Joseph Kiponda v Independent Electoral and Boundaries Commission & another [2013] KEMC 67 (KLR)
The bottom line
#A Malindi election court refused to recount Ganda Ward votes before trial, ruling that scrutiny requests need full witness testimony, not just sworn paper statements.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should order scrutiny and/or recount of all votes cast in the Ganda County Assembly Ward election at the interlocutory stage, on affidavit evidence
Key legal issues
#Whether scrutiny and recount of votes can be ordered before the hearing of the petition
The court declined to order scrutiny or recount at the interlocutory stage, deferring the question until after full hearing of the evidence
The magistrate held that the Petitioner's allegations were contested by the Respondents and turned on matters that could not be resolved on affidavit evidence alone. Viva voce evidence, with witnesses examined on their affidavits, was required. The court therefore directed the petition to proceed to hearing, with affidavits serving as evidence-in-chief, and reserved the scrutiny/recount question and costs for determination after all evidence was heard.
Legal principles established
#- Allegations in an election petition supporting scrutiny and recount cannot be determined on affidavit evidence at an interlocutory stage but require viva voce evidence
Court orders
#- 1.That the petition shall proceed to hearing as scheduled
- 2.That the witnesses shall be examined on the contents of their affidavits in support of the petition and the affidavits in support or in opposition to the application dated 13/6/13, which affidavits shall be the evidence-in-chief of the respective witnesses
- 3.That the parties are at liberty to canvass the issues raised in the application dated 13/6/13 at the hearing of the petition
- 4.That after all the evidence has been heard, the court will determine whether or not there will be scrutiny and recount of all or part of the votes cast
- 5.That the issue of costs of the application dated 13/6/13 shall await the court's determination
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election petition jurisdiction over the County Assembly Representative election for Ganda Ward within Malindi Constituency (statute not specified in the extract)
Relief refused
#Application dated 13/6/13 seeking scrutiny and/or recount of all votes cast for the Ganda County Assembly Ward election
The issues raised could not be determined on affidavit evidence and required viva voce evidence; ordering scrutiny at that stage was premature
Costs
Costs of the application dated 13/6/13 deferred, to be determined after the court's determination on scrutiny and recount
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the issues raised by the Petitioner in his application and Supporting affidavits cannot be determined by way of affidavit evidence. They are issues that can only be addressed by way of viva voce evidence.
That after the evidence by all the parties has been heard, the court will thereafter make a determination as to whether nor not there will be scrutiny and recount of all or part of the votes cast in respect of the Election in dispute.
That the petition shall proceed to hearing as scheduled;
Issues in the judgment
#The extract does not state the petition case number, the names of the parties, or the enabling statute for the election petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kiponda v Independent Electoral and Boundaries Commission & another [2013] KEMC 67 (KLR)", Case Analysis (2013). not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2013/67/eng@2013-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.