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MagistrateDismissedElection Petition No. 3 of 2017· [2018] KEMC 30 (KLR)

Ronald Achira Ongaga & 2 others v Evans Mokoro Omwansu & 2 others [2018] KEMC 30 (KLR)

Principal Magistrate's Court at Ogembo
23 February 2018
2,741 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Ogembo Magistrate's Court dismissed a challenge to the Moticho Ward election because the losing candidates failed to prove their fraud and violence claims.

What this practically means

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Executive summary

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The three petitioners, defeated candidates in the 8 August 2017 election for the Member of County Assembly, Moticho Ward (South Mugirango Constituency, Kisii County), petitioned for annulment of the election of the 1st Respondent, Evans Mokoro Omwansu, who was declared winner with 2242 votes. They sought declarations that irregularities and non-compliance vitiated the election, scrutiny and recount of ballots and KIEMS kits, cancellation of the election certificate, a fresh election, and costs. The 1st Respondent maintained the election was free and fair; the 2nd and 3rd Respondents contended that no irregularities were proved, that the petitioners showed no effect on the outcome, and that no foundation for scrutiny was laid. The court framed five issues: compliance with the Constitution and electoral law, violence and malpractices, validity of the election, costs, and appropriate relief. It found voting was by secret ballot, counting and tallying were done in the presence of agents, no votes were lost in transposition from forms 36A to 36B, and unsigned forms do not invalidate results under Regulation 79. Alleged voter importation was unproved; evidence of violence was contradictory and incredible; no voter was disenfranchised. Applying the standard of proof from Raila Odinga v IEBC and the Morgan v Simpson principles, the court held the petitioners failed to discharge the legal burden and declared the 1st Respondent validly elected. The petition was dismissed with costs to the Respondents capped at Kshs.450,000/=, with a certificate of determination to issue under Section 86(1) of the Elections Act and the Kshs.100,000/= security deposit retained pending costs determination.

Key legal issues

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01

Compliance with the Constitution and electoral laws in the conduct of the election

Holding

The election was conducted in accordance with the Constitution and electoral laws.

Reasoning

Voting was by secret ballot, ballots were counted at polling stations in the presence of agents, forms 36As were witnessed, and the Returning Officer transposed results accurately into form 36B without loss of any vote. Unsigned 36As do not invalidate results under Regulation 79(6) and (7).

p. 5
02

Alleged electoral malpractices and violence

Holding

The petitioners failed to prove the alleged importation of voters and violence to the required standard.

Reasoning

The list of alleged imported voters was not proved; evidence of assault was contradictory and incredible (PW5's documents did not match); no polling station closed due to violence and no voter was disenfranchised; the shooting occurred after the election and its effect was not demonstrated.

p. 5
03

Validity of the 1st Respondent's election

Holding

The 1st Respondent was validly elected applying the Morgan v Simpson principles.

Reasoning

The election was conducted substantially in accordance with the law and the petitioners proved no breach or mistake affecting the result; having failed to prove the case to the required standard, the election could not be vitiated.

p. 6

Legal principles established

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  • Non-signing of statutory forms by candidates or agents does not by itself invalidate election results.
  • The standard of proof in an election petition is above a balance of probabilities but below beyond reasonable doubt; allegations of election offences must be proved to the criminal standard.

Court orders

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  1. 1.The petition is dismissed.
  2. 2.A certificate of determination to issue to IEBC and the Speaker of County Assembly of Kisii County under Section 86(1) of the Elections Act.
  3. 3.The Petitioners to bear the costs of the petition, capped at Kshs.450,000/=.
  4. 4.The sum of Kshs.100,000/= deposited as security to be held by the Court pending determination of costs by agreement or taxation.

Authorities

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Legislation

  • Constitution of KenyaArticle 38(3)
  • Constitution of KenyaArticle 81
  • Constitution of KenyaArticle 86
  • Elections ActSection 84
  • Elections ActSection 86(1)
  • Election (General) RegulationsRegulation 79(6) and (7)
  • Election (Parliamentary and County Elections) Petition RulesRule 30

Cases cited (3)

  • Chikati – vs – Returning Officer Tongareni Constituency
  • Raila Odinga – vs – IEBC and 3 others
    Election Petition No.5 of 2013
  • Morgan and others – vs – Simpson and another
    1974 ALL ER 772
Jurisdiction invoked
Election Act (jurisdiction over County Assembly ward election petitions); Articles 38, 81 and 86 of the Constitution of Kenya

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, "Ronald Achira Ongaga & 2 others v Evans Mokoro Omwansu & 2 others [2018] KEMC 30 (KLR)", Case Analysis (2018). Election Petition No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/30/eng@2018-02-23

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