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Kenya decisions
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Ochieng v Ojango & 5 others [2022] KEMC 9 (KLR)
The court dismissed an election petition and related application after finding the petition was filed outside the 28-day deadline, leaving it without jurisdiction.
Murira v Returning Officer, North Imenti Constiutency & another [2022] KEHC 12797 (KLR)
The court found that the omission of a duly nominated candidate's name from the ballot paper constituted a fundamental flaw in the electoral process, rendering the election for Member of County Assembly, Nyaki West Ward, invalid. As no valid election was conducted, there could be no breach of statutory or constitutional duties regarding the declaration of results or the right to information. Consequently, the applicant failed to demonstrate an arguable case for leave to commence judicial review proceedings, and the application for leave was declined. The court further clarified that the elect…
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Kawaka & another v Ouma & 2 others; Independent Electoral and Boundaries Commission (Interested Party) [2022] KEPPDT 1010 (KLR)
The Tribunal held it had jurisdiction, found the ODM nomination process for South Kabuoch/Pala Ward lacked transparency and was tainted by violence, and ordered a fresh election.
Mwai v The National Election Board (ODM) & 2 others; range Democratic Movement Party (Interested Party) [2022] KEPPDT 1048 (KLR)
The Tribunal found that the nomination process for the Bondo Constituency Member of National Assembly seat failed to meet the constitutional and statutory standards of transparency, accountability, and verifiability. The absence of declared results at polling stations, the lack of signed declaration forms, and the reliance on estimated rather than actual vote counts constituted fundamental breaches of both the Constitution and the party's own rules. The Tribunal rejected the argument that numbers alone suffice in the absence of verifiable results and held that the process was so tainted by ir…
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Mohamed Abdul Omar v Kiponda Joseph Joseppe Ngumbao, Katana Reuben Mwamure, Independent Electoral and Boundaries Commission (IEBC) & Masha Sudi [2018] KEHC 4709 (KLR)
The High Court found that the petition challenging the election was filed within the statutory 28-day period, thus was competent. The court held that only affidavit evidence from deponents who testified and were cross-examined could be considered, but the trial court's error in describing untested affidavits as of 'less probative value' rather than 'no probative value' did not vitiate the trial, as there was no evidence that such affidavits were relied upon. The court determined that the 3rd and 4th Respondents failed to comply with mandatory procedural requirements, including the use of pres…
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Mwathethe Adamson Kadenge v Twaher Abdulkarim Mohamed, Independent Electoral and Boundaries Commission (Iebc) & Masha Sudi [2018] KEHC 4814 (KLR)
The High Court held that the date of declaration of election results for the Member of County Assembly of Shella Ward was 10.8.17, as evidenced by the issuance of Form 36C to the Appellant. The petition challenging the election was filed on 9.9.17, outside the 28-day period mandated by Article 87(2) of the Constitution. Consequently, the Magistrate’s Court lacked jurisdiction to entertain the petition, rendering the proceedings, judgment, and consequential orders null and void. The High Court further found that the omission to provide a signed judgment in the record of appeal was a procedural…
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Wavinya Ndeti & Peter Mathuki v Independent Electoral and Boundaries Commission, County Returning Officer & Alfred Nganga Mutua [2018] KECA 552 (KLR)
The Court of Appeal found that the Machakos gubernatorial election was not conducted in accordance with the constitutional principles of verifiability, transparency, and accountability as required by Articles 81 and 86 of the Constitution. The Court held that the county returning officer was under a duty to verify and declare results based on the primary documents (Forms 37A), and that the failure to reference these forms in Form 37C rendered the results unverifiable and invalid. The Court further found that the appellants had proved that a public officer acted as an agent for the 3rd respond…
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Kiponda Joseph Joseppe Ngumbao & Katana Reuben Mwamure v Independent Electoral and Boundaries Commission, Masha Sudi & Mohamed Abdul Omar [2018] KEMC 19 (KLR)
The court found that the election for Member of County Assembly (MCA) for Ganda Ward was not conducted in accordance with the Constitution and electoral laws. Key irregularities included the failure to declare results in the prescribed statutory form (Form 36B), lack of verifiable and accountable documentation, and unexplained discrepancies in ballot papers and counterfoils. The court held that these failures compromised the transparency, credibility, and verifiability of the election, violating Articles 38 and 86 of the Constitution. The court further determined that the issuance of the cert…
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Emanuel Baraka Aron v Independent Electoral and Boundaries Commission, Jumaa Musa Jumaa & Mwamkale William Kamoti [2018] KEHC 8418 (KLR)
The court found that the Petitioner failed to prove, to the required standard, any substantial irregularities or illegalities that would warrant nullification of the election. The evidence presented was generalized, lacked specificity, and was contradicted or discredited under cross-examination. Allegations of bribery, mishandling of assisted voters, denial of agent access, and improper declaration of results were either unsupported by credible evidence or did not demonstrate a nexus to the 3rd Respondent or affect the election outcome. The court held that minor discrepancies and administrati…
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Rishad Hamid Ahmed v Independent Electoral & Boundaries Commission, Abdallah Mwarua Chikophe & Stanley Muiruri Muthama [2018] KEHC 8495 (KLR)
The court found that while many of the applicant's allegations were unproven or did not materially affect the outcome, there was clear and deliberate manipulation of vote tallies by the 1st and 2nd respondents, particularly in the transposition of results between forms 35A and 35B for specific polling stations. This manipulation resulted in a significant and unexplained loss of votes for the applicant and a corresponding gain for the 3rd respondent, which could not be attributed to human error. The margin of victory was narrow, and the proven irregularities undermined the integrity and credib…
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