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MagistrateDismissedNot stated in the judgment· [2018] KEMC 50 (KLR)

Joseph Kibiego Koech v Gabriel Mibei & 2 others [2018] KEMC 50 (KLR)

Chief Magistrate's Court (Election Petition), Kilgoris
16 February 2018
DMD. K. Matutu
7,118 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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The Kilgoris court dismissed an election petition challenging the Angata Barikoi MCA result, confirming Gabriel Mibei as validly elected.

What this practically means

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Executive summary

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This first-instance election petition concerned the Member of County Assembly election for Angata Barikoi Ward, Narok County, held on 8 August 2017, in which the 1st Respondent, Gabriel Mibei, an independent candidate, was declared winner over the Petitioner. The Petitioner sought a declaration that the election was invalid and a recount of ballots at Oldoinyo Orok Primary School Polling Station No. 067, alleging that a voter (Josiah Langat) cast two votes, that sixty voters were denied the vote, that agents were prevented from signing declaration forms, and violation of Article 81 of the Constitution. The Respondents maintained the election was free and fair, that the margin of 199 votes reflected the electorate's will, and that the petition failed to comply with Rules 8 and 12 of the Election Petition Rules. The court, D. K. Matutu SRM, framed six issues. It confirmed its earlier ruling declining a recount, holding that no basis had been laid. It excused the omission of the date of declaration as non-fatal, the petition having been filed within time. Allegations concerning Burgei and Olosoilal polling stations were declined as unpleaded. The double-voting allegation, a criminal-type charge requiring proof beyond reasonable doubt, failed for want of proof and an adverse inference was drawn from the petitioner's failure to call a key agent. The court found the election free, fair and verifiable under Article 81, and dismissed the petition with costs to the 1st Respondent, declaring the 1st Respondent validly elected, and issuing a certificate under Section 86 of the Elections Act.

Key legal issues

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01

Compliance with Rules 8 and 12 of the Election Petition Rules (erroneous voter figure; omission of date of declaration)

Holding

The errors were not fatal; the omission of the date of declaration was excused since the petition was filed within the 28-day limit and respondents had fair notice

Reasoning

The court applied substantive justice principles from Francis Mwangangi Kilonzo, drawing on Salat and Kidero cases. The mischief of the date requirement is guarding against late filing; since the petition was filed fourteen days after the election, the mischief did not arise. The erroneous registered-voters figure did not take the respondents by surprise.

p. 10
02

Alleged double voting by Josiah Langat

Holding

Not proved; the allegation is of a criminal nature requiring proof beyond reasonable doubt, and the petitioner failed to discharge that burden, including by withholding the testimony of Paul Mwanje

Reasoning

The court drew an adverse inference from the petitioner's failure to call Paul Mwanje, whose affidavit had no corroboration. No arrest or report to police was made. Double voting is an election offence under the Election Offences Act with a high standard of proof which the petitioner did not meet.

p. 10
03

Unpleaded allegations concerning Burgei and Olosoilal polling stations

Holding

The court declined to determine issues on stations not specifically pleaded

Reasoning

The petitioner had leave to amend but did not plead the discrepancies in Forms 36A and 36B for those stations. The court held that parties are bound by pleadings to avoid surprise and fishing expeditions, and accordingly made no findings on those stations.

p. 10
04

Validity of the election and declaration of the 1st Respondent

Holding

The election was free and fair, with a credible paper trail; the declaration of the 1st Respondent was valid

Reasoning

After auditing documentary evidence (Forms 36A and 36B) and witness testimony, the court found no proved illegalities or irregularities. The failure of an agent to sign forms was attributed to the agents, not the respondents, and was held to be neither here nor there.

p. 10

Legal principles established

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  • An election shall not be declared void for non-compliance with electoral law if it was conducted substantially in accordance with constitutional principles or the non-compliance did not affect the result
  • The two limbs of Section 83 of the Elections Act apply disjunctively; a petitioner proving either can void an election
  • A recount or scrutiny is not granted as of course; the party seeking it must establish a basis in pleadings or evidence
  • Parties are bound by their pleadings; unpleaded matters cannot be inquired into
  • Effect of non-compliance with election petition rules is decided on the peculiar facts of each case

