Boniface Muisyo Nguli v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 86 (KLR)
The bottom line
#A Kenyan court dismissed a challenge to a Tala ward election because the candidate offered allegations, not evidence, and must pay up to KShs 2 million in costs.
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 results of Tala polling station stream 2 would have changed the overall winner for Member of County Assembly for Tala ward
- 2.Whether there was any voter intimidation or bribery during the voting and, if so, what was the effect
- 3.Whether the election was carried out in accordance with the provisions of the Constitution, Election Act and the regulations therein
- 4.Whether the election was done in an open, transparent, participatory and accountable manner pursuant to Article 81(a) as read with Article 86 of the Constitution
- 5.Whether the 3rd Respondent was validly elected as Member of County Assembly of Tala ward
Key legal issues
#Effect of lost form 36A for Tala stream 2 on the declared result
Even if the stream 2 figures were added to the tally, the overall winner would not change; the lost form had been scanned into the KIEMS kit
The Returning Officer, Presiding Officer and deputy confirmed the lost form 36A had been scanned and inputted into the KIEMS kit. Perusal of the figures showed that even adding them to the final tally would not change the winner, so the missing form did not affect the result.
Voter intimidation and bribery
Not proved; only general allegations with no supporting evidence from the petitioner or his witnesses
The petitioner admitted he did not see money exchange hands, made no report to police, and his agents did not testify to witnessing bribery or intimidation. General allegations without evidentiary basis fail to discharge the petitioner's burden of proof.
Compliance with Articles 81 and 86 (free, fair, transparent and accountable election)
Election was conducted in accordance with the Constitution and electoral law; no evidence of non-transparency or lack of accountability
The petitioner and his witnesses adduced no evidence that the exercise was not open, transparent, participatory or accountable. The only complaint was the missing form 36A, which was scanned into the KIEMS kit and did not affect the outcome.
Validity of the 3rd Respondent's election
The 3rd Respondent was validly elected
With the allegations of irregularities, bribery and non-compliance all unproved, the court concluded the declaration of the 3rd Respondent as winner reflected the will of the voters and made a certificate of valid election under section 75(3) of the Elections Act.
Pleadings and compliance defects (results not stated, undated affidavits, references to Tala Township 'constituency')
Recorded as respondents' contentions; court declined to decide matters not specifically pleaded
The respondents argued the petition did not state the election results as required by Rules 8 and 12(2)(c), the supporting affidavit was undated contrary to the Oaths and Statutory Declarations Act, and the petition repeatedly referred to a non-existent Tala Township Constituency. The court declined to render opinions on aspects not based on the pleadings.
Legal principles established
#- Rules 8 and 12 of the Election (Parliamentary and County Elections) Petition Rules 2017 are mandatory; a petition not stating the results of the election is incurably defective
- Under section 83 of the Elections Act, an election shall not be declared void for non-compliance unless it affected the result or the election was not conducted in accordance with constitutional principles
- The burden of proof in an election petition lies on the petitioner and the standard is higher than a balance of probabilities but below beyond reasonable doubt
- A petitioner is bound by his pleadings and the court decides only on the basis of the pleadings filed
Court orders
#- 1.The petition is dismissed with costs
- 2.All prayers sought by the petitioner are declined
- 3.Pursuant to Section 75(3) of the Elections Act, Kamitu Alex is declared validly elected as Member of County Assembly, Tala ward of Machakos County
- 4.Costs are capped at KShs 2,000,000, with 50% payable to the 1st and 2nd Respondents and 50% to the 3rd Respondent, paid by the Petitioner
- 5.A certificate/report under Section 87(c) of the Elections Act that no election offence was found to have been committed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Election (Parliamentary and County Elections) Petition Rules 2017; Articles 81, 86 and 87(1) of the Constitution; Sections 75(3), 83, 84 and 87(c) of the Elections Act
Relief refused
#Declaration that the county election of 8th August 2017 in Tala ward was null and void
No evidence proved the alleged irregularities to the satisfaction of the court
Declaration of substantial non-compliance/irregularities affecting results
General allegations unsupported by evidence
Declaration that the 3rd Respondent was not validly elected
Court concluded the 3rd Respondent was duly elected
Order for a fresh election
Follows from dismissal of the petition
Declaration that all Respondents committed election irregularities
No evidence of voter intimidation or bribery was adduced
Costs
Petition dismissed with costs to the Respondents, paid by the Petitioner; costs capped at KShs 2,000,000, 50% to the 1st and 2nd Respondents and 50% to the 3rd Respondent.
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.
In light of the determination I have made, I hereby dismiss the petition with costs and decline to grant all the prayers sought by the petitioner in the petition.
Pursuant to Section 75 (3) of the election Act, I hereby declare that Kamitu Alex whose election was questioned herein was validly elected as Member of County Assembly Tala ward of Machakos County.
The 1st - 3rd Respondents are entitled to costs and I so grant them. Those costs shall be paid by the Petitioner.
I therefore find that the answer to issue no. 1 is in the negative.
As the law requires, one who alleges a fact must prove it. This was not done and hence I find that it is not proven as required.
The rules are mandatory. A petition that does not comply with these provisions is incurably defective and cannot stand.
Issues in the judgment
#Judgment states the appeal against the ruling of 6/12/2017 was itself dismissed on 6/12/17, the same date - internally inconsistent dates
Hearing record states matter concluded on 5/12/2017 while earlier text says hearing commenced and submissions were filed 13/12/17
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Muisyo Nguli v Independent Electoral and Boundaries Commission & 2 others [2018] KEMC 86 (KLR)", Case Analysis (2018). Election Petition dated 4th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2018/86/eng@2018-01-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.