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Agricultural Finance Co-operation & Another V Julia Muthanje Joseph [2013] eKLR

Case Number: Civil Appeal Nos 111 & 116 of 2007 (Consolidated) Date Delivered: 10 Oct 2013

Judge: David Kenani Maraga, Erastus Mwaniki Githinji, Roselyn Naliaka Nambuye

Court: Court of Appeal at Nyeri

Parties: Agricultural Finance Co-operation & Isaiah Tito Nyaga Kagoce v Julia Muthanje Joseph [

Citation: Agricultural Finance Co-operation & Another V Julia Muthanje Joseph [2013] eKLR

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Peter Maina Mwangi & Another V Republic [2013] eKLR

Case Number: Criminal Appeal 389 of 2009 Date Delivered: 10 Oct 2013

Judge: Alnashir Ramazanali Magan Visram, Martha Karambu Koome, James Otieno Odek

Court: Court of Appeal at Nyeri

Parties: Peter Maina Mwangi & Jackson Kimaru Maina v Republic

Citation: Peter Maina Mwangi & Another V Republic [2013] eKLR

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Kenya Union Of Sugar Plantations & Allied Workers V Kibos Sugar & Allied Industries Ltd [2013] eKLR

Case Number: Cause 40/2013 Date Delivered: 09 Oct 2013

Judge: Hellen Wasilwa Seruya

Court: Industrial Court at Kisumu

Parties: Kenya Union of Sugar Plantations & Allied Workers v Kibos Sugar & Allied Industries Ltd

Citation: Kenya Union Of Sugar Plantations & Allied Workers V Kibos Sugar & Allied Industries Ltd [2013] eKLR

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Abar Juma Nzai Alias Pilla & 2 Others V Republic [2013] eKLR

Case Number: Criminal Appeal 359,360 & 361 of 2010 Date Delivered: 09 Oct 2013

Judge: Erastus Mwaniki Githinji, Milton Stephen Asike Makhandia, Fatuma sichale

Court: Court of Appeal at Mombasa

Parties: Abar Juma Nzai Alias Pilla,Omar Ali Juma Alias Mbuchi & Ismale Mohamed v Republic

Citation: Abar Juma Nzai Alias Pilla & 2 Others V Republic [2013] eKLR

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Wycliffe Barasa & 2 Others V Republic [2013] eKLR

Case Number: Criminal Appeal Nos 265, 299 & 300 of 2012 (Consolidated) Date Delivered: 09 Oct 2013

Judge: George Matatia Abaleka Dulu, Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Wycliffe Barasa, Justus Ngogoto & George Isambe Libabu v Republic

Citation: Wycliffe Barasa & 2 Others V Republic [2013] eKLR

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Winstonee Milimo V Republic [2013] eKLR

Case Number: Criminal Appeal 219 of 2011 Date Delivered: 09 Oct 2013

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Winstonee Milimo v Republic

Citation: Winstonee Milimo V Republic [2013] eKLR

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In The Matter Of Hezron Odhiambo Abok V Attorney General, Republic Of Kenya [2013]eKLR

Case Number: Misc. Criminal Application 43 of 2012 Date Delivered: 09 Oct 2013

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: In the Matter of Hezron Odhiambo Abok v Attorney General, Republic of Kenya

Citation: In The Matter Of Hezron Odhiambo Abok V Attorney General, Republic Of Kenya [2013] eKLR

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Republic V Nicholas Nduhi Chasimba Alias Ocs [2013]eKLR

Case Number: Criminal Appeal 195 of 2012 Date Delivered: 09 Oct 2013

Judge: George Matatia Abaleka Dulu, Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Republic V Nicholas Nduhi Chasimba Alias Ocs

Citation: Republic V Nicholas Nduhi Chasimba Alias Ocs [2013] eKLR

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Victor Makokha & Another V Republic [2013] eKLR

