Joseph Amisi Omukanda v Independent Electoral and Boundaries Commission (Iebc) & 2 others [2013] eKLR

Key Facts

Issues

• Whether the 3rd respondent was validly elected as a Member of National Assembly for Navakholo constituency, considering the close margin of victory (32 votes) and alleged irregularities in the tallying process.
• Whether the petitioner has laid a basis for an order of scrutiny and/or recount of votes or any of the orders sought in the petition, including the requirement to demonstrate sufficient cause for such action.
• Who should bear the costs of the petition, with the court noting its discretion under Section 84 of the Elections Act to award costs based on fairness and the nature of the irregularities.
• Whether the petitioner has proved his case against the respondents, including demonstrating that irregularities in the electoral process affected the transparency, fairness, and accuracy of the results.
• Whether the 1st and 2nd respondents (IEBC and returning officer) complied with the Constitution, Elections Act, and Regulations in the declaration of the parliamentary results for Navakholo constituency, including allegations of procedural irregularities and mathematical errors.
• Whether the petitioner committed an election offense by allegedly threatening the returning officer and causing chaos at the tallying centre after the results were announced.

Holdings

• The court determined that the 1st and 2nd respondents complied with the Constitution and electoral laws in declaring the parliamentary results for Navakholo constituency. The errors in tallying and form discrepancies were deemed human errors that did not affect the final outcome, as the 3rd respondent remained the winner even after corrections.
• The 3rd respondent was validly elected as Member of National Assembly for Navakholo constituency. The Deputy Registrar’s re-tally confirmed the 3rd respondent’s victory with 10,596 votes, and the court upheld this as the accurate result.
• The petitioner did not commit an election offense. While he protested the results, there was no evidence of violence or unlawful conduct, and his actions were deemed a legitimate reaction to an election outcome.
• The petitioner failed to prove his case against the respondents. The court dismissed allegations of material irregularities, noting that minor alterations in forms 35 did not invalidate results, and the petitioner’s evidence was inconsistent or unsupported.

Remedies

• Each party is ordered to bear their own costs.
• The court declared Emmanuel Wangwe as validly elected as Member of National Assembly for Navakholo constituency.

Legal Principles

• The court emphasized that the petitioner bore the burden of proving that the election results were invalid due to irregularities. The petitioner's generalized allegations and lack of specific evidence led to the conclusion that they failed to meet this legal standard.
• The court relied on Section 83 of the Elections Act, which provides that an election is not void for non-compliance with written law if the non-compliance did not affect the result. The errors in tallying did not alter the winner, so the election was deemed valid.
• The court applied the principle of substance over form, stating that minor alterations or cancellations in the forms 35 did not invalidate the election results as the substantive vote counts for candidates remained accurate and verifiable.

Precedent Name

• MBOGORI V KANGETHE & ANOTHER
• PHILIP MUKUI WASIKE V JAMES LUSWETI MUKWE
• JUSTUS MUNGUMBU OMITI V WALTER ENOCK NYAMBATI OSEBE & 2 OTHERS
• ALI V GETHINJI
• MANSON NYAMWEYA V JAMES MAGARA & 2 OTHERS
• KUNDU SWEM V DZUNGWE
• PAUL MWIRU V IGEME NATHAN SAMSON NABEETA & 2 OTHERS
• HASSAN ALI JOHO V HOTHAM NYANGE & OTHERS
• RE KENSINGTON NORTH PARLIAMENTARY ELECTIONS
• WILLIAM KABOGO GITAU V GEORGE THUO & 2 OTHERS
• REUBEN NDOLO V DICK WATHIGA & 2 OTHERS

Cited Statute

• Elections Act 2011, Section 83
• Election (General) Regulations 2012, Regulation 79
• Election (General) Regulations 2012, Regulation 83
• Constitution of Kenya, Article 86
• Evidence Act, Sections 107 and 108
• Election Petition Rules, Rule 32(2)
• Election (General) Regulations 2012, Regulation 74(4)
• Election (General) Regulations 2012, Regulation 76

Judge Name

Passage Text

• The contentions by the petitioner have not been proved. The election was conducted and all the results were posted on the forms 35 from all the polling stations. The 3rd respondent still emerged the winner after the re-tallying. I do hereby declare the 3rd respondent as the one who was validly elected as Member of National Assembly for Navakholo constituency.
• The petitioner's allegations that there is a difference of 1,282 votes is not true. The petitioner's chief agent's tabulated results were inconsistent, and the court found that the petitioner failed to discharge the burden of proof expected of him.
• The petitioner in his prayer (b) is that upon recount and re-tallying, a declaration that the candidate with the highest number of votes is the one validly elected. The court ordered a partial recount and a re-tallying of all the votes. The report by the Deputy Registrar show that the 3rd respondent is the winner having garnered 10,596 votes.