Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2023] KEMC 3 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Alleged violence and ejection of agents
Only a single 20-minute scuffle at Afweine Centre 1 was proved; no evidence linked the other eight polling stations, and the violence did not affect voting or results
Four witnesses testified but PW2, PW3 and PW4's evidence centred on Afweine Centre Stream 1 only. PW3 confirmed she was not ejected and left on her own volition at 3:00 a.m. The court applied Owino Babu, Malombe and M'mbaya: isolated violence not traceable to the 3rd Respondent and not affecting the outcome cannot justify nullification.
Failure of KIEMS kits
Only two kits failed and were immediately replaced with backups; the ground is too remote to nullify the election
RW2 testified that only Darusalam Primary School and Baraki Primary School kits failed and were promptly replaced, voting resuming immediately. PW1 gave only generalised testimony without identifying stations. The petitioner led no evidence of disenfranchised voters or of how the failures undermined the election's credibility or verifiability.
Alleged ballot stuffing and manipulation of figures
Claim unsupported by any evidence; no scrutiny was done to verify it; fails
The petitioner's arithmetical assertions (690 identified voters in Afweine, contradictory tallies) were not backed by tangible evidence. No scrutiny was sought and granted. Allegations of unidentified voters and manipulated figures remained speculative and did not meet the elevated standard of proof.
Compliance with constitutional and statutory electoral principles
The election complied with Article 81(e), Article 86 and the Elections Act; irregularities were not of a magnitude to affect the result
Applying Gatirau Peter Munya, procedural or administrative irregularities from human imperfection do not themselves vitiate an election unless they affect the result. Late opening/closing and low turnout were immaterial; there was no complaint of tallying or declaration errors.
Commission of electoral offences
Three of the Petitioner's witnesses, being public officers who acted as political agents, committed an offence under section 15 of the Election Offences Act, 2016
PW-2, PW-3 and PW-4 admitted they were County Government of Garissa employees who actively participated as political agents without informing their employer. Section 15 prohibits public officers from engaging in candidate or party activities. The court exercised its power under section 87 of the Elections Act and referred the matter to the ODPP.
Legal principles established
#- In election petitions the standard of proof is higher than balance of probabilities but lower than beyond reasonable doubt; criminal-type allegations require proof beyond reasonable doubt
- Isolated violence not shown to affect the voting and final results cannot vitiate an election
- To vitiate results, violence must be widespread, systematic, planned or organized
- Procedural or administrative irregularities occasioned by human imperfection do not, without effect on the result, vitiate an election
- Failure of a KIEMS kit promptly remedied by replacement is too remote to sustain nullification
Court orders
#- 1.The petition dated August 30, 2022 and filed in court on September 2, 2022 is hereby dismissed
- 2.A declaration that the 3rd Respondent having attained the majority votes was validly elected as a Member of County Assembly representing Baraki Ward, Garissa County Assembly
- 3.A declaration that election offences were committed by Salah Mohamed Abdi Bulle, Quresha Ali Ahmed and Amin Abdullahi Dagane and the ODPP to take up the matter accordingly
- 4.The Petitioner to bear costs: 1st and 2nd Respondents jointly granted full costs capped at Kshs 400,000; 3rd Respondent awarded full costs capped at Kshs 300,000; Mr. Ndegwa's costs capped at Kshs 250,000
- 5.Deposit paid into Court as security to be agreed as to which Respondents will be paid
- Jurisdiction invoked
- Election petition under the Constitution of Kenya, 2010, the Elections Act, 2011 and the Elections (Parliamentary and County Elections) Petitions Rules, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2023] KEMC 3 (KLR)", Case Analysis (2023). Election Petition dated August 30, 2022 (Baraki Ward MCA), Garissa Law Court. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/3/eng@2023-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.