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MagistrateDismissedElection Petition No. 8 of 2017

Yaite Philip Okoronon v Jakaa Gardy Odara & another [2018] KEMC 42 (KLR)

Chief Magistrates Court at Busia
20 February 2018
40,417 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~162 min to read original · ~4 min brief

The bottom line

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The Busia court dismissed an election petition, ruling that minor clerical errors don't overturn elections and unspecific allegations of violence or bribery simply aren't enough.

What this practically means

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Executive summary

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This was an election petition filed by Yaite Philip Okoronon, an unsuccessful candidate, challenging the election of Jakaa Gardy Obara as Member of County Assembly for Bukhayo North Walatsi Ward in the 8th August 2017 general election. By consent, three issues were framed: whether the election was conducted in accordance with the Constitution and electoral laws, whether the 1st respondent was validly elected, and what consequential orders should issue. The petitioner alleged violence and intimidation, voter bribery, negligence by IEBC, locking out of agents, and discrepancies in Forms 36A and 36B, and sought a declaration that the election was void plus costs. The court undertook a scrutiny and recount of all 22 polling stations in January 2018, which showed the 1st respondent's tally reduced from 1,910 to 1,909 votes and the petitioner's from 1,612 to 1,610, leaving the ranking unchanged. The court held that allegations of violence and bribery, being election offences, required proof beyond reasonable doubt; the petitioner's evidence was generalized, hearsay and unparticularized. Discrepancies in the statutory forms were found to be genuine, innocent human errors that did not affect the outcome. Applying Raila 1 and Section 83 of the Elections Act, the court found substantial compliance with the electoral law, declared the 1st respondent validly elected, dismissed the petition, and awarded costs to the respondents capped at Kshs. 150,000 per party. A certificate was ordered to issue under Section 86(1) of the Elections Act.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the election of MCA Bukhayo North Walatsi Ward was conducted in accordance with the Constitution, Election Laws and Election Regulations
  2. 2.Whether the 1st respondent was validly elected as the MCA Bukhayo North Walatsi Ward
  3. 3.What consequential orders the court should make

Key legal issues

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01

Whether violence and intimidation were proved

Holding

Not proved; the allegations were generalized, based on hearsay, and not linked to the 1st respondent or shown to affect the outcome

Reasoning

The petitioner himself denied witnessing violence in his affidavit and later claimed he had been informed of it. PW2 relied on hearsay without naming informants or victims, produced no P3 forms, medical evidence or OB number, and no police or IEBC officers were called. Election offences require proof beyond reasonable doubt, which was not met.

p. 51
02

Whether voter bribery and undue influence were proved

Holding

Not proved; no names of bribed voters, no form of bribe, no place or date, and none of the petitioner's witnesses saw any bribery

Reasoning

Bribery is a criminal election offence requiring proof beyond reasonable doubt. The petition contained only generalized allegations; even a single proven act of bribery with corrupt motive would suffice, but none was established. The petitioner's own witnesses denied witnessing any bribery.

p. 57
03

Whether discrepancies in Forms 36A and 36B affected the results

Holding

No; the discrepancies were minor clerical errors and the scrutiny and recount confirmed the same ranking of candidates

Reasoning

The court undertook scrutiny and recount of all 22 polling stations. The 1st respondent lost one vote (1910 to 1909), the petitioner lost two (1612 to 1610), and rejected votes rose from 34 to 40. The margin between the winner and petitioner remained about 299 votes, so the errors were genuine human errors that did not affect the result.

p. 72
04

Whether agents were locked out of polling stations

Holding

Not proved; Regulation 62 permits only one agent per candidate/party, agents must show accreditation, and absence of an agent does not invalidate proceedings

Reasoning

PW4 was told to wait because another ODM agent was already inside, consistent with Regulation 62(2). PW6 lacked accreditation documents. Some agents simply failed to sign Form 36A without reasons, and Regulation 79(7) provides that absence of an agent does not invalidate results. The allegation, if true, would be a criminal election offence requiring proof beyond reasonable doubt.

p. 60
05

Whether the election was conducted in accordance with the Constitution, election laws and regulations

Holding

Yes; the election substantially complied with the law and the 1st respondent was validly elected

