Silvanus Juma v Fred Musirimba & 2 others [2018] KEMC 41 (KLR)
The bottom line
#The Busia court upheld the MCA election but ordered IEBC to pay costs because its own errors breached voters' legitimate expectations, even though the outcome was unaffected.
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 election for Member of the County Assembly for Bunyala North Ward in Busia County held on 08.08.2017 was conducted in accordance with the Constitution, election laws and regulations
- 2.Whether the 1st Respondent was validly elected Member of the County Assembly for Bunyala North Ward in Busia County
- 3.What consequential orders should this court issue
Key legal issues
#Exhaustion of oath of secrecy forms (Form 32B) for assisted voters at Sifugwe Primary School
IEBC erred in failing to supply sufficient forms, but the petitioner failed to prove this compromised the secrecy of assisted voters or affected the result
The court found the 2nd respondent erred in law by failing to provide necessary materials. However, Regulation 72(2) permits the presiding officer to assist voters in the presence of agents, and the petitioner's contradictory claims (that agents were excluded and simultaneously that agents surrounded voters destroying secrecy) undermined his case. The Raila 1 test - proving non-compliance affected the election - was not met.
Employment of an unqualified polling clerk (Mercy Cynthia Barasa)
Proved as an irregularity, but not shown to have affected the result or warranted nullification
The petitioner proved Mercy Barasa lacked the minimum KCSE qualification; the respondents failed to counter this having destroyed application documents and not calling her as a witness, shifting the burden to them. However, under Section 83 of the Elections Act, no evidence showed her appointment affected the result, so nullification was not warranted.
Engagement of Kevin Oduori Okello, a relative of a candidate, as a polling clerk
An irregularity attributable to both the public's failure to object and IEBC's failure of due diligence, but the petitioner failed to prove the affinity affected the outcome
Following Paul Gitenyi Mochorwa v Timothy Moseti Bosire, the court held that affinity alone is insufficient; the petitioner had to prove the relative was positioned to and did influence the outcome. There were no complaints against Kevin until the petition, and the presiding officer testified he committed no malpractice.
Discrepancies between Forms 36A and 36B at Munani and Nabuchwi polling stations
Human/clerical errors that did not affect the per-candidate results and did not vitiate the election
The Returning Officer admitted the discrepancies but explained them as arithmetic and transmission errors that left the valid votes for each candidate unchanged. Applying Joho v Nyange and Kalembe Ndile, innocent human errors not affecting results are excused under Section 83 of the Elections Act.
Presence of the 1st respondent at polling stations and communication with voters
Candidate access to polling stations is lawful under Regulation 62(1)(a); allegations of improper communication and leading three women into the polling room were not proved to the required standard
Regulation 62(1)(a) allows candidates access to polling stations. Bringing voters from the queue would be unlawful, but the petitioner's witness did not know the women, did not see what happened inside, and witnessed no inducement. Election-offence allegations attract a higher standard of proof not discharged.
Doctrine of legitimate expectation in election petitions
IEBC breached the voters' legitimate expectation that electoral materials would be available and that officials would be qualified and impartial, warranting condemnation in costs despite dismissal of the petition
Applying Article 47 and the legitimate expectation doctrine, the court held that IEBC's representation of readiness for the election raised a legitimate expectation that all materials, including Form 32B, would be sufficient, and that no relative of a candidate would be engaged as an official. The breaches were unreasonable and unjustifiable, justifying costs against the Commission.
Legal principles established
#- The burden of proof in election petitions lies on the petitioner, and non-compliance must affect the result for an election to be nullified under Section 83 of the Elections Act
- Where malpractices are committed by IEBC or its employees, the burden shifts to IEBC to prove the malpractices did not exist
- Candidates have unrestricted access to polling stations under Regulation 62(1)(a) of the Elections (General) Regulations
Court orders
#- 1.A declaration that Fred Musirimba, the 1st respondent, was validly elected as the Member of County Assembly, Bunyala North Ward in Busia County
- 2.The petition is dismissed
- 3.Costs to be paid by the IEBC (2nd respondent), capped at Kshs. 200,000/= for each of the parties entitled to costs
- 4.The security for costs deposited by the Petitioner be released to the Petitioner upon proper identification
- 5.A certificate to issue under Section 86(1) of the Elections Act 2011
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Elections Act 2011, Section 75 (election petition to the Chief Magistrate's Court)
Relief refused
#Declaration that Fred Musirimba was not duly elected and the election for Member of County Assembly in Bunyala North was void
The petitioner failed to prove non-compliance that affected the result; irregularities were minor and did not substantially affect the outcome
Costs
Costs of the petition to be paid by the IEBC (2nd respondent), capped at Kshs. 200,000/= for each of the parties entitled to costs.
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.
Having heard this case on merits, this court hereby issues a DECLARATION that the Fred Musirimba, 1st respondent was validly elected as the Member of County Assembly, Bunyala North Ward in Busia County.
The consequential orders which this court shall issue are that this Petition is dismissed.
On the issue of costs, I apply the doctrine of expectation and order that cost be paid by IEBC, 2nd the respondents. I cap costs at Kshs. 200,000 /= for each of the parties entitled to costs.
In this court's opinion, the allegations that the exhaustion of forms 32 B had the effect of compromising the secrecy of the assisted voters is not proved by the petitioner.
Where the malpractices are committed by IEBC or its employees or worker, Raila 2 is the applicable law where the burden shifts from the person alleging existence of the malpractices to IEBC to prove that the malpractices did not exist.
The candidates are not limited to have access to a polling station at any time.
The security deposited herein may now be released to the depositor upon proper identification
Issues in the judgment
#Internal contradiction on costs: the petition was dismissed and the 1st respondent's election upheld, yet the court ordered costs against the 2nd respondent (IEBC) rather than costs following the event
Ward name inconsistency throughout the judgment: 'Bunyala North Ward', 'Bukhayo North Ward' and 'Busia North Ward' are used interchangeably for the same electoral unit
The court's conclusions introduce allegations of voter bribery, voter importation and violence that were not among the issues framed by consent of the parties
Misreference to the 1st respondent as 'Fred Sirumba' when discussing the polling station allegations
The findings list treats the alleged unqualified clerk variously as 'Cynthia Barasa' and 'Mercy Barasa' and elsewhere as 'Cynthia Mercy Baraza'
Order 23 declares the 1st respondent validly elected but the concluding declaration paragraph elsewhere refers to the '3rd Respondent' being lawfully elected, an apparent misnumbering
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Silvanus Juma v Fred Musirimba & 2 others [2018] KEMC 41 (KLR)", Case Analysis (2018). Election Petition No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/41/eng@2018-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.