Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateDismissedElection Petition (Lwandanyi Ward, Sirisia Constituency) - Notice of Motion dated 27/11/17· [2018] KEMC 45 (KLR)

Daniel Makecho Ndalila Muyelele v Barasa Tony Khaoya, Kennedy Ochanyo & I.E.B.C [2018] KEMC 45 (KLR)

Chief Magistrate's Court (Election Court), Bungoma
18 January 2018
3,081 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

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

#
This is a ruling on a notice of motion dated 27 November 2017 by the Petitioner in an election petition challenging the Member of County Assembly election for Lwandanyi ward of Sirisia constituency, Bungoma County, held on 8 August 2017. The application, brought under rules 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules 2017 and section 82 of the Elections Act, sought scrutiny of election materials including ballot paper packets, forms 36A, 32A, KIEMS data, polling station diaries and field note books, and a recount of ballots in all 42 polling stations. All respondents opposed the application. The court, S.O. Mogute PM, reviewed section 82(1) of the Elections Act and the applicable rules, and the authorities including the Supreme Court guidelines in Peter Munya, Nicholas Salat, Gedion Mwangangi Wambua, Peter Gichuki Kingara and Philip Mungu Ndolo. It held that scrutiny and recount do not lie as of course; the petitioner must establish a basis through pleadings, affidavits or evidence, confined to disputed polling stations. The court found the pleadings general and lacking particularity, that the application introduced matters not pleaded, that the allegedly missing forms 36A had in fact been filed and availed, and that the petitioner was impermissibly embarking on a fishing expedition. The application was dismissed with costs, with the right of appeal explained, pending final submissions on 2 February 2018.

Key legal issues

#
01

Whether a basis for scrutiny and recount was established

Holding

The Petitioner failed to lay a foundation for scrutiny and recount under rule 8(4) and section 82(1)

Reasoning

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.

p. 6
02

Whether scrutiny can cover polling stations not pleaded

Holding

Scrutiny must be confined to disputed polling stations and cannot expand the Petition beyond its four corners

Reasoning

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.

p. 6

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. 1.The notice of motion dated 27/11/17 is dismissed with costs
  2. 2.Right of Appeal explained

Authorities

#

Legislation

  • Elections Act No. 24 of 2011section 82(1)
  • Elections Act No. 24 of 2011section 80(1)(d)
  • Elections Act No. 24 of 2011section 83
  • Elections (Parliamentary and County Elections) Petitions Rules 2017rule 28
  • Elections (Parliamentary and County Elections) Petitions Rules 2017rule 29
  • Elections (Parliamentary and County Elections) Petitions Rules 2017rule 8(4)
  • Elections (Parliamentary and County Elections) Petitions Rules 2017rule 33(4)
  • Elections (Parliamentary and County Elections) Petition Rules 2013rule 33

Cases cited (11)

  • Bungoma High Court Election Petition No. 5 of 2013
    (2013) eKLR
  • Raila Amolo Odinga and Another v Independent Electoral and Boundaries Commission and 2 others
    Supreme Court Presidential Petition No. 1 of 2017
  • Philip Osore Ogutu v Michael Aringo and 4 others
    Busia High Court Petition No. 1 of 2013
  • Jacob Murigi Muthuri v John Mbaabu Murithi and 2 others
    Meru High Court Petition No. 2 of 2013; (2013) eKLR
  • Peter Munya v Independent Electoral and Boundaries Commission and 2 others
    Nairobi Petition No. 2b of 2014
  • Philip Mukwe Wasike v James Lusweti Mukwe
    Bungoma High Court Petition No. 5 of 2013
  • William Maina Kamanda v Margaret Wanjiru Kariuki
    Nairobi Election Petition No. 5 of 2008
  • Gedion Mwangangi Wambua and another v I.E.B.C & 2 others
    Mombasa Election Petition No. 4 of 2013 (Consolidated with Election Petition No. 9 of 2013)
  • Peter Gichuki Kingara v I.E.B.C and 2 others
    Nyeri Election Petition No. 3 of 2013
  • Nicholas Salat v I.E.B.C
    Nairobi Court of Appeal No. 228 of 2013
  • Philip Mungu Ndolo v Omar Mirinyi Shimbwa and 2 others
    Mombasa High Court Petition No. 2 of 2012
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.