Case Number: Criminal Appeals 190 & 198 of 2012 Date Delivered: 09 Oct 2013

Judge: George Matatia Abaleka Dulu, Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Victor Makokha & Pollington Kamila v Republic

Citation: Victor Makokha & Another V Republic [2013] eKLR

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Atanus Khaimba Bwakwea V Republic [2013] eKLR

Case Number: Criminal Appeal 211 of 2011 Date Delivered: 09 Oct 2013

Judge: George Matatia Abaleka Dulu, Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Atanus Khaimba Bwakwea v Republic

Citation: Atanus Khaimba Bwakwea V Republic [2013] eKLR

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Republic V Funyula Land Disputes Tribunal & Another Ex-parte Francis Anyiga Ligono [2013] eKLR

Case Number: Judicial Review 2 of 2013 Date Delivered: 09 Oct 2013

Judge: Stephen Kibunja

Court: High Court at Busia

Parties: Republic v Funyula Land Disputes Tribunal Interested Party Vincent Wandera Ogai ex-part Francis Anyiga Ligonoe

Citation: Republic V Funyula Land Disputes Tribunal & Another Ex-parte Francis Anyiga Ligono [2013] eKLR

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Winstonee Milimo V Republic [2013] eKLR

Case Number: Criminal Appeal 219 of 2011 Date Delivered: 09 Oct 2013

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Winstonee Milimo v Republic

Citation: Winstonee Milimo V Republic [2013] eKLR

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Charles Odhiambo Alias Omera V Republic [2013] eKLR

Case Number: Criminal Appeal 177 And 179 of 2012 Date Delivered: 09 Oct 2013

Judge: George Matatia Abaleka Dulu, Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Charles Odhiambo Alias Omera v Republic

Citation: Charles Odhiambo Alias Omera V Republic [2013] eKLR

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Republic V Ezron Akonde Misala & 2 Others [2013] eKLR

Case Number: Criminal Case 26 of 2009 Date Delivered: 09 Oct 2013

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Republic v Ezron Akonde Misala,Zakaria Maumbe & Julius Okello Anam

Citation: Republic V Ezron Akonde Misala & 2 Others [2013] eKLR

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Christopher Kendagor V Christopher Kipkorir [2013] eKLR

Case Number: E&L 919 of 2012 Date Delivered: 09 Oct 2013

Judge: Munyao Sila

Court: High Court at Eldoret

Parties: Christopher Kendagor v Christopher Kipkorir

Citation: Christopher Kendagor V Christopher Kipkorir [2013] eKLR

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Joseph Abtalia V Republic [2013] eKLR

Case Number: Criminal Appeal 184 of 2011 Date Delivered: 09 Oct 2013

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Joseph Abtalia v Republic

Citation: Joseph Abtalia V Republic [2013] eKLR

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Arthun Mshila Manga V Republic [2013] eKLR

Case Number: Criminal Appeal 32 of 2012 Date Delivered: 09 Oct 2013

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Arthun Mshila Manga v Republic

Citation: Arthun Mshila Manga V Republic [2013] eKLR

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Hezron Odhiambo Abok V Attorney General, Republic Of Kenya [2013] eKLR

Case Number: Misc Criminal Application 43 of 2012 Date Delivered: 09 Oct 2013

Judge: Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Hezron Odhiambo Abok v Attorney General, Republic of Kenya

Citation: Hezron Odhiambo Abok V Attorney General, Republic Of Kenya [2013] eKLR

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Nicholas Nduhi Chasimba Alias Ocs V Republic [2013] eKLR

Case Number: Criminal Appeal 195 of 2012 Date Delivered: 09 Oct 2013

Judge: George Matatia Abaleka Dulu, Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Nicholas Nduhi Chasimba alias Ocs v Republic

Citation: Nicholas Nduhi Chasimba Alias Ocs V Republic [2013] eKLR

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Wycliffe Barasa & 2 Others V Republic [2013] eKLR

