Yaite Philip Okoronon v Jakaa Gardy Odara & another [2018] KEMC 42 (KLR)
The bottom line
#The Busia court dismissed an election petition, ruling that minor clerical errors don't overturn elections and unspecific allegations of violence or bribery simply aren't enough.
What this practically means
#Executive summary
#Key legal issues
#Whether violence and intimidation were proved
Not proved; the allegations were generalized, based on hearsay, and not linked to the 1st respondent or shown to affect the outcome
The petitioner himself denied witnessing violence in his affidavit and later claimed he had been informed of it. PW2 relied on hearsay without naming informants or victims, produced no P3 forms, medical evidence or OB number, and no police or IEBC officers were called. Election offences require proof beyond reasonable doubt, which was not met.
Whether voter bribery and undue influence were proved
Not proved; no names of bribed voters, no form of bribe, no place or date, and none of the petitioner's witnesses saw any bribery
Bribery is a criminal election offence requiring proof beyond reasonable doubt. The petition contained only generalized allegations; even a single proven act of bribery with corrupt motive would suffice, but none was established. The petitioner's own witnesses denied witnessing any bribery.
Whether discrepancies in Forms 36A and 36B affected the results
No; the discrepancies were minor clerical errors and the scrutiny and recount confirmed the same ranking of candidates
The court undertook scrutiny and recount of all 22 polling stations. The 1st respondent lost one vote (1910 to 1909), the petitioner lost two (1612 to 1610), and rejected votes rose from 34 to 40. The margin between the winner and petitioner remained about 299 votes, so the errors were genuine human errors that did not affect the result.
Whether agents were locked out of polling stations
Not proved; Regulation 62 permits only one agent per candidate/party, agents must show accreditation, and absence of an agent does not invalidate proceedings
PW4 was told to wait because another ODM agent was already inside, consistent with Regulation 62(2). PW6 lacked accreditation documents. Some agents simply failed to sign Form 36A without reasons, and Regulation 79(7) provides that absence of an agent does not invalidate results. The allegation, if true, would be a criminal election offence requiring proof beyond reasonable doubt.
Whether the election was conducted in accordance with the Constitution, election laws and regulations
Yes; the election substantially complied with the law and the 1st respondent was validly elected
Applying Section 83 of the Elections Act and Raila 1, the court found no proved non-compliance affecting the result. The voting process was by secret ballot, agents were largely present and signed Forms 36A, results were declared by Presiding Officers, and the recount confirmed the declared outcome.
Legal principles established
#- The burden of proof in an election petition lies on the petitioner, who must prove allegations to a standard higher than a balance of probabilities but below beyond reasonable doubt, except that election offences must be proved beyond reasonable doubt.
- Minor discrepancies caused by genuine human error do not justify nullification of an election where the final results are unaffected.
- A scrutiny and recount cures irregularities or errors committed in tallying, counting and presentation of results in the statutory forms.
- Failure by an agent to sign Form 36A, or the absence of an agent, does not by itself invalidate the results announced.
Court orders
#- 1.Declaration that Jakaa Gardy Obara, 1st respondent, was validly elected as the Member of County Assembly, Bukhayo North Walatsi Ward in Busia County
- 2.Petition dismissed
- 3.Costs of the petition awarded to the Respondents, capped at Kshs. 150,000 for each party entitled to costs, with the sum deposited in court to remain deposited pending assessment of costs as per the Advocates Remuneration Order
- 4.Certificate to issue under Section 86(1) of the Elections Act 2011
- Jurisdiction invoked
- Elections Act, Election Petition jurisdiction over election of a Member of County Assembly (Section 75, Elections Act)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kithikii Kavindi Allan v Anntony John & 2 others [2017] KEMC 6 (KLR)[2017] KEMC 6 (KLR)21 Nov 2017
Cite this brief
#Cite this brief
Caselaw, "Yaite Philip Okoronon v Jakaa Gardy Odara & another [2018] KEMC 42 (KLR)", Case Analysis (2018). Election Petition No. 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/42/eng@2018-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.