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MagistrateDismissedElection Petition (Bunyala Central Ward MCA) — Busia Law Courts· [2018] KEMC 64 (KLR)

Lucas Mugaji Osembo v Felix Opondo Omanyi & 3 others [2018] KEMC 64 (KLR)

Magistrates' Court (Busia Law Courts)
2 February 2018
WCW.K. Chepseba
1,812 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an election petition filed by Lucas Mugaji Osembo, a voter, challenging the return of Felix Opondo Omayyi (Omanyi Felix Opondo) as Member of County Assembly for Bunyala Central ward following the 8th August 2017 General Election, in which the 1st Respondent received 1874 votes. The Petitioner alleged violence against a candidate's supporters, voter bribery, and biased, irregular and illegal counting and tallying, and sought preservation of election materials, scrutiny and recount of ballots, verification of KIEMS kits, declarations that the irregularities were substantial and that the election violated the Constitution, fresh elections, and costs. The Respondents denied the allegations. The court framed five issues, including validity of the election, impartiality of the IEBC, and the Petitioner's discharge of the burden of proof. Applying Article 86 of the Constitution, Section 83 of the Elections Act and the Supreme Court's jurisprudence in Raila Odinga, the court held that the burden rested on the Petitioner to a standard above balance of probability but below beyond reasonable doubt. It found the violence and bribery allegations unproved and unreported, held that errors in Form 36B and the Kenya Gazette were not substantial since Form 36A results are final, and concluded the Petitioner failed to discharge the burden of proof. The petition was dismissed with costs to the Respondents, and a certificate under Section 86(1) of the Elections Act was directed to be issued. Judgment was delivered at Busia on 2nd February 2018 by W.K. Chepseba, Chief Magistrate.

Key legal issues

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01

Whether the election was free, fair and credible free of violence, bribery and irregularities

Holding

Petitioner failed to prove violence, bribery, or substantial errors; allegations were mere allegations without credible evidence

Reasoning

No report of the violence was made and no attackers named; the alleged bribery had no witness and was never reported to IEBC or police; discrepancies between Form 36B and the Kenya Gazette were not substantial because Form 36A results form the basis of determining the will of the people.

p. 4
02

Whether the Petitioner discharged the burden of proof

Holding

He did not; the legal burden placed on him was not discharged to the required standard above a balance of probability

Reasoning

Applying the Supreme Court's guidance in Raila Odinga, the petitioner must lay a firm and credible evidential foundation of departure from the law and prove the case as pleaded; the petitioner's evidence was uncorroborated and not credible.

03

Validity of the 1st Respondent's election

Holding

The 1st Respondent was validly elected as MCA for Bunyala Central ward

Reasoning

Having failed on violence, bribery and irregularities, and with Form 36A results being final, there was no basis to invalidate the declared result of 1874 votes.

p. 4

Legal principles established

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  • The burden of establishing electoral non-compliance and malpractice rests on the petitioner, to a standard above balance of probability but below beyond reasonable doubt
  • An election will not be declared void for non-compliance unless it affected the result

Court orders

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  1. 1.The Petition be and is hereby dismissed
  2. 2.The Respondents are awarded costs
  3. 3.A certificate in accordance with Section 86(1) of the Elections Act to be issued

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 38, 81(e), 86; Chapter Seven
  • Elections ActSection 83; Section 86(1)

Cases cited (3)

  • Raila Odinga & others –vs- IEBC & 3 others
    SCK Petition No.5 of 2013 [2013] eKLR
  • Raila Amollo Odinga & Another –vs- IEBC & 2 others
    Presidential Election Petition No.1 of 2012
  • IEBC V Manekial & 5 others
    Civil Appeal No.105 of 2017 [2017] eKLR
Jurisdiction invoked
Election petition under the Elections Act challenging the return of the Member of County Assembly for Bunyala Central 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, "Lucas Mugaji Osembo v Felix Opondo Omanyi & 3 others [2018] KEMC 64 (KLR)", Case Analysis (2018). Election Petition (Bunyala Central Ward MCA) — Busia Law Courts. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/64/eng@2018-02-02

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