Case Number: Criminal Appeals 265, 299 & 300 of 2012 Date Delivered: 09 Oct 2013

Judge: George Matatia Abaleka Dulu, Said Juma Chitembwe

Court: High Court at Kakamega

Parties: Wycliffe Barasa, Justus Ngogoto & George Isambe Libabu v Republic

Citation: Wycliffe Barasa & 2 Others V Republic [2013] eKLR

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P A A W V P W O [2013] eKLR

Case Number: Divorce Cause 132 of 2009 Date Delivered: 08 Oct 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: P A A W v P W O

Citation: P A A W V P W O [2013] eKLR

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R S V B S [2013] eKLR

Case Number: Divorce Cause 51 of 2010 Date Delivered: 08 Oct 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: R S v B S

Citation: R S V B S [2013] eKLR

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In Re BABY J (MINOR) [2013] eKLR

Case Number: Adoption Cause 196 of 2012 Date Delivered: 08 Oct 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: IN THE MATTER OF BABY J (MINOR)

Citation: In Re BABY J (MINOR) [2013] eKLR

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In Re BABY R S N (MINOR) [2013] eKLR

Case Number: Adoption Cause 115 of 2011 Date Delivered: 08 Oct 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: IN THE MATTER OF BABY R S N (MINOR)

Citation: In Re BABY R S N (MINOR) [2013] eKLR

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C W N V P K K [2013] eKLR

Case Number: Divorce Cause 138 of 2008 Date Delivered: 08 Oct 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: C W N v P K K

Citation: C W N V P K K [2013] eKLR

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V S G V B V

Case Number: Divorce Cause 182 of 2011 Date Delivered: 08 Oct 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: V S G v B V

Citation: V S G V B V

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R J B V J R [2013] eKLR

Case Number: Divorce Cause 1 of 2007 Date Delivered: 08 Oct 2013

Judge: Grace Wangui Ngenye

Court: High Court at Eldoret

Parties: R J B v J R

Citation: R J B V J R [2013] eKLR

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B G P V K B B [2013] eKLR

Case Number: Divorce Cause 63 of 2011 Date Delivered: 08 Oct 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: B G P v K B B

Citation: B G P V K B B [2013] eKLR

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J N K V P M N [2013] eKLR

Case Number: Divorce Cause16 of 2011 Date Delivered: 08 Oct 2013

Judge: Luka Kiprotich Kimaru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: J N K v P M N

Citation: J N K V P M N [2013] eKLR

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Mohamood Mohammed Ali V Republic [2013] eKLR

Case Number: Criminal Appeal 246 of 2008 Date Delivered: 08 Oct 2013

Judge: David Kenani Maraga, Jamila Mohammed, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: Mohamood Mohammed Ali v Republic

Citation: Mohamood Mohammed Ali V Republic [2013] eKLR

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Mary Wangari Mwangi V John Omondi Ogutu & 2 Others [2013] eKLR

Case Number: Election Petition 9 o f 2013 Date Delivered: 08 Oct 2013

Judge: Richard Mururu Mwongo

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mary Wangari Mwangi v John Omondi Ogutu, Sylvia Maritim, Returning Officer Embakasi East Constituency & Independent Electoral & Boundaries Commission (Iebc)

