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MagistrateDismissedElection Petition dated 4th September 2017

Boniface Muisyo Nguli v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 86 (KLR)

Magistrates' Court (Election Petition)
9 January 2018
5,836 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a challenge to a Tala ward election because the candidate offered allegations, not evidence, and must pay up to KShs 2 million in costs.

What this practically means

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Executive summary

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This was an election petition filed by Boniface Muisyo Nguli, a Wiper Democratic Movement candidate, challenging the election of Kamitu Alex as Member of County Assembly for Tala ward in the 8th August 2017 general election. The petitioner alleged non-compliance with the Constitution and electoral laws, a numerical discrepancy between voter turnout and votes cast, discrepancies in figures on form 36B, a lost form 36A for Tala Township stream 2, and voter bribery and intimidation. The respondents denied all allegations. At trial, the petitioner admitted in cross-examination that he did not see money changing hands, made no police report, could not confirm he won, and that his petition contained errors, including referring to Tala ward as a non-existent constituency. His supporting affidavit and those of his witnesses were undated. Five issues were framed for determination. The court found that the lost form 36A had been scanned into the KIEMS kit and that, even if its figures were added, the overall winner would not change. Allegations of bribery, intimidation and lack of transparency were general and unsupported by evidence. Applying the principles that a petitioner bears the burden of proof to a standard higher than a balance of probabilities, that petitioners are bound by their pleadings, and that section 83 of the Elections Act shields elections from nullification for non-compliance that does not affect the result, the court dismissed the petition with costs, declared the 3rd Respondent validly elected under section 75(3), capped costs at KShs 2,000,000 shared equally between the Respondents, and certified under section 87(c) that no election offence was found to have been committed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the results of Tala polling station stream 2 would have changed the overall winner for Member of County Assembly for Tala ward
  2. 2.Whether there was any voter intimidation or bribery during the voting and, if so, what was the effect
  3. 3.Whether the election was carried out in accordance with the provisions of the Constitution, Election Act and the regulations therein
  4. 4.Whether the election was done in an open, transparent, participatory and accountable manner pursuant to Article 81(a) as read with Article 86 of the Constitution
  5. 5.Whether the 3rd Respondent was validly elected as Member of County Assembly of Tala ward

Key legal issues

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01

Effect of lost form 36A for Tala stream 2 on the declared result

Holding

Even if the stream 2 figures were added to the tally, the overall winner would not change; the lost form had been scanned into the KIEMS kit

Reasoning

The Returning Officer, Presiding Officer and deputy confirmed the lost form 36A had been scanned and inputted into the KIEMS kit. Perusal of the figures showed that even adding them to the final tally would not change the winner, so the missing form did not affect the result.

p. 10
02

Voter intimidation and bribery

Holding

Not proved; only general allegations with no supporting evidence from the petitioner or his witnesses

Reasoning

The petitioner admitted he did not see money exchange hands, made no report to police, and his agents did not testify to witnessing bribery or intimidation. General allegations without evidentiary basis fail to discharge the petitioner's burden of proof.

p. 10
03

Compliance with Articles 81 and 86 (free, fair, transparent and accountable election)

Holding

Election was conducted in accordance with the Constitution and electoral law; no evidence of non-transparency or lack of accountability

Reasoning

The petitioner and his witnesses adduced no evidence that the exercise was not open, transparent, participatory or accountable. The only complaint was the missing form 36A, which was scanned into the KIEMS kit and did not affect the outcome.

p. 10
04

Validity of the 3rd Respondent's election

Holding

The 3rd Respondent was validly elected

Reasoning

With the allegations of irregularities, bribery and non-compliance all unproved, the court concluded the declaration of the 3rd Respondent as winner reflected the will of the voters and made a certificate of valid election under section 75(3) of the Elections Act.

p. 11
05

Pleadings and compliance defects (results not stated, undated affidavits, references to Tala Township 'constituency')

Holding

Recorded as respondents' contentions; court declined to decide matters not specifically pleaded

Reasoning

The respondents argued the petition did not state the election results as required by Rules 8 and 12(2)(c), the supporting affidavit was undated contrary to the Oaths and Statutory Declarations Act, and the petition repeatedly referred to a non-existent Tala Township Constituency. The court declined to render opinions on aspects not based on the pleadings.

p. 8

Legal principles established

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  • Rules 8 and 12 of the Election (Parliamentary and County Elections) Petition Rules 2017 are mandatory; a petition not stating the results of the election is incurably defective
  • Under section 83 of the Elections Act, an election shall not be declared void for non-compliance unless it affected the result or the election was not conducted in accordance with constitutional principles
  • The burden of proof in an election petition lies on the petitioner and the standard is higher than a balance of probabilities but below beyond reasonable doubt
  • A petitioner is bound by his pleadings and the court decides only on the basis of the pleadings filed

Court orders

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  1. 1.The petition is dismissed with costs
  2. 2.All prayers sought by the petitioner are declined
  3. 3.Pursuant to Section 75(3) of the Elections Act, Kamitu Alex is declared validly elected as Member of County Assembly, Tala ward of Machakos County
  4. 4.Costs are capped at KShs 2,000,000, with 50% payable to the 1st and 2nd Respondents and 50% to the 3rd Respondent, paid by the Petitioner
  5. 5.A certificate/report under Section 87(c) of the Elections Act that no election offence was found to have been committed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Election (Parliamentary and County Elections) Petition Rules 2017; Articles 81, 86 and 87(1) of the Constitution; Sections 75(3), 83, 84 and 87(c) of the Elections Act

Relief refused

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Declaration that the county election of 8th August 2017 in Tala ward was null and void

No evidence proved the alleged irregularities to the satisfaction of the court

p. 11

Declaration of substantial non-compliance/irregularities affecting results

General allegations unsupported by evidence

p. 10

Declaration that the 3rd Respondent was not validly elected

Court concluded the 3rd Respondent was duly elected

p. 11

Order for a fresh election

Follows from dismissal of the petition

p. 11

Declaration that all Respondents committed election irregularities

No evidence of voter intimidation or bribery was adduced

p. 10

Costs

Petition dismissed with costs to the Respondents, paid by the Petitioner; costs capped at KShs 2,000,000, 50% to the 1st and 2nd Respondents and 50% to the 3rd Respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In light of the determination I have made, I hereby dismiss the petition with costs and decline to grant all the prayers sought by the petitioner in the petition.
p. 11disposition
Pursuant to Section 75 (3) of the election Act, I hereby declare that Kamitu Alex whose election was questioned herein was validly elected as Member of County Assembly Tala ward of Machakos County.
p. 11declaration of valid election
The 1st - 3rd Respondents are entitled to costs and I so grant them. Those costs shall be paid by the Petitioner.
p. 11costs
I therefore find that the answer to issue no. 1 is in the negative.
p. 10missing form 36A
As the law requires, one who alleges a fact must prove it. This was not done and hence I find that it is not proven as required.
p. 10burden of proof
The rules are mandatory. A petition that does not comply with these provisions is incurably defective and cannot stand.
p. 6mandatory election petition rules

Issues in the judgment

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minor

Judgment states the appeal against the ruling of 6/12/2017 was itself dismissed on 6/12/17, the same date - internally inconsistent dates

minor

Hearing record states matter concluded on 5/12/2017 while earlier text says hearing commenced and submissions were filed 13/12/17

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, "Boniface Muisyo Nguli v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 86 (KLR)", Case Analysis (2018). Election Petition dated 4th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/86/eng@2018-01-09

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