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MagistratePartially AllowedElection Petition (Ganda Ward) - application dated 13/6/2013· [2013] KEMC 35 (KLR)

Joseph Kiponda v Independent Electoral & Boundaries Commission (IEBC) & another [2013] KEMC 35 (KLR)

Election Court (Magistrates' Court, Malindi)
6 August 2013
YSY. A. Shikanda
2,698 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Malindi election court ordered a limited recount in four Ganda Ward polling stations, refusing ward-wide scrutiny because the petitioner lacked evidence of widespread problems.

What this practically means

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Executive summary

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This first-instance ruling by an election court at Malindi determined the petitioner's application dated 13 June 2013 seeking scrutiny and recount of all votes cast in the election for the County Assembly Representative for Ganda Ward within Malindi Constituency, Kilifi County. The petitioner alleged irregularities, unexplained and uncountersigned alterations on forms 35, and a tallying anomaly on form 36 said to favour the 2nd respondent. Both respondents opposed, arguing no basis had been laid, the prayer was absent from the petition, and the application was a fishing expedition filed two months after disclosure of documents. Earlier, on 10 July 2013, the court had directed that evidence be taken before determining the application. The court analysed section 82(1) of the Elections Act and Rules 32 and 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013, holding that scrutiny cannot be ordered pre-trial unless the count and tallying is the only issue, and that scrutiny or recount requires sufficient reason or basis. Noting divergent authority on whether scrutiny must be pleaded, the court held a basis was the decisive factor. On the evidence, it found alterations in most polling stations did not affect results and were explained, with agents signing forms 35; no basis existed for ward-wide scrutiny. However, unsigned or unexplained forms 35 in four polling stations (Kijiwetanga streams 1-3, Pendukiani Nursery Stream 1, Takaye Primary Stream 1 and Maziwani Stream 1) justified a limited scrutiny and recount, to be presided over by the Executive Officer, Malindi Law Courts, commencing 12 August 2013, with each party allowed two agents. The application succeeded only to that extent, with costs in the cause.

Key legal issues

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01

Timing of scrutiny and recount applications

Holding

Scrutiny may only be ordered during the hearing of the petition, unless the sole issue in the petition is the count or tallying, in which case recount/examination may be requested under rule 32(1)

Reasoning

Section 82(1) of the Elections Act permits scrutiny 'during the hearing' of a petition. Rule 32(1) of the Petition Rules carves out petitions where the only issue is the count or tallying. The court therefore took evidence before determining the application, aligning with the King'ara decision.

p. 3
02

Whether scrutiny must be pleaded in the petition

Holding

Authorities diverge; what is required is a basis for scrutiny or recount, not necessarily a specific prayer in the petition

Reasoning

The court noted conflicting decisions: Kamanda allowed scrutiny where there was ground to believe irregularities occurred, while Amana required specific pleading. The court held the statutes are silent and the decisive consideration is whether a basis exists, examining the evidence itself.

p. 4
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Basis for scrutiny on the evidence

Holding

No sufficient basis for ward-wide scrutiny; but unsigned and altered forms 35 in four polling stations warranted a limited scrutiny and recount

Reasoning

Altered forms in several stations did not affect per-candidate results, alterations were explained, and agents signed the forms. However, forms for Pendukiani, Takaye, Maziwani and Kijiwetanga lacked agent signatures or had unexplained alterations, requiring the court to satisfy itself of the propriety of the process.

p. 5

Legal principles established

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  • Scrutiny of votes cannot be ordered at the pre-trial stage unless the only issue in the petition is the count and tallying of votes
  • An election court may order scrutiny or recount only where satisfied there is sufficient reason, i.e. a basis for scrutiny or recount
  • Failure of a candidate or agent to sign a declaration form does not by itself invalidate the results

Court orders

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  1. 1.Scrutiny and recount of votes in Kijiwetanga Primary School polling station (031) streams 1, 2 and 3; Pendukiani Nursery School Stream 1 (034); Takaye Primary School polling station stream 1 (036); and Maziwani Primary School stream 1 (039)
  2. 2.Scrutiny and recount limited to ascertainment of the number of votes cast for each candidate as compared with the results declared in the respective forms 35
  3. 3.The exercise to be presided over by the Executive Officer, Malindi Law Courts
  4. 4.Each of the petitioner, 1st and 2nd respondents allowed 2 agents present during the exercise
  5. 5.Exercise to commence on 12th August 2013 at 9.00am and proceed day to day until conclusion
  6. 6.Mention on 16/8/13 for further orders and/or directions
  7. 7.Costs of the application be in the cause
Jurisdiction invoked
Section 82(1) of the Elections Act, 2011; Rules 32 and 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013

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, "Joseph Kiponda v Independent Electoral & Boundaries Commission (IEBC) & another [2013] KEMC 35 (KLR)", Case Analysis (2013). Election Petition (Ganda Ward) - application dated 13/6/2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/35/eng@2013-08-06

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