[2010] KEHC 4105 (KLR)

[2010] KEHC 4105 (KLR)

The court found that the 2nd respondent, as Returning Officer, committed a fundamental error by announcing the 1st respondent as winner without properly tallying all results from the polling stations as required by law. The evidence, including oral testimony, secondary documentary evidence (photocopies of Forms 16A and 17A), and the findings of the Kriegler Commission, established that the applicant actually garnered the highest number of votes. The destruction of original election materials by fire was not attributable to the applicant, and the court accepted secondary evidence as genuine and admissible. The errors and omissions in tallying were not minor but substantial, directly...

Citation
[2010] KEHC 4105 (KLR)
Parties
Applicant: Dickson Daniel Karaba; Respondent: John Ngata Kariuki; Respondent: James Kariuki Gitahi; Respondent: Interim Independent Electoral Commission of Kenya
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
22 October 2010
Case Number
Election Petition 3 of 2008
Procedural Posture
Election Petitions / Judgment
Outcome
petition allowed; election of 1st respondent nullified
Legal Topics
Parliamentary Elections, Vote Tallying Errors, Returning Officer Duties, Secondary Evidence, Burden of Proof, Nullification of Election
Source Language
English
Election Petitions Administrative Law Parliamentary Elections Vote Tallying Errors Returning Officer Duties Secondary Evidence Burden of Proof Nullification of Election

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Parties

Dickson Daniel Karaba

Applicant

John Ngata Kariuki

Respondent

James Kariuki Gitahi

Respondent

Interim Independent Electoral Commission of Kenya

Respondent

Procedural Posture

Election Petitions / Judgment

Legal Issues

  1. 1 Whether the 1st respondent was duly and lawfully declared the winner of the Kirinyaga Central Constituency parliamentary election held on 27th December 2007.
  2. 2 Whether the tallying and announcement of results by the 2nd respondent complied with the law and reflected the will of the electorate.
  3. 3 Whether secondary evidence (photocopies) of election forms could be relied upon in the absence of originals destroyed by fire.

Ratio Decidendi

The court found that the 2nd respondent, as Returning Officer, committed a fundamental error by announcing the 1st respondent as winner without properly tallying all results from the polling stations as required by law. The evidence, including oral testimony, secondary documentary evidence (photocopies of Forms 16A and 17A), and the findings of the Kriegler Commission, established that the applicant actually garnered the highest number of votes. The destruction of original election materials by fire was not attributable to the applicant, and the court accepted secondary evidence as genuine and admissible. The errors and omissions in tallying were not minor but substantial, directly...

Court Disposition

petition allowed; election of 1st respondent nullified

Orders

  • The 1st respondent was not validly elected as Member of Parliament for Kirinyaga Central Constituency; his election is declared null and void.
  • A certificate of determination to that effect shall issue forthwith and be served upon the Speaker of the National Assembly in accordance with Section 30(1) of Cap 7.