Citation: Mary Wangari Mwangi V John Omondi Ogutu & 2 Others [2013] eKLR

Cases:
East Africa;
1. Andama, Benjamin Ogunyo v Benjamin Andola Andaji, Civil Application No 24 of 2013 (UR) – (Mentioned)
2. Masaka, Bernard Shinali v Boni Khalwale & 2 others
3. Waititu, Waititu Ferdinand v IEBC & 8 others, Election Petition No 1 of 2013 – (Explained)
4. Aladwa, George Omweri v Benson Mutura Kangara & 2 others Election Petition No 4 of 2013 – (Explained)
5. Joho vs Nyange & Another (2008) 3 KLR EP 500 – (Mentioned)
6. Mbowe v Eliufoo (1967) EA 240 – (Mentioned)
7. Sirat, Mohammed Mohamed v Ali Hassan Abdirahman & 2 others Election Petition No 15 2008 – (Explained))
8. Kombo, Musikari Nazi v Moses Masika Wetangula & 2 others, Election Petition No 3 of 2013
9. Ndile, Richard Kalembe v Patrick Musimba Musau & others, Petition No 7/2013 – (Mentioned)
India;
1. TH Musthaffa v MP Varghese AIR 2000 SC 153 – (Mentioned)
2. Shiv Kripal Singh v VV Giri AIR 1970 SC 2097 – (Explained)
United Kingdom;
1. Morgan v Simpson (1974) 3 ALL ER 722 – (Explained)
Statutes:
East Africa;
1. Constitution of Kenya, 2010 articles 75,76,77, 86(b)(c)-(Interpreted)
2. Election (Parliamentary and County Elections) Petitions Rules, 2013(Act No 24 of 2011 Sub Leg) rule 9(3)(b); 17, 36(1)(a); 37; 75(3); 79; 79(2)(a); 82; 82(2); 83(1); 83(1)(a)(b)- (Interpreted)
3. Elections Act, 2011(Act No 24 of 2011) section 19, 58(d); 58(m); 62; 63; 64; 83; 84; 86(1); 87(1)- (Interpreted)

Text and Journal
1. Woodley, M., (Ed) (1927) Osborn’s Concise Law Dictionary London: Sweet & Maxwell 12th Edn

 

Electoral Malpractices Of Omission Or Commission Did Not Affect The Results For MP Embakasi East Constituency

Mary Wangari Mwangi v John Omondi Ogutu& 2 others

 Election Petition No 9 of 2013

 High Court of Kenya at Nairobi

R M Mwongo, J

  October 8, 2013

Reported by Nelson K Tunoi & Beatrice Manyal

 

Issues:

  1. Whether there were serious electoral malpractices of omission or commission by the respondents leading to an election that was neither credible free and fair thereby affecting the results of the election.
  2. Whether the 2nd& 3rd respondents used a different picture of the petitioner other than the one provided and as such made identification by voters difficult.
  3. Whether the official results declared by the 2nd& 3rd Respondents for Embakasi East Constituency at the Constituency Tallying Centre and at the National Tallying Centre were authentic, reliable and accurate.
  4. Whether the1st Respondent was validly elected as MP for Embakasi East Constituency.
  5. Who should bear the costs of this petition?”

Electoral law-election petition-petition seeking the nullification of election results for Embakasi East Constituency.

Electoral law-election offences and malpractices- whether there were serious electoral malpractices of omission or commission by the respondents leading to an election that was neither credible free and fair thereby affecting the results of the election- claim of treatment, bribery and undue influence of voters , double voting, failure of the electronic voter identification devices; discrepancies between the results, Presiding Officers falling asleep during counting and  tallying of votes- claims that the 3rdRespondent used a photograph of the Petitioner other  than the one  officially  submitted by the petitioner leading to voters  failing to recognize or identify her- Constitution of Kenya, 2010 articles  75,76 and 77; Elections Act, 2011 Section 19; Rule 9(3)(b) of the Election (Parliamentary and County Elections ) Petitions Rules, 2013 (“the Elections Petitions Rules), 2013.

