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MagistrateDismissedElection Petition No 9 of 2017· [2018] KEMC 67 (KLR)

Ibrahim Aruna Aramadhani v Evans Bwire Barasa & another [2018] KEMC 67 (KLR)

Chief Magistrates Court at Busia
31 January 2018
MNMartha A. Nanzushi
2,942 words in judgment
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The bottom line

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A Kenyan court dismissed an election challenge because the candidate who lost could not prove the claimed irregularities actually changed the result.

What this practically means

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Executive summary

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This is a first-instance election petition in the Chief Magistrates Court at Busia challenging the election of Evans Bwire Barasa as Member of County Assembly for Agenga Nanguba Ward, Funyula Constituency, in the 8 August 2017 general election. The petitioner, a registered voter, alleged violence and intimidation, voter bribery and treating, negligence by the IEBC in denying agents access to assist voters and to Forms 36A, and malicious propaganda against a rival candidate, and sought scrutiny and recount, nullification and a fresh poll. The 1st respondent maintained he was validly elected in a free, fair and credible process; the 2nd respondent (IEBC) denied abdicating its neutral role and contended the petition was couched in generalities. The court, per Hon Martha A. Nanzushi, Senior Resident Magistrate, framed four issues. Applying the presumption of regularity and the Raila Odinga 2013 standard - proof beyond reasonable balance of probabilities, and the criminal standard for election offences - the court dismissed each ground for want of substantiation. It held that refusal of agents to sign Forms 36A does not by itself invalidate results, and that uncountersigned alterations did not affect the 1st respondent's tally. Scrutiny was refused as no foundation was laid, ordering it would be a fishing expedition; a win is valid even by a single vote where the process is free, fair and verifiable. The petition was dismissed with costs capped at Kshs 500,000 under Rule 34, and a Section 86(1) Elections Act certificate was to issue.

Key legal issues

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01

Whether there was non-compliance with electoral law in the Agenga Nanguba Ward election

Holding

Allegations of denial of assistance to voters, denial of Form 36A, unsigned/unaltered forms, bribery, violence and propaganda were all unsubstantiated and dismissed

Reasoning

The petitioner bore the burden of proving non-compliance to a standard above balance of probabilities and, for election offences, beyond reasonable doubt. Each allegation failed for want of substantiation: no voter was identified who was denied assistance; Tiberio Egesa never testified; no agent testified to being denied Form 36A; bribery allegations were contradicted by sworn denials and no one was charged; the violence complainant was not assaulted at a polling station; and secret balloting made the propaganda claim unprovable.

p. 4
02

Whether the petitioner was entitled to scrutiny and recount

Holding

No - no basis was laid; ordering scrutiny would be a fishing expedition

Reasoning

Rules 32 and 33 of the Election Petition Rules require a foundation for scrutiny. Although the margin between the 1st respondent (3,340) and the runner-up (3,138) was narrow, the court held that a win is a win even by a single vote if the process is free, fair and verifiable.

p. 6
03

Whether the 1st respondent was validly elected

Holding

Yes - the 1st respondent was validly elected as MCA for Agenga Nanguba Ward

Reasoning

Having failed to prove non-compliance or that any irregularity substantially affected the result, the petitioner's case collapsed. The court applied the qualitative test since figures were not in question, found the process fair, free and transparent, and declared the election of Evans Bwire Barasa valid.

p. 6
04

Effect of unsigned forms 36A and uncountersigned alterations

Holding

Refusal of an agent to sign does not by itself invalidate the result; alterations should be countersigned as good practice but did not affect the 1st respondent's tally

Reasoning

Regulation 79(6) provides that refusal of a candidate or agent to sign the declaration shall not by itself invalidate the result. The alterations on the Mufumu ECD stream 1 form did not touch the 1st respondent's tally; 8 agents signed without protest and no complaint was raised.

p. 4

Legal principles established

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  • In an election petition there is a general presumption that the election was conducted properly and in accordance with the law, and the burden of proof lies with the petitioner
  • The standard of proof in an election petition is more than mere balance of probabilities but beyond reasonable doubt; allegations of election offences must be proved to the criminal standard
  • Scrutiny will only be ordered when a foundation and basis has been laid
  • Clear and unequivocal proof is required to prove an allegation of bribery; mere suspicion is not sufficient
  • In assessing whether non-compliance affected the result substantially, the court applies both qualitative and quantitative tests depending on the facts

Court orders

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  1. 1.The petition is hereby dismissed
  2. 2.The petitioner shall bear costs of the petition capped at Kshs 500,000/= in total pursuant to Rule 34 of the Elections (Parliamentary and County Elections) Rules 2013
  3. 3.A certificate be issued in accordance to Section 86(1) of the Elections Act

Authorities

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Legislation

  • Constitution of Kenya2010
  • Elections ActNo. 24 of 2011, Section 86(1)
  • Elections (General) Regulations2012, Regulations 62(1)(c), 72(1)(2), 79(6)
  • Independent Electoral and Boundaries Commission ActNo. 9 of 2011
  • Elections (Parliamentary and County Elections) Petition Rules2017, Rules 32, 33; Elections (Parliamentary and County Elections) Rules 2013, Rule 34

Cases cited (3)

  • Raila Odinga 2013 case
  • Simon Nyaundi Ogari & Another vs Hon Joel Omagwa Onyancha & 2 others
  • Joho vs Nyange
    (2008) 3 KLR 188
Jurisdiction invoked
Constitution of Kenya 2010; Elections Act No. 24 of 2011; Elections (Parliamentary and County Elections) Petition Rules 2017

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ibrahim Aruna Aramadhani v Evans Bwire Barasa & another [2018] KEMC 67 (KLR)", Case Analysis (2018). Election Petition No 9 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/67/eng@2018-01-31

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