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MagistrateDismissedElection Petition dated September 2, 2022 (Narok Chief Magistrate's Election Court)· [2023] KEMC 5 (KLR)

Sanaet v Mateya & 2 others (Election Petition E001 of 2022) [2023] KEMC 5 (KLR)

Chief Magistrate's Court (Election Court), Narok
15 February 2023
8,694 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Narok court dismissed an election petition because the losing candidate provided no eyewitness evidence proving irregularities actually changed the election result.

What this practically means

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Executive summary

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The petitioner, a UDA candidate, challenged the election of the 1st respondent as Member of County Assembly for Olorropil Ward in the August 9, 2022 general election, which the 2nd respondent (returning officer) declared in favour of the 1st respondent by a margin of 28 votes out of 10,722. He sought scrutiny and recount of ballots at three polling stations, a KIEMS report, a certificate of election in his favour, and in the alternative nullification of the election. He alleged barring of his agent, delay in counting, voters denied the vote, disturbances, switching of votes, a broken seal, an inverted serial number and non-compliant storage of polling station diaries. The respondents maintained the election was free, fair and transparent. The Chief Magistrate's Election Court, designated under Article 169 and Section 75(1)(A) of the Elections Act, framed seven issues. It held that the petitioner bore the burden of proof at a threshold above balance of probabilities but below beyond reasonable doubt, and that non-compliance must be shown to have affected the outcome. The petitioner called no eyewitnesses, tendered no exhibits, and his evidence was largely hearsay from agents and unnamed supporters who never testified. The respondents' witnesses, corroborated by the 1st respondent and his agents, denied all the allegations, and no complaints were recorded in the polling station diaries. The seal discrepancies were innocent recording errors. The court also held that a petitioner cannot impugn an election as flawed while simultaneously seeking to be declared winner through a recount of the same process. The petition was dismissed, the 1st respondent declared validly elected, and costs awarded to the respondents capped at Kshs 100,000/= each, payable from the security deposit pending taxation.

Key legal issues

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01

Jurisdiction of the magistrates' election court over County Assembly election disputes

Holding

The court had jurisdiction under Article 169 of the Constitution and Section 75(1)(A) of the Elections Act, having been specifically gazetted to hear the petition

Reasoning

The court held that magistrates' courts designated and gazetted by the Chief Justice have original jurisdiction over post-gazettement disputes on membership of County Assemblies, including disputes arising from nomination or election, relying on Orange Democratic Movement v Yusuf Ali Mohamed, Rose Wairimu Kamau and Jaldesa Tuke Debalo, and Moses Mwicigi on the effect of gazettement.

p. 9
02

Whether scrutiny and recount should be ordered

Holding

Refused, as the petitioner adduced no cogent evidence laying a basis for scrutiny or recount

Reasoning

Scrutiny is discretionary and must be judiciously applied. The petitioner produced no exhibits, called no eyewitnesses, and his evidence was hearsay from agents and supporters he never called. The respondents' evidence that the election was properly conducted stood unrebutted, so no basis existed for opening the ballot boxes or recounting.

03

Whether the petitioner proved irregularities affecting the election

Holding

No; the petitioner failed to discharge the burden of proving irregularities of such magnitude as to affect the outcome

Reasoning

The alleged irregularities – barring of an agent, delay in counting, voters denied the vote, disturbances, switching of votes and a broken or inverted seal – were all based on hearsay and unsupported by eyewitnesses. The respondents' witnesses, corroborated by the 1st respondent and his agents, denied them, and no complaint was recorded in the PSDs. The differences in seal numbers were explained as innocent recording errors.

p. 14
04

Whether a petitioner may seek both scrutiny/recount and nullification with a declaration in his favour

Holding

A petitioner cannot impugn an election as flawed and in the same petition seek to benefit from it by being declared the winner upon recount

Reasoning

Relying on Justus Gesito Mugali M'mbaya v IEBC, the court held it would be illogical to conduct both processes in one petition since the outcomes are different: one condones the process by seeking the seat through its results, the other condemns it as void. The petitioner's twin prayers were therefore inconsistent.

p. 13

Legal principles established

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  • The burden of proof in election petitions lies on the petitioner, at a threshold above the balance of probabilities but below beyond reasonable doubt, and non-compliance must be shown to have affected the validity of the election
  • A petitioner cannot simultaneously impugn an election as flawed and seek to benefit from it by being declared winner upon recount
  • Irregularities attributable to innocent mistakes or obvious human error cannot impeach an election result unless shown to be of material magnitude or deliberate

