Ledama Ole Kina v Samuel Kuntai Tunai &10; others [2013] eKLR

Key Facts

Issues

• 3. Whether there were alterations and cancellations to the electoral documents and whether such alterations or cancellations had an impact on the results of the election;
• 1. Whether the election results of Narok County Governor's election was credible and accurate;
• 2. Whether there were instances of votes cast exceeding the number of registered voters in specified polling stations as alleged in the petition or at all;
• 6. Whether the election for Governor of Narok County was transparent, free and fair or and a complete utter sham as alleged;
• 8. Whether the 1st and 2nd respondents were properly declared as Governor and Deputy Governor of Narok County;
• 7. Whether the alleged irregularities which if proved, materially affected the outcome of the election;
• 4. Whether some of the authorized agents were obstructed and harassed or at all;
• 9. Whether the petitioners are entitled to the prayers sought;
• 10. Who is entitled to costs.
• 5. Whether there was bribery, corruption and illegal practices including election offences and bias of electoral officials as alleged or at all;

Holdings

Remedies

• The court awarded costs totaling Kshs.4.5 million to the respondents, with Kshs.1.5 million allocated to the 1st and 2nd respondents and Kshs.3.0 million to the 3rd to 10th respondents.
• The court dismissed the petition and ordered the petitioner to pay costs to the respondents, including Kshs.1.5 million to the 1st and 2nd respondents and Kshs.3.0 million to the 3rd to 10th respondents.

Monetary Damages

Legal Principles

• The court emphasized that the petitioner must prove not only that irregularities occurred but also that they materially affected the election outcome, as per Section 83 of the Elections Act and constitutional principles.
• The court applied a standard of proof requiring the petitioner to establish irregularities with a firm and unanswered case, balancing democratic integrity with the need to avoid undue nullification of elections due to minor human errors.

Precedent Name

• John Fitch v Tom Stephenson & 3 Others (2008)
• Morgan and Others v Supson (1974) 3 ALL FR 72
• Wavinya Ndeti v IEBC (2013)
• John Kiarie Waweru v Beth Wambui Mugo & 2 Others (2008)
• Amina Hassan Ahmed v IEBC (2013)
• William Odhiambo Oduol v IEBC & 2 Others (2013)
• Raila Odinga v IEBC & Others (2013)
• Rashid Hamud Ahmed v IEBC (2013)
• ABN Amro Bank N.V v. Le Monde Foods Limited (2002)
• Benjamin Ogunyo Andama v Benjamin Andola Andayi (2013)
• Buhari v Obasanjo (2005) CLR 7K
• Mutoko South Election Petition HH 68/2000
• Joho v Nyange and Another (2008) 3 KLR 500
• William Kabogo Gitau v George Thuo & 2 Others (2010)
• Mbogo v Kangethe & Another (2008) 1 KLR 168
• Hove v. Gumbo (2002)
• Thomas Mahinda Musau & Others v IEBC (2013)
• Josiah and Others v Ogutu & Another (2008) 1 KLR 73
• Mbowe v Eliafoo (1967) EA 240
• Opitz v Wrzesnewsky (2012) SCC 55-2012-10-256
• Oboth Marksons Jacob v Utiam Otaala Emmanuel (2011)

Cited Statute

• Constitution of Kenya, 2010
• Elections (General) Regulations, 2012
• Transition to the Devolved Government Act, 2012
• Elections (Parliamentary and County Elections) Petition Rules, 2013
• Elections Act, 2011

Passage Text

• In the end, the variation found after the retally did not substantially affect the final results. The 1st respondent was still in the lead while the petitioner got the least votes and it did not change the outcome of the elections. The omission by the 3rd respondent did not invalidate the elections.
• The will of the people of Narok must be upheld. I find and hold that the 1st respondent was validly elected as the Governor of Narok pursuant to Article 81 of the Constitution. I hereby declare that Samuel Kuntai Tunai was validly declared as Governor for Narok and Aruasa Evalyn Chepkirui as the Deputy Governor. The sum effect is that the petition must fail and it is hereby dismissed with costs to the respondents.