Automated Summary
Key Facts
The petition filed by Hassan Omar Hassan and Linda Mariwa Shuma challenged the August 8, 2017, election of Hassan Ali Joho as Mombasa County Governor. The petitioners alleged irregularities in election processes, including Form 37A issues, counting/tallying errors, ballot stuffing, and use of public resources. The court dismissed the petition, ruling that the petitioners failed to meet the required burden of proof to demonstrate that irregularities affected the election outcome. Key evidence, such as Forms 37A, was expunged for non-compliance with procedural rules, and remaining testimonies were deemed insufficient or hearsay. The significant vote margin (221,177 for Joho vs. 43,787 for Hassan) further supported the conclusion that the election results were valid.
Issues
- Whether the process of relay and transmission of results from polling stations was transparent and administered in an impartial, neutral, efficient, accurate and accountable manner in accordance with Article 81 of the Constitution.
- Whether the Petitioners are entitled to the prayers sought.
- Whether the Petitioners have discharged the burden of proof as required in the petition against the Respondents.
- Who is to bear the costs of the suit.
Holdings
- Irregularities in the election process were minor and did not affect the result.
- Election of Hassan Ali Joho as Governor was valid.
- Petitioners failed to meet the required burden of proof.
Remedies
- The petition contesting the election of Hassan Ali Joho as Governor of Mombasa County was dismissed in its entirety by the court on 22nd February 2018. The court found that the petitioners did not discharge the burden of proof required to establish the alleged irregularities, malpractices, or constitutional violations sufficient to invalidate the election results.
- The court ordered the petitioners to pay costs to the respondents. Specifically, Kenya Shillings 4 million was awarded to the 1st and 2nd Respondents (IEBC and Nancy Wanjiku Kariuki) and Kenya Shillings 4 million to the 3rd Respondent (Hassan Ali Joho). This cost award was based on the court's determination that the petition was frivolous and not supported by sufficient evidence.
Legal Principles
- The court reiterated that an election is presumed valid under the Constitution and law. This presumption was not overcome by the petitioner, as their allegations of irregularities (e.g., unsigned Forms 37A, ballot paper issues) were not proven to have substantially affected the outcome. The judge cited precedents affirming this presumption, including Raila Odinga v IEBC.
- The court emphasized that the legal burden of proof in election petitions lies with the petitioner, who must establish their case sufficiently to warrant interference with the election results. This aligns with Section 107 of the Evidence Act, which requires the petitioner to prove the existence of facts supporting their claims. The petitioner failed to meet this burden in this case.
- The court applied the standard of proof outlined in Section 83 of the Elections Act, which requires proof that irregularities affected the election outcome. The petitioner's evidence, deemed hearsay and lacking specificity, fell short of this threshold. The judge noted that the winning margin (177,000 votes) was so large that even proven minor irregularities could not invalidate the result.
Precedent Name
- Raila Odinga V IEBC and Others
- IEBC & Another -v- Stephen Mutinda Mule
- Jackton Nyanungo Ranguma Vs The Independent Electoral And Boundaries Commission
- Kakuta Mai Mai Hamisi -v- Peris Pesi Tobiko
- Thorp V. Holdsworth
- John Kiarie Waweru vs Beth Mugo
- Sammy Ndungu Waity v Independent Electoral and Boundaries Commission
- M. Narayan Rao V. G Venkata Reddy
- Raila Odinga & Another v IEBC & 2 Others
- Thomas Malinda Musau & 2 Others vs The Independent Electoral and Boundaries Commission
Cited Statute
- Elections Act, 2011
- Evidence Act, Cap. 80 of the Laws of Kenya
- Independent Electoral and Boundaries Commission Act, 2011
- Constitution of Kenya 2010
- Elections (General) Regulations, 2012
- Election Offences Act (No 37 of 2016)
Judge Name
L. A. Achode
Passage Text
- the law therefore sets out these as the only documents which require to be stamped with the official seal of the commission during the election process. No such stamping requirement is demanded therefore with regard to Form 37A or any other such Form.
- What this means is that the evidential burden of proof in election petitions initially lies upon the party bearing the legal burden (that is the petitioner). The evidential burden, however, may shift, and often shifts, between the parties as the weight of evidence given by either side during the trial varies.
- The evidence brought before this court amounted to mere suspicion and cannot prove a charge of bribery or any other election offence.