Samson Kinyua Magambo v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 78 (KLR)
The bottom line
#The Meru court upheld the Kiagu Ward MCA election, ruling that posting errors were innocent mistakes that did not change the winner.
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 elections held on 8/8/2017 were conducted in accordance with the constitution and the election's Act and the Elections Rules.
- 2.Whether there was undue improper influence, corruption or irregularities in the conduct of the elections?
- 3.Whether there was substantive, noncompliance with the constitution, elections Act and the applicable Rules and if so, what was the effect of the non-compliance on the results?
- 4.Is the petitioner entitled to the prayers in the petition?
- 5.Who should bear the costs of the petition?
Key legal issues
#Whether the Kiagu Ward MCA election was conducted in accordance with the Constitution, the Elections Act and the applicable rules
The election was conducted substantially in accordance with the law; the petitioner did not prove failure to comply with Article 86 or other provisions
The court examined the evidence of delays in tallying, discrepancies in seals, alleged illegal access and absence of agents during counting. Witnesses confirmed counting in the presence of agents and prompt transmission. Scrutiny and recount confirmed the form 36A results. The broken seals were explained by shortages countrywide and the recount showed no tampering, so the alleged irregularities did not vitiate the election.
Whether the posting errors in the Karimbene Shopping Centre Form 36B amounted to deliberate manipulation or substantial non-compliance affecting the result
The errors were innocent human error affecting all candidates (including the 3rd respondent, who lost 4 votes) and did not affect the outcome; correctly posted, the 3rd respondent would still have won
The 2nd respondent admitted the posting errors and explained them as inadvertent. The errors disadvantaged the petitioner by 35 votes but also the 3rd respondent by 4 votes. Adding the correct votes, the 3rd respondent would score 1796 against the petitioner's 1725. Scrutiny confirmed the ballot boxes matched form 36A. Deliberate manipulation was not proved.
Whether there was bribery, treating or undue influence in the conduct of the election
No; the allegations were hearsay and mere suspicion, not proved beyond reasonable doubt
Witnesses admitted they did not personally see bribery, did not name bribe recipients, and made no police reports. Corrupt motive must be strictly proved and suspicion is insufficient. PW3's evidence rested on assumptions about how his home-area voters would vote. The evidence of assisted voters also showed no misdirection by the presiding officer or agents.
Whether the petitioner was entitled to the prayers sought
No; the petitioner failed to discharge his burden of proving non-compliance or irregularities of such magnitude as to invalidate the election
The burden rests on the petitioner to prove allegations of non-compliance and malpractice to the standard set by section 83 of the Elections Act. Neither limb of section 83 was satisfied: the election was substantially in accordance with the constitutional principles, and the proved errors did not affect the result. The sovereign will of the voters of Kiagu Ward was for the 3rd respondent.
Legal principles established
#- An election should be conducted substantially in accordance with the principles of the Constitution and the Elections Act; irregularities vitiate the election only if of a magnitude that affected the result; errors occasioned by human imperfection are not enough by themselves
- Irregularities attributable to innocent mistake or obvious human error cannot constitute a reason for impeaching an election result
- Allegations of electoral offences such as bribery must be proved beyond reasonable doubt; suspicion is not sufficient
Court orders
#- 1.The petition be and is hereby dismissed
- 2.The election of the 3rd respondent is upheld
- 3.The respondents are awarded costs which shall be assessed
- 4.A certificate of this determination in accordance with section 86(1) of the Elections Act, 2011 shall issue to the Independent Boundaries and Electoral Commission and speaker of the County Assembly of Meru
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election petition under Article 87 of the Constitution and Part VI of the Elections Act, No. 24 of 2011
Relief refused
#Recount, scrutiny and audit of all votes, returns, Forms 36A/36B/36C, KIEMS kits and servers in Kiagu Ward
Petitioner failed to prove allegations of non-compliance to the required standard; scrutiny and recount of four polling stations confirmed the declared results
Declarations that the Kiagu Ward election was invalid, that the 3rd Respondent was not validly elected, and an order for fresh elections
The posting error in the Karimbene Form 36B was an innocent human error affecting all candidates and did not affect the result; no bribery or undue influence was proved
Costs
The respondents are awarded costs which shall be assessed.
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.
The petition be and is hereby dismissed
The election of the 3rd respondent is upheld
The respondents are awarded costs which shall be assessed.
I find and hold that the petitioner has not proved that the election results were interfered with or manipulated in the manner suggested by the petitioner or in a manner that would lead me to invalidate the elections.
I attribute the errors to an innocent mistake or an obvious human error on the part of the 2nd respondent.
It is clear that the third respondent would still be the winner even if the said results were correctly posted.
The standard of proof when one alleges bribery is beyond reasonable doubt.
Issues in the judgment
#The judgment variously records the impugned tallying form as 'Forms 36B' and at one point as 'Forms 34B' in the respondents' reply, and refers to Karimbene/Kalimbene polling station inconsistently
The number of polling stations is inconsistently given as 26 in evidence but the 3rd respondent's submissions refer to 24 polling stations
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Kinyua Magambo v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 78 (KLR)", Case Analysis (2018). Not stated in judgment (Election Petition, Kiagu Ward Member of County Assembly). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/78/eng@2018-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.