Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FROM THE COURTS — HIGH COURT
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
The petitioner had filed an election petition contesting the election of the first respondent as the Member of Parliament
for Juja Constituency on the ground that his election involved serious irregularities and malpractices committed by the
second and third respondents. The second respondent was the Electoral Commission of Kenya (ECK) while the third
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 had succeeded to
the suit in the place of the ECK.
It was the petitioner’s case that the evidence disclosed a litany of serious electoral malpractices by the ECK 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 Presidential Elections Act or the Regulations and principles made thereunder.
It was alleged that the election had not been conducted in accordance with the principles of common law and the
principles of natural justice and all that seriously affected the election to the detriment of the petitioner. The petitioner
complained that the tallying and the totaling of the results was inaccurate and that the ballot boxes for the votes cast
in the elections were opened and ballot papers counted, totaled and tallied in the absence of the petitioner and his
agents.
It was the Petitioner’s case that the declaration of the results of each polling station as contained in the Forms 16A
remitted to ECK were not verified and witnessed by the petitioner and or his agents nor were any reasons given for
the third respondent’s failure to procure the petitioner’s or his agents verification and endorsement on the declared
results. The petitioner was of the view that the declared results were therefore false, fictitious and unlawful.
Held;
1. Section 44 of the Constitution gave the High Court the jurisdiction to hear and determine the question whether a
person had been validly elected as a Member of the National Assembly. In determining the validity of an election, the
court would take into consideration the provisions of the Constitution, the National Assembly and the Presidential
Elections Act, the Election Rules and Regulations made thereunder, and the general principles recognized by the law
as constituting the proper conduct of a valid election.
2. In determining election petitions, the High Court was required to bear in mind that election petitions were not
ordinary suits where a party was enforcing a right that accrued to him as a person. An election was 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.
3. The test as to what constituted free and fair elections would of necessity be the internationally acceptable standard
of what constitutes such free and fair elections. The Court had to consider whether the complaints made by the
petitioner were such that, apart from establishing the particular electoral malpractice, or irregularity, impacted on
the rights of the voters.
4. Ordinarily, the Court would not interfere with the democratic choice of the voters unless it was established to the
required standard of proof that there were irregularities and electoral malpractices that rendered the said elections null
and void and therefore subject to nullification. It would not be sufficient for the petitioner to establish that irregularities
or electoral malpractices did occur: he had to establish that the said electoral malpractices were of such a magnitude
that it substantially and materially affected the outcome of the electoral process in regard to the elections.
5. The standard of proof in election petitions was higher than that which was applied in ordinary civil cases. The
burden of establishing that any election offence was committed to justify the nullification of the election was on the
petitioner.
6. Out of the 231 ballot boxes, 66 of them appeared to have been tampered with. In the circumstances, the court could
not order for a scrutiny and recount of the ballots.
7. Under the Universal Declaration of Human Rights, international treaties, the Constitution of Kenya and the National
Assembly and Presidential Elections Act, the right of a people to freely elect their representative in a credible, free and
fair electoral process was a human right and elections were to be held to internationally acceptable standards.
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