Eliphas Nyaga Mbae v Wilson Nyaga Derebia & 2 others [2018] KEMC 66 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the elections held on 8/8/2017 were conducted in accordance with the Constitution, the Election Act and the Election Rules
- 2.Whether there was undue or improper conduct, corruption or irregularities in the conduct of the elections
- 3.Whether there was substantive non-compliance with the Constitution, Election Act and applicable rules and, if so, what was the effect of the non-compliance on the results
- 4.Whether the Petitioner is entitled to the prayers in the petition
- 5.Who should bear the costs of the suit
Key legal issues
#Voter bribery and undue influence
Allegations not proved; petitioner's own witnesses admitted not witnessing bribery, no reports were made to police or IEBC, and the allegations were speculation and guesswork
PW1 and other witnesses conceded they never witnessed the 1st Respondent hand money to voters. Key alleged accomplices (Kagware, Wanja) did not testify or their evidence was rebutted. No complaints were made at the time to the police, DCIO or presiding officers. The court required clear and unequivocal proof of the elements under sections 9 and 10 of the Election Offences Act, which was absent.
Agent denied entry at Nkundi and Kanoro polling stations
Allegation disproved by polling station diaries and forms 36A; anyway absence of agents does not invalidate proceedings under Regulation 62(3)
PW7 signed the polling day diary at 5.45am and signed form 36A. The Kanoro agent Kelvin Mwongera was present and signed. At Nkundi the Petitioner won with 309 votes against 110, so no effect on results. Regulation 62(3) provides that the absence of agents shall not invalidate polling station proceedings.
Transposition error in form 36B for Kajiunduthi (hanging votes of 362)
Error was an innocent human transposition error from 36A to 36B, curable under section 83, and did not affect the Petitioner's or 1st Respondent's returns
The Returning Officer explained the error in manually transferring data. Form 36A is the primary document for announcing results and it correctly showed 4 votes for Alexander Mwai. The erroneous addition did not affect the totals for the leading candidates. The Petitioner's pleaded case compared presidential figures, which was not proved at hearing.
Party colours - wearing of green and red 'Muisraeli' shirt
Not proved that the shirt bore a party name or symbol or that it affected the results
The shirt bore no party name, symbol or candidate image; green is not exclusive to Narc Kenya. The presiding officer noted nothing in the diary. At the 1st Respondent's home polling station he scored 386 votes to the Petitioner's 127, showing no adverse effect. No sample tied the shirt to campaign material.
Allowing agents of the 1st Respondent to act as voting assistants
Rejected; illiterate voters were assisted by the presiding officer with agents merely witnessing, and no number of affected voters was established
Regulation 72 permits assisted voters to be helped by a person of their own free choice who is not a candidate or agent. Evidence showed the presiding officer assisted voters in the presence of agents; witnessing is not assisting. No proper records were produced to validate claims that the assistance affected the outcome.
Whether the election was conducted in accordance with the Constitution and election laws
Yes; the election was free, fair and verifiable and complied with Articles 1, 38 and 86 of the Constitution
Applying Morgan v Simpson and the materiality test, the breaches complained of were minor or unproven and did not substantially affect the results. The court compared all forms 36A and 36B, found a verifiable paper trail, and concluded the declared totals reflected the voters' will.
Legal principles established
#- The petitioner in an election petition bears the legal burden of proving non-compliance and that it affected the validity of the election
- The standard of proof for irregularities is higher than balance of probabilities but lower than beyond reasonable doubt; alleged election offences must be strictly proved
- Innocent human or transposition errors curable under section 83 of the Elections Act do not vitiate an election unless they materially affect the outcome
- The absence of an agent does not invalidate polling station proceedings
- Bribery allegations require clear and unequivocal proof; suspicion is insufficient
Court orders
#- 1.The Petition is hereby dismissed with costs
- 2.The 1st Respondent is declared as the validly elected Member of County Assembly of Muthambi Ward
- 3.The certificate of declaration shall issue to the IEBC in accordance with Section 86 of the Elections Act, 2011, confirming that the First Respondent, Wilson Nyaga Derebia, was validly elected as Member of County Assembly for Muthambi Ward
- 4.Reasonable costs to be awarded and paid by the Petitioner subject to taxation by the taxing master
- 5.Right of Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Elections Act, 2011 (No. 24 of 2011) - first-instance election petition for the Member of County Assembly seat for Muthambi Ward
Relief refused
#Declaration that improprieties, irregularities and non-compliance were substantial and affected the results
Petitioner failed to discharge the burden of proof; irregularities did not materially affect the results
Declaration that the 1st Respondent was not validly elected and nullification of the results
The election was free, fair and verifiable; the will of the voters was reflected in the forms 36A
Order for scrutiny and recount of votes
Abandoned by the Petitioner and never pursued
Referral of alleged election offences to the Director of Public Prosecutions and barring of the 1st Respondent from future elections
Allegations of voter bribery and undue influence were not proved to the requisite standard
Fresh elections for Muthambi Ward
No basis for nullification; errors were curable human errors under section 83 of the Elections Act
Costs
Petition dismissed with costs; reasonable costs to be paid by the Petitioner subject to taxation by the taxing master.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
i. The Petition is hereby dismissed with costs. ii. The 1st Respondent is declared as the validly elected Member of County Assembly of Muthambi Ward as the will of the people was expressed on the 8th August 2018.
The court finds that the validity, integrity, credibility and results of the election was not compromised specifically in Kajiambaki, Maatha Ntatua, Iriga Tea Buying centre and Marima polling stations.
The petitioner did not discharge the burden of proof as required under the law. There is no doubt in my mind that the First Respondent won the election and was validly declared as the Member of the County Assembly Muthambi Ward.
The Petitioner is required to prove by clear and unequivocal evidence allegations of bribery
The court has to consider whether the errors and irregularities sufficiently challenge the entire tallying process and lead to a legal conclusion that the tallying was not transparent, free and fair.
Issues in the judgment
#Internal inconsistency in the date of the election expressed in the final orders: the petition concerns the election of 8th August 2017, but the orders state 'the will of the people was expressed on the 8th August 2018'
Judge name spelling inconsistently rendered between coram ('HON. M.SUDI') and body text ('M.Sudi'/'M.SUDI') and internal reference to 'M.SUDI'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliphas Nyaga Mbae v Wilson Nyaga Derebia & 2 others [2018] KEMC 66 (KLR)", Case Analysis (2018). Election Petition (Chuka). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/66/eng@2018-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.