Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FROM THE COURTS — HIGH COURT
8. Election posters not disclosing the name and address of the printers was an election offence under the Election
Offences Act punishable by imprisonment for up to four years. Where any person was aggrieved, such a person was
required to lodge a criminal complaint with the police. 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 not result in the nullification
of an election.
9. Although the petitioner proved that the first respondent’s supporters distributed leaflets that were defamatory
of his character, such distribution was localized in scope that it could not be said to have materially and substantially
affected the conduct and the results of the parliamentary election.
10. The petitioner failed to establish the claim that the third respondent was influenced by the first respondent in
the employment of the presiding officers and polling clerks during the said parliamentary elections.
11. The election offence of bribery had been established. However, the culprit was a civic candidate in the said elections
and court could not therefore reach a conclusion with certainty that the said culprit was bribing voters on his own
behalf or on behalf of the first respondent as he was in the same party as the first respondent.
12. The election regulations were meant to govern the conduct of the election from the time the voters were registered
to the time the results of the elections were announced. It provided an elaborate procedure by which presiding officers
were required to conduct an election and later announce results. The election regulations were meant to entrench and
promote the principles of free, transparent and fair elections.
13. The participation by the Electoral Commission of Kenya (ECK) in the nominations of a political party that was
to later contest the general elections was against the principles of independence and impartiality and against the
ECK’s own Code of Conduct which prohibited its officials from associating with a political party. An electoral body was
supposed to conduct elections impartially and even a seemingly innocent association with any of the contesting parties,
particularly the party in power, would raise questions as to its impartiality and neutrality.
14. A Form 16A which was not signed by a Presiding Officer could not constitute valid results capable of being accepted
for tallying by a Returning Officer. Further, a Form 16A which was not authenticated by the stamp of the electoral body
could not be said to contain valid results. The Returning Officer had accepted invalid results and included them in the
final results expressed in Form 17A.
15. Forms 16A in respect of some of the polling stations had been filled by persons who were not in ECK’s official list
of designated Presiding Officers. The Returning Officer had wrongly delegated the responsibility.
16. The presiding officers did not provide statutory comments as required by the law and further failed to allow the
agents of the candidates to authenticate the results by signing on the Form 16As.
17. The Election Regulations required a Presiding Officer to request each candidate or their agents to sign against
the results on Form 16A and where a candidate or agent was absent or failed to sign, the Presiding Officer was to state
the absence or the reasons for the lack of the signature. The participation of candidates or agents in an election was
not incidental or cosmetic to the election process but an important component of it. Failure to state the reasons was a
breach of a mandatory legal requirement and it rendered invalid the results contained in the Forms.
18. The third respondent failed to verify or confirm that the results filled in the Form 17A were the true and correct
results of all the polling stations in the constituency. The Form 17A was not dated. It was evident that the third
respondent, if at all, filled the Form 17A in the absence of the candidates. That was the reason why the candidates,
including the first respondent, failed to append their respective signatures on the said Form 17A. The said Form 17A
could not therefore be said to be a valid legal instrument or statutory form containing the declared results.
19. Whereas the regulations did not specify what ought to be done where there are cancellations and alterations,
common sense dictated that where there was a cancellation or alteration in a statutory form, the same should be
countersigned by the concerned official. In the case of electoral documents, it was important that the statutory forms
which contain results that will invariably be required to be verified by other parties, including the members of the
public, should be written without any alterations or cancellations. The cancellations and alterations in the Form 16As
produced in the court raised question regarding the veracity and authenticity of the said results.
20. The Electoral Commission had a duty to inculcate and imbue confidence in the electorate that its process was
transparent, free and fair.
21. There was a wide discrepancy in the total vote tally between the parliamentary, civic and presidential election. In
normal circumstances, the variation in the tallies of the total votes cast for all the civic, parliamentary and presidential
candidates would be marginal. The difference of over 5,000 votes between the parliamentary vote on the one hand and
the presidential and the civic vote on the other was evidence of serious electoral malpractice.
22. The totality of the electoral irregularities was of such a magnitude that the parliamentary election could not be
said to have been free and fair.
Petition allowed
Issue 12: April-June 2010
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