Eliud Musikongo Tenge v Nyongesa Sospeter Erastus & 2 others [2018] KEMC 44 (KLR)
The bottom line
#A Bungoma court refused to recount votes in a disputed MCA election, ruling that applicants must prove real problems first, not fish for evidence.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is not res judicata despite an earlier scrutiny application dismissed on 13/12/17
The earlier ruling had expressly left the door open for the applicant to return with a sufficient basis after the hearing concluded. The court noted precedent where a second scrutiny application was entertained. Therefore the doctrine of res judicata did not bar the present motion.
Unpleaded scrutiny items
Scrutiny items not pleaded in the petition are struck out
The petitioner's prayer sought scrutiny of documents beyond those pleaded in the petition. Only the packets of counted, valid, rejected and spoilt ballots and the polling day diaries were within the pleadings. The court limited the application to those items, striking out the register, marked registers, statement of rejected votes and form 33.
Mode of responding to affidavit evidence
Grounds of opposition are the wrong vehicle to answer factual allegations in an affidavit
Applying the Munya guidelines, basis for scrutiny is proved by pleadings, affidavits and evidence; accordingly a reply should be by replying affidavit. The court nonetheless proceeded to consider the application on all material before it despite the procedural irregularity.
Sufficient basis for scrutiny and recount
No sufficient basis was laid; the irregularities were minor and explained
Weighing the evidence after a full hearing, the court found the discrepancies in form 36B mathematically explained (omission of Kisioyi) and the station-specific complaints minor: unsigned forms, an unstamped form, uncountersigned alterations and similar figures between streams did not demonstrate that excluded votes were cast or that results were compromised.
Legal principles established
#- The right to scrutiny and recount does not lie as a matter of course; the applicant must establish a basis by pleadings, affidavits or evidence
- Scrutiny or recount is confined to polling stations in which the results are disputed
- A party may not use scrutiny as a fishing expedition to discover new or fresh evidence
- A second scrutiny application after an earlier one is dismissed is not necessarily res judicata where the court left a window to move again
Court orders
#- 1.Prayers for scrutiny and recount of votes declined in their entirety
- 2.Prayer C(a), C(b), C(e) and C(f) of the application struck out as unpleaded
- 3.Petitioner to be supplied with a certified copy of the proceedings and ruling on payment of requisite charges
- 4.Petitioner to have 5 days to file submissions; respondents 5 days from service to file their submissions
- 5.Mention on 19/2/18 to confirm filing of submissions and give a date for judgment
- Jurisdiction invoked
- Sections 8(1)(d), 3 and 82(1) of the Elections Act No. 24 of 2011; Rules 4(b)(2), 28 and 29 of the Elections (Parliamentary and County Elections) Petition Rules 2017; Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Musikongo Tenge v Nyongesa Sospeter Erastus & 2 others [2018] KEMC 44 (KLR)", Case Analysis (2018). West Bukusu Ward MCA Election Petition. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/44/eng@2018-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.