Thuo Mathenge & another v Nderitu Gachagua & 2 others [2013] eKLR

Key Facts

Issues

• The court examined if the misprint of the running mate's name on the ballot paper was sufficient to declare the Nyeri County Governor election invalid.
• The court determined whether Michael Mwangi Kibicho, the 2nd Petitioner, was unjustly injured by the election outcome and whether he had a legal right to file the petition.
• The court assessed if the ballot paper for Thuo Mathenge's gubernatorial candidacy incorrectly listed his running mate's name as Geoffrey Gitonga Ndegwa instead of Dr. Geoffrey Kamau Kibui.
• The court decided whether the Petitioners or the Respondents should be responsible for the costs incurred during the election petition proceedings.
• The court addressed its authority under the Constitution and Election Act to assess the eligibility of a candidate for elective office.
• The court evaluated if Thuo Mathenge properly and promptly informed the Returning Officer and IEBC about the misprint in his running mate's name.
• The court determined if Nderitu Gachagua's election as Governor of Nyeri County was valid and free from procedural defects.
• The court investigated Thuo Mathenge's academic credentials to determine if he was eligible to contest the Governor position as per legal standards.

Holdings

• Thuo Mathenge was found ineligible to run for Governor due to presenting an invalid degree from Fairland University. The court concluded the degree was not validly awarded and not recognized in Kenya, directing the DPP to investigate potential criminal offenses.
• The court determined that there was an error in the gazetted name of Thuo Mathenge's running mate (Geoffrey Gitonga Ndegwa instead of Geoffrey Kamau Kibui) on the ballot paper, which was confirmed by the evidence of the Returning Officer and the Petitioners.
• The court found that Thuo Mathenge failed to notify the 2nd and 3rd Respondents of the error in the gazette notice within the required time. The notification via email to an incorrect address and the lack of evidence for timely verbal communication were key factors in this determination.
• The court ordered the 3rd Respondent (IEBC) to bear the cost of the petitions. This was based on their failure to provide an explanation for the ballot paper error and their role in the administrative process, despite the petitions ultimately being dismissed.
• The court held that the error in the ballot paper did not invalidate the election of Nderitu Gachagua as Governor. The election was deemed free and fair, with the error not affecting the outcome, as voters primarily relied on party symbols and candidate photos rather than running mate names.
• The court found that Michael Mwangi Kibicho (2nd Petitioner) was aggrieved and has a cause of action to challenge the election validity, as per the Constitution and Election Act. The court emphasized that any person, including voters, can file an election petition without needing to show personal legal rights infringement.
• The court ruled that the position of Deputy Governor was not an elective post under the Constitution and Election Act. The Deputy Governor's election is dependent on the Governor's nomination and the Independent Electoral and Boundaries Commission (IEBC) does not conduct a separate election for the role.

Remedies

• The court directed the 3rd Respondent (IEBC) to pay the costs of the petitions to the petitioners and respondents, with a total aggregate not exceeding Ksh. 2.5 million. Additionally, the court ordered an investigation into the circumstances of Thuo Mathenge's degree certificate and recommended actions to the Director of Public Prosecution and Attorney General.
• The court mandated an investigation into Thuo Mathenge's eligibility to hold office, specifically the validity of his degree certificate from Fairland University. It also recommended the Hon. Attorney General to amend the Election Act to require authentication of foreign degrees.

Monetary Damages

Legal Principles

• The court applied a civil standard of proof ('beyond balance of probability') to election disputes, except when allegations of election offences were involved, which required a higher standard. This standard was central to rejecting the petitioners' claims.
• The court emphasized the proportionality test in evaluating whether the ballot paper error substantially affected the election's validity. It held that minor errors not affecting the outcome should not lead to nullification, distinguishing this case from others where candidate names or symbols were directly misprinted.
• The judgment clarified that petitioners must prove non-compliance with election laws affected the election's result. Petitioners failed to establish this despite presenting witnesses who claimed protest voting, as the court found their evidence inconsistent and speculative.
• Despite dismissing the petitions, the court held the Independent Electoral and Boundaries Commission (IEBC) accountable for costs due to their failure to explain the ballot paper error and their role in the proceedings. This reflects a principle that costs follow the event when a statutory body's negligence is evident.

Precedent Name

• MAHADEO vs BABU UDAI PRATAP SINGH & others
• KIBAKI V MOI
• KITALE ELECTION PETITION NO. 11 OF 2013
• MORGAN v SIMPSON
• CHELAITE V NJUKI & 2 others
• DR. FREDRICK MASINDE V HENREY BWIRE & another
• MURATHE V MACHARIA
• SARAH MWANGUDZA KIA v MUSTAFA 1DD SALIM & others
• RAILA ODINGA & others vs IEBC & others
• KIBAKI vs MOI
• OMAR & another v MBUZI & another
• JYOTI BASU & others V DEBI GHOSAL & others

Cited Statute

• Election Act, 2011
• Constitution of Kenya
• Constitution of Kenya, 2010
• Election (General) Regulations, 2012
• Election (Parliamentary and County elections) Petition Rules, 2013

Judge Name

Passage Text

• I find that the 1st Petitioner did not attend classes at Fairland University and therefore the degree certificate purportedly awarded to him was not validly awarded... Mr. Thuo Mathenge was not eligible to run for the office of Governor.
• by virtue of Article 180(6) the position of the Deputy Governor was not directly elective since his/her election was dependant on the election of Governor candidate who nominated the same.
• Having found that the error on the Gazette Notice and the ballot paper as to the content thereof was not so substantive nor was it capable of affecting the outcome and that the election of Nyeri Governor was free and fair and in compliance with the principles set out in the Constitution and Law as regard the election it therefore follows that the petitions herein as consolidated lack merit and are therefore dismissed.