[2013] KEMC 84 (KLR)
The court found that the applicant had not established a sufficient basis for the order sought, specifically a recount of votes at Buradansa Polling Station. The application was deemed premature and in breach of Rules 32 and 33 of the Elections (County and Parliamentary Elections) Petitions Rules 2013, which require...
Source-derived case information.
- Citation
- [2013] KEMC 84 (KLR)
- Parties
- Applicant: Mutemi Titus; Respondent: Independent Electoral and Boundaries Commission
- 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 Ruling
- Outcome
- application dismissed with costs
- Legal Topics
- Vote Recount, Scrutiny of Votes, Election Procedure, Compliance With Election Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutemi Titus
Applicant
Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Election Petition / Interlocutory Application Ruling
Legal Issues
- 1 Whether the petitioner is entitled to a recount of votes at Buradansa Polling Station at the interlocutory stage.
- 2 Whether the application for recount is premature and in breach of the Elections (County and Parliamentary Elections) Petitions Rules 2013.
Ratio Decidendi
The court found that the applicant had not established a sufficient basis for the order sought, specifically a recount of votes at Buradansa Polling Station. The application was deemed premature and in breach of Rules 32 and 33 of the Elections (County and Parliamentary Elections) Petitions Rules 2013, which require a proper foundation before such orders can be granted. The court emphasized that interlocutory applications for recount or scrutiny must be supported by clear evidence and compliance with procedural rules. As such, the application was dismissed, but the court left open the possibility for either party to seek scrutiny at the hearing stage if appropriate grounds are established.
Court Disposition
application dismissed with costs
Orders
- The petitioner/applicant's notice of motion is dismissed with costs.
- Either party may again move the court for an order for scrutiny during the hearing.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT
AT GARISSA
PETITION NO 1 OF 2013
BETWEEN
AND
MUTEMI TITUS RETURNING OFFICER,
THE INDEPENDENT ELECTION AND
18/06/13
C/CLERK : ABDI
RULING
(A) a recount of the votes received by the candidates at Buradansa Primary
(B) Scrutiny of the votes cast at Buradansa Primary School Polling Station.
That, the petitioner contends that the said form 35 from Buradansa Primary School, is the only one not signed by the agents or presiding officer and no reason is given by presiding officer why the form is not signed.
That, in view of the fact that petitioner was declared a victor on 5th March 2013, but later on, the 2nd Respondent unilaterally reversed the results, calls for re-count of the results at Buradansa Polling Station.
That, Petitioners application is premature, he is ingeniously and unjustifiably attempting to dispense with the petition at an interlocutory stage. The 2nd and 3rd Respondent were of similar view, and too refuted the application stating that it was pre-mature and speculative in nature and was in breach of the mandatory provisions of Rule 32, and Rule 33 (4) of the elections (County and Parliamentary Elections) petitions Rules 2013.
I endeavored to highlight the important issues raised in this application because the submissions simply amplified what is stated herein. I also noted that the applicant in his submission abandoned the 2nd prayer for scrutiny and only sought for a re-count of votes at Buradansa Polling Station.
The relevant provision of the laws, are sections 80, 82 (1) of the Election Act and Rules 32(1) and 33 AND the issues for determination is whether,
(B) Whether the only issue is the recount of votes cast at Buradansa Polling Station.
I concur with the Respondents, the Petitioner/ Application is in breach of Rules 32 and 33 of the Elections (County and Parliamentary Elections) Petitioner Rules 2013. The petitioner has not laid a basis for the order he is seeking. For the above reasons it may even appear that the application is premature. I hereby dismiss the Petitioner/Applicant notice of motion with cost.
I shall order that either party may again move Court for an order for scrutiny during hearing, the Court is not shutting the door completely at the stage.
B. J. NDEDA SPM
Ruling delivered in the presence of:
B. J. NDEDA SPM
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