Court orders

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  1. 1.The Petition is dismissed with costs to the 1st Respondent; the costs shall be borne by the Petitioner
  2. 2.Declaration that the 1st Respondent was validly elected as Member of County Assembly for Angata Barrikoi Ward
  3. 3.The Bill of costs shall be filed for assessment by the court in the ordinary manner
  4. 4.The security for costs deposited in court shall form part of the costs payable and shall be held in court for application upon assessment of the Bill
  5. 5.Pursuant to Section 86 of the Election Act, a Certificate of the determination of the petition shall issue contemporaneously to the IEBC and to the Speaker, Narok County Assembly

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 81, 82, 86, 159(2)(d)
  • Elections Act, 2011Sections 2, 58 (repealed), 75, 80(4)(a), 82, 83, 86
  • Election Laws (Amendment) Act No. 34 of 2017
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rules 8, 12, 28, 29
  • Elections (General) Regulations, 2012 (and 2017)Regulations 3(c), 59, 79(7), 83(1)(b)
  • Election Offences Act
  • English Ballot Act, 1872
  • Representation of the People Act (England), 1949

Cases cited (21)

  • Raila Amolo Odinga & Another vs. IEBC & 2 Others, Presidential Election Petition No. 1 of 2017 (Raila 2)
    (2017) eKLR
  • Raila Odinga vs IEBC and 3 others, Election Petition No. 5 of 2013 (Raila I)
  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji and 2 Others
    SC Petition No. 2B of 2014 eKLR
  • Jackton R. Ranguma vs. IEBC & 2 Others
    2018 eKLR
  • Kalembe Ndile and Another vs. Patrick Musimba & Others
    2013
  • Martha Wangari Karua and Another vs. Independent Electoral and Boundaries Commission and 3 Others
    2017 eKLR
  • Jimmy Mkala Kazungu vs. IEBC and 2 Others
    2017 eKLR
  • Josiah Taraiya Kipelian vs. Dr. David Nkedienye and 3 others
    2013 eKLR
  • Rashid Hamid Amana v IEBC and Others
    Malindi Election Petition No. 6 of 2013
  • Hosea Mundi Kiplagat vs. Sammy Komen Mwaita and 2 Others
    2013 eKLR
  • Benjamin Ogunyo Andama vs. Benjamin Andola Andayi and 2 others
    2013 eKLR
  • Mwakileo vs. Mwamzandi and Another
    Election Petition No. 25 of 1979
  • Comrade Adams Aliyu Oshiomole vs. Charles Ehigie Aishia Ubere Maj. Gen. Rtd and Others
    Suit No. SC. 473/2012
  • Wavinya Ndeti vs. IEBC and 4 others
    2013 eKLR
  • Re Kensington North Parliament Election Case
    1960 2 ALL ER
  • Morgan vs. Simpson
    1974 3 ALL ER
  • Fitch vs. Stephenson and Others
    2008 ALL ER 13
  • Francis Mwangangi Kilonzo vs. Independent Electoral and Boundaries Commission and 2 others
    2017 eKLR
  • Nicholas Kiptoo Korir Salat v IEBC & 6 Others
    2013 eKLR
  • Dickson Mwenda Kithinji vs. Gatirau Peter Munya & 2 Others
    Civil Appeal No. 38 of 2013
  • Evans Odhiambo Kidero & 4 Others vs. Ferdinand Ndungu Waititu and 4 Others
    Supreme Court Petition No. 18 of 2014
Jurisdiction invoked
Election petition under the Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petitions Rules, 2017, in respect of the Member of County Assembly election for Angata Barikoi Ward

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, "Joseph Kibiego Koech v Gabriel Mibei & 2 others [2018] KEMC 50 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/50/eng@2018-02-16

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