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MagistrateDismissedElection Petition (Kibwareng Ward, Aldai Constituency) 2017· [2018] KEMC 71 (KLR)

Shadrack Kirwa Tarus v Jackson Swadi Kedogo & another [2018] KEMC 71 (KLR)

Magistrates' Court (Election Court)
3 January 2018
DADolphina Alego
10,374 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld the Kibwareng Ward MCA election after the challenger failed to prove bribery, violence, or irregularities that could have changed the result.

What this practically means

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Executive summary

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This is a first-instance election petition challenging the election of Jackson Swadi Kedogo as Member of County Assembly for Kibwareng Ward in the 08/08/2017 general election, in which the Petitioner, Shadrack Kirwa Tarus, trailed by 338 votes after the Returning Officer cancelled the Chebara Stream 2 results over overwriting. The Petitioner alleged that unregistered voters were allowed to vote at Chebara and Legemet, that votes cast for him were deliberately spoiled, that an IEBC voter education official campaigned for the 1st Respondent, and that the 1st Respondent's agents engaged in bribery and campaigning on polling day across six named polling stations. He sought a declaration that the election was void and orders for scrutiny and recount. The Respondents maintained the election was free, fair and credible. The Court framed four issues: bribery, violence, the outcome of scrutiny and recount, and whether the election was free, fair and transparent. It applied the Raila Odinga standard of proof and held the Petitioner's evidence of bribery and violence was hearsay, unreported to the authorities, and did not shift the evidential burden. The Court conducted a recount and partial scrutiny of Koibarak 1 and 2 and Koitabut 1 and 2, which confirmed the declared results. Finding the petition had not met the required threshold, the Court dismissed it, upheld the 1st Respondent as validly elected, awarded costs to the Respondents, and recommended that IEBC take the Leadership and Integrity Act more seriously in training its personnel.

Key legal issues

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01

Whether the election was marred by voter bribery contrary to Section 9 of the Election Offences Act

Holding

No bribery was proved; the evidence was hearsay and no formal reports were made to the authorities

Reasoning

The Petitioner admitted he never personally saw bribery; his testimony relied on what agents told him. Section 9 of the Election Offences Act defines bribery and Section 21 requires reports to relevant authorities. Witnesses confirmed security officers were present at the polling stations, yet no reports were made to police. The evidential burden never shifted to the Respondents, and the allegations were not substantiated to the required standard.

p. 14
02

Whether there was evidence of violence or undue influence under Section 11 of the Election Offences Act

Holding

The violence allegations failed the evidential threshold

Reasoning

P.W.1 admitted he never saw the 1st Respondent engaged in violence or bribery. P.W.3 did not mention violence in his statement, never reported the matter to police, and his complaint letter was not addressed to the Presiding Officer. No witness gave a candid report at the required threshold, and the superior authorities cited on the standard of proof were applied to reject the claim.

p. 16
03

Whether scrutiny and recount of votes revealed malpractices or a different result

Holding

The recount of four polling stations confirmed the original results; no anomaly was found

Reasoning

Pursuant to Section 82(1) of the Election Act, the Court ordered recount and partial scrutiny of Koibarak 1 and 2 and Koitabut 1 and 2 on 20/12/2017, conducted in the presence of agents and lawyers of both sides. The results confirmed the results of 08/08/2017 and were accepted by the parties, demonstrating the results for the sampled stations were intact.

p. 17
04

Whether the Kibwareng Ward election of 08/08/2017 was free, fair and transparent

Holding

Yes; the election was conducted in accordance with the Constitution and electoral laws and the 1st Respondent was validly elected

Reasoning

Having dismissed the bribery and violence allegations and having confirmed the integrity of the results through scrutiny and recount, the Court applied the materiality test under Section 83 of the Elections Act. The cancellation of Chebara Stream 2 results affected all candidates and all six elective positions and did not vitiate the election. The declared results reflected the will of the electorate.

p. 17

Legal principles established

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  • The legal burden of proof in election disputes rests on the Petitioner throughout the case, though the evidential burden may shift once the Petitioner proves irregularities and that they affected the result
  • The standard of proof in election petitions is higher than balance of probabilities but lower than beyond reasonable doubt; alleged election offences must be proved beyond all reasonable doubt
  • A petitioner seeking nullification must show irregularities were of such nature and magnitude as to substantially affect the result - the materiality test under Section 83 of the Elections Act
  • Under Section 87 of the Elections Act as amended, an Election Court only determines whether an electoral malpractice of a criminal nature may have occurred, and if so must transmit an order to the DPP
  • Scrutiny and recount may be ordered even where the margin of victory is wide, if it would facilitate expeditious disposal of the petition

Court orders

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  1. 1.The Petition is dismissed; the 1st Respondent is upheld as validly elected in a free and fair election
  2. 2.Costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya
  • Election Offences ActNo. 37 of 2016, Sections 9, 11, 21
  • Elections ActNo. 24 of 2011, Sections 82(1), 83, 85, 87(1)-(3)
  • Election Laws (Amendment) Act2017
  • Evidence ActSection 107(1)
  • Leadership and Integrity Act

Cases cited (8)

  • Raila Odinga -Vrs- IEBC and 3 Others
    Supreme Court Petition No. 5 of 2013
  • Hassan Mohammed Hassan & Another –vrs- Independent Electoral and Boundaries Commission and 2 Others
    Election Petition (Garissa) No. 6 of 2013
  • Moses Masika Wetangula –vrs- Musikari Nazi Kombo & 2 others
    Supreme Court Petition No. 12 of 2014
  • Bernard Shiwali Masaka -Vrs- Boni Khalwale & 2 others
    Election Petition (Kakamega) No. 2 of 2008
  • Fitch -Vrs- Stephenson
    (2008) EWHC 501 (Q.B.)
  • William Odhiambo Odud =Vrs- I.E.B.C. & 2 Others
    Election Petition (Kisumu) NO. 2/2013
  • Jared Odoyo Okello - Vrs- I.E.B.C. & 3 Others
    Election Petition (Kisumu) No. 1 of 2013
  • Hassan Ali Joho - Vrs- Hothan Nyange & Another
    Election Petition – Mombasa No. 1 of 2005
Jurisdiction invoked
Original election petition jurisdiction over a Member of County Assembly election under the Election Act and the Constitution of Kenya 2010

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, "Shadrack Kirwa Tarus v Jackson Swadi Kedogo & another [2018] KEMC 71 (KLR)", Case Analysis (2018). Election Petition (Kibwareng Ward, Aldai Constituency) 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/71/eng@2018-01-03

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