 

Held:

  1. The general principles for the determination of an election petition included the following principles, namely;
    1. The sovereignty of the will of the people. Under this principle the court seeks to determine whether the election result is a reflection of the intent and will of the voters. 
    2. Election Petitions are in their own category of litigation, neither controlled by the Civil Procedure Act and Rules or the Criminal Procedure Rules.  As such they must be proved by cogent, credible and consistent evidence
    3. A Petitioner is bound by his pleadings, 
    4. Irregularities and non-compliance with the electoral law will not necessarily lead to invalidity of an election unless they affect the result of the election, or constitutional principles were breached.
    5. The burden of proof lies on the Petitioner. The standard of proof is higher than a balance of probabilities and where there are allegations of fraud or election offences, a very high degree of proof is required.
  2. The petitioner’s complaint that the photograph used by IEBC in the ballot paper was not truly representative of her and confused her identity to the majority of voters was not proved. No single witness testified as to the confusion caused by the photograph or that they could not recognize her. Moreover it was not proved that the IEBC used an old picture of the petitioner instead of the one supplied to them by the petitioner.
  3. The offences of treatment, bribery, undue influence did not stand the high standard of scrutiny and proof beyond reasonable doubt for offences such as contemplated in section 62 of the Election Act.
  4. Double voting was an offence under section 58 (m) of the Elections Act.  Evidence of a scheme to enable the 1st respondent’s voters to vote twice was unreliable or shaky. There was no proof of double voting or a scheme for the same, contrary to section 58 (m).
  5. The results announced by the 2nd Respondent at the constituency tallying centre and those declared by the 3rd Respondent at the National Tallying centre were different. However, it was not shown how that resulted in undermining or altering the ultimate will of the people, so as to underpin a sufficient reason to declare the election invalid or void.  In this case,
  6. The valid votes garnered by each candidate as shown in forms 35, were not impugned.  In particular, there was no allegation of tampering with part B of Form 35, the sacrosanct part of the form which contains the votes garnered by each candidate. Nor was it shown that the discrepancies led to a different result other than that the 1st Respondent had, in any event, garnered more valid votes than the Petitioner.  Further, it was not shown that the discrepancies affected the sanctity of the ballot.
  7. Complaints of voter suppression in greenspan mall and donholm primary school polling stations would have been weighty had names been given and depositions of voters who were actually disenfranchised filed.  No such witnesses were called.  Given the heavy burden of proof in election cases, court was not satisfied that the Petitioner made out a compelling case as to disenfranchisement of voters.  this allegation had to be rejected as unproved
  8. If IEBC officials fell asleep during counting of ballots, it was not as widespread as alleged in paragraph 27 of the petition.  It was an exaggeration to allege that the problem was in virtually all polling stations. The evidence on this allegation is of such weight as to show that the irregularity affected the result of the election or that, overall, the election was not conducted in accordance with the principles laid down in the constitution and the law.
  9. There were electoral malpractices, but their nature and severity were not such as to result in any effect on the results of the elections.
  10. The results declared by the IEBC had discrepancies. However, the said discrepancies were not a reflection of any errors in, or tampering with, the results of the number of votes cast for each candidate in the forms 35s, which were not impugned. The final result was that the  given in form 36
  11.  The 1st Respondent was validly elected as Member of the National Assembly for Embakasi East Constituency in Nairobi City County. The votes disclosed that his election was a reflection of the will of the people.

 

Petition dismissed with costs to the respondents; costs not to exceed Kshs. 2,500,000; certificate to issue to the IEBC and to the Speaker of the National Assembly pursuant to section 86(1) of the Elections Act

 

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Republic V Chairman Land Disputes Tribunal Ex-parte Henry Boyi Kawa & 2 Others [2013] eKLR

Case Number: Misc. Application Case 162 Of 2010 Date Delivered: 08 Oct 2013

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Republic v Chairman Land Disputes Tribunal Ex-parte Henry Boyi Kawa, Henry Amalele Wenekeya & Timothy Khisa Alichuma

Citation: Republic V Chairman Land Disputes Tribunal Ex-parte Henry Boyi Kawa & 2 Others [2013] eKLR

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Emily Nasimiyu Buchunju V Dickson Simiyu [2013] eKLR

Case Number: ELC 49 of 2012 Date Delivered: 08 Oct 2013

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Emily Nasimiyu Buchunju v Dickson Simiyu

