Zakayo Nyongesa Harrison v Independent Electoral & Boundaries Commission & 2 others [2018] KEMC 63 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Preliminary objection on non-compliance with Rules 8(1) and 12(2) of the Elections (Parliamentary and County Elections) Petitions Rules 2017
The preliminary objection was dismissed as raised too late in the proceedings
The court accepted that the petition arguably failed to plead declared results and date of declaration, but held the objection should have been raised at pretrial; Rule 15(2) bars interlocutory applications after the pretrial conference. The court also noted the parties had closed their case before the objection was raised.
Power of IEBC/returning officer to degazette the petitioner by corrigendum
The degazettement was irregular, unlawful and a nullity; IEBC acted ultra vires and as a judge in its own cause
After gazettement, disputes vest exclusively in an election court under Article 88(4)(e); the returning officer, having declared results and issued the certificate, was functus officio. Natural justice required the petitioner be heard; no provision authorises degazettement by corrigendum.
Voter importation, bribery and undue influence
Not proved; the allegations, being criminal electoral offences, required proof beyond reasonable doubt which was not met
No particulars or proof of the self-help group; photographs taken at lunch time proved nothing; witnesses never reported the offences to police or IEBC despite knowing the channels. Mens rea for bribery was not established.
Conduct of the election - free, fair and transparent
The irregularities proved (changed counting sequence, unsigned forms, erasures) were non-consequential and did not affect the result
Applying Morgan v Simpson and section 83 of the Elections Act, the court upheld the election where non-compliance did not affect the result. Agents who refused to sign without recording reasons bore the consequences of their inaction.
Presence and role of the Assistant Chief at the polling station
The petitioner did not prove that the Assistant Chief's presence was mischievous or affected the results
The Regulations vest law and order in the presiding officer and police officers; the Assistant Chief's entry was unlawful but the petitioner failed to prove influence over officials, voters or candidates, or any detriment to the result.
Effect of scrutiny and recount
The scrutiny and recount cured any irregularities; the 3rd respondent remained the winner
Following Hassan Abdalla Albeity v Abu Chiaba, recount cures tallying errors. Minor vote changes had no significant effect; the 3rd respondent still ranked first with 1,410 votes against the petitioner's 1,367.
Legal principles established
#- Gazettement creates only a rebuttable presumption of election, and an election court's declaration can supersede certificates and corrigenda issued by IEBC
- A returning officer becomes functus officio upon declaring results and issuing a certificate, and has no unilateral power to degazette or rectify results by corrigendum
- The standard of proof for electoral offences such as bribery, treating and undue influence is beyond reasonable doubt
- Failure by a party's agents to protest, record remarks or exercise rights of retallying at the polling station cannot be blamed on anyone else
Court orders
#- 1.The 3rd respondent's preliminary objection dated 22nd November 2017 is dismissed
- 2.A declaration that the 3rd respondent was validly elected as the Member of County Assembly, Busibwabo Ward of Matayos Constituency, Busia County
- 3.A finding that the gazettement of the petitioner was factually erroneous and the degazettement/gazettement of the 3rd respondent by corrigendum was legally erroneous as IEBC had become functus officio, the R.O acting ultra vires the law
- 4.The petitioner's costs and those of the 3rd respondent shall be paid by the 1st Respondent (IEBC), capped at Kshs. 300,000/= in respect of each
- 5.The 2 rejected ballot papers to be redistributed to George Makhayaka Busera as the voters' intention was clearly in his favour
- Jurisdiction invoked
- Original jurisdiction as an election court under the Constitution of Kenya 2010, the Elections Act 2011 and the Elections (Parliamentary and County Elections) Petitions Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zakayo Nyongesa Harrison v Independent Electoral & Boundaries Commission & 2 others [2018] KEMC 63 (KLR)", Case Analysis (2018). Election Petition No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/63/eng@2018-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.