[2017] KEHC 2450 (KLR)
The court must determine whether the election for the member of the national assembly for Kibwezi East constituency was conducted in substantial compliance with the Constitution and electoral laws, and whether any proven irregularities or malpractices were of such magnitude as to affect the integrity or outcome of...
Source-derived case information.
- Citation
- [2017] KEHC 2450 (KLR)
- Parties
- Applicant: Philip Kyalo Kituti Kaloki; Respondent: Independent Electoral and Boundaries Commission; Respondent: Returning Officer, Kibwezi East Constituency; Respondent: Jessicanduku Kiko Mbalu
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Election Petition 1 of 2017
- Procedural Posture
- Election Petition / Draft Issues for Determination
- Outcome
- issues_for_determination_set
- Judges
- CM Kariuki
- Legal Topics
- Electoral Irregularities, Vote Tallying, Scrutiny and Recount, Electoral Malpractice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Kyalo Kituti Kaloki
Applicant
Independent Electoral and Boundaries Commission
Respondent
Returning Officer, Kibwezi East Constituency
Respondent
Jessicanduku Kiko Mbalu
Respondent
Procedural Posture
Election Petition / Draft Issues for Determination
Legal Issues
- 1 Whether the election of the member of the national assembly Kibwezi East constituency was conducted in accordance with the Constitution and relevant laws.
- 2 Whether illegalities and irregularities occurred that would render the election null and void.
- 3 Whether the respondents committed electoral malpractices and offences that would substantially alter or interfere with the election results.
Ratio Decidendi
The court must determine whether the election for the member of the national assembly for Kibwezi East constituency was conducted in substantial compliance with the Constitution and electoral laws, and whether any proven irregularities or malpractices were of such magnitude as to affect the integrity or outcome of the election. The petitioner bears the burden of proof to establish these claims. If the court finds that the irregularities or illegalities were substantial and affected the results, it may nullify the election or order a recount or scrutiny. If not, the election stands and the petition is dismissed. The court also has discretion to award costs based on the circumstances.
Court Disposition
issues_for_determination_set
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
ELECTION PETITION NO. 1 OF 2017
IN THE MATTER OF ARTICLES 35, 38, 48, 81, 86 AND 88 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE ELECTIONS ACT NO. 24 OF 2011 LAWS OF KENYA, THE ELECTIONS (GENERAL) REGULATIONS, 2012, THE ELECTIONS (TECHNOLOGY) REGULATIONS, 2017 AND THE ELECTIONS (PARLIAMENTARY
AND
IN THE MATTER OF THE ELECTION OFFENCES ACT NO. 37 OF 2016
AND
IN THE MATTER OF THE ACCESS TO INFORMATION ACT NO. 31 OF 2016
AND
IN THE MATTER OF THE ELECTORAL AND BOUNDARIES COMMISSION ACT NO.9 OF 2011
AND
IN THE MATTER OF THE MEMBER OF NATIONAL ASSEMBLY ELECTIONS FOR KIBWEZI EAST CONSTITUENCY HELD ON 8TH AUGUST 2017
BETWEEN
PHILIP KYALO KITUTI KALOKI……...…PETITIONER/APPLICANT
-VERSUS-
THE INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION RESPONDENT......1ST RESPONDENT
THE RETURNING OFFICER,
KIBWEZI EAST CONSTITUENCY………...…….2ND RESPONDENT
JESSICANDUKU KIKO MBALU……….….....….3RD RESPONDENT
DRAFT ISSUES
The following are proposed issues for determination by the court:
1. Whether or not the election of the member of the national assembly Kibwezi East constituency as conducted by the 1st and 2nd Respondents herein was substantially in accordance with the Constitution and all the relevant laws including the Elections Act and the Elections (General) Regulations, 2012.
2. Whether or not the election of the member of the national assembly Kibwezi East constituency as conducted by the 1st and 2nd Respondents had such illegalities and irregularities that it would render the said election null and void.
3. Whether or not the 1st, 2nd and 3rd Respondents committed electoral malpractices and offences before and during voting, tallying and announcement of results in the elections of the member of the national assembly Kibwezi East constituency as would substantially alter or interfere with the results of the said election.
4. Whether or not the tally of the votes in the election of the member of the national assembly Kibwezi East constituency was manipulated or consisted of such malpractices and irregularities as would substantially affect the integrity of the said results.
5. Whether a sufficient legal basis for an order of scrutiny and/or recount of the votes has been made and demonstrated by the Petitioner in the election of the member of the national assembly Kibwezi East constituency.
6. What are the orders that the Court can make in respect to the Petition herein including an order for costs.
SIGNED, DATED AND ISSUED THIS 10TH DAY OF NOVEMBER 2017
C. KARIUKI
JUDGE
………………….