Citation: Emily Nasimiyu Buchunju V Dickson Simiyu [2013] eKLR

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Moses Wanyama Masinde V Stephen Bwongo Wafula & Another [2013] eKLR

Case Number: Civil Case 131 of 2012 Date Delivered: 08 Oct 2013

Judge: Anne Omollo

Court: High Court at Bungoma

Parties: Moses Wanyama Masinde v Stephen Bwongo Wafula & Gabriel Nyongesa Wafula

Citation: Moses Wanyama Masinde V Stephen Bwongo Wafula & Another [2013] eKLR

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Wilson Owiti Matete V Republic [2013] eKLR

Case Number: Criminal Appeal 33 of 2011 Date Delivered: 08 Oct 2013

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: Wilson Owiti Matete v Republic

Citation: Wilson Owiti Matete V Republic [2013] eKLR

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Beatrice Akomo Ongito V Republic [2013] eKLR

Case Number: Criminal Appeal 274 of 2012 Date Delivered: 08 Oct 2013

Judge: Ruth Nekoye Sitati

Court: High Court at Kisii

Parties: Beatrice Akomo Ongito v Republic

Citation: Beatrice Akomo Ongito V Republic [2013] eKLR

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ARTHUR KIBIRA APUNGU & ANOTHER V INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 2 OTHERS [2013] eKLR

Case Number: ELECTION PETITION NO. 7 OF 2013 Date Delivered: 07 Oct 2013

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Kakamega

Parties: ARTHUR KIBIRA APUNGU & JULIUS ABRAHAM SIKALO V INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION, RETURNING OFFICER LUANDA CONSTITUENCY & CHRISTOPHER OMULELE

Citation: ARTHUR KIBIRA APUNGU & ANOTHER V INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 2 OTHERS [2013] eKLR

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Hezekiah Omare Araka (Suing Through His Donee Ben Onkindo Araka) V Jane Moraa Ratemo [2013] eKLR

Case Number: Environment & Land Case 378 of 2012 Date Delivered: 07 Oct 2013

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: Hezekiah Omare Araka (Suing through his Donee Ben Onkindo Araka) v Jane Moraa Ratemo

Citation: Hezekiah Omare Araka (Suing Through His Donee Ben Onkindo Araka) V Jane Moraa Ratemo [2013] eKLR

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Arthur Kibira Apungu & Another V Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR

Case Number: Election Petition 7 of 2013 Date Delivered: 07 Oct 2013

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Kakamega

Parties: Arthur Kibira Apungu & Julius Abraham Sikalo v Independent Electoral & Boundaries Commission, Returning Officer Luanda Constituency & Christopher Omulele

Citation: Arthur Kibira Apungu & Another V Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR

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A M G V Republic [2013] eKLR

Case Number: Criminal Appeal 15 of 2010 Date Delivered: 07 Oct 2013

Judge: Erastus Mwaniki Githinji, Milton Stephen Asike Makhandia, Fatuma sichale

Court: Court of Appeal at Mombasa

Parties: A M G v Republic

Citation: A M G V Republic [2013] eKLR

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Mukuru Munge V Florence Shingi Mwawana & 2 Others [2013] eKLR

Case Number: Civil Appeal 191 of 2011 Date Delivered: 07 Oct 2013

Judge: Erastus Mwaniki Githinji, Milton Stephen Asike Makhandia, Fatuma sichale

Court: Court of Appeal at Malindi

Parties: Mukuru Munge v Florence Shingi Mwawana, Gillied Mwanyasi Mwawana & Joseph Mwanganga Mwawana

Citation: Mukuru Munge V Florence Shingi Mwawana & 2 Others [2013] eKLR

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Paul Posh Abwora V Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR

Case Number: Petition 9 of 2013 Date Delivered: 07 Oct 2013

Judge: Eric Kennedy Okumu Ogola

Court: High Court at Kakamega

Parties: Paul Posh Abwora v Independent Electoral & Boundaries Commission, Returning officer Micheal Kosgei & David Aoko Were

