Mark Nkonana Supeyo & another v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR

Key Facts

Issues

• The court determined whether the Kajiado West Constituency election was conducted in accordance with the Constitution, electoral laws, and regulations, finding it compliant despite some irregularities.
• The court examined whether non-compliance with electoral laws or irregularities (e.g., missing stamps, unsigned forms) substantially impacted the election results, determining they did not invalidate the outcome.
• The court considered whether to grant additional reliefs (e.g., fresh elections) or award costs to the respondents, ultimately dismissing the petition and awarding costs to the respondents.
• The court evaluated whether Sunkuyia George Risa was validly elected as Member of National Assembly for Kajiado West, affirming his election despite procedural concerns raised by petitioners.
• The court assessed whether the parliamentary election in Kajiado West was conducted freely, fairly, transparently, and credibly under constitutional and legal provisions, concluding it met these standards.

Holdings

• The court found that unexplained discrepancies in the total number of votes cast for various elective posts in the same constituency were negligible and did not affect the results. The returning officer's explanation of stray ballots was deemed convincing.
• Discrepancies between KIEMS kits and Form 35A in six polling stations totaled 60 votes, which the court concluded were too small to affect the outcome (1,584-vote margin between winner and second candidate).
• Anomalies in Form 35B, including missing returning officer name and signatures, were deemed insufficient to invalidate the election. The form's authenticity was confirmed through other evidence, and the discrepancy of one vote was attributed to human error.
• The court declared the election valid, emphasizing that minor irregularities did not undermine the will of the voters. The 3rd respondent was validly elected as Member of National Assembly.
• The court found no evidence that presiding officers failed to sign Form 35A. All legible forms had signatures, and allegations of forgery lacked expert verification.
• The court determined that forms used to declare results had sufficient security features, as demonstrated by the returning officer using UV light and bar code readers. Petitioners failed to provide evidence of the alleged contract requirements.
• Claims of voters voting without identification were rejected. The returning officer demonstrated that all four identification methods used by KIEMS kits were valid, and no evidence of invalid votes was presented.
• Failure of agents to sign forms and lack of reasons by presiding officers were found not to invalidate results. Forms in dispute had sufficient signatures from petitioners' agents, and the law does not mandate such explanations.
• Late closing of polling stations was attributed to valid extensions under electoral regulations. No evidence of systematic delays favoring the respondent was found.
• Allegations of agents being excluded from tallying centers were dismissed as hearsay. The court confirmed that agents from the petitioners' party had signed forms, indicating access was granted.
• The high percentage of rejected votes in Kajiado West (2%) compared to other constituencies was deemed a generalized observation without proof of manipulation or impact on results.
• The court ruled that four missing SD cards did not affect results, as discrepancies between KIEMS data and Form 35A were minor and the latter was accepted as the final authority.
• The court rejected allegations that statutory forms were not made available to the public, noting that forms were provided upon request to the Deputy Registrar and that agents from the petitioners' party had signed the forms.

Remedies

• The court ruled that the certificate of elected Member of National Assembly issued on 9th August 2017 was constitutionally and legally valid for George Sunkuyia Risa.
• The court affirmed that the 3rd respondent, George Sunkuyia Risa, was validly elected and gazetted as the Member of National Assembly for Kajiado West Constituency.
• The court declared that the National Assembly elections held on 8th August 2017 in Kajiado West Constituency were validly conducted.
• The petitioners are directed to pay costs to the 1st and 2nd respondents and the 3rd respondent, with the amount capped at one million each, considering the work and counsel involved.

Legal Principles

• The burden to prove electoral irregularities lies with the petitioners, who must demonstrate that non-compliance with electoral laws substantially affected the election outcome. This principle is grounded in the requirement that an election is only invalidated if such non-compliance compromised the results.
• The court applied an intermediate standard of proof—higher than a balance of probability but lower than beyond reasonable doubt—to determine electoral irregularities. This standard ensures that elections are not invalidated for trivial or technical breaches unless substantial harm to the electoral process is proven.
• The court interpreted electoral laws and constitutional provisions (e.g., Article 81 on free and fair elections) through a purposive lens, prioritizing the intent to safeguard democratic processes over technicalities. This approach reinforced the primacy of the people's sovereign will in electoral outcomes.
• The court underscored the necessity of conducting elections in strict compliance with constitutional and statutory provisions (e.g., Articles 1, 38, 81, 86 of the Constitution and the Elections Act). It highlighted that electoral bodies must act impartially and transparently to uphold the rule of law.

Precedent Name

• Raila Amolo Odinga and another vs IEBC and 3 others SCK petition No. 5 of 2013
• Raila Amolo Odinga and Another vs IEBC and others
• Simon Nyaundi Ogari and Another vs Joel Omagwa Onyancha and 2 Others
• Manson Oyongo Nyamweya vs James Omingo Magara and 2 Others
• IEBC and Another vs Stephen Mutinda Mule and 3 Others
• Moses Masika Wetangula vs Musakari Nasi Kombo and 2 others
• John Murumba Chikati vs Returning Officer Tongaren Constituency and 2 others

Cited Statute

• Elections (General) Regulations 2012
• Elections Act 2011
• Constitution of Kenya 2010
• Elections (Parliamentary and County Elections) Petitions Rules 2017

Judge Name

Passage Text

• "...the Petitioners did not demonstrate how such inevitable errors which is quite negligible in this case substantially affect or affected results..."
• "...at the outset, we must re-emphasize that not every irregularity, not every infraction of the law is enough to nullify an election. Were it to be so, there would hardly be any election in this country, if not the world, that would withstand judicial scrutiny..."
• "...the final result declaration forms (Form 35A) had sufficient security features for purposes of authenticating results..."