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MagistrateDismissedElection Petition dated August 30, 2022 (Baraki Ward MCA), Garissa Law Court

Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2023] KEMC 3 (KLR)

Chief Magistrate's Court at Garissa (Election Court)
27 February 2023
6,615 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Salah Hassan Shafat petitioned against the election of Hassan Dahir Noor as Member of County Assembly for Baraki Ward, Garissa County, in the 9 August 2022 General Election, alleging violence and ejection of his agents, KIEMS kit failures, ballot stuffing and figure manipulation across nine Afweine Location polling stations. He sought declarations that the 3rd Respondent was not duly elected and that he himself was elected, or alternatively fresh elections, scrutiny and recount, and a finding of electoral offences. The 1st and 2nd Respondents (IEBC) maintained the election was conducted properly, describing the violence as a brief, contained scuffle, while the 3rd Respondent argued the petition was speculative and clan voting patterns explained the results. Applying the Supreme Court's standard of proof (above balance of probabilities, below beyond reasonable doubt) and Court of Appeal authorities on violence, the court found the only proved incident was a 20-minute scuffle at Afweine Centre 1 that did not affect voting or results; only two KIEMS kits failed and were promptly replaced, a ground too remote to sustain nullification; and the ballot-stuffing claim was unsupported and unverified by scrutiny. The court concluded the election complied with Article 81(e), Article 86 and the Elections Act, and dismissed the petition with costs capped between the Respondents. However, on the third issue, the court found that three of the Petitioner's witnesses - County Government of Garissa public officers who acted as political agents - committed offences under section 15 of the Election Offences Act, 2016, and referred the matter to the ODPP. Judgment was delivered virtually at Garissa on 27 February 2023 by Hon. H. M. Nyaberi, Chief Magistrate.

Questions the Court framed

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

  1. 1.Whether there was violence, illegalities and irregularities and malpractices committed in the electoral process within Baraki Ward across 9 polling stations which affected the validity and results thereof
  2. 2.Whether the election for MCA Baraki Ward held on August 9, 2022 was conducted in accordance with the principles laid down in the Constitution and in conformity with the provisions of the Elections Act and the Regulations made thereunder and all other relevant laws
  3. 3.Whether there was a commission of an electoral offence during the election of the Member of County Assembly for Baraki Ward
  4. 4.Who bears costs

Key legal issues

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01

Alleged violence and ejection of agents

Holding

Only a single 20-minute scuffle at Afweine Centre 1 was proved; no evidence linked the other eight polling stations, and the violence did not affect voting or results

Reasoning

Four witnesses testified but PW2, PW3 and PW4's evidence centred on Afweine Centre Stream 1 only. PW3 confirmed she was not ejected and left on her own volition at 3:00 a.m. The court applied Owino Babu, Malombe and M'mbaya: isolated violence not traceable to the 3rd Respondent and not affecting the outcome cannot justify nullification.

p. 9
02

Failure of KIEMS kits

Holding

Only two kits failed and were immediately replaced with backups; the ground is too remote to nullify the election

Reasoning

RW2 testified that only Darusalam Primary School and Baraki Primary School kits failed and were promptly replaced, voting resuming immediately. PW1 gave only generalised testimony without identifying stations. The petitioner led no evidence of disenfranchised voters or of how the failures undermined the election's credibility or verifiability.

p. 10
03

Alleged ballot stuffing and manipulation of figures

Holding

Claim unsupported by any evidence; no scrutiny was done to verify it; fails

Reasoning

The petitioner's arithmetical assertions (690 identified voters in Afweine, contradictory tallies) were not backed by tangible evidence. No scrutiny was sought and granted. Allegations of unidentified voters and manipulated figures remained speculative and did not meet the elevated standard of proof.

p. 10
04

Compliance with constitutional and statutory electoral principles

Holding

The election complied with Article 81(e), Article 86 and the Elections Act; irregularities were not of a magnitude to affect the result

Reasoning

Applying Gatirau Peter Munya, procedural or administrative irregularities from human imperfection do not themselves vitiate an election unless they affect the result. Late opening/closing and low turnout were immaterial; there was no complaint of tallying or declaration errors.

p. 11
05

Commission of electoral offences

Holding

Three of the Petitioner's witnesses, being public officers who acted as political agents, committed an offence under section 15 of the Election Offences Act, 2016

