Automated Summary
Key Facts
Paul Posh Abwora petitioned the election of David Aoko Were for Matungu Constituency, challenging it due to alleged electoral malpractices. The IEBC and Returning Officer sought to strike out parts of the petition, arguing presiding officers should be joined as respondents. The court dismissed this application, determining that the Returning Officer, as principal, is sufficient to address allegations against presiding officers under the agency relationship established by the Election Regulations.
Issues
- The court considered whether presiding officers should be required as respondents in election petitions when there are allegations against them, based on their roles under the Election Rules and Regulations.
- The court assessed whether it can determine at the interlocutory stage if the actions of election officers were a fundamental breach of the Constitution, Election Act, Rules, and Regulations, noting that such determination requires trial evidence.
- The court examined if naming the Returning Officer as a respondent is sufficient to respond to allegations against presiding officers and other election officers in the constituency, considering the principal-agent relationship between them.
Holdings
The court dismissed the 1st and 2nd Respondents' application to strike out paragraphs of the petition and affidavits related to complaints against presiding officers, holding that naming the Returning Officer as a respondent is sufficient to address such allegations. The court determined that presiding officers act under the authority of the Returning Officer, creating a principal-agent relationship, and that the Returning Officer bears responsibility for their actions unless there is willful misconduct or criminal liability. The costs of the application were ordered to be in the cause.
Remedies
- Costs of the application shall be in the cause.
- The application dated 2/5/2013 is dismissed.
Legal Principles
- The court employed a purposive approach to interpret the Election Regulations, focusing on the legislative intent to ensure the Returning Officer is held responsible for the election process. This interpretation supported the conclusion that presiding officers' actions are attributed to the Returning Officer, reinforcing the principal-agent relationship and vicarious liability framework.
- The court highlighted that the burden of proof for allegations of electoral misconduct against election officers cannot be determined at the interlocutory stage. It emphasized that such determinations require evidence presented and tested through cross-examination during the trial, as outlined in the ruling.
- The court applied vicarious liability principles, determining that the Returning Officer, as the principal, is responsible for the actions of presiding officers (agents) under the Election Regulations. This was based on the principal-agent relationship established by Regulation 5(5) and supported by case law such as Macharia v Electoral Commission. However, this liability does not extend to cases of willful misconduct or criminal actions, which require personal liability.
Precedent Name
- Jahazi v Cherogony
- Ramakrishna Raja v Registrar of Companies
- Majwrowski v Guy's and St. Thomas' NHS Trust
- Attorney General v Monko
- Mudavadi v Kibisu
- Ayub Juma Mwakesi v Makwere Chirau Ali & Others
Cited Statute
- Constitution of Kenya
- Elections (General) Regulations, 2012
- Independent Electoral & Boundaries Commission Act, 2011
- Elections (Parliamentary and County Elections) Petition Rules, 2013
- Election Act, 2011
Judge Name
E.K.O. Ogolla
Passage Text
- The returning officer shall require every presiding officer, deputy presiding officer, clerk, interpreter and agent authorised to attend at a polling station, as soon as he or she has made the oath of secrecy prescribed by the Act, to make before the returning officer, a declaration that the officer making the declaration understands that he or she shall not prompt any voter whom he or she is empowered by these Regulations to assist, and shall strictly follow the provisions of these Regulations, and any instructions which may lawfully be given to him or her relating to the election concerned.
- Pursuant to Section 15 of the IEBC Act, the election officers are insulated from personal liability for any action claim or demand. The Returning Officer being the principal thereby bears the brunt of the actions of the election officers under him.
- The upshot of this ruling is that the 1st and 2nd Respondent's application dated 2/5/2013 is dismissed. The costs of the application shall be in the cause.