Julius Ochieng Omoro v Independent Electoral & Boundaries Commission & 3 others [2018] KEMC 75 (KLR)
The bottom line
#A Kisumu court cancelled a 2017 ward election in Kisumu after a recount revealed miscounted votes and procedural breaches, ordering a fresh election.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the magistrates' election court
The court had jurisdiction as the presiding magistrate was gazetted by the Chief Justice
The 1st to 3rd Respondents argued the court lacked jurisdiction because the matter arose in Nyando Constituency. The court held election petitions are not ordinary suits and judicial officers must be gazetted by the Chief Justice; the presiding magistrate was gazetted on 15/9/2017 vide Gazette Notice No. 9060, so the objection failed.
Outcome of recount and scrutiny
Scrutiny and recount established material discrepancies affecting over 60 votes across polling stations, which could affect the result given the narrow margin
Recount in 8 polling stations (11 boxes) showed, notably, 59 unallocated votes for the Petitioner at Nyakongo and misallocations at Luora and Kanyangoro. The court found such wrongful entry of votes during counting and tallying definitely affected the result, given the margin of about 395 votes between winner and runner-up.
Election malpractices and irregularities
Proved irregularities included failure to complete Form 32 for assisted voters, unsigned Form 36As without recorded reasons, and unexplained counting discrepancies; bribery and dead-voter allegations failed
The Respondents failed to produce any Form 32 or registers showing compliance with Regulation 72 on assisted voters, breaching ballot secrecy. Presiding Officers breached Regulation 79 by failing to record reasons for agents' non-signature of declaration forms. The unexplained 59-vote discrepancy at Nyakongo drew adverse inference since the Presiding Officer did not testify. Criminal-standard allegations of bribery, ballot stuffing, dead voters and conspiracy were not proved.
Validity of the 4th Respondent's election
The election was invalid: constitutional and electoral principles were violated and the irregularities affected the result substantially and materially
Applying the pre-amendment Section 83 of the Elections Act (the election having been held on 8/8/2017, before the amendment took effect), the court found the two limbs disjunctive per the Supreme Court in Raila Amolo Odinga. Violations included unsigned crucial documents, miscounted votes, compromised ballot secrecy and failure to act on complaints, which affected substantially and materially the outcome.
Costs
The 1st to 3rd Respondents to pay the Petitioner's costs assessed at Kshs 300,000; the 4th Respondent to bear his own costs
Costs follow the event. The 1st to 3rd Respondents were responsible for the success of the petition, having failed to adhere to counting and tallying regulations. No proved contribution by the 4th Respondent meant he bore his own costs limited to what he incurred in answering the petition. The court considered the simplicity of the issues and time spent.
Legal principles established
#- Election petitions attract an intermediate standard of proof, above balance of probabilities but below beyond reasonable doubt; where criminal or quasi-criminal allegations are made, proof must be beyond reasonable doubt
- The petitioner bears the burden of proving non-compliance with the electoral law and that it affected the result
- The two limbs of Section 83 of the Elections Act are disjunctive, not conjunctive
- A court may draw adverse inference from the unexplained absence of a witness expected to have material evidence
Court orders
#- 1.That the 4th Respondent was not validly elected and returned as the member of County Assembly of East Kano/Wawidhi Ward
- 2.That there be a fresh election in the entire East Kano/Wawidhi Ward
- 3.A certificate of this determination to issue to the Independent Electoral and Boundaries Commission (IEBC) and the speaker of the County Assembly of Kisumu
- 4.The 1st, 2nd and 3rd Respondents pay costs assessed at Kshs 300,000.00 to the Petitioner
- 5.That the Kshs. 100,000.00 deposited herein as security for costs be released to the Petitioner
- Jurisdiction invoked
- Gazetted election court under the Election Act; magistrates gazetted by the Chief Justice to handle election petitions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Ochieng Omoro v Independent Electoral & Boundaries Commission & 3 others [2018] KEMC 75 (KLR)", Case Analysis (2018). Election Petition No. 01 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/75/eng@2018-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.