Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN DIGEST OF CASES FEATURED Election petitions -jurisdiction-High court’s jurisdiction in determination of election petitions-factors to be considered by the court- the Constitution, the National Assembly and the Presidential Elections Act, the Election Rules and Regulations -general principles recognized by the law as constituting the proper conduct of a valid election- nature of election petitionsan election a signification of the exercise of the democratic rights of the people to have a person of their choice represent them in the National Assembly- whether the court had jurisdiction to hear the matter-Constitution of Kenya Section 44- National Assembly and the Presidential Elections Act(Cap 7) Section 19 William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63 Election results - discrepancies between the presidential and civic elections - whether the difference was evidence of serious electoral malpractice that was apparent during the conduct of the elections- alteration of results- Form 16Asspecific results of candidates either cancelled or altered without the presiding officer countersigning the cancellation or alteration- no trace of the physical records of the election results - whether the cancellations and alterations in the Form 16As produced in the court raised question regarding the veracity and authenticity of the said results - whether the first respondent had been validly elected as the member of parliament. Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58 Elections - fair and free elections -right of a people to freely elect their representative in a credible electoral process - test as to what constitutes free and fair elections - internationally acceptable standard -whether the complaints made by the petitioner were such that, apart from establishing the particular electoral malpractice or irregularity, they impacted on the rights of the voters of the constituency to have a person of their choice represent them in the National Assembly - whether the election as conducted could be said to have been free and fair-Article 25 of the International Convention on Civil and Political Rights (1966)- Article 21 of the Universal Declaration of Human Rights William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63 Electoral documents - statutory documents and forms - manner in which results are to be recorded - presiding officer required to record the total number of votes cast in favor of each candidate and to sign and seal the declaration set out in the Form 16A certifying the results –whether Form 16A which is not signed by Presiding Officer could constitute valid results which could be accepted for tallying by a Returning Officer - absence of Form 16A for most agents -Form 17A not complied with –certificate of winning being issued to the successful candidate before Form 17A - agents not allowed to verify the forms – whether the anomalies in the process of election results were so fundamental as to affect the results of the election. Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58 Electoral documents - election result- manner in which results are to be recorded- Form 16A and Form 17A- Form 16As lacking the signatures of the presiding officers- persons other than presiding officers filling Forms 16A- need for all the presiding officers to sign and stamp the Form 16As for the same to be considered valid- statutory comments in the Forms 16A- failure by the presiding officers to give reasons for the failure or refusal by the candidates or their agents to sign the Form 16A- completion of Form 17A- whether the third respondent accepted invalid results which he tallied and included in the final results as contained in Form 17A- Presidential and Parliamentary Elections Regulations (Cap 7 Sub Leg) Regulation 35A(1) (b), 35A(5)(b) 35A(7) and (8) 40(1) William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63 Electoral malpractice – ballot boxes -ballot boxes received at tallying centre with seals broken – boxes carried by unknown persons - petitioner’s agents denied opportunity to accompany the ballot boxes from the polling station to the tallying station - the petitioner arrested when he raised the grievance– whether the parliamentary elections were conducted in free, fair and transparent manner. Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58 Electoral malpractice and offence – code of conduct – allegation of breach of duty and code of conduct by the Electoral Commission and the Returning Officer-failure to serve impartially and independently in performance of their duties – where it is alleged that the Commission had been pressured by first respondent’s political party to declare the results which it believed to be false – whether the anomalies raised a question regarding the authenticity and veracity of the election results. Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58 12 Issue 12: April-June 2010
KENYA LAW REPORTS BENCH BULLETIN DIGEST OF CASES FEATURED Electoral offences and election malpractices – election posters- election placards and posters not disclosing the name and address of the publisher - whether the fact that a party to an election petition did not specify on the face of his election poster the name and the address of the printer or publisher could result in the nullification of an election- whether the petitioner had proved that allegation to the required standard of proof- Election Offences Act (Cap 66) section 11 (1) and 11(1) (b) Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58 Electoral offences and election malpractices – election posters- printing of election posters that do not disclose the name and address of the publisher - whether the fact that a party to an election petition did not specify on the face of his election poster the name and the address of the printer or publisher could result in the nullification of an election –code of conduct-conduct of the Returning Officer-Returning Officer alleged to have aided the first respondent gain unfair electoral advantage against the petitioner- bribery-the culprit a civic candidate in the said elections -whether the petitioner had proved those allegations to the required standard of proof-Election Offences Act section 11 (1) and 11(1) (b) William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63 Electoral officials - Electoral Commission of Kenya (ECK) officials presiding over the nomination of both the parliamentary and civic candidates of a political party-whether by virtue of ECK participation in the parliamentary nomination, an impression was created that it was partial to that political party during the general elections- the Presidential and Parliamentary Election Regulations William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63 ELECTION RESULTS - alteration of results - Forms 16A- results of specific candidates altered without the presiding officer countersigning the cancellation or alteration- need for electoral documents containing results to be verified by other parties, including the members of the public -whether the cancellations and alterations in the Form 16As produced in the court raised question regarding the veracity and authenticity of the said results- discrepancies between the presidential and civic elections -elections conducted from one voter’s roll- difference of over 5,000 votes between the parliamentary vote and the presidential and the civic vote - whether the difference was evidence of serious electoral malpractice that was apparent during the conduct of the elections. William Kabogo Gitau v George Thuo & 2 Others [2010] eKLR ................................................................................................. 63 EVIDENCE Admissibility of evidence - new evidence after cross examination-discretion of the court to refuse or allow the evidence-whether it was against the principles of justice to allow or admit the evidence. Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR ......................................................................... 58 Documentary evidence – P 3 form – court’s discretion to call the maker of a document to adduce evidence - Sexual Offences Act (2006) section 8 (1),(2) - Penal Code (Cap 63) – Evidence Act (Cap80) section 77. Josephat Njue Solomon v Republic ................................................................................................................................................... 60 INTELLECTUAL PROPERTY – infringement of trademark rights – appeal against the decision of the Registrar of Trademarks to register the respondent’s trade name “SYNERCEF” – appellant’s contention that the trade name was phonetically similar in pronunciation and appeared visually similar to another registered trademark “ZINACEF” – whether there was infringement of trade mark rights - whether the appeal had merit – Trademark Act (Cap 506) sections 7,14,15,18 (1),(3) and 52. Glaxo Group Limited v Syner-med Pharmaceuticals Ltd .............................................................................................................. 75 JUDICIAL REVIEW Approbation and reprobation – relevance of the conduct of the applicant - applicant to approach the court with utmost good faith- applicant having been a beneficiary of the By-laws he purported to challenge-whether the applicant was entitled to the discretionary orders of Judicial Review Republic v Institute of Certified Public Secretaries of Kenya Ex Parte, Mundia Njeru Geteria ................................................ 72 Certiorari - rules of procedure-time within which to institute proceedings-whether Order 53 rule 2 Civil Procedure Rules included anything covered by the principle of ultra vires or nullities or decisions made without jurisdiction-duty of the applicant to demonstrate that the decision was a nullity or was made without jurisdiction-whether the court had the jurisdiction to hear the matter- Civil Procedure Rules Order 53 rule 2 Republic v Institute of Certified Public Secretaries of Kenya Ex Parte, Mundia Njeru Geteria ................................................ 72 Issue 12: April-June 2010 13
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Bench Bulletin - Issue 12 - Kenya Law Reports

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