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MagistrateOthernot stated in the extract· [2013] KEMC 67 (KLR)

Joseph Kiponda v Independent Electoral and Boundaries Commission & another [2013] KEMC 67 (KLR)

Magistrates' Court (Election Court), Malindi
10 July 2013
YSY. A. Shikanda
329 words in judgment
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The bottom line

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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

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Executive summary

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This is a ruling by Y.A. Shikanda, Ag. Senior Resident Magistrate, at Malindi on an application dated 13 June 2013 in an election petition concerning the County Assembly Representative election for Ganda Ward within Malindi Constituency. The Petitioner sought orders for scrutiny and/or recount of all votes cast in the election; the Respondents opposed the application. The magistrate considered the application and the parties' submissions and held that the issues raised could not be resolved on affidavit evidence, as they required viva voce evidence. It was therefore premature to order scrutiny and recount before the hearing of the petition. The court declined to allow the application at that stage and instead issued directions: the petition would proceed to hearing as scheduled; witnesses would be examined on their affidavits (both petition affidavits and those supporting or opposing the application), which would constitute their evidence-in-chief; the parties would remain at liberty to canvass the application's issues at the hearing; after all evidence was heard the court would determine whether scrutiny and recount of all or part of the votes would be ordered; and the costs of the application were deferred pending that determination. The ruling was delivered in open court on 10 July 2013, with Mr Kabue appearing for the Petitioner, Ms Ndegwa for the 1st Respondent and Mr Oduor for the 2nd Respondent. The effect was a deferral, not a final rejection, of the scrutiny and recount request.

Key legal issues

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01

Whether scrutiny and recount of votes can be ordered before the hearing of the petition

Holding

The court declined to order scrutiny or recount at the interlocutory stage, deferring the question until after full hearing of the evidence

Reasoning

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.

p. 1

Legal principles established

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  • 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

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  1. 1.That the petition shall proceed to hearing as scheduled
  2. 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. 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. 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. 5.That the issue of costs of the application dated 13/6/13 shall await the court's determination
Jurisdiction invoked
Election petition jurisdiction over the County Assembly Representative election for Ganda Ward within Malindi Constituency (statute not specified in the extract)

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 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.