Gitahi v Independent Electoral and Boundaries Commission & another (Election Petition E001 of 2022) [2022] KEMC 16 (KLR)
The bottom line
#A Nyeri court upheld the Thegu River Ward MCA election, ruling minor tallying errors were not enough to overturn a 156-vote victory.
What this practically means
#Executive summary
#Key legal issues
#Validity of the election for MCA Thegu River Ward
The election was substantially in accordance with the law and the 2nd Respondent was validly elected
The scrutiny and recount of the five polling stations confirmed that the votes garnered by each candidate tallied with Forms 36A, 36B and 36C. The cancellations and arithmetic errors on Form 36A were genuine human errors corrected in Forms 36B and 36C and did not alter the outcome. Allegations of inflation of votes, ejection of agents and transportation of voters were speculative and uncorroborated.
Whether irregularities affected the result
Minor errors and irregularities were noted during tallying but they did not affect the result
About 10 votes were affected on both sides; some votes for the Petitioner and the 2nd Respondent were rejected or misallocated without explanation, but the margin of 156 votes between the candidates was far greater. Forms 36B and 36C corrected arithmetic errors in Form 36A. Such minor irregularities cannot vitiate an election under Section 83.
Burden of proof
The Petitioner failed to discharge the burden of proving electoral malpractices to the required standard
The legal burden rests on the petitioner and the evidential burden shifts depending on effectiveness of discharge. Only one of the Petitioner's many agents testified; key allegations (extra ballots, ejection of agents, transportation of voters, compromised IEBC officials) were speculation, unreported to police or presiding officers, and contradicted by the polling station diaries and the scrutiny report.
Credibility of the scrutiny and recount report
The scrutiny and recount report discredited allegations of vote inflation and lack of countersigning
The court-ordered scrutiny and recount in five polling stations showed all seals intact, security features in order, and tallies matching Forms 36A, 36B and 36C. Discrepancies of one to three votes, a stray ballot and unexplained rejections were explained and immaterial to the outcome.
Legal principles established
#- Section 83 of the Elections Act: no election shall be void for non-compliance unless it affected the result or the election was not conducted substantially in accordance with the law
- Irregularities of such magnitude as to affect the result vitiate an election; mere procedural or human errors do not
Court orders
#- 1.Declaration that the 2nd Respondent Kanyi Patrick Wachira was validly elected as the Member of County Assembly, Thegu River Ward in Nyeri County
- 2.The Petition be and is hereby dismissed with costs
- 3.A certificate to issue under Section 86(1) of the Elections Act 2011
- 4.Costs to the Respondents to be assessed
- Jurisdiction invoked
- Election petition under the Constitution (Articles 81, 86, 88) and the Elections Act, 2011 (Sections 83, 84, 86)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitahi v Independent Electoral and Boundaries Commission & another (Election Petition E001 of 2022) [2022] KEMC 16 (KLR)", Case Analysis (2022). Election Petition dated September 8, 2022 (Thegu River Ward MCA Election). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/16/eng@2022-12-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.