Sanaet v Mateya & 2 others (Election Petition E001 of 2022) [2023] KEMC 5 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the magistrates' election court over County Assembly election disputes
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
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.
Whether scrutiny and recount should be ordered
Refused, as the petitioner adduced no cogent evidence laying a basis for scrutiny or recount
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.
Whether the petitioner proved irregularities affecting the election
No; the petitioner failed to discharge the burden of proving irregularities of such magnitude as to affect the outcome
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.
Whether a petitioner may seek both scrutiny/recount and nullification with a declaration in his favour
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
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.
Legal principles established
#- 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
#- 1.The prayer for scrutiny and recount by the petitioner is disallowed
- 2.The prayer for the scrutiny of the ballot boxes and recounting of the ballots cast is denied
- 3.The prayer for a certificate to be issued to the petitioner is disallowed
- 4.A declaration is issued that the 1st respondent was validly elected as the Member of County Assembly Olorropil Ward, Narok North Constituency
- 5.The petition stands dismissed
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.