Reasoning

PW-2, PW-3 and PW-4 admitted they were County Government of Garissa employees who actively participated as political agents without informing their employer. Section 15 prohibits public officers from engaging in candidate or party activities. The court exercised its power under section 87 of the Elections Act and referred the matter to the ODPP.

p. 12

Legal principles established

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  • In election petitions the standard of proof is higher than balance of probabilities but lower than beyond reasonable doubt; criminal-type allegations require proof beyond reasonable doubt
  • Isolated violence not shown to affect the voting and final results cannot vitiate an election
  • To vitiate results, violence must be widespread, systematic, planned or organized
  • Procedural or administrative irregularities occasioned by human imperfection do not, without effect on the result, vitiate an election
  • Failure of a KIEMS kit promptly remedied by replacement is too remote to sustain nullification

Court orders

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  1. 1.The petition dated August 30, 2022 and filed in court on September 2, 2022 is hereby dismissed
  2. 2.A declaration that the 3rd Respondent having attained the majority votes was validly elected as a Member of County Assembly representing Baraki Ward, Garissa County Assembly
  3. 3.A declaration that election offences were committed by Salah Mohamed Abdi Bulle, Quresha Ali Ahmed and Amin Abdullahi Dagane and the ODPP to take up the matter accordingly
  4. 4.The Petitioner to bear costs: 1st and 2nd Respondents jointly granted full costs capped at Kshs 400,000; 3rd Respondent awarded full costs capped at Kshs 300,000; Mr. Ndegwa's costs capped at Kshs 250,000
  5. 5.Deposit paid into Court as security to be agreed as to which Respondents will be paid

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Election petition under the Constitution of Kenya, 2010, the Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petitions Rules, 2017

Relief refused

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Declaration that the 3rd Respondent was not duly elected and that the Petitioner was duly elected

Petitioner did not discharge the elevated burden of proof; violence was isolated, KIEMS failure was remedied, and irregularities were not of a magnitude to affect the result

p. 11

Scrutiny, audit and recount of votes in the nine pleaded polling stations

Claim of ballot stuffing unsupported by evidence and no scrutiny undertaken

p. 10

Fresh elections for the Baraki Ward MCA seat

The election was found to have been conducted in accordance with the Constitution and the Elections Act

p. 11

Costs

Petition dismissed with costs borne by the Petitioner: 1st and 2nd Respondents jointly granted full costs capped at Kshs 400,000/=; 3rd Respondent awarded full costs capped at Kshs 300,000/=; Mr. Ndegwa's costs capped at Kshs 250,000/=; deposit paid into Court as security to be agreed as to which Respondents will be paid.

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.

The petition dated August 30, 2022 and filed in court on September 2, 2022 is hereby dismissed.
p. 13Disposition - dismissal of petition
A declaration be and is hereby issued that the 3rd Respondent having attained the majority votes was validly elected as a Member of County Assembly representing Baraki Ward, Garissa County Assembly.
p. 13Final orders - declaration of valid election
It is hereby ordered that election ofiences were committed by Salah Mohamed Abdi Bulle, Quresha Ali Ahmed and Amin Abdullahi Dagane. The ODPP to take up the matter accordingly.
p. 13Final orders - referral of electoral offences to ODPP
The 1st and 2nd Respondent are jointly granted full costs of the petition capped at Kshs 400,000/=.
p. 13Costs
In the circumstance this ground is too remote to sustain a nullification of an election.
p. 10KIEMS kit failure
It is the view of this court that the unfortunate single incidence at Afweine Centre 1 polling station was an isolated act which was handled and contained in 20 minutes and the voting continued peacefully without any arrests.
p. 9Violence

Issues in the judgment

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minor

Petitioner's pleaded arithmetic contradicts itself: pleaded votes (1669/1211) exceed the pleaded total valid votes and differ from the declared results (1779/1083) recited earlier in the same judgment

minor

Typographical/scanning errors throughout ('afiected', 'ofiice', 'stufing', 'ofience') and a malformed date reference '2September 6, 2022'

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, "Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2023] KEMC 3 (KLR)", Case Analysis (2023). Election Petition dated August 30, 2022 (Baraki Ward MCA), Garissa Law Court. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/3/eng@2023-02-27

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