • Jacob Mwirigi Muthuri v John Mbaabu Muriithi and 2 Others
    2013 eKLR
  • Raila Odinga & Others v IEBC & 7 others
    SC Petition No. 5 of 2013
  • John Kiarie Waweru v Beth Wambui Mugo & 2 Others
    Election Petition No. 13 of 2008
Jurisdiction invoked
Constitution of Kenya 2010, Elections Act No. 11 of 2011 and Elections (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, "Dickson Karani Yaa v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 29 (KLR)", Case Analysis (2018). Election Petition (Malindi) re Dabaso Ward MCA Election, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/29/eng@2018-02-27

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