Daniel Makecho Ndalila Muyelele v Barasa Tony Khaoya, Kennedy Ochanyo & I.E.B.C [2018] KEMC 45 (KLR)
The bottom line
#A Kenyan election court refused a vote recount because the petitioner never showed specific evidence of problems at particular polling stations.
What this practically means
#Executive summary
#Key legal issues
#Whether a basis for scrutiny and recount was established
The Petitioner failed to lay a foundation for scrutiny and recount under rule 8(4) and section 82(1)
The court considered the pleadings, affidavits and evidence and found the pleadings couched in general terms lacking particularity. The alleged missing forms 36A had in fact been filed and availed in court. Scrutiny is not automatic; sufficient reason must be shown, and irregularities not affecting results do not vitiate an election under section 83.
Whether scrutiny can cover polling stations not pleaded
Scrutiny must be confined to disputed polling stations and cannot expand the Petition beyond its four corners
Rule 33(4) demands specificity; the prayer must specify the polling stations whose results are disputed and the documents to be scrutinized. Allowing scrutiny over all 42 stations where none were specifically pleaded would amount to an abuse of process and a lottery on new evidence.
Legal principles established
#- The right to scrutiny and recount does not lie as a matter of course; the party seeking it must establish a basis by pleadings, affidavits or evidence
- Scrutiny or recount is confined to the polling stations in which the results are disputed
- A petitioner is bound by pleadings and may not use scrutiny as a fishing expedition
Court orders
#- 1.The notice of motion dated 27/11/17 is dismissed with costs
- 2.Right of Appeal explained
- Jurisdiction invoked
- Section 82 of the Elections Act No. 24 of 2011 and rules 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Makecho Ndalila Muyelele v Barasa Tony Khaoya, Kennedy Ochanyo & I.E.B.C [2018] KEMC 45 (KLR)", Case Analysis (2018). Election Petition (Lwandanyi Ward, Sirisia Constituency) - Notice of Motion dated 27/11/17. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/45/eng@2018-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.