Mpaka Jean Bosco v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 68 (KLR)
The bottom line
#The Busia court dismissed an election petition challenging a Bukhayo Central MCA win because the losing candidate failed to prove any irregularity changed the result.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st and 2nd Respondents' response complied with the Elections (Parliamentary and County Elections) Rules, 2017
The objection failed; any difference in the title of affidavits was a mere technicality causing no prejudice, and the objection was raised too late, having not been raised at the pre-trial conference.
The petitioner argued the respondents filed witness statements and a replying affidavit without a supporting affidavit and without leave. The court found the title difference did not prejudice the petitioner, DW1 testified with the leave of the court, and the objection ought to have been raised at the interlocutory/pre-trial stage.
Whether petitioner's agents were denied entry to polling stations
No evidence was adduced that agents were denied entry; agents are accredited by parties and Ford Kenya agents were allowed.
DW1 testified that his duty was to regulate and brief agents, that Ford Kenya agents were allowed, and all Form 37(a) were signed by agents. The court found that where witnesses arrived they found other agents of their parties and left; there was no evidence denial of entry affected the result.
Whether the Kiems kit malfunctioned, compromising voter identification
The petitioner did not prove malfunction of the Kiems kit; alphanumeric identification is a lawful alternative and is not synonymous with device malfunction.
DW1 testified that no malfunction was reported at the station, that a statutory Form 32 was filed where biometric identification failed, and that voters may be identified biometrically or alphanumerically. The petitioner led no proof that alphanumeric identification exposed the process to tampering.
Whether the candidature of Chrisantus Okello Maloba was unlawful under Section 28(1) of the Elections Act
The court did not invalidate the candidature; such disputes over party membership and nominations lie with the Political Parties Tribunal, and no formal complaint was made to the 1st and 2nd Respondents.
The 1st and 2nd Respondents' witness testified he had no role in political party nominations and received no formal complaint, and records showed the candidate did not belong to another party. The court accepted that nomination disputes are for the Political Parties Tribunal.
Legal principles established
#- The petitioner in an election petition bears the burden of proof, and the threshold is above balance of probability though not as high as beyond reasonable doubt
- Alleged non-compliance with procedural forms that causes no prejudice is a mere technicality and should be raised at the interlocutory stage
- Alphanumeric identification of voters is not synonymous with malfunction of the Kiems kit
Court orders
#- 1.The Petition be and is hereby dismissed
- 2.The Respondents are awarded the costs of the Petition
- 3.A certificate in accordance with Section 86(1) of the Elections Act shall issue
- Jurisdiction invoked
- Elections Act, election petition jurisdiction over County Assembly Ward elections (certificate under Section 86(1) of the Elections Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mpaka Jean Bosco v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 68 (KLR)", Case Analysis (2018). Election Petition (Bukhayo Central County Assembly Ward, 2017 General Election). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/68/eng@2018-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.