Shiyenji Silas Muyeyia & another v Benson Manuni Mulinya & 2 others [2018] KEMC 52 (KLR)
The bottom line
#The Kakamega court upheld the Idakho East Ward MCA election, ruling that petitioners failed to prove irregularities that actually changed the result.
What this practically means
#Executive summary
#Key legal issues
#Employment of the 1st Respondent's relatives as election officials at Kasavayi Primary School Polling Station
Not proved; consanguinity required corroboration, the 1st Respondent had no role in recruitment, the names were publicly displayed without objection, and the officials conducted themselves properly
The standard of proof being higher than balance of probabilities, mere word of witnesses was insufficient to prove filial relationships. IEBC publicly displayed the names seven days before the election and no complaint was lodged, complying with regulations 5 and 6 of the Elections (General) Regulations, 2012. The agent himself admitted the officials conducted themselves well, and per Mochorwa, relationship alone without influence on the outcome is insufficient.
Barring of candidates' agents from polling stations
Not established; ODM was represented at Ivole by Wycliffe Masheti whose presence was recorded in the Polling Station Diary, and the 2nd Petitioner's agents were either outside agents, rightly ejected for want of accreditation, or absent only at moments no detriment was proved
The court inferred ODM could alter its agent list and treated Masheti's recorded presence at sealing, closing and counting as protecting the 1st Petitioner's interests. The 2nd Petitioner's Musasa agent admitted lacking proper accreditation; the Masiyenze agent's absence at box-opening was not shown to be detrimental; the Lusui 'agent' was an outside agent not entitled to admission.
Failure to provide Forms 36A to agents
A failure to supply copies of the declaration of results is an irregularity but, following Bwana Mohamed Bwana, not one that by itself invalidates an election
Regulation 79(2A) makes it mandatory for presiding officers to provide copies of the declaration of results, but Form 36A has limited counterparts, and the law would absurdly be broken wherever agents exceed the number of forms. The court endorsed the Bwana Mohamed Bwana reasoning that such failure is an irregularity that does not significantly affect the outcome.
Alleged election offences (bribery, violence, arson)
Not proved; criminal allegations required proof beyond reasonable doubt and no reports were made to police or IEBC
Allegations of arson, threats and voter bribery were made against named persons, yet no report was made to the police, IEBC or any other entity for investigation. Given the higher, criminal standard applicable to such quasi-criminal allegations, mere assertion without more fell far short of discharging the burden.
Stray presidential vote at Shitoli Primary School Polling Station
One stray vote, arising naturally from six concurrent ballot papers and secrecy of the ballot, is not an irregularity and cannot affect the result
Voting occurred concurrently for six positions by secret ballot, making accidental insertion of a ballot in the wrong box a realistic possibility. Only widespread occurrences could suggest systemic failure; a single disputed vote assigned to a non-candidate could not be treated as the tip of an iceberg of worse irregularities.
Delay in counting at Shiveye Primary School Polling Station
The timeline, though long, was reasonable; no evidence showed activities impinging on the integrity of the count
The law prescribes no timeline for counting. The petitioner merely asserted suspicion about the duration without showing any activity that interrupted or compromised the integrity of the counting process, and it was unclear whether the completion time related to all six elections or only the MCA race.
Legal principles established
#- The legal and evidential burden in an election petition rests on the petitioner; the standard is higher than balance of probabilities but lower than beyond reasonable doubt, and beyond reasonable doubt for allegations of a criminal or quasi-criminal nature
- A mere filial relationship between a candidate and election officials is not sufficient; it must be shown the relationship influenced the outcome of the election
- A single stray vote, unless widespread, cannot be described as a tip of the iceberg of worse irregularities and cannot affect the overall result
Court orders
#- 1.The two petitions, Kakamega CMC Petition No 3 of 2017 and Kakamega CMC Petition No 5 of 2017, dismissed
- 2.A declaration that the 1st Respondent was validly elected as the MCA for Idakho East Ward, Ikolomani Constituency, Kakamega County in the election held on 8/8/2017
- 3.A certificate under section 86(1) of the Elections Act issued to the Independent Electoral and Boundaries Commission with notification to the Speaker, Kakamega County Assembly
- 4.The 1st and 2nd Petitioners to bear the costs of the respective petitions, with instruction fees capped at Kshs. 150,000/= payable to the 2nd and 3rd Respondents jointly and to the 1st Respondent, from each Petitioner, other costs to be assessed in the usual manner
- Jurisdiction invoked
- Election petition under the Elections Act and Elections (Parliamentary and County Elections) Petitions Rules, 2017 challenging the election of the Member of County Assembly for Idakho East Ward held on 8/8/2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shiyenji Silas Muyeyia & another v Benson Manuni Mulinya & 2 others [2018] KEMC 52 (KLR)", Case Analysis (2018). Kakamega CMC Petition No 3 of 2017 (consolidated with Kakamega CMC Petition No 5 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/52/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.