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MagistrateDismissedElection Petition (Sirisia) – Petition dated 5th September, 2017· [2018] KEMC 17 (KLR)

Daniel Makecho Ndalila Muyelele v Barasa Tony Khaoya & 2 others [2018] KEMC 17 (KLR)

High Court of Kenya (Election Court)
2 February 2018
SMS.O. Mogute
9,163 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~37 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner, an unsuccessful Ford Kenya candidate, challenged the election of Barasa Tony Khaoya as Member of County Assembly for Lwandanyi Ward, Sirisia Constituency, in the 8th August 2017 general election, alleging voter bribery, violence, intimidation, illegal campaigning, denial of agent access, and discrepancies in statutory forms. He sought scrutiny, a recount, verification of Forms 36A and 36B, declarations that the election was unconstitutional and void, and his own declaration as the validly elected candidate. The Respondents maintained the election complied with the Constitution and electoral law. The court condensed the dispute into three issues: electoral offences by the 1st Respondent, contravention by the 2nd and 3rd Respondents, and materiality of any non-compliance. Applying the Raila Odinga standard and Morgan v Simpson, the court held the burden rested on the Petitioner to a standard above balance of probabilities but below criminal proof. Bribery and violence allegations failed as hearsay, uncorroborated and lacking nexus to the 1st Respondent. Statutory forms presented by IEBC were treated as the official record; erasures, arithmetic variances, missing comments and the erroneous Form 36C were minor administrative errors that did not affect the result. The petition was dismissed with costs of Kshs. 400,000 apportioned between the Respondents, the security deposit shared equally, and a certificate under Section 86(1) of the Elections Act ordered to issue.

Key legal issues

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01

Whether the 1st Respondent committed electoral offences including bribery and violence

Holding

Not proved; allegations were hearsay and unsupported by cogent evidence or nexus to the 1st Respondent

Reasoning

The Petitioner gave hearsay information from agents who never testified; no police reports, OB numbers, medical evidence or corroboration was produced; witnesses declined bribes and could not link those dishing money to the 1st Respondent; alleged perpetrators' names did not appear on statutory forms.

p. 7
02

Whether the election was conducted in contravention of the Constitution and electoral law

Holding

Statutory forms showed only minor administrative irregularities; the election was conducted substantially in accordance with constitutional principles

Reasoning

Erasures need not be countersigned; missing presiding officer comments and arithmetic variances did not affect results; errors were attributed to fatigue given six elective posts managed simultaneously; erroneous Form 36C satisfactorily explained by the Returning Officer.

p. 16
03

Whether any non-compliance materially affected the result

Holding

It did not; variances were minimal and none favoured the 1st Respondent

Reasoning

Small arithmetic discrepancies and uncountersigned erasures on Forms 36A and 36B did not alter the outcome; agents signed forms without objection, attracting a presumption of regularity of their acts.

p. 11

Legal principles established

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  • A petitioner must prove both non-compliance with electoral law and that it affected the result before an election is nullified
  • The standard of proof in an election petition is higher than a balance of probabilities but below criminal standard
  • Original statutory forms presented by IEBC prevail as the official record of the election
  • Elections conducted by human beings are not vitiated by mere administrative errors that do not affect the outcome

Court orders

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  1. 1.Petition dated 5th September, 2017 dismissed
  2. 2.Declaration that Barasa Tony Khaoya was validly elected as Member of County Assembly for Lwandanyi Ward of Sirisia Constituency
  3. 3.Certificate under Section 86(1) of the Elections Act to issue
  4. 4.Petitioner to pay costs of Kshs. 400,000/- apportioned Kshs. 200,000/- to the 1st Respondent and Kshs. 200,000/- to the 2nd and 3rd Respondents
  5. 5.Security deposit by Petitioner to be shared equally: Kshs. 50,000/- to the 1st Respondent and Kshs. 50,000/- to the 2nd and 3rd Respondents
Jurisdiction invoked
Election Petition under the Constitution and the Elections Act, governed by Rule 9 of the Elections (County and Parliamentary Elections) Petitions Rules, 2017

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, "Daniel Makecho Ndalila Muyelele v Barasa Tony Khaoya & 2 others [2018] KEMC 17 (KLR)", Case Analysis (2018). Election Petition (Sirisia) – Petition dated 5th September, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/17/eng@2018-02-02

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