Olonana D.Ololtulet v Munka Nanyokie Julius Ole & 2 others [2018] KEMC 53 (KLR)
The bottom line
#The Kilgoris court upheld the MCA election, ruling that clerical errors and KIEMS failures did not affect the result, and the petitioner lost with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to validate voters using the KIEMS system at Mutenkuar Polling Station vitiated the election
It did not; the law permits a complementary mechanism for voter identification, there was no proof of prejudice to the Petitioner given the secret ballot, and the matter was settled amicably on the ground
The respondents admitted the KIEMS validation failure but the court found the law anticipates technological limits by requiring complementary identification (ID card, alphanumeric, biometric). The manual register was said to have been crossed out. The Petitioner did not establish how the figure of 106 unvalidated voters was derived, called none of his agents, and could not show prejudice since voting was by secret ballot. The court regarded it as a teething problem of little effect.
The effect of the mis-posting errors in Form 36B for Oloshaiki Primary School Polling Station
The errors were mere clerical errors, minute and inconsequential; Form 36A is the primary document and even adding the 92 votes to the Petitioner would not change the outcome
Form 36A recorded the Petitioner's 94 votes while Form 36B wrongly recorded 2, and the total was mis-posted as 401 instead of 201. Applying the principle that polling station forms are primary documents and the polling station is the true locus of the voter's will, the court accepted the Returning Officer's explanation of a wrong entry cascading. There was no proof of criminal manipulation, impartiality or improper influence, only administrative failure.
Whether the arrest of the Presiding Officer at Enenkeshui for altering Presidential results tainted the MCA election
It did not; the six elections were distinct, the alleged offence affected only the Presidential election, no evidence of the charge sheet was tabled, and election offences require proof beyond reasonable doubt
Following the Chikati case, the court distinguished the commission of an offence from its effect on electoral integrity. The general election had six distinct ballots officiated by the same officers; a blanket condemnation of all elections was impermissible. No link was established between any official and an offence in the MCA election, and the alleged offence was too remote to affect that election.
Whether allegations over Osupuko polling station, raised at hearing but not pleaded, could be determined
No; the court declined to make any finding on the unpleaded Osupuko allegations
The court applied the rule that parties are bound by pleadings, citing the Sirat decision declining to rule on matters not pleaded, and the Waititu authority that unpleaded station complaints should be disregarded. The purpose is to guard against fishing expeditions and elements of surprise. Since Osupuko was never pleaded, the court disregarded the issue entirely.
The effect of the amendment of section 83 of the Elections Act by Act No. 34 of 2017
The amendment substituting 'and' for 'or' does not apply retrospectively to this petition, which is governed by the pre-amendment provision
The court noted section 83 has been amended to introduce 'and' in place of 'or', changing its meaning from disjunctive to conjunctive. Relying on Raila 2017, the pre-amendment section was applied disjunctively. The court held the amendment does not apply retrospectively to the present petition, and assessed the election on both qualitative and quantitative aspects under the unamended provision.
Overall validity of the election and the Petitioner's burden of proof
The election was substantially conducted in accordance with the Constitution and electoral law; the Petitioner proved neither limb of section 83 and the petition failed
The court found a paper trail reflecting the voters' will; the errors identified were not of such magnitude as to vitiate the election, applying the Munya authority. The Petitioner abandoned scrutiny and recount, leaving his case to be proved on pleadings and tendered evidence. He failed to prove either substantial violation of electoral principles or irregularities affecting the result, so the 1st Respondent's election was upheld.
Legal principles established
#- The two limbs of section 83 of the Elections Act (pre-amendment) are applied disjunctively; proving either that the election substantially violated constitutional and legal principles or that irregularities affected the result suffices to void an election
- Forms 36A (polling station forms) are the primary documents where there is a discrepancy with Form 36B
- The commission of an electoral offence is one thing; its effect on the integrity of the election is another; election offences must be proved beyond reasonable doubt
- Parties are bound by their pleadings; unpleaded polling station complaints must be disregarded
- In election petitions all things are presumed to have been legitimately done until the contrary is proved, and the petitioner must prove the error or foul affected the outcome or integrity of the election
Court orders
#- 1.The Petition is dismissed with costs to the 1st Respondent; the costs shall be borne by the Petitioner
- 2.Declaration that in the election of 8th August 2017 the 1st Respondent was validly elected as Member of County Assembly for Kilgoris Central Ward
- 3.The security of costs deposited in court shall be held in court pending filing and assessment of the Bill of Costs, and shall subsequently be applied/disbursed as part of costs payable
- 4.Pursuant to section 86 of the Elections Act, a Certificate of the determination of the petition and Notice shall issue to the IEBC and to the Speaker, Narok County Assembly
- Jurisdiction invoked
- Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2017 - original jurisdiction over a Member of County Assembly election petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olonana D.Ololtulet v Munka Nanyokie Julius Ole & 2 others [2018] KEMC 53 (KLR)", Case Analysis (2018). Election Petition No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/53/eng@2018-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.