Tomito Alex Tampushi v Patrick Sosio Lekakeny & 3 others [2018] KEMC 80 (KLR)
The bottom line
#A Kenyan court nullified a county election because officials never counted one polling station's 666 voters' votes, ordering a fresh election at the IEBC's cost.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd, 3rd and 4th Respondents conducted credible, free, fair elections in compliance with the Constitution, Elections Act and the Regulations made thereunder
- 2.Whether election malpractices, illegalities, irregularities and errors were committed, if yes, by whom and whether the same affected the integrity of the election and the declaration made by the 2nd Respondent
- 3.Whether the 1st Respondent was lawfully and validly elected as Member of County Assembly for Shankoe Ward
- 4.What consequential orders, declarations and reliefs should the court grant
- 5.Who should pay the costs of the petition and to whom
Key legal issues
#Whether the failure to include the results of Endoinyo Nkopit Polling Station in the final tally vitiates the election
Yes - the omission disregarded the votes of 666 registered voters and breached Articles 38, 81 and 86 of the Constitution, making the election invalid
The court found the votes from the station were admittedly not added to the final tally. The explanation that the exclusion followed consultation was unsupported by documentary evidence. The R.O could not tally what he never received, since the P.O never delivered the physical statutory forms and electronic transmission was unproven. Registered voters at the station were not a negligible figure, and their exclusion offended the constitutional guarantee of political rights and the duty of open, accurate collation.
Whether the conduct of the Presiding Officer in taking election materials to his house compromised the integrity of the ballot
Yes - his actions subverted the electoral material, exposed it to risk and compromised the integrity of the ballot
The P.O admitted taking ballot boxes home on the pretext of finishing clerical work and recharging the KIEMS kit. The court held the law does not envisage any homework for election officials outside the polling station or tallying centre. The count at the polling station, per Maina Kiai, is clothed with finality. His arrest with ballot boxes and subsequent criminal prosecution reinforced the finding of breach of official duty.
Whether the variance in Form 36B and the margin of 62 votes invalidated the result
No - the variance was a plausible arithmetical error affecting no candidate and did not affect the result
The R.O explained that the total valid votes and the percentage turnout were miscomputed because the 1,349 votes of one candidate were omitted in the computation. The court found the explanation plausible, held that errors are human, and that no demonstration was made that the arithmetic error affected any candidate's score or the outcome. The closeness of the margin alone was not a ground for nullification.
Whether allegations of improper contact between the 1st Respondent and the P.O and influence of the clerk were proved
No - there was no cogent proof of contact, compromise, or that any relationship affected the election
The sole witness on the alleged shared vehicle appeared shaky and his repeated presence at the polling station was suspicious. No proof established that any meeting, if it occurred, compromised the election. The kinship allegation against a clerk was not pleaded, not documented and unproved; even if true, proof of a material effect on the election was required. Both allegations were dismissed.
Legal principles established
#- A petitioner must prove not only irregularities but also that they affected the outcome; once discharged, the Respondents bear the onus of proving the contrary
- The polling station count is clothed with finality and election materials must not be removed from the custody of the polling station or tallying centre
- A Returning Officer may only tally and declare results from polling stations; he cannot confirm, vary or verify them
- No official or group of officials may unilaterally exclude the votes of a polling station from the final tally
- An election court need not enjoin as parties every person mentioned in a petition; all necessary parties suffice
Court orders
#- 1.Declared that the 1st Respondent (Patrick Sosio Lekakeny) was not validly elected as Member of County Assembly for Shankoe Ward
- 2.Declared the 1st Respondent's election as MCA for Shankoe Ward following the 8th August 2017 election null and void
- 3.Ordered the 4th Respondent (IEBC) to hold a fresh election for Member of County Assembly for Shankoe Ward pursuant to the Constitution, the electoral laws of the day and within the stipulated time
- 4.Petitioner and 1st Respondent to have costs, borne by the 4th Respondent
- 5.Petitioner and 1st Respondent to file their Bills of Costs to be assessed by the court
- 6.Costs capped at Kshs. 300,000 for the Petitioner and Kshs. 150,000 for the 1st Respondent
- 7.Security for costs deposited in court released to the Petitioner/depositor
- 8.Certificate of determination of the Petition to issue to the IEBC pursuant to Section 86 of the Elections Act
- 9.Notice of the court's determination to issue contemporaneously to the Speaker of the Narok County Assembly
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election petition for Member of County Assembly under the Constitution (Articles 38, 81, 86), the Elections Act and the Elections (Parliamentary and County Elections) Petition Rules, 2017
Relief refused
#Petition against the 1st Respondent in respect of personal responsibility or costs
The 1st Respondent was not responsible for the conduct of the election and was not indicted of any election offence
Personal costs against the 3rd Respondent
The court treated the failure of electoral officials as institutional failure of the IEBC, with the 4th Respondent bearing liability principally and vicariously
Costs
The Petitioner and the 1st Respondent shall have costs, borne by the 4th Respondent (IEBC); costs capped at Kshs. 300,000 for the Petitioner and Kshs. 150,000 for the 1st Respondent; Bills of Costs to be assessed by the court; security for costs released to the Petitioner.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I declare that the 1st Respondent (Patrick Sosio Lekakeny) was not validly elected as a Member of County Assembly for Shankoe Ward.
The declaration of the 1st Respondent as elected Member of County Assembly for Shankoe Ward following 8th August, 2017 election is hereby declared null and void.
The 4th Respondent is hereby ordered to hold fresh election for Member of County Assembly for Shankoe Ward pursuant to the Constitution, the electoral laws of the day and within the stipulated time.
It is for the Petitioner to proof not only that there were irregularities, malpractices and illegalities committed but further that their occurrence affected the outcome of the election.
There should be no homework for an Election official outside the polling Station or Tallying Center. The law does not envisage such an event.
He can only tally and declare the result. He cannot purport to confirm, vary or verify the results.
No one individual or group of people can decide for the electorate.
The registered voters from Endoinyo Nkopit polling station are 666. That is not a negligible figure in an election.
Issues in the judgment
#Election Offences Act inconsistently cited as 'No. 37 of 2016' and 'No 36 of 2016' in the same judgment
Petitioner's name appears as both 'Ledama Felex Kiok' and 'Felix Ledama Kiok' in the judgment
The number of the Election Offences Act is given as 'No 36 of 2016' when repealing Section 58 of the Elections Act, though elsewhere cited as 'No. 37 of 2016'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tomito Alex Tampushi v Patrick Sosio Lekakeny & 3 others [2018] KEMC 80 (KLR)", Case Analysis (2018). Election Petition No. 1 of 2017 (Shankoe Ward, Kilgoris Constituency). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/80/eng@2018-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.