[2013] KEMC 67 (KLR)
The court held that the issues raised by the applicant regarding the need for scrutiny and recount of votes could not be determined solely on the basis of affidavit evidence. Such issues require the benefit of viva voce evidence, which would be adduced during the full hearing of the petition. It was therefore...
Source-derived case information.
- Citation
- [2013] KEMC 67 (KLR)
- Parties
- Applicant: Joseph Kiponda; Respondent: Independent Electoral and Boundaries Commission; Respondent: Stephen Bahati Mlanda
- Court
- Magistrate's Court
- Court Station
- Election Petition in Magistrate Courts
- Jurisdiction
- Kenya
- Case Number
- Petition 1 of 2013
- Procedural Posture
- Election Petition / Interlocutory Application for Scrutiny and Recount Prior to Full Hearing
- Outcome
- Application for scrutiny and/or recount dismissed at this stage; directions given for further conduct of the petition.
- Legal Topics
- Scrutiny of Votes, Recount of Votes, Election Dispute Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kiponda
Applicant
Independent Electoral and Boundaries Commission
Respondent
Stephen Bahati Mlanda
Respondent
Procedural Posture
Election Petition / Interlocutory Application for Scrutiny and Recount Prior to Full Hearing
Legal Issues
- 1 Whether the court should order scrutiny and/or recount of votes cast in the Ganda County Assembly ward election at the interlocutory stage.
- 2 Whether affidavit evidence is sufficient to determine the issues raised in the application for scrutiny and recount.
Ratio Decidendi
The court held that the issues raised by the applicant regarding the need for scrutiny and recount of votes could not be determined solely on the basis of affidavit evidence. Such issues require the benefit of viva voce evidence, which would be adduced during the full hearing of the petition. It was therefore premature to grant the orders sought at the interlocutory stage. The court directed that the petition proceed to hearing, with parties at liberty to canvass the issues of scrutiny and recount after all evidence has been heard. The determination on whether to order scrutiny or recount would be made after the hearing of all parties.
Court Disposition
Application for scrutiny and/or recount dismissed at this stage; directions given for further conduct of the petition.
Orders
- The petition shall proceed to hearing as scheduled.
- Witnesses shall be examined on the contents of their affidavits, which shall serve as evidence in chief.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE'S COURT
AT MALINDI
ELECTION PETITION NO. 1 OF 2013
IN THE MATTER OF THE ELECTION ACT, 2011 LAWS OF KENYA
AND
IN THE MATTER OF THE ELECTION FOR THE GANDA COUNTY ASSEMBLY
REPRESENTATIVE FOR GANDA WARD WITHIN MALINDI CONSTITUENCY OF KILIFI COUNTY
BETWEEN
JOSEPH KIPONDA................................................................................PETITIONERAND
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION....................................................1ST RESPONDENT
STEPHEN BAHATI MLANDA....................................................2ND RESPONDENT
RULING
The Petitioner herein filed an application dated 13/6/13 seeking orders for scrutiny and or recount of all the votes cast in respect of County Assembly Representative for Ganda County Assembly ward within Malindi Constituency. The application is opposed by the Respondents. I have carefully considered the application and given due regard to the parties' submissions. In my considered view, the issues raised by the Petitioner in his application and Supporting affidavits cannot be determined by way of affidavit evidence. They are issues that can only be addressed by way of viva voce evidence. It would therefore be too early in the day for the court to order a scrutiny and recount of the votes cast in respect of the Election in dispute.
In view of the foregoing, I do not find it appropriate to allow the application at this stage. Consequently, I give the following directions:
(a) That the petition shall proceed to hearing as scheduled;
(b) That the witnesses shall be examined on the contents of their affidavits in support of the petition and the affidavits in support or in opposition to the application dated 13/6/13, which affidavits shall be the evidence in-chief of the respective witnesses;
(c ) That the parties are at liberty to canvass the issues raised in the application dated 13/6/13 at the time of hearing of the petition;
(d) That after the evidence by all the parties has been heard, the court will thereafter make a determination as to whether nor not there will be scrutiny and recount of all or part of the votes cast in respect of the Election in dispute.
(e) The issue of costs of the application dated 13/6/13 shall await the above said determination.
Dated at Malindi this 10thday of July 2013.
Y.A. SHIKANDA
Ag. SENIOR RESIDENT MAGISTRATE
Delivered in open court in the presence of:
Mr Kabue for Petitioner
Ms Ndegwa for 1st Respondent
Mr Oduor for 2nd Respondent
Y.A. SHIKANDA
Ag. SENIOR RESIDENT MAGISTRATE
10/7/13