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MagistrateAllowedElection Petition No. 1 of 2017· [2018] KEMC 57 (KLR)

Musee Mati v Baridi Felix Mbevo & 2 others [2018] KEMC 57 (KLR)

Chief Magistrates Court at Kitui
31 January 2018
JMJ. Munguti
4,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitui court removed an MCA and declared the petitioner winner after proving tallying errors changed the election result, and IEBC must pay heavy costs.

What this practically means

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Executive summary

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The petitioner, a candidate for the Mutonguni Ward MCA seat in Kitui West Constituency in the 8 August 2017 general election, petitioned against the declaration of the 1st respondent as the winner. He alleged that the 2nd respondent, the Returning Officer, manipulated the tallying and awarded him fewer votes than he actually garnered. After he complained, a re-tallying was conducted on 11 August 2017 showing he had 3,330 votes against the 1st respondent's 3,319, yet no certificate was recalled. The Returning Officer signed a letter recalling the certificate but claimed he locked it away as he considered himself functus officio. The 1st respondent denied irregularities and argued the re-tallying was tainted; the 2nd and 3rd respondents (IEBC) maintained the election was free, fair and credible and that they had no power to nullify results after declaring and issuing a certificate. The court framed six issues, including irregularities, burden of proof, functus officio and costs. It held that the petitioner proved irregularities affecting the outcome; that the burden shifted to IEBC once he produced IEBC results, which they failed to rebut or file; and, following Steven Kariuki v George Wanjohi, that the respondents were not functus officio and a certificate may be cancelled after issuance and gazettement. The court declared the 1st respondent not duly elected, declared the petitioner duly elected, cancelled his certificate and gazette notice, and awarded the petitioner Kshs. 1,000,000 and the 1st respondent Kshs. 500,000 in costs against the 2nd and 3rd respondents jointly and severally.

Key legal issues

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01

Whether irregularities affecting the outcome were proved

Holding

The petitioner proved irregularities in the tallying that affected the outcome; the re-tallying showed he won by 11 votes

Reasoning

The petitioner produced Form 36B and a letter dated 11.8.2017 authored and signed by the 2nd respondent recalling the certificate. The 2nd respondent's denial that he locked the signed letter in a cabinet was found untruthful as he never complained or investigated how it leaked, nor took any disciplinary action against his deputy. The court concluded he willingly signed and released the letter and that the petitioner had won by 3,330 votes to 3,319.

p. 7
02

Whether IEBC and the Returning Officer became functus officio

Holding

They did not; a certificate may be recalled or cancelled after issuance and gazettement on justifiable grounds

Reasoning

Relying on Steven Kariuki v George Wanjohi, where IEBC cancelled a certificate after re-tallying showed the wrong winner, the court held that residual power vests in IEBC under Articles 1, 2, 38, 81 and 82 of the Constitution, and the respondents could not claim functus officio here when they had recalled a certificate in similar circumstances elsewhere.

p. 8
03

Burden and standard of proof

Holding

The burden lies on the petitioner but shifted to IEBC once the petitioner produced IEBC results; the petitioner discharged it

Reasoning

Citing Raila Odinga v IEBC and Abdinasir Yasin Ahmed v Ahmed Ibrahim Abass, the court accepted the burden lies with the petitioner. The petitioner produced the re-tallying results and Form 36B bearing IEBC stamps. The 2nd and 3rd respondents abandoned their attempt to file the ward results and ignored a court order to file them; no affidavit rebutted the petitioner's figures, so the burden was discharged.

p. 8
04

Whether the court properly ordered production of Form 36As

Holding

Yes; IEBC was obliged to file the results because it had pleaded the re-tallying was unofficial

Reasoning

The petitioner's evidence, supported by the 1st respondent's own witness, showed the 2nd respondent himself initiated the re-tallying and signed the letter of 11.8.2017 recalling the certificate. Since IEBC's own response denied the official nature of the re-tallying, it was under an obligation to file the results and Form 36As, and the court's order to that effect was proper.

p. 8

Legal principles established

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  • A returning officer/IEBC is not functus officio after issuing a certificate; a certificate can be cancelled even after issuance and gazettement if there is justifiable reason
  • Where the petitioner produces results from IEBC (whether after official request or from the public portal), the burden of proof shifts to IEBC to show otherwise
  • Costs in election petitions follow the event under Section 84 of the Elections Act 2011

Court orders

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  1. 1.A declaration that the 1st respondent Baridi Felix Mbevo was not duly and validly declared the winner of Mutonguni Ward, Kitui West Constituency
  2. 2.A declaration that the petitioner Musee Mati was the duly and validly elected winner of the election of Mutonguni Ward, Kitui West Constituency
  3. 3.The certificate of elected member of County Assembly for Mutonguni Ward No. 150700346-1 issued to the 1st respondent declared null and void/cancelled forthwith
  4. 4.That the petitioner Musee Mati be issued with a certificate of elected member of County Assembly for Mutonguni Ward in Kitui West Constituency
  5. 5.The Gazette Notice declaring the 1st respondent validly elected declared null and void to the extent of deleting the name of the 1st respondent only
  6. 6.A certificate of determination of the petition to issue and be served upon the Speaker Kitui County Assembly and IEBC under Section 86 of the Elections Act 2011
  7. 7.Costs of Kshs. 125,000 for each of three applications and the preliminary objection plus Kshs. 500,000 for the petition (total Kshs. 1,000,000) awarded to the petitioner, payable by the 2nd and 3rd respondents jointly and severally
  8. 8.The 1st respondent's costs assessed at Kshs. 500,000, payable by the 2nd and 3rd respondents jointly and severally
  9. 9.Copies of proceedings and judgment to be supplied to parties on payment of requisite charges
  10. 10.Deposited security to be released to the payee/petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 38, 81(1)(e), 82
  • Elections Act, 2011Sections 84, 86
  • Election Regulations, 2012Regulation 80
  • Election Technology Regulations, 2017Regulation 15
  • Elections RegulationsRegulations 87(1)(b) and 2(b)
  • Rule 36 1(a) (cost capping rules)Rule 36(1)(a)

Cases cited (3)

  • Raila Odinga and 5 others vs. IEBC and 3 others
    Election Petition No. 5 of 2013
  • Abdinasir Yasin Ahmed & 2 others vs Ahmed Ibrahim Abass
    Petition No. 9 of 2013
  • Steven Kariuki –vs. George Wanjohi and 2 others
    Election Petition No. 2 of 2013
Jurisdiction invoked
Election petition under the Elections Act 2011 (petition against validity of election of Member of County Assembly, Mutonguni 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, "Musee Mati v Baridi Felix Mbevo & 2 others [2018] KEMC 57 (KLR)", Case Analysis (2018). Election Petition No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/57/eng@2018-01-31

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