[2013] KEHC 5502 (KLR)
The court found that the witness, Daniel Nyakundi, had made a clear and unambiguous admission in both his affidavit and oral testimony that he voted twice in the parliamentary election, an act which constitutes an offence under section 58 of the Elections Act. The court held that it would be improper to ignore such...
Source-derived case information.
- Citation
- [2013] KEHC 5502 (KLR)
- Parties
- Petitioner: George Aladwa Omwera; Respondent: Benson Mutura Kang’ara; Respondent: Florence Kwamboka Mogaka; Respondent: The Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Election Petition 4 of 2013
- Procedural Posture
- Election Petitions / Interlocutory Ruling
- Outcome
- orders issued for arrest and investigation
- Judges
- RM Mwongo
- Legal Topics
- Electoral Offences, Double Voting, Criminal Liability, Aiding and Abetting
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Aladwa Omwera
Petitioner
Benson Mutura Kang’ara
Respondent
Florence Kwamboka Mogaka
Respondent
The Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Election Petitions / Interlocutory Ruling
Legal Issues
- 1 Whether the admission by a witness of voting twice constitutes sufficient grounds for arrest and investigation under the Elections Act.
- 2 Whether IEBC officials who assisted or enabled the offence should also be investigated for criminal liability.
Ratio Decidendi
The court found that the witness, Daniel Nyakundi, had made a clear and unambiguous admission in both his affidavit and oral testimony that he voted twice in the parliamentary election, an act which constitutes an offence under section 58 of the Elections Act. The court held that it would be improper to ignore such an admission of wrongdoing made in open court and that the law requires such matters to be investigated and prosecuted where appropriate. Furthermore, the court recognized that any IEBC officials who aided or abetted the commission of the offence are also potentially criminally liable and should be investigated. The court therefore ordered the immediate arrest of the witness...
Court Disposition
orders issued for arrest and investigation
Orders
- Daniel Nyakundi ID No. 24634472 to be arrested forthwith for voting twice contrary to section 58 of the Elections Act and investigated by police.
- Counsel for the 2nd and 3rd Respondent to provide the court with a list of all IEBC officers involved at Kaloleni Primary School Streams 2 and 5 by close of business today.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
ELECTION PETITION NO. 4 OF 2013
BETWEEN
GEORGE ALADWA OMWERA ……………...................……….. PETITIONER
AND
BENSON MUTURA KANG’ARA ………………….........…. 1ST RESPONDENT
FLORENCE KWAMBOKA MOGAKA ………….................2ND RESPONDENT
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION ………………................... 3RD RESPONDENT
RULING
During the evidence of the Petitioner’s witness 1, Daniel Nyakundi, it was clear from his affidavit sworn on 5th April, 2013 at paragraphs 10 to 13 that he had received two ballot papers for Member of Parliament elections in Makadara Constituency, Kaloleni Primary School, Polling Centre. That he had voted with both ballot papers and was assisted in the exercise by at least two officials of IEBC. His evidence on cross-examination and Re-examination reiterated the facts and confirmed the same. The witness was also taken through and did read the provision of section 58 (m) of the Elections Act and understood that voting twice is an offence punishable by a fine not exceeding one million shillings or 6 years in prison. Counsel for IEBC seeks the arrest of the witness on his own admission of wrongdoing for further investigations. Counsel for the Petitioner seeks that the IEBC officials who were mentioned by the witness should also be arrested for investigation and a list be brought to court of all officers involved in the election at Kaloleni.
This court is a court of law. An offence has been admitted to have been committed by witness Daniel Nyakundi. It would be improper if such actions, admitted in court, should not be further investigated so that all who are culpable face the consequences. Aiding and abetting any crime is also a criminal offence.
Accordingly I am inclined to, and do order as follows:
Daniel Nyakundi ID No. 24634472 be arrested forthwith on his own clear and unambiguous admission of culpability as having voted twice contrary to section 58 of the Elections Act and that investigations be carried out by the police in that regard.
Counsel for the 2nd and 3rd Respondent do provide this court with the list of all officers of IEBC who were involved or engaged at Kaloleni Primary School Streams 2 and 5 not later than close of business today.
All such officers shall forthwith record a statement with the police and investigations be carried out by police with the aim of identifying the officers or officer of IEBC who were complicit in the unlawful act.
That the matter be handled hereafter by the appropriate court at first instance.
Orders accordingly.
DATED at Milimani Law Courts, NAIROBI this 6th Day of June, 2013.
..........……………………………………..
R. MWONGO
JUDGE