Keronche Maranga Sammy v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 32 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Burden and standard of proof
Petitioner did not discharge the burden of proof; allegations were largely hearsay and unsubstantiated
The petitioner made allegations of bribery, violence, expulsion of agents and illegal oaths but admitted in cross-examination that he did not report them, did not witness key events and did not produce his agents' names or statutory documents. The court held the allegations were largely based on hearsay, inadmissible under Section 63 of the Evidence Act, and below the standard required in election petitions.
Effect of proved irregularities on election outcome
The only proved malpractice (a polling clerk's breach of duty at Chironge) could not have affected the outcome
The clerk convicted in Keroka Criminal Case 661 of 2017 issued two extra ballot papers which were marked as spoilt votes and excluded. The petitioner did not show how this benefited the 3rd respondent. Section 83 of the Elections Act bars nullification where non-compliance did not affect results.
Validity of the election of the 3rd respondent
The 3rd respondent was validly elected; the election was conducted in accordance with the Constitution and the Elections Act
Testimony of the 2nd respondent was unchallenged; alleged alterations in forms 36A were countered by the respondents' evidence; the petitioner abandoned scrutiny and recount which would have settled the alleged alterations. Allegations were bare and unsubstantiated.
Consequence of non-disclosure of election results and date of declaration under Rule 8
The petition failed to comply with Rule 8(1)(c) and (d); the omission is fatal and cannot be cured by Article 159(2)(d)
Relying on Martha Wangari Karua, M'Nkiria Petkay and Mukala Issa Kombo, the court held the Rule 8 requirements are mandatory and go to the root of the petition's jurisdiction. The petitioner admitted the omissions in cross-examination.
Expulsion of petitioner's agents from polling stations
Even if agents were excluded, absence of agents does not invalidate polling station proceedings
Regulation 62(1)(c) permits presiding officers to admit only authorized agents with an oath of secrecy and letter of appointment, neither of which were proved, and Regulation 62(3) provides that absence of agents does not invalidate proceedings.
Legal principles established
#- Non-compliance with Rule 8(1)(c) and (d) of the Election (Parliamentary and County Elections) Petition Rules, 2017 is substantive and cannot be cured under Article 159(2)(d) of the Constitution
- The standard of proof in election petitions is higher than the balance of probabilities but lower than beyond reasonable doubt
- A petitioner must prove not only non-compliance with electoral law but that the non-compliance affected the validity of the election
Court orders
#- 1.The petition be and is hereby dismissed
- 2.Instruction fees for the 1st and 2nd respondents are capped at Kshs 200,000/=
- 3.Instruction fees for the 3rd respondent are capped at 200,000/=
- 4.A certificate of the determination shall issue in accordance with section 86(1) of the Elections Act, 2011, to the Independent Electoral and Boundaries Commission and the Speaker of the County Assembly of Kisii
- Jurisdiction invoked
- Elections Act, 2011 and the Election (Parliamentary and County Elections) Petition Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keronche Maranga Sammy v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 32 (KLR)", Case Analysis (2018). Election Petition Number 7 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/32/eng@2018-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.