Reasoning

Applying Section 83 of the Elections Act and Raila 1, the court found no proved non-compliance affecting the result. The voting process was by secret ballot, agents were largely present and signed Forms 36A, results were declared by Presiding Officers, and the recount confirmed the declared outcome.

p. 73

Legal principles established

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  • The burden of proof in an election petition lies on the petitioner, who must prove allegations to a standard higher than a balance of probabilities but below beyond reasonable doubt, except that election offences must be proved beyond reasonable doubt.
  • Minor discrepancies caused by genuine human error do not justify nullification of an election where the final results are unaffected.
  • A scrutiny and recount cures irregularities or errors committed in tallying, counting and presentation of results in the statutory forms.
  • Failure by an agent to sign Form 36A, or the absence of an agent, does not by itself invalidate the results announced.

Court orders

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  1. 1.Declaration that Jakaa Gardy Obara, 1st respondent, was validly elected as the Member of County Assembly, Bukhayo North Walatsi Ward in Busia County
  2. 2.Petition dismissed
  3. 3.Costs of the petition awarded to the Respondents, capped at Kshs. 150,000 for each party entitled to costs, with the sum deposited in court to remain deposited pending assessment of costs as per the Advocates Remuneration Order
  4. 4.Certificate to issue under Section 86(1) of the Elections Act 2011

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Elections Act, Election Petition jurisdiction over election of a Member of County Assembly (Section 75, Elections Act)

Relief refused

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Declaration that the 1st respondent was not duly elected and that the election for Member of County Assembly in Bukhayo North Walatsi Ward was void

Petitioner failed to prove violence, voter bribery, negligence or other irregularities to the required standard, and the scrutiny and recount showed only minor errors that did not affect the results

p. 73

Order for a repeat/fresh election for the ward

Discrepancies were minor, genuine and innocent human errors that did not affect the final outcome

p. 72

Costs of the petition from the respondents

Costs follow the event; the petition was dismissed

p. 75

Costs

Costs of the petition awarded to the Respondents, capped at Kshs. 150,000 for each party entitled to costs; the sum deposited in court to remain deposited pending assessment of costs as per the Advocates Remuneration Order.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having heard this case on merits, this court hereby issues a DECLARATION that the Jakaa Gardy Obara, 1st respondent was validly elected as the Member of County Assembly, Bukhayo North Walatsi Ward in Busia County.
p. 75final orders - declaration of valid election
The consequential orders which this court shall issue are that this Petition is dismissed.
p. 75final orders - dismissal of petition
I cap costs at Kshs. 150,000 /= for each of the parties entitled to costs.
p. 75final orders - costs
the recount and scrutiny conducted by this court reveals minor discrepancies caused by genuine and innocent errors and which cannot in itself justify the nullification of the election.
p. 72effect of minor discrepancies on election validity
Generalized allegations as the ones made in this petition are not the kind of evidence required to prove election petitions.
p. 32standard of proof - generalized allegations
Where the malpractices are committed by IEBC or its employees or worker, Raila 2 is the applicable law where the burden shifts from the person alleging existence of the malpractices to IEBC to prove that the malpractices did not exist.
p. 49burden of proof - allocation between Raila 1 and Raila 2
I therefore find that the 1st respondent was validly elected as the MCA.
p. 73holding on validity of election

Issues in the judgment

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minor

The judgment gives conflicting vote totals for the 1st respondent after recount - the ranking table and conclusions state 1909 in one place but the court's conclusion says he 'garnered 1901 votes'

minor

The scrutiny/recount section states the petitioner's votes were reduced 'by 5 votes' when the figures shown (1612 to 1610) reflect a reduction of 2 votes

material

On the standard of proof for bribery and undue influence, the court states inconsistently that the standard is 'beyond reasonable doubt' in one passage and 'higher than of a probability but not as high as beyond reasonable doubts' in its conclusions

minor

The 1st respondent's name is spelled inconsistently in the judgment (Odara/Obara) and DW14 is referred to as both 'Kondita Nyangweso' and 'Nyangweso Candita'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Yaite Philip Okoronon v Jakaa Gardy Odara & another [2018] KEMC 42 (KLR)", Case Analysis (2018). Election Petition No. 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/42/eng@2018-02-20

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