Samuel Kago Mungai Kimari & another v Miliam Wanjiru & 2 others [2013] KEMC 46 (KLR)
The bottom line
#A Nairobi court dismissed a challenge to the Ngei Ward election, ruling that minor errors do not invalidate results unless they change who won.
What this practically means
#Executive summary
#Key legal issues
#Burden and standard of proof in election petitions
The burden lies on the Petitioner, who must prove allegations to a standard above balance of probabilities but below beyond reasonable doubt, with a higher degree where electoral offences are alleged
Relying on Raila Odinga v IEBC and Bernard Shinali Masaka v Bonny Khalwale, the court held that a petitioner must lay firm and credible evidence of departures from the law and show the non-compliance affected the validity of the election; mere proof of irregularities is insufficient.
Alterations and overwritings on forms 35
The presiding officer was negligent in failing to countersign an overwriting, but the error did not affect the totals and did not invalidate the election
DW2 admitted an uncountersigned overwriting changing 0 to 6. The court agreed with Muchelule J in William Odhiambo Oduol that alterations should be countersigned, and found the presiding officer's conduct negligent, but held the procedures were otherwise fairly followed and the totals unaffected.
Failure of electronic transmission of results
The failure did not prejudice the Petitioners as the system failed countrywide and the results were provisional only
Article 81(e)(v) requires efficient administration, but Regulation 82(2) makes electronically submitted results provisional and subject to confirmation under Regulation 73. Judicial notice was taken of the nationwide failure, and the 2nd Petitioner failed to show prejudice.
Denial of access to polling stations for agents
The agents locked out lacked requisite authorization or badges and were later admitted; the candidates could not transfer blame to presiding officers
Under Regulation 62(1)(c) and 62(4), agents must display official badges or authorization. The evidence showed the locked-out agents lacked credentials, were later admitted, and signed the opening declarations. Regulation 79(7) provides that absence of agents does not invalidate results.
Alleged ballot papers found outside the polling station
The claim was hearsay, as the alleged finder (Mr. Onyango) was not called as a witness and the papers were not produced
The 2nd Petitioner did not personally see the ballot papers, did not call the witness or the OCS Huruma, and the papers were never produced or identified as relating to any particular electoral post. IEBC officials in charge of the streams denied receiving such reports.
Materiality of irregularities under Section 83 of the Elections Act
The established alterations were immaterial and could not change the outcome; the 3rd Respondent won by 1,940 votes
Following Besigye v Museveni, Mbowe v Eliufoo and Joho v Nyange, the court applied the materiality test: irregularities must be of such magnitude as to affect the result. The margin of victory was large and no evidence showed votes materially interfered with.
Scrutiny, tallying and re-count
Refused because no formal application laying a basis was made despite directions
Section 82(1) permits scrutiny even without application, but the Petitioners' failure to lodge the directed formal application indicated no basis. The court adopted Majanja J's Wavinya Ndeti holding against fishing expeditions.
Forms 34 and presidential tallying
The court lacks jurisdiction to examine forms 34 relating to the presidential tally
Forms 34 related to the presidential election tallying, which falls outside the jurisdiction of the court in a county ward representative election petition.
Legal principles established
#- A petitioner seeking to annul an election bears the legal burden of proving the allegations, to a standard higher than a balance of probabilities but below beyond reasonable doubt
- Under the materiality test, irregularities must be shown to have affected the outcome of the election before results can be nullified; innocent mistakes or human error do not invalidate an election
- An alteration and an overwriting are the same in law; alterations on forms 35 should be countersigned and stamped by the maker
- Hearsay evidence is inadmissible in election petitions
- Failure to transmit provisional results electronically does not invalidate an election under Section 83 of the Elections Act
Court orders
#- 1.The petition was dismissed as devoid of merit
- 2.Costs of the petition awarded to the Respondents, capped at a maximum of Kshs. 1 Million pursuant to Rule 34(1)(a) of the Elections (Parliamentary and County Elections) Petition Rules 2013 - Kshs. 600,000 to the 1st and 2nd Respondents and Kshs. 400,000 to the 3rd Respondent
- 3.The sum deposited in court to remain deposited pending taxation of the Respondents' costs
- Jurisdiction invoked
- The Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petition Rules, 2013 - election for the County Ward Representative of Ngei Ward, Mathare Constituency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kago Mungai Kimari & another v Miliam Wanjiru & 2 others [2013] KEMC 46 (KLR)", Case Analysis (2013). Election Petition No. 4 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/46/eng@2013-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.