Zakayo Nyongesa Harrison v Independent Electoral & Boundaries Commission & 2 others [2018] KEMC 63 (KLR)
The bottom line
#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 degazettement of the petitioner as the duly elected Member of County Assembly Busibwabo Ward was unlawful, illegal and contrary to law and the principles of natural justice
- 2.Whether the 2nd respondent had the unilateral power to cancel and recall the gazettement of the petitioner
- 3.Whether the election was grossly undermined by instances of voter importation, voter bribery and voter inducement so as to affect the integrity and outcome of the elections
- 4.Whether the election was conducted in a free, fair and transparent manner and to the required standards enshrined in the Constitution, the Elections Act and regulations
- 5.Whether the 3rd respondent was validly and lawfully elected and declared the winner
- 6.Whether the election should be declared null and void and a fresh election held
- 7.Who should bear the costs of the petition
- 8.The preliminary objection dated 22nd November 2017 brought by the 3rd respondent
- 9.The disputed votes per the scrutiny and recount report, including the 2 rejected votes from Busibwabo stream 3 of 3 and 1 vote found outside the envelope at Nasira A.C. stream 2 of 2
Key legal issues
#Preliminary objection on non-compliance with Rules 8(1) and 12(2) of the Elections (Parliamentary and County Elections) Petitions Rules 2017
The preliminary objection was dismissed as raised too late in the proceedings
The court accepted that the petition arguably failed to plead declared results and date of declaration, but held the objection should have been raised at pretrial; Rule 15(2) bars interlocutory applications after the pretrial conference. The court also noted the parties had closed their case before the objection was raised.
Power of IEBC/returning officer to degazette the petitioner by corrigendum
The degazettement was irregular, unlawful and a nullity; IEBC acted ultra vires and as a judge in its own cause
After gazettement, disputes vest exclusively in an election court under Article 88(4)(e); the returning officer, having declared results and issued the certificate, was functus officio. Natural justice required the petitioner be heard; no provision authorises degazettement by corrigendum.
Voter importation, bribery and undue influence
Not proved; the allegations, being criminal electoral offences, required proof beyond reasonable doubt which was not met
No particulars or proof of the self-help group; photographs taken at lunch time proved nothing; witnesses never reported the offences to police or IEBC despite knowing the channels. Mens rea for bribery was not established.
Conduct of the election - free, fair and transparent
The irregularities proved (changed counting sequence, unsigned forms, erasures) were non-consequential and did not affect the result
Applying Morgan v Simpson and section 83 of the Elections Act, the court upheld the election where non-compliance did not affect the result. Agents who refused to sign without recording reasons bore the consequences of their inaction.
Presence and role of the Assistant Chief at the polling station
The petitioner did not prove that the Assistant Chief's presence was mischievous or affected the results
The Regulations vest law and order in the presiding officer and police officers; the Assistant Chief's entry was unlawful but the petitioner failed to prove influence over officials, voters or candidates, or any detriment to the result.
Effect of scrutiny and recount
The scrutiny and recount cured any irregularities; the 3rd respondent remained the winner
Following Hassan Abdalla Albeity v Abu Chiaba, recount cures tallying errors. Minor vote changes had no significant effect; the 3rd respondent still ranked first with 1,410 votes against the petitioner's 1,367.
Legal principles established
#- Gazettement creates only a rebuttable presumption of election, and an election court's declaration can supersede certificates and corrigenda issued by IEBC
- A returning officer becomes functus officio upon declaring results and issuing a certificate, and has no unilateral power to degazette or rectify results by corrigendum
- The standard of proof for electoral offences such as bribery, treating and undue influence is beyond reasonable doubt
- Failure by a party's agents to protest, record remarks or exercise rights of retallying at the polling station cannot be blamed on anyone else
Court orders
#- 1.The 3rd respondent's preliminary objection dated 22nd November 2017 is dismissed
- 2.A declaration that the 3rd respondent was validly elected as the Member of County Assembly, Busibwabo Ward of Matayos Constituency, Busia County
- 3.A finding that the gazettement of the petitioner was factually erroneous and the degazettement/gazettement of the 3rd respondent by corrigendum was legally erroneous as IEBC had become functus officio, the R.O acting ultra vires the law
- 4.The petitioner's costs and those of the 3rd respondent shall be paid by the 1st Respondent (IEBC), capped at Kshs. 300,000/= in respect of each
- 5.The 2 rejected ballot papers to be redistributed to George Makhayaka Busera as the voters' intention was clearly in his favour
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction as an election court under the Constitution of Kenya 2010, the Elections Act 2011 and the Elections (Parliamentary and County Elections) Petitions Rules, 2017
Relief refused
#Declaration that the improprieties by the 1st and 2nd respondents were substantial and significant and grossly affected the results
The petitioner failed to prove the alleged irregularities and electoral offences to the required standard; scrutiny and recount showed no significant change in the outcome
Declaration that the 3rd respondent was not validly declared winner / nullification of the election and fresh election
The election was conducted in accordance with the Constitution, statutes and regulations; the irregularities proved were non-consequential
Declaration that the petitioner be declared validly elected if the recount revealed he had won
The recount confirmed the 3rd respondent as the winner
Costs
The petitioner's costs and those of the 3rd respondent shall be paid by the 1st Respondent (IEBC), capped at Kshs. 300,000/= in respect of each, the court holding that IEBC's errors should not be visited on either candidate.
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 3rd respondent was validly elected as the Member of County Assembly, Busibwabo Ward of Matayos Constituency, Busia County
For the reasons set out in (15 above), I order that the petitioners costs and those of the 3 rd respondent shall be paid by the 1st Respondent (IEBC) which I cap at Kshs. 300,000 /= (Three Hundred Thousand shillings) in respect of each.
I therefore find that the returning officer had no unilateral powers whatsoever to cancel and degazette the petitioner as informed by corrigenda gazette notice 8378.
In the courts opinion, the P. O filed herein does not pass the test set out in Mukisa Biscuits Manufacturing Company Ltd V West End Distributors Ltd (1969) EA 696 and the same is hereby dismissed
In the absence of sufficient evidence, this court finds that the allegations for voter importation, voter bribery and undue influence have not been proved and they therefore must fail.
This court being an election court can issue a declaration which is capable of superseding all certificates and corrigenda issued by IEBC.
Issues in the judgment
#The scrutiny tables and the narrative give inconsistent figures for Okuku Wycliffe Wandera (IEBC 232 vs scrutiny 331, described as an increase of 99 votes from 11), and the corrigendum Gazette Notice is variously dated 25.8.17 and 28.8.17; the judgment also contains duplicated passages and misnumbered sections
The judgment states the petitioner garnered 1,369 votes in one passage while the tally and Form 36B elsewhere record 1,379 votes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zakayo Nyongesa Harrison v Independent Electoral & Boundaries Commission & 2 others [2018] KEMC 63 (KLR)", Case Analysis (2018). Election Petition No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/63/eng@2018-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.