Wilson Pkerer Chekeruk v Loporna Pyatich Lonyangatodo & 2 others [2018] KEMC 55 (KLR)
The bottom line
#A Kenyan court dismissed a challenge to a West Pokot MCA election because the losing candidate failed to prove irregularities actually changed the result.
What this practically means
#Executive summary
#Key legal issues
#Burden and standard of proof in election petitions
The petitioner bears the burden of proof to a standard above balance of probability but below beyond reasonable doubt
The court adopted the Supreme Court's holding in Raila Odinga (2013) that allegations of electoral irregularity must be established by firm and credible evidence by the petitioner, and that the threshold of proof is above balance of probability though not beyond reasonable doubt. The petitioner therefore had to prove each pleaded allegation to that standard.
Pleadings delimit the scope of the petition
The court confines itself to the grounds pleaded in the petition; evidence on unpleaded matters is inadmissible
Relying on the Supreme Court's approval of the Indian decision in Arikala Narasa Reddy and Justice Kimaru's decision in Mahamud Muhumed Sirat, the court held that parties cannot travel beyond pleadings and a court should not decide issues not arising from them. Unpleaded matters raised in submissions were therefore excluded to avoid disadvantaging the respondents.
Whether irregularities alleged (strangers in polling stations, locked-out agents, late opening, denial of voters, suspicious equal votes) were proved and material
None of the allegations was proved to the required standard; the election was conducted substantially in accordance with the law
Polling station diaries and Form 36A contradicted the petitioner's witnesses: the alleged strangers were duly appointed agents; the petitioner's own agent testified he was admitted, witnessed assisted voters and saw nothing abnormal; voting hours were extended pro rata; and the petitioner actually won the disputed Amolem station. The failure of an agent to sign Form 36A cannot, per Regulation 79(6), invalidate results.
Test for nullification of an election
An election is only vitiated if conducted substantially not in accordance with the law, or if proved irregularities affected the result
The court applied section 83 of the Elections Act, Lord Denning's principles in Morgan v Simpson, the Munya guidelines from the Supreme Court and the Court of Appeal's factors in King'ara, concluding that procedural or administrative irregularities occasioned by human imperfection do not by themselves vitiate an election unless they affect the result.
Legal principles established
#- The petitioner in an election petition bears the burden of proving the alleged irregularities to a standard above balance of probability but below beyond reasonable doubt
- An election will not be invalidated for non-compliance that did not affect the result and was not substantial
- A petitioner cannot make a case outside the pleadings; evidence must support the pleaded case
- Refusal or failure of an agent to sign a declaration form does not by itself invalidate announced results
Court orders
#- 1.The Petition be and is hereby dismissed
- 2.The Election of the 1st Respondent, LOPORNA PYATICH LONYANGATODO is hereby confirmed as valid
- 3.The Petitioner shall bear the costs of the petition, capped at Kshs. 600,000 for the 1st Respondent and Kshs. 600,000 for the 2nd and 3rd Respondents, pursuant to Rule 30 of the Elections (Parliamentary and County Elections) Petition Rules, 2017
- 4.The security deposit under Rule 13 shall be used as costs on pro rata basis pursuant to Rule 34 of the Elections (Parliamentary and County Assembly Elections) Petition Rules, 2017
- 5.A certificate in accordance with section 86(1) of the Elections Act shall issue
- Jurisdiction invoked
- Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2017 (election of a Member of County Assembly)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Pkerer Chekeruk v Loporna Pyatich Lonyangatodo & 2 others [2018] KEMC 55 (KLR)", Case Analysis (2018). Election Petition dated 5th September 2017 (Masool Ward MCA Election). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/55/eng@2018-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.