Hassan Jimal Abdi v Ibrahim Noor Hussein & 2 others [2018] KEMC 62 (KLR)
The bottom line
#A Wajir court nullified the Batalu Ward election because officials broke sealed ballot boxes and altered result forms, ordering a fresh vote.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was fatally defective for not stating all candidates' results (rule 8 of the Election Petition Rules)
The petition was not fatally defective; the results and declaration were sufficiently pleaded and the objection, raised only at submissions stage, was untenable
The court held that rule 8(1)(c) requires the petitioner simply to state the result and how it was declared; it does not prescribe a format. The petition identified the winner and the declaration, respondents understood and answered it, and raising the issue at the close of trial merely clouded the issues.
Whether voting continued beyond permitted hours at Batalu polling station
Not proved; Regulation 66 permits voters on the queue at 5:00pm to vote, and mere assertions without concrete proof cannot suffice
The only evidence was Abdisarad Hajj Ali's uncorroborated testimony. The polling station diary showing 73 voters on the queue at 5:00pm did not itself prove voting beyond permitted time, since Regulation 66 contemplates such voters voting.
Whether ballot stuffing occurred at Batalu and Basineja polling stations
Not proved to the required standard, though the discrepancy between KIEMS figures (429) and votes cast (464) was suspicious
The key witness had not been close enough to confirm the alleged identification numbers, and the KIEMS report itself warns that results might differ due to lack of validation. The court declined to convert suspicion into a finding of fact.
Whether the sealed ballot boxes were irregularly opened
Proved; opening sealed ballot boxes without a court order is ultra vires and unwarranted, following Ahmed Abdullahi Mohamed v Mohamed Abdi Mohamed
The reopening was admitted, justified as retrieval of erroneously sealed Form 36As. Relying on a coordinate decision addressing the very same boxes, the court held that no consensus or internal manual can authorise breaking sealed ballot boxes absent a court order.
Whether Form 36As for Batalu and Basineja were altered in favour of the 1st respondent
Proved; the alterations were deliberate, made in favour of the 1st respondent, were not countersigned by agents, and could not be excused as human error
The alterations (502 over 487 at Batalu; 464 over 439 at Basineja) were reconciled with recount findings (487 votes cast) and KIEMS figures (429 identified voters), producing irreconcilable figures. The presiding officer's 'sleeping clerk' explanation failed under cross-examination, and no countersignatures appeared against the alterations.
Whether the irregularities affected the integrity and outcome of the election
Yes; the impugned stations supplied about three-quarters of the 1st respondent's winning margin, so the election was neither verifiable nor free and fair
The ward had only 12 polling stations; the 1st respondent drew nearly all his votes from three stations, two of which were impugned. The alterations favoured him and occurred in his strongholds, so the election failed the constitutional standards of a simple, accurate, verifiable, secure, accountable and transparent election.
Legal principles established
#- Once ballot boxes have been sealed at a polling station they cannot be reopened without an order of the court, and opening them without such authority interferes with the integrity of the results
- Elections are not a mathematical exercise; alterations on statutory forms that cannot be innocently explained and that favour the declared winner undermine the integrity of the election even if they do not change the arithmetic
- The standard of proof in election petitions is above a balance of probability but below beyond reasonable doubt
Court orders
#- 1.That the election of the 1st respondent as Member of County Assembly for Batalu ward was not free and fair
- 2.That the election of the 1st Respondent as the Member of County Assembly for Batalu Ward is hereby declared null and void
- 3.That the 3rd Respondent is hereby ordered to hold fresh elections for Member of County Assembly for Batalu Ward pursuant to the Constitution and the electoral laws
- 4.That the petitioner and the 1st respondent shall have the costs, to be borne by the 3rd respondent
- 5.That costs payable is capped at Kshs.300,000/= for the petitioner and Kshs.100,000/- for the 1st respondent
- 6.That pursuant to section 86 of the Elections Act, a certificate of determination of this petition to issue to the IEBC
- Jurisdiction invoked
- Elections Act and Elections (Parliamentary & County Elections) Petitions Rules, 2017 (election of Member of County Assembly)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan Jimal Abdi v Ibrahim Noor Hussein & 2 others [2018] KEMC 62 (KLR)", Case Analysis (2018). Election Petition (Batalu Ward, Wajir North Constituency). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/62/eng@2018-01-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.