Michael Musyoki Mwananzivu v Independent Electoral and Boundaries Commission & 4 others [2018] KEMC 31 (KLR)
The bottom line
#A Kenyan court dismissed an election petition challenging a Nairobi ward election, ruling that serious allegations need strong proof, not just suspicion.
What this practically means
#Executive summary
#Key legal issues
#Standard and burden of proof in election petitions
The burden lay on the Petitioner, who failed to discharge it; allegations of election offences require proof beyond reasonable doubt, a standard higher than ordinary civil cases.
Relying on section 107 of the Evidence Act and authorities including Kabogo v Thuo, Mwashetani and Mbowe v Eliufoo, the court held that the petitioner who seeks to annul an election bears the burden of proving both the non-compliance and its effect on the results, to a standard beyond reasonable doubt where an election offence is alleged. The Petitioner's evidence on bribery, vote stealing and importation of voters was general, uncorroborated and did not meet that threshold.
Alleged alteration of results / discrepancies between forms 36A and 36B
Discrepancies were minor typing errors by IEBC clerks, did not favour the 2nd Respondent and could not have changed the outcome; form 36A was not tampered with.
The returning officer admitted differences between forms 36A and 36B, including unrecorded rejected votes (187 in total), attributed to clerical typing. Comparing the margin (5,342 vs 3,031) with the 187 rejected votes, the court found the discrepancies negligible and incapable of altering the result, applying the reasoning in Michael Gichuru v Rigathi Gachagua.
Scrutiny and recount of votes
Scrutiny was refused because the Petitioner pleaded but did not lay a basis for it, made no formal application and did not specify polling stations.
Guided by section 82(1) of the Elections Act, Rule 29 and the Supreme Court decision in Munya v Kithinji, the court held that scrutiny is discretionary and requires specificity as to polling stations. The only substantiated incident (a voter given two ballot papers at Reuben stream 15) was corrected at the time by marking the extra ballot rejected, and thus warranted no scrutiny.
Voter bribery, ballot stuffing, importation of voters and denial of agent access
All these allegations were not proved to the required standard; evidence was general, uncorroborated and unsupported by specific particulars.
The court found no evidence that unregistered or imported voters voted, that votes cast exceeded registered voters, that votes were stolen, or that the Petitioner's agents were discriminated against — badges were short but appointment letters and oaths of secrecy were accepted. Bribery allegations lacked corroboration, particulars of persons bribed and demonstration of any effect on the voters' will.
Legal principles established
#- Allegations of election offences must be proved beyond reasonable doubt.
- A petitioner seeking scrutiny or recount must establish the basis and specificity for it; it does not lie as of course.
- Minor discrepancies between forms 36A and 36B that confer no advantage and do not affect the outcome do not justify nullification.
Court orders
#- 1.The Petitioner's petition is dismissed with costs to the Respondents.
- 2.The costs due to each Respondent shall be limited to Ksh. 200,000.
- 3.The 1st and 5th Respondents shall be regarded as one Party.
- 4.The security deposited in Court shall remain so deposited pending the taxation of costs in accordance with Rule 31(3) of the Election Rules.
- Jurisdiction invoked
- Election petition under the Constitution (Articles 38, 81, 86) and the Elections Act read with the Elections (Parliamentary and County Elections) Petitions Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Musyoki Mwananzivu v Independent Electoral and Boundaries Commission & 4 others [2018] KEMC 31 (KLR)", Case Analysis (2018). Election Petition (Mukuru Kwa Reuben Ward, Embakasi South Constituency) — filed 5th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/31/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.