Court orders

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  1. 1.The prayer for scrutiny and recount by the petitioner is disallowed
  2. 2.The prayer for the scrutiny of the ballot boxes and recounting of the ballots cast is denied
  3. 3.The prayer for a certificate to be issued to the petitioner is disallowed
  4. 4.A declaration is issued that the 1st respondent was validly elected as the Member of County Assembly Olorropil Ward, Narok North Constituency
  5. 5.The petition stands dismissed
  6. 6.Costs awarded to the respondents, capped at Kshs 100,000/= for each respondent, with the security deposit of Kshs 100,000/= to be equally shared by the three respondents pending taxation

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 38, 81, 81(e), 83, 86, 87(2), 169
  • Elections Act No 24 of 2011Sections 75(1)(A), 80(4)(a), 82, 84, 84(4)
  • Elections (Parliamentary and County) Petition Rules, 2017Rules 9, 15(8), 30(1), 31
  • Evidence ActSections 107, 109, 112
  • Election Regulations (Legal Notice 72 of 2017)Regulations 83(i), 86(2)(a), 86(2)(b)
  • Oaths and Statutory Declarations ActRule 9 (exhibits to affidavits)
  • Civil Procedure Rules, 2010Order 19

Cases cited (30)

  • Hassan Ali Joho v Hothman Nyange & Anania Mwasambu Mwaboza
    (2008) 3 KLR EP 188
  • Phillip Munge Ndolo v Omar Mwinyi Shimbwa & 2 others
    [2013] eKLR
  • Robinson Simiyu Mwanga & another v Independent Electoral and Boundaries Commission & 2 others
    [2017] eKLR
  • Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission & 2 others
    [2014] eKLR
  • Galaxy Paints Co. Ltd v Falcon Guard Limited
    CA No 219 of 1998
  • Abraham Mwangi v SO Omboo, Joseph Lijulu, Daniel Bogonko
    [2003] eKLR
  • Raila Odinga and another v The Independent Electoral and Boundaries Commission
    [2017] eKLR
  • Emmanuel O Achayo v Orange Democratic Movement & 4 others
    [2017] eKLR
  • Khatib Abdallah Mwashetani v Gideon Mwangangi Wambua
    [2014] eKLR
  • Raila Odinga v IEBC and 3 others
    Petition Number 5 of 2013 [2013] eKLR
  • Richard HA Amana (Hamid Ahmed Amara) v IEBC & 2 others
    Malindi EP No 6/2013
  • Justus Gesito Mugali M'mbaya v IEBC and 2 others
  • Wavinya Ndeti v The Independent Electoral and Boundaries Commission & 4 others
    [2013] eKLR
  • Philip Osore Ogutu v Onyura Aringo & 2 others
    [2013] eKLR
  • Joseph Amisi Omukanda v Independent Electoral and Boundaries Commission (IEBC)
    [2014] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    Nyeri Civil Appeal No 38/2013
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Mwathethe Adamson Kedenge v Twaher Abdulkarim Mohamed & 2 others
    Election Petition Appeal No 3 of 2018 (2018) eKLR
  • Republic v Independent Electoral and Boundaries Commission & others ex parte Gladwell Otieno
    Judicial Review Misc Application No 447 of 2017
  • Harry Okello Nadimo v IEBC & 2 others
    [2013] eKLR
  • Republic v Independent Electoral and Boundaries Commission & others ex parte Khelef Khalifa & another
    JR Misc Application No 628 of 2017 [2017] eKLR
  • Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others
    [2014] eKLR
  • Kiilu & another v Republic
    [2005] eKLR 174
  • Orange Democratic Movement v Yusuf Ali Mohamed & 5 others
    [2018] eKLR
  • Rose Wairimu Kamau & 3 others v IEBC
    CA No 16 of 2013
  • Jaldesa Tuke Debalo v IEBC & another
    [2016] eKLR
  • Moses Mwicigi & 14 others v IEBC & 5 others
    [2016] eKLR
  • Mbayi Sayeed Omsiritsa v Nancy Ivadi & 2 others
    [2018] eKLR
  • William Kinyanyi Onyango v IEBC & 2 others
    Election Petition Appeal No 2 of 2013 [2013] eKLR
  • Hon. Martha Wangari Karua v IEBC & 2 others
    [2014] eKLR
Jurisdiction invoked
Article 169 of the Constitution of Kenya and Section 75(1)(A) of the Elections Act, upon designation and gazettement by the Chief Justice

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, "Sanaet v Mateya & 2 others (Election Petition E001 of 2022) [2023] KEMC 5 (KLR)", Case Analysis (2023). Election Petition dated September 2, 2022 (Narok Chief Magistrate's Election Court). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/5/eng@2023-02-15

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