John Osumba Olum v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 61 (KLR)
The bottom line
#A Kenyan court dismissed an election petition largely because the petitioner never corrected wrong ward names in his pleadings, proving errors in petitions can be fatal.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was defective in substance
The petition was fatally defective because the prayers sought a fresh election in 'South West Kisumu' ward instead of Kolwa East Ward, and the errors were never amended despite the court's earlier ruling treating them as amendable typographical errors
The court had, at the preliminary objection stage, allowed the petition to proceed on the basis that the wrong ward reference was a typographical error capable of amendment. The petitioner never amended. Ordering a fresh election in the wrong ward would be impossible and contrary to natural justice, while ordering one in Kolwa East would amount to the court rewriting the prayers. The submissions repeated the same errors, including references to the Governor's election. The defect went to substance and rendered the petition fatally defective.
Whether the election was free, fair, credible and conducted in accordance with the Constitution and Elections Act
The election was conducted substantially in accordance with the law; alleged irregularities were human imperfections that did not affect the result
Scrutiny and recount of eight polling stations showed Forms 36A were properly populated and results captured in Form 36B. Allegations of pre-election vilification, collusion in hiring officials, bribery, unsigned forms, missing signatures and server interference all failed for lack of evidence meeting the elevated standard. Only the absence of Forms 32 for assisted voters attracted censure against IEBC, but this did not alter the outcome. Failure to electronically transmit results was not fatal since transmission was not exclusively electronic for non-presidential elections.
Whether allegations of bribery were proved
Bribery allegations at Rweya polling station were not substantiated and were dismissed
PW6 admitted under cross-examination she could not substantiate the bribery claims, took no photographs and made no police report. Election offences are quasi-criminal and must be proved to a higher standard; evidence of bribery must be reasonably precise and quantifiable to affect results.
Whether failure of IEBC to produce Forms 32 for assisted voters vitiated the election
IEBC and its officials were culpable for failure to comply with Regulation 72 on assisted voters' Forms 32, but this did not invalidate the election
The polling day diary attested that some voters were assisted and some could not be identified biometrically, yet the 2nd Respondent could not produce a single Form 32, describing them as being 'somewhere in the warehouse'. The court found this response reckless and held IEBC liable for non-compliance, but the petitioner produced no evidence that assisted voters were denied free choice, and the omission did not affect the result.
Legal principles established
#- The threshold of proof in election petitions is above balance of probability though not as high as beyond reasonable doubt
- An election conducted substantially in accordance with constitutional principles is not invalidated merely by procedural or administrative irregularities unless they affected the result
- Failure to transmit results electronically is not fatal; electronic transmission was not the exclusive mode
- Burden of proof of election offences such as bribery is higher as they are quasi-criminal
Court orders
#- 1.The petitioner's petition dated 6/9/2017 and filed in court on 6/9/2017 is devoid of merit and is hereby dismissed
- 2.The court determines and confirms that Owiti Stephen Ouma was at the General Elections of 8th August 2017 validly elected as Member of the County Assembly of Kolwa East Ward; the certificate as to validity of the election, pursuant to section 86 of the Elections Act, to issue to IEBC and the Speaker of the County Assembly of Kisumu
- 3.The petitioner shall pay costs to the 1st, 2nd and 3rd Respondents; the Kshs.100,000.00 deposit for security shall be paid out to all the Respondents on pro rata basis
- Jurisdiction invoked
- Elections Act and Election Petition Rules; gazettement by the Chief Justice to hear and determine the election petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Osumba Olum v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 61 (KLR)", Case Analysis (2018). Election Petition No. 5 of 2017 (originally filed at Kisumu Chief Magistrate's Court; heard at Winam Law Courts). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/61/eng@2018-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.