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MagistratePartially AllowedElection Petition No. 3 of 2017 (Bobasi Chache Ward) - as stated in the record; petition filed 23rd August 2017· [2018] KEMC 43 (KLR)

Japheth Omari Ombeo v Fred Sambu Nyachoti & 2 others [2018] KEMC 43 (KLR)

Magistrates' Court (Election Court)
20 February 2018
MNM.M. Nafula
2,909 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a county ward election after finding that excluded polling station votes could have changed the result, and ordered a fresh election.

What this practically means

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Executive summary

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The petitioner, Japheth Omari Ombeo, who contested the post of Member of County Assembly for Bobasi Chache Ward in Kisii County in the 8th August 2017 General Election and finished second behind the 1st Respondent (1,291 votes to 1,354), petitioned against the declaration of results. He alleged that the Returning Officer failed to accurately collate results from all polling stations, and in particular failed to openly collate and announce the results of Birongo Primary School polling station, contrary to Article 86(c) and (d) of the Constitution. The court condensed the issues into four: whether the election complied with constitutional and statutory principles; whether the 1st Respondent was validly elected; costs; and consequential relief. On its own motion, the court ordered a scrutiny and recount of the Birongo ballots under Section 82(1) of the Elections Act, which showed the petitioner had garnered 343 votes there - votes excluded from the final tally because the Presiding Officer presented two sets of results and was not called to explain. Applying Section 83 of the Elections Act as interpreted by the Supreme Court in Raila Odinga v IEBC (2017) and Morgan v Simpson, the court found the exclusion materially affected the outcome and that the 1st Respondent was not validly elected. The court declined to seat the petitioner and instead ordered a fresh election in the entire ward, a certificate to the IEBC and the Speaker of the Kisii County Assembly, costs of Kshs. 300,000 against all three Respondents, and release of the Kshs. 100,000 security deposit to the petitioner.

Key legal issues

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01

Whether the election for Bobasi Chache Ward was conducted in accordance with the Constitution and electoral laws

Holding

The election at Birongo Primary School polling station was not conducted in accordance with the Constitution and applicable electoral laws, and the exclusion of its results from the final tally materially affected the outcome.

Reasoning

The Returning Officer excluded Birongo Primary School results because the Presiding Officer presented two sets of results; the Presiding Officer was not called as a witness. On the court's own motion under Section 82(1) of the Elections Act, a scrutiny and recount was ordered, showing the petitioner garnered 343 votes at that station. Those excluded votes would have changed the outcome, since the petitioner trailed the winner by only 63 votes. The will of the electorate of that polling station was therefore excluded from the tally.

p. 7
02

Whether the 1st Respondent was validly elected under Section 83 of the Elections Act

Holding

The 1st Respondent was not validly elected and returned as Member of County Assembly for Bobasi Chache ward, because the failure to include the Birongo results substantially and materially affected the outcome.

Reasoning

Applying the pre-amendment Section 83 of the Elections Act (the 2017 amendment having come into force after this election) and the Supreme Court's two-limb interpretation in Raila Amolo Odinga v IEBC, plus Lord Denning's principles in Morgan v Simpson, the court found the non-compliance (exclusion of a polling station's votes) affected the result materially. A margin of 1,291 (petitioner) versus 1,354 (1st Respondent) meant 343 excluded votes made 'a whole difference'.

p. 8
03

What consequential relief follows from invalidation - seating the petitioner or ordering a fresh election

Holding

The court declined to seat the petitioner and instead ordered a fresh election in the entire ward, with a certificate of the determination to issue to the IEBC and the Speaker of the Kisii County Assembly.

Reasoning

Under Section 75(3) of the Elections Act, the court may declare whether a candidate was validly elected, declare which candidate was validly elected, or order fresh elections. Because the excluded Birongo results meant the true will of the whole ward's electorate was not ascertained from the tainted tally, the appropriate relief was a fresh election rather than a declaration in favour of the petitioner.

p. 8

Legal principles established

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  • Section 83 of the Elections Act has two limbs, disjunctively applied: compliance with constitutional and statutory election principles, or irregularities that affect the result - a petitioner need not prove both.
  • The primary considerations in an election dispute are whether the election was conducted in accordance with the law and to what extent, and whether the will of the electorate was affected by the irregularities.
  • Costs follow the event, and an election court has power under Rule 30 of the 2017 Petition Rules and Section 84 of the Elections Act to order costs, the paying party and the recipient.

Court orders

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  1. 1.A declaration that the 1st Respondent was not validly elected and returned as the Member of County Assembly of Bobasi Chache ward (as recorded in the judgment's orders, though the order as typed reads '2nd Respondent')
  2. 2.A fresh election in the entire Bobasi Chache ward
  3. 3.A certificate of the determination to issue to the IEBC and the Speaker of the County Assembly of Kisii County
  4. 4.The 1st, 2nd and 3rd Respondents to pay costs assessed at Kshs. 300,000 (three hundred thousand only) to the petitioner
  5. 5.The Kshs. 100,000 deposited as security for costs to be released to the petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 38(3)
  • Constitution of Kenya, 2010Article 81
  • Constitution of Kenya, 2010Article 86(c) and (d)
  • Elections ActSection 82(1)
  • Elections ActSection 83 (as amended by the Elections Laws (Amendment) Act, 2017)
  • Elections ActSection 84
  • Elections ActSection 75(3)
  • Election (Parliamentary and County Elections) Petition Rules, 2017Rule 30

Cases cited (2)

  • Raila Amolo Odinga and another -vrs- IEBC and 2 others
    Presidential Petition No.1 of 2017
  • Morgan and others -vs- Simpson and another
    (1974) 3 ALL ER 772
Jurisdiction invoked
Election petition under the Elections Act in respect of the election of a Member of County Assembly (Article 38(3) political rights invoked by the petitioner)

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, "Japheth Omari Ombeo v Fred Sambu Nyachoti & 2 others [2018] KEMC 43 (KLR)", Case Analysis (2018). Election Petition No. 3 of 2017 (Bobasi Chache Ward) - as stated in the record; petition filed 23rd August 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/43/eng@2018-02-20

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