Hosea Mundui Kiplagat v Sammy Komen Mwaita & 2 others [2013] eKLR

Key Facts

Issues

• Whether the elections for Member of Parliament for Baringo Central Constituency held on 4th March 2013 were free, fair and credible
• Whether the 1st Respondent by himself or through his agents or proxies engaged in voter buying or bribery of voters or committed any election malpractices as alleged in the Petition
• Whether the Petitioner has set out sufficient grounds for granting the reliefs sought
• Costs of the Petition

Holdings

• The court dismissed the petition, concluding that the petitioner did not demonstrate how the alleged irregularities prejudiced his candidacy. The margin of victory (2,003 votes) and the absence of concrete evidence linking the 1st respondent to malpractice led to the dismissal. The judgment upheld the election results and awarded costs to the respondents.
• The court determined that the elections for Member of Parliament in Baringo Central Constituency were free, fair, and credible. The petitioner failed to prove that the 1st respondent or his agents engaged in voter bribery, intimidation, or other electoral malpractices. The court also found no evidence that irregularities in electoral forms (e.g., cancellations, alterations) compromised the election's integrity or affected the outcome.
• The petitioner's witnesses, who alleged voter bribery, were deemed accomplices and their testimony was found unreliable. The court emphasized that allegations of criminal malpractice require a high standard of proof, which the petitioner did not meet. The respondents' alibi defenses and lack of corroboration further weakened the petitioner's case.

Remedies

• The court dismissed the Petition filed by Hosea Mundui Kiplagat challenging the election of Sammy Komen Mwaita as the Member of Parliament for Baringo Central Constituency. The Petitioner failed to prove allegations of voter bribery, intimidation, or undue influence, and the court found no substantial irregularities affecting the election's outcome. The Petition was therefore dismissed with costs.
• A Certificate under Section 86 of the Elections Act was issued to confirm the validity of Sammy Komen Mwaita's election as the Member of the National Assembly for Baringo Central Constituency. This formalized the court's determination that the election results were lawful and credible.
• The court ordered that the Petitioner bear the costs of the Petition. The 1st Respondent was entitled to up to Kshs 1 million in costs, while the 2nd and 3rd Respondents collectively received up to Kshs 1 million. Costs were to be taxed by the Deputy Registrar, and the Petitioner was required to cover these expenses.
• The court declared that Sammy Komen Mwaita was validly elected as the Member of the National Assembly for Baringo Central Constituency following the elections held on 4th March 2013. The court concluded that the election was conducted in accordance with the law and that the Petitioner did not demonstrate any material irregularities compromising the results.

Monetary Damages

Legal Principles

• The petitioner bears the burden of proof to demonstrate that electoral malpractices occurred and that these irregularities substantially affected the election outcome. This was emphasized throughout the judgment, including references to the need for the petitioner to show how non-compliance with electoral laws prejudiced their case.
• The judgment relied on the presumption that the Independent Electoral and Boundaries Commission (IEBC) conducted the election in a valid and regular manner (omnia praesumuntur rite et solemniter esse acta). The petitioner had to overcome this presumption by providing credible evidence of irregularities affecting the election's credibility.
• The court outlined that costs typically follow the event in election petitions, awarding the petitioner to bear the costs of the suit. This principle was applied while considering the conduct of the parties and the lack of proven irregularities, resulting in a split cost award of Kshs. 2 million among the parties.
• For allegations of electoral malpractice with criminal implications, the court applied a standard of proof higher than the balance of probabilities but not as high as 'beyond reasonable doubt.' This was necessary to address the seriousness of criminal offenses like voter bribery while balancing the need for fair electoral dispute resolution.

Precedent Name

• Sambu v Genga & Another
• Morgan & Others v. Simpson & Another
• Ndungu Kimanyi v Republic
• Manson Oyongo Nyamweya v James Omingo Magara & 2 Others
• Wilson Mbithi Mungutu v Patrick Makao Kingora & Another
• Raila Odinga & 5 Others v The IEBC & 3 Others
• Hassan Ali Joho & 2 Others v Suleiman Said Shabbal & 2 Others
• Kondavet Gurunath Reddy v V. Seshaiah & Others

Cited Statute

• Oaths and Statutory Declarations Act
• Elections (Parliamentary and County Elections) Petition Rules 2013
• Constitution of Kenya, 2010
• Elections Act
• Advocates Act
• Leadership and Integrity Act
• Penal Code
• Evidence Act
• Political Parties Act
• Elections (General Regulations) 2012

Judge Name

Passage Text

• the Petitioner has not shown that the breaches complained of went to the substance of the election...the Petitioner has not made a case on how those alterations and cancellations affected the integrity of the results in any way.
• the two witnesses for the Petitioner...were principal actors according to Section 20(1)(a) of the Penal Code in the commission of the offence of receiving a bribe.
• the Petitioner has not met the standard required in proving an allegation of an electoral malpractice...the evidence may be examined bearing this approach to the evidence in mind.