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MagistrateDismissedElection Petition dated 6th September 2017 (Kagan Ward MCA Election Petition)· [2018] KEMC 35 (KLR)

Odongo Victor Robert v Independent Electoral & Boundaries Commission & 2 others [2018] KEMC 35 (KLR)

Magistrates' Court (Election Petition)
23 February 2018
4,280 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenya election court dismissed a losing candidate's petition, confirming that unproven claims and minor errors cannot overturn a 642-vote win.

What this practically means

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Executive summary

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The petitioner, a losing candidate in the 8th August 2017 election for Member of County Assembly, Kagan Ward, petitioned against the declared result in which the 3rd respondent won with 5,081 votes against his 4,437. He sought production of Forms 32A, access to logs and servers, scrutiny and recount in five polling stations, declarations that irregularities invalidated the election, an order that he be declared winner, or in the alternative a fresh election. The respondents maintained the election was lawfully conducted. After interlocutory rulings on access and scrutiny orders, a recount and scrutiny of the disputed polling stations and SD cards was conducted pursuant to orders of 4th December 2017. The court framed six issues and held that the petitioner bore the burden of proving non-compliance to a standard above balance of probability. It found the election was conducted by an independent body in conformity with Articles 81(e) and 86, using biometric KIEMS identification. The annexed Forms 32A alleging dead people voted were found to be improperly obtained, uncertified and calculated to mislead, and none were found in the ballot boxes. Scrutiny revealed fewer than 10 stray votes, immaterial against the 642-vote margin, and even the 47 alleged dead votes could not alter the outcome. No evidence implicated the 3rd respondent in irregularities. The petition was dismissed with costs of Ksh.1,000,000 apportioned among the respondents, and a certificate of determination under section 86(1) of the Elections Act was directed to issue to the IEBC and the Speaker of the County Assembly.

Key legal issues

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01

Compliance of the Kagan Ward MCA election with constitutional principles

Holding

Election was conducted by an independent body in conformity with Articles 81(e) and 86; petitioner failed to prove non-compliance

Reasoning

The court found the voting method simple, accurate, verifiable, secure, accountable and transparent; ballots were capable of recount and results promptly announced. Biometric voter identification via KIEMS kits was used, agents had access, and witnesses for respondents confirmed lawful conduct.

p. 5
02

Authenticity of the annexed Forms 32A alleging dead people voted

Holding

The Forms 32A were disallowed as misleading, uncertified and improperly obtained

Reasoning

The 1st respondent denied the forms and testified none were used; none were found in ballot boxes during scrutiny. The petitioner failed to show how he obtained them, the forms lacked full details, were improperly filled and were not certified copies. The court held they were calculated to mislead and dismissed them as mere pieces of paper.

p. 5
03

Effect of errors found on scrutiny and recount

Holding

Minor discrepancies (under 10 stray votes; 47 alleged dead votes) could not affect the outcome given the 642-vote margin

Reasoning

The scrutiny and recount showed the 3rd respondent still won with a margin of 642 votes. Applying Joho v Nyange and Peter Munya, human errors and arithmetical discrepancies that do not alter the outcome are excused and cannot justify nullification.

p. 7
04

Alleged irregularities by the 3rd respondent

Holding

No evidence that the 3rd respondent committed any election irregularity

Reasoning

The petitioner bore the burden of proving the allegations but adduced no evidence that the 3rd respondent manipulated or distorted the vote; the 3rd respondent was only a candidate, not mandated to conduct the elections.

p. 6

Legal principles established

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  • The burden of proving electoral malpractice and non-compliance rests on the petitioner, and every election conducted in accordance with the law is presumed valid
  • The standard of proof in election petitions is above balance of probability but below beyond reasonable doubt
  • Minor human errors and procedural irregularities not affecting the outcome do not vitiate an election

Court orders

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  1. 1.The petition is dismissed
  2. 2.Respondents awarded costs of Ksh.1,000,000/- shared as: 1st respondent Ksh.250,000/-, 2nd respondent Ksh.250,000/-, 3rd respondent Ksh.500,000/-
  3. 3.A certificate of determination under section 86(1) of the Elections Act 2011 to issue to the Independent Electoral and Boundaries Commission and the Speaker of the County Assembly

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 38, 81(e), 86, 88(1), 48
  • Elections Act, 2011Sections 83, 84, 86(1)
  • Election Petition RulesRule 36(1)

Cases cited (6)

  • Jackton Nyanungo Ranguma v IEBC & 2 others
    Election Petition No. 3 of 2017, Kisumu High Court
  • Raila Odinga & another v IEBC & 3 others
    SCK Petition No. 5 of 2013 [2013] eKLR
  • Joho v Nyange
  • Peter Munya v IEBC & 2 others
  • Rashid Ahmed Amana v IEBC & others
    Election Petition No. 6 of 2013, Malindi High Court
  • Kalembe Ndile and another v Patrick Musimba and others
    Machakos High Court Election Petition No. 1 and 7 of 2013 [2013] eKLR
Jurisdiction invoked
Elections Act and Election Petition Rules (election court jurisdiction over Member of County Assembly election, Kagan Ward); sections 83, 84 and 86(1) of the Elections Act invoked

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, "Odongo Victor Robert v Independent Electoral & Boundaries Commission & 2 others [2018] KEMC 35 (KLR)", Case Analysis (2018). Election Petition dated 6th September 2017 (Kagan Ward MCA Election Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/35/eng@2018-02-23

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