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MagistratePartially AllowedElection Petition (Mombasa) - Tudor Ward Member of County Assembly Election Petition, 2022· [2023] KEMC 4 (KLR)

Samba v Independent Electoral & Boundaries Commission & 2 others (Election Petition E003 of 2022) [2023] KEMC 4 (KLR)

Chief Magistrate's Court at Mombasa (Election Court)
28 February 2023
14,302 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~57 min to read original · ~4 min brief

The bottom line

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A Mombasa court nullified the Tudor Ward MCA election after violence and locked gates kept voters out, ordering a fresh election.

What this practically means

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Executive summary

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Samba Tobias Otieno, the second-placed ODM candidate, petitioned against the election of Samir Gulam Abbas Baloo (UDA) as Member of County Assembly for Tudor Ward, Mombasa County, in the 9th August 2022 General Election, alleging violence and voter intimidation, KIEMS kit failures, failure to extend voting time, mishandling of agents, voter bribery, ballot stuffing, mis-tallying and electoral offences. The 1st and 2nd Respondents (IEBC and the Returning Officer) denied the allegations, contending the election complied with the law; the 3rd Respondent was barred from participating for late filing, and his review application was dismissed. The petitioner called agents and voters who testified to two incidents of chaos at Tudor Village Hall Polling Station, pepper spray, gunfire, destruction of voting materials and locked gates that locked out voters; the respondents' own witnesses conceded the violence, the KIEMS failures and the locking of doors. Video evidence corroborated the disruption. Applying section 83 of the Elections Act and the Supreme Court's guidance in Munya, the court held the election substantially violated Article 81(e) principles of elections free from violence and that the illegalities affected the integrity and validity of the outcome. The court declared the election invalid, revoked the 3rd Respondent's election, and ordered fresh elections. The court declined to pronounce on the electoral offence, the matter already pending before the Election Offences court. Costs were capped at Kshs. 500,000/= against the Respondents, and a section 86(1) certificate was directed to the Speaker of the Mombasa County Assembly.

Key legal issues

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01

Disenfranchisement and intimidation of voters

Holding

The court found voters were disenfranchised: violence twice disrupted voting at Tudor Village Hall Polling Station, KIEMS kits failed, gates were locked and voters were locked out without proper extension of voting time to all affected voters

Reasoning

The court accepted the petitioner's witnesses (PW3-PW6, PW8-PW12) who testified they were prevented from voting by chaos, pepper spray and locked gates. Respondents' own witnesses conceded the two violent incidents and KIEMS failures. Video evidence confirmed the disruption, destruction of voting materials and locked doors. The 1st and 2nd Respondents failed to rebut that voters were locked out, and their Polling Station Diary would have aided their rebuttal.

p. 19
02

Electoral malpractices affecting the result

Holding

The court held the illegalities and irregularities - violence, destruction of voting materials, failure to secure the polling station, and admitted lockdown of voters - affected the integrity and validity of the election, warranting nullification

Reasoning

Relying on Section 83 of the Elections Act as construed in Munya and the Odinga petitions, the court applied the disjunctive limbs: the conduct of the election substantially breached Article 81(e) principles (free from violence and intimidation) and the breaches affected the results. The respondents failed to protect and secure the polling station and election materials.

p. 25
03

Ballot stuffing

Holding

The court found PW2's narration of ferrying stuffed ballot boxes credible and not to be dismissed as mere allegation

Reasoning

PW2 Omar Salim Shee testified in detail about being paid to ferry four stuffed ballot boxes during the orchestrated chaos. The court found the narration showed an orchestrated, planned and choreographed conspiracy, and applied the maxim that where there is smoke there is fire.

p. 19
04

Commission of electoral offences

Holding

The court found prima facie evidence of electoral offences by the 3rd Respondent but declined to make a criminal determination since the matter was already pending before the Election Offences court and the presumption of innocence applied

Reasoning

The 3rd Respondent had been arrested and charged in MCEO Case No. E002 of 2022 for offences arising from the polling station, which the court treated as prima facie evidence of involvement in the violence. Under section 87 of the Elections Act, transmission to the DPP was unnecessary since the ODPP was already seized of the matter.

p. 25
05

Bribery by distribution of branded masks

Holding

The court noted the bribery allegation (masks branded Mombasa Cement) but made no conclusive finding of bribery; clear and unequivocal proof is required and suspicion is insufficient

Reasoning

The court restated the Halsbury standard that one proven act of bribery with the candidate's knowledge suffices, but clear proof, a relationship between candidate and offender, and impact on the election must be demonstrated. The 3rd Respondent, barred from participating, had no chance to respond to the allegations.

