Automated Summary
Key Facts
The 2013 senatorial election in Bomet County resulted in Wilfred Rotich Lesan (2nd respondent) being declared the winner with 115,931 votes against petitioner Nicholas Kiptoo Arap Korir Salat's 98,036 votes. The petitioner filed a petition alleging electoral malpractices including overcasting, underreporting of votes, and irregularities in several polling stations. The court dismissed the petition, finding no sufficient evidence to prove that errors or alleged malpractices materially affected the election outcome. The judgment, delivered on 19 August 2013, upheld the validity of the election under Kenya's Constitution and Elections Act, affirming Lesan's election as free, fair, and credible.
Issues
- Whether the petitioner was the legitimate winner of the senatorial seat in Bomet County.
- Whether the 2nd respondent's election as senator for Bomet County was valid under the law.
- Whether the petitioner established a sufficient basis for a recount or scrutiny of votes in specific polling stations across Bomet County's constituencies.
- Whether the identified malpractices, irregularities, and electoral offences had a substantial impact on the election's final results.
- Whether electoral malpractices, irregularities, and offences were committed during the election, and identifying the responsible parties.
- Determining the party responsible for paying the costs of the election petition.
Holdings
The court determined that the election for the senatorial seat in Bomet County was free, fair, and credible, with results accurately reflecting the will of the electorate. The petition was found to lack merit and was dismissed. The petitioner's claims of electoral malpractices, irregularities, and fraud were not substantiated by evidence, and the court concluded that any errors were minimal, honest, and did not affect the election outcome. The 2nd respondent (Wilfred Rotich Lesan) was declared the duly elected senator, and the petitioner was ordered to pay the costs of the petition.
Remedies
- The petitioner is ordered to pay the costs of the petition, which will be taxed by the Deputy Registrar if not agreed upon. The court ruled that the petitioner must bear the financial burden of the proceedings.
- The court dismissed the petition, finding no merit in the allegations. The petitioner's claims of electoral malpractice were not substantiated, and the election results were upheld as valid.
Legal Principles
- The petitioner bears the legal burden to prove allegations of election malpractice, while the electoral commission has the evidential burden to demonstrate compliance with electoral laws. The standard of proof required is above the balance of probability but not as high as beyond all reasonable doubt for general allegations, and beyond all reasonable doubt for specific electoral offences.
- The court evaluated the election's validity by reviewing whether it was conducted in accordance with constitutional principles of free and fair elections. Under Section 83 of the Elections Act, an election is only void if non-compliance with laws affected results. This mirrors the Wednesbury reasonableness standard, requiring substantial deviation from legal norms to invalidate outcomes.
- The court applied a standard of proof requiring the petitioner to demonstrate allegations were more likely true than not (above balance of probability). For claims of electoral offences, the higher threshold of proof beyond all reasonable doubt was required. This aligns with principles established in Raila v IEBC and other precedents cited.
Precedent Name
- James Omingo Magara v Manson Onyongo Nyamweya & Others
- Morgan v Simpson
Cited Statute
- National Assembly and Presidential Elections Act
- Elections Act, 2011
- Constitution of Kenya 2010
Judge Name
A.O. Mucelule
Passage Text
- Considering all the facts that this petition has presented, and weighing them against the Constitutional and legal principles applicable, I return the verdict that the voters of Bomet County expressed their will and validly chose the 2nd respondent as their senator in an election that was free, fair and credible. The result that showed the petitioner as the runner-up was accurate.
- Under section 86 (1) of the Elections Act, I certify that the allegations made in this petition challenging the election of the 2nd respondent (Wilfred Rotich Lesan) as the senator for Bomet County have not been proved. Wilfred Rotich Lesan is thus the duly elected senator of Bomet County.
- I do not find that the petitioner has shown that there was any station in which the votes cast exceeded the registered voters. I bear in mind that, according to the declared results, the 2nd respondent obtained 17,895 votes more that the petitioner. Considering the total number of valid votes cast and what was obtained by the respective candidates, this was a wide margin.