[2013] KEHC 2530 (KLR)

[2013] KEHC 2530 (KLR)

The court found that while some irregularities occurred, such as errors in forms 35 and the failure to project results electronically, these were either corrected in accordance with the law or did not materially affect the outcome of the election. The petitioner failed to discharge the burden and standard of proof required to establish that the irregularities rendered the election null and void. The court held that the presumption is that an election is properly conducted unless proven otherwise, and only irregularities that affect the result or undermine the integrity of the process can justify nullification. The evidence presented by the petitioner was insufficient, generalized, or...

Citation
[2013] KEHC 2530 (KLR)
Parties
Applicant: Benjamin Ogunyo Andama; Respondent: Benjamin Andola Andayi; Respondent: Sally Chesang; Respondent: Independent Electoral & Boundaries Commission
Court
High Court
Court Station
High Court at Kakamega
Jurisdiction
Kenya
Judgment Date
29 August 2013
Case Number
Election Petition 8 of 2013
Procedural Posture
Election Petition / Judgment
Outcome
Petition dismissed.
Legal Topics
Burden of Proof, Standard of Proof, Electoral Irregularities, Scrutiny and Recount, Costs in Election Petitions
Source Language
English
Election Petitions Burden of Proof Standard of Proof Electoral Irregularities Scrutiny and Recount Costs in Election Petitions

Case Brief

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Parties

Benjamin Ogunyo Andama

Applicant

Benjamin Andola Andayi

Respondent

Sally Chesang

Respondent

Independent Electoral & Boundaries Commission

Respondent

Procedural Posture

Election Petition / Judgment

Legal Issues

  1. 1 Whether the election of the member of the National Assembly for Khwisero Constituency held on 4th March 2013 was conducted according to the law and was free and fair under the circumstances.
  2. 2 Whether the 1st respondent was validly elected as the member of the National Assembly for Khwisero Constituency in the elections held on 4th March 2013.
  3. 3 What remedies, if any, should the court grant arising from what was pleaded in the petition and the respondent’s responses, and evidence tendered.

Ratio Decidendi

The court found that while some irregularities occurred, such as errors in forms 35 and the failure to project results electronically, these were either corrected in accordance with the law or did not materially affect the outcome of the election. The petitioner failed to discharge the burden and standard of proof required to establish that the irregularities rendered the election null and void. The court held that the presumption is that an election is properly conducted unless proven otherwise, and only irregularities that affect the result or undermine the integrity of the process can justify nullification. The evidence presented by the petitioner was insufficient, generalized, or...

Court Disposition

Petition dismissed.

Orders

  • The election petition is hereby dismissed.
  • The petitioner will pay the respondents costs of the petition not exceeding Kshs.3,000,000, divided equally between the 1st respondent and the 2nd and 3rd respondents.