p. 20

Legal principles established

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  • An election is not to be invalidated on account of mere irregularities; irregularities must either substantially violate constitutional and statutory election principles or affect the result
  • Proof of violence per se cannot vitiate an election; the violence must be widespread and shown to have affected the voting and the final result
  • The burden is on the petitioner to prove non-compliance and that it substantially affected the result
  • Clear and unequivocal proof is required before a case of bribery will be held established; suspicion is not sufficient

Court orders

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  1. 1.A declaration that the illegalities and irregularities exhibited in the elections held on 9th August 2022 for the position of Member of County Assembly Tudor Ward affected the results and the validity of the said elections
  2. 2.A declaration that Samir Gulam Abbas Baloo was not validly elected as Member of County Assembly for Tudor Ward, and the 2nd Respondent's declaration of him as elected is illegal, null and void and be revoked, cancelled and nullified forthwith
  3. 3.An order directing the 1st Respondent to conduct fresh elections for Member of County Assembly, Tudor Ward, in conformity with the Constitution of Kenya, the Elections Act, 2011 and the Regulations thereunder
  4. 4.The Respondents to bear the costs of the Petition, capped at Kshs. 500,000/= not subject to further taxation, divided equally between the 1st and 2nd Respondents on one hand and the 3rd Respondent on the other hand
  5. 5.Certificate pursuant to section 86(1) of the Elections Act to issue to the Hon. Speaker, Mombasa County Assembly

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21(1), 38(2), 38(3)(b), 81(e), 86, 88
  • Elections Act, 2011sections 3, 83, 86(1), 87(1)-(3)
  • Elections (General) Regulations, 2012Regulations 62, 63(1), (5) and (6), 64, 66(6)
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rules 11(8), 12

Cases cited (22)

  • Francis Wambugu Mureithi v Owino Paul Ongili Babu and 2 Others
    [2018] eKLR
  • Owino Paul Ongili Babu v Francis Wambugu Mureithi & 2 Others, Election Petition Appeal No. 18 of 2018
  • Julius Makau Malombe v Charity Kaluki Ngilu & 2 Others
    (2018) eKLR
  • Dickson Mwenda Kithinji v Gatirau Peter Munya & 2 others
    [2013] eKLR
  • Justus Gesito Mugali M'mbaya v IEBC & 2 Others
    (2013) eKLR
  • Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others
    [2013] eKLR
  • Sarah Mwangunda Kai v Mustafa Idd & 2 others
    [2013] eKLR
  • Rishad Hamid Ahmed v Independent Electoral & Boundaries Commission & 2 others
    [2018] eKLR
  • Twaher Abdulkarim Mohammed v Mwathethe Adamson Kadenge & 2 Others
    Malindi High Court Election Petition Appeal No. 1 of 2014
  • Arthur Papa v Oku Edward Kaunya & 2 others
    Busia High Court Election Petition No. 2 of 2017
  • Ernest Ogesi Kivai v Independent Electoral & Boundaries Commission & 2 Others
    [2013] eKLR
  • Buhari v Obasanjo
    [2005] LLR 7K
  • Gatirau Peter Munya v Dickson Mwenda Githinji and 2 Others
    (2014) eKLR
  • Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others
    [2017] eKLR
  • Peter Gichuki King'ara v IEBC and 2 others
    Civil Appeal No. 31 of 2013
  • Moses Masika Wetangula v Musikari Nazi Kombo & 2 Others
    Supreme Court Petition No. 12 of 2014, [2015] eKLR
  • New National Party v Government of the Republic of South Africa and Others
    (CCT9/99) [1999] ZACC 5; 1999 (3) SA 191
  • Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and Others
    (CCT 03/04) [2004] ZACC
  • Nana Akufo-Addo & 2 Others v John Dramani Mahama & 2 Others
    Writ No. J1/6/2013
  • Velasquez Rodriguez v Honduras
    Inter-Am. Ct. H.R. (Ser. C) No. 4 (1988)
  • Morgan & Others v Simpson and Another
    (1974) 3 All ER 772
  • Independent Electoral And Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
Jurisdiction invoked
Elections Act, 2011 and Constitution of Kenya, 2010, Article 105 read with the Election Petition Rules - first-instance election petition challenging election of Member of County Assembly, Tudor Ward

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, "Samba v Independent Electoral & Boundaries Commission & 2 others (Election Petition E003 of 2022) [2023] KEMC 4 (KLR)", Case Analysis (2023). Election Petition (Mombasa) - Tudor Ward Member of County Assembly Election Petition, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/4/eng@2023-02-28

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