Citation: Paul Posh Abwora V Independent Electoral & Boundaries Commission & 2 Others [2013] eKLR

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Fatuma Zainabu Mohamed V Ghati Dennitah & 10 Others [2013] eKLR

Case Number: Election Petition 6 of 2013 Date Delivered: 07 Oct 2013

Judge: Edward Muthoga Muriithi

Court: High Court at Kisii

Parties: Fatuma Zainabu Mohamed v Ghati Dennitah, Independent Electoral and Boundaries Commission (IEBC), Benson Njau (Kuria East Returning Officer), Lilian Liluma (Returning Officer Awendo Constituency), Moses Omondo Daula (Returning Officer Nyatike Constituency),Jackton Nyonje (Returning Officer Oriri Constituency), Noah Bowen (Rongo Constituency), Alex Oyuga (Returning Officer Suna East Constituency), Martin Chengere (Returning Officer Suna West Constituency), Jairus Obago (Returning Officer Migori County) & Adam Mohamed (Returning Officer Kuria West Constituency)

Citation: Fatuma Zainabu Mohamed V Ghati Dennitah & 10 Others [2013] eKLR

Reported By Nelson K Tunoi & Beatrice Manyal

Brief Facts
During the hearing of the Petition challenging the election of the 1st Respondent, Dennitah Ghati as the Women Representative for Migori County on the elections held on 4/3/2013, one of the plaintiffs witnesses (pw2) testified that he pretended to be illiterate so that he could prove that the officers of the electoral commission were directing the illiterate voters to vote for the ODM candidates.

Issues:
i. Whether the 1st Respondent, Dennitah Ghati was validly elected as the as Women Representative
for Migori County on the elections held on 4/3/2013;
ii. Whether the allegations of irregularities and breaches of election law was proved;
iii. Whether any election offences was proved;
iv. Whether the irregularities and election offences and breaches of election law if proved had affected the results of the election.
v. Whether the Petitioner’s witness No 2 (pw2) was guilty of an election offence by admitting in his
evidence that he pretended to be illiterate so that he could be assisted to vote and consequently
prove that the officers of the electoral commission were directing the illiterate voters to vote for the ODM candidates.
Electoral law – election petition – parliamentary election – petition seeking to nullify and declare
void the election of the 1st Respondent, Dennitah Ghati as the Women Representative for Migori
County on the elections held on 4/3/2013- Elections Act, 2011 section 83.
Electoral law-election malpractices- whether the allegations of irregularities and breaches of
election law was proved- claims that the IEBC’s officials were giving out more ballot papers and
directing voters to vote in a particular way- claims that in certain stations there was over voting
with the number of the votes cast exceeding the registered voters-claims that some Form 35 and
Form 36 had not been signed by agents and some were signed by more agents than the number
of candidates for the particular election- whether the irregularities if proved had affected the results
of the election- Elections Act, 2011 sections 75; 76; 77; 79; 80; 82; 86 & 87
Electoral law-election offences- claims that there were persons who voted using dead voter’s cards
–claims that the 1st Respondent was involved in bribery and intimidation of voters- whether the
election offences and breaches of election law if proved had affected the results of the election-
Elections Act, 2011 sections 58, 83 ; Elections (Parliamentary and County Elections) Petition
Rules, 2013 rules 3; 4; 5; 6(1)(A); 8; 9; 10; 11; 12; 13; 21; 32; 33 & 38; Evidence Act section
33, 63- Penal code section 9.
Electoral law- election offence- whether the Petitioner’s witness two (pw2) was guilty of an election
offence by admitting in his evidence that he pretended to be illiterate so that he could be assisted
to vote and consequently prove that the officers of the electoral commission were directing the illiterate voters to vote for the ODM candidates.

