[2013] KEHC 3296 (KLR)
The court held that the applicant's request for the ballot paper was procedurally improper, as the law governing election challenges requires such requests to be made within the context of an election petition under the Elections Act and Rules. The ballot papers are sealed and can only be accessed upon a formal...
Source-derived case information.
- Citation
- [2013] KEHC 3296 (KLR)
- Parties
- Applicant: Simon Kiprono Sang; Respondent: Independent Electoral and Boundaries Commission
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 136 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Supply of Ballot Paper Prior to Election Petition
- Outcome
- application dismissed with costs
- Judges
- RPV Wendoh
- Legal Topics
- Access to Election Materials, Scrutiny of Ballot Papers, Procedural Defects, Pre Election Petition Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kiprono Sang
Applicant
Independent Electoral and Boundaries Commission
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Supply of Ballot Paper Prior to Election Petition
Legal Issues
- 1 Whether the applicant is entitled to an order compelling the respondent to supply the National Assembly ballot paper for Kuresoi South Constituency prior to filing an election petition.
- 2 Whether the application is fatally defective for failure to follow the proper procedure under the Elections Act and Rules.
Ratio Decidendi
The court held that the applicant's request for the ballot paper was procedurally improper, as the law governing election challenges requires such requests to be made within the context of an election petition under the Elections Act and Rules. The ballot papers are sealed and can only be accessed upon a formal challenge to the election, not through a miscellaneous application. The applicant's attempt to obtain the ballot paper prior to filing a petition amounted to circumventing the statutory process, rendering the application fatally defective. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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SIMON KIPRONO SANG…………………..………..APPLICANT
V
INDEPENDENT ELECTORAL AND
BOUNDARIES COMMISSION……………….…..RESPONDENT
RULING
The applicant herein, Simon Kiprono Sang, has filed this miscellaneous application against the IEBC seeking that the court do order that the respondent do supply the applicant with the National Assembly ballot paper for Kuresoi South Constituency. The applicant states that he vied for the seat of Member of National Assembly for Kuresoi South Constituency but lost the seat and he attributes his loss to errors made by the respondent in the relevant ballot paper and intends to file an election petition. He contends that he can only be able to file a competent petition if he annexes the said documents and yet they are in possession of the respondent.
The application was opposed for being vague and therefore fatally defective. Mr. Kahiga argued that the applicant has not approached this court properly as he should have filed Judicial Review proceedings or a petition. Counsel also urged that the applicant is on a fishing mission and trying to source for evidence unprocedurally.
I totally agree with the respondent that the law governing challenge to elections is the Elections Act, 2011 and the Rules made there under. What the applicant seems to want to do is to scrutinize the ballot papers for errors. Under Rule 33(1) of the Rules, a party to the proceedings may at any stage apply for scrutiny of the Elections (Parliamentary and County Elections Petition) Rules for purposes of establishing the validity of the votes cast. Proceedings under this Act and Rules mean an election petition filed under Section 74 of the Elections Act. I believe that the ballot paper is in the ballot box and for one to peruse it, the ballot boxes would need to be opened. The boxed were sealed during the elections on 4/3/2013 and can only be opened in court if there is a challenge to the election. That is why I agree with the respondent that this application is fatally defective. The applicant wants to take a short cut and avoid filing a proper petition where he can seek scrutiny of the votes as one of his prayers. For the foregoing reasons, I decline to grant the application and dismiss it with costs.
DATED and DELIVERED this 28th day of March, 2013.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Gekonga for the applicant
Mr. Maragia holding brief for Mr. Kahiga for the respondent
Kennedy – Court Clerk