Aziz Kassim Ibrahim v Independent Electoral and Boundaries Commission (IEBC) & 4 Others [2018] KEMC 77 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Probative value of untested affidavit evidence
The affidavits of the petitioner and his agents, whose deponents were never cross-examined, are mere allegations without probative value
Rule 12 of the Election (Parliamentary and County Elections) Petition Rules 2017 requires deponents to be examined in chief and cross-examined unless parties consent otherwise. The petitioner chose to rely on affidavits and written submissions without calling witnesses, so the veracity of the allegations of altered forms was never tested. Authority from Lukoye v Sambu, Wekesa v Adome and Ahmed Abdulahi Mohammed supports treating such evidence as inconsequential.
Scrutiny and recount
Scrutiny and recount is not automatic and must be founded on an established basis; the petitioner forfeited the opportunity by not pursuing it at the interlocutory stage
Following Gatirau Peter Munya v Dickson Mwenda Kithinji, the court held that the right to scrutiny and recount must be established by pleadings, affidavits or evidence. Although the court preserved the election materials and could have ordered scrutiny, the petitioner chose to proceed by written submissions, extinguishing the right. No basis was laid for impugning the state of the election material.
Relief must be founded on pleadings
The court cannot grant a fresh election, which was never pleaded in the petition
The petitioner sought only nullity of the 5th respondent's election and a declaration that he himself was validly elected; an order for a fresh election was raised only in submissions. Relying on Mohammed Sirat v Ali Hassan Abdirahman and the Supreme Court's decision in Raila Odinga v IEBC, parties are bound by their pleadings and the court declines to grant unpleaded relief.
Validity of the Kwa Njenga Ward election
The election was validly conducted; alleged discrepancies did not substantially affect the result
Applying the materiality threshold under Section 83 of the Elections Act, the court found the evidence of alteration of forms lacked probative value, the petitioner's agent signed form 36B, broken seals were attributable to normal wear and tear, and all parties admitted the process proceeded smoothly. The petition therefore failed.
Legal principles established
#- Affidavit evidence in an election petition whose deponents are not offered for cross-examination has no probative value and amounts to mere allegations
- An order for scrutiny or recount is not automatic; the party seeking it must establish the basis for it
- A court decides only on the basis of pleadings filed; relief not pleaded cannot be granted
Court orders
#- 1.The petition is dismissed
- 2.Costs payable by the petitioner to the 1st and 5th respondents, not exceeding Kshs 250,000/= for each of them
- 3.A certificate as to the validity of the election of the Kwa Njenga Member of County Assembly to issue forthwith and be served on the IEBC for notification of the Speaker of the County Assembly under Section 86(1) of the Elections Act
- 4.The security deposited in court to remain deposited pending taxation of costs in accordance with Rule 31(3) of the Election Rules and to be applied accordingly
- Jurisdiction invoked
- Election petition in respect of Member of County Assembly election under the Elections Act and Article 38(3) of the Constitution (first-instance election court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aziz Kassim Ibrahim v Independent Electoral and Boundaries Commission (IEBC) & 4 Others [2018] KEMC 77 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/77/eng@2018-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.