Ronald Achira Ongaga & 2 others v Evans Mokoro Omwansu & 2 others [2018] KEMC 30 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Compliance with the Constitution and electoral laws in the conduct of the election
The election was conducted in accordance with the Constitution and electoral laws.
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).
Alleged electoral malpractices and violence
The petitioners failed to prove the alleged importation of voters and violence to the required standard.
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.
Validity of the 1st Respondent's election
The 1st Respondent was validly elected applying the Morgan v Simpson principles.
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.
Legal principles established
#- 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
#- 1.The petition is dismissed.
- 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.The Petitioners to bear the costs of the petition, capped at Kshs.450,000/=.
- 4.The sum of Kshs.100,000/= deposited as security to be held by the Court pending determination of costs by agreement or taxation.
- Jurisdiction invoked
- Election Act (jurisdiction over County Assembly ward election petitions); Articles 38, 81 and 86 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.