Election Act, 201 section 58(o) provided;
A person who pretends to be unable to read or write so as to be assisted in voting commits an
offence and is liable on conviction, to a fine not exceeding one million shillings or to imprisonment
for a term not exceeding six years or to both.
 

Held:
1. The High Court’s jurisdiction to nullify an election existed under section 83 of the Election Act.
2. Although the Petition raised serious constitutional and legal issues relating to elections ranging
from intimidation, bribery, proper management of record of votes and free and fair campaigns
during electioneering, the evidence offered in proof was mainly if not wholly hearsay. Under section 63 of the Evidence Act, hearsay was inadmissible save in well-known exceptions under section 33 of the Evidence Act which were not applicable under the circumstances. Accordingly, much of the Petitioner’s case collapsed on the hearsay rule.
3. Under regulation 79(6) and (7) of the General Regulations, no election could be invalidated for
failure of an agent to sign a statutory document for the absence of an agent at the declaration of results.
4. The object of agents signing the Form 35 was to confirm the results contained therein. If it was signed by agents in other elections taking place alongside the particular election, there could not be a valid objection to such over-confirmation unless it was shown to have adversely affected the result.
5. The allegations that persons voted using the identity cards for dead voters were not proved in
evidence and could not stand. There was no direct evidence of the allegation that dead persons were voted for, and the Court had to reject the complaint as unproved.
6. Under section 58 of the Elections Act, It was an offence for a person to pretend to be illiterate
so that he could be assisted to vote. Accordingly, petitioner’s witness No 2 who pretended to be illiterate so that he could prove that the officers of the electoral commission were directing the illiterate voters to vote for the ODM candidates was guilty of an offence.
7. Under section 9 of the Penal Code it mattered not the good intentions or motive with which a criminal act was committed. The witness clearly committed the offence and having heard the witness before the Court admit that she pretended to be an illiterate voter, it was the duty of the High Court to report the election offence to the Director of Public Prosecution with a hope only that the Court that finally dealt with the matter would consider the unwitty motivation of the witness to catch the officials who were alleged to be making breaches of the election law.
8. The Petitioner did not produce independent testimony from voters to prove the alleged irregularity of giving more ballot papers and directing voters to vote in a particular way. It was not proved that in certain stations there was over voting with the number of the votes cast exceeding the registered voters.
9. There were no election offences proved. It was not established that there were persons who voted using dead voter’s cards or that the 1st Respondent was involved in any such bribery or intimidation. It was also not shown that the irregularities amounted to substantial noncompliance with the election law set out in the Constitution and the Elections Act or that the irregularities would affect the result of the election as required under section 83 of the Election Act.
10. The 1st Respondent, Dennitah Ghati was at the general election of 4/3/2013 validly elected
as the Women Representative for Migori County.

Petition dismissed; costs on the Petitioner and IEBC in equal shares at a sum not exceeding Kenya
Shillings Two Million (Ksh 2M); Certificate to issue pursuant to section 86 of the Elections Act to
Mohamed v Dennitah & 10 others, the Independent Electoral and Boundaries Commission and the speaker of the National Assembly; A further certificate to issue pursuant to section 87(1) of the Elections Act to the Director of Public Prosecutions for his further action in relation to the Petitioner’s Witness No 2 who admitted that she pretended to be an illiterate voter contrary to section 58(o) of the Elections Act;

Cases
East Africa;

1. Andama, Benjamin Ogunyo v Benjamin Andola Andayi Civil Application No 24 of 2013 (UR
11/13) – (Explained)
2. Gitau, William Kabogo v George Thuo & 2 others Election Petition 10 of 2008 – (Mentioned)
3. Joho v Nyange & another (2008) 3 KLR (EP) 500 – (Explained)
4. Kiiza Besigye v Yoweri Kaguta Museveni and Electoral Commission, Uganda Presidential Election
Petition no 1 of 2001 – (explained)
5. Magara, James Omingo v Manson Onyongo Nyamweya & 2 others Civil Appeