Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FROM THE COURTS — HIGH COURT
Election petition: fundamental electoral irregularities and malpractices.
Reuben Nyanginja Ndolo v Dickson Wathika Mwangi & 2 others [2010] eKLR
Election Petition 11 of 2008
April 30, 2010
KH Rawal J.
High Court at Nairobi (Nairobi Law Courts)
Reported by Njeri Githang’a
Election law-election petition- parliamentary election- petition seeking to nullify and declare
void the election of the first respondent as Member of Parliament for Makadara Constituency
-irregularities in elections – petitioner citing several irregularities in the conduct of elections
- whether the irregularities were sufficient to warrant nullification of the election- National
Assembly and the Presidential Elections Act (Cap 7)
Election law-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)
Election law – 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 Hon. Lady Justice KH
Rawal
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.
Election law – 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.
Election law- 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.
Election law- 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
16As- specific 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
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
The petitioner, a candidate for the Parliamentary Election for Makadara constituency filed an election petition contesting
the election of the first respondent as the Member of Parliament for the Constituency. The third respondent was the
Electoral Commission of Kenya (ECK) while the second respondent was the ECK’s Returning Officer. The ECK was
subsequently disbanded by a constitutional amendment that established the Interim Independent Electoral Commission
(IIEC) as its successor and the IIEC succeeded to the suit in the place of the ECK.
The petition was brought on the ground that the parliamentary election involved serious irregularities and malpractices
committed by the respondents and several election offences on account of which the results announced for the
parliamentary election could not be said to have been valid. The petitioner raised several complaints among them; that
the said election was not conducted in accordance with the provisions of the National Assembly and the Presidential
Elections Act or the Regulations made thereunder. According to the petitioner there had been no free, fair and transparent
Parliamentary Election and the election had to be nullified as prayed in the Petition. |It was alleged that there had been
serious anomalies in the process of election results, especially with the electoral documents which were fundamental
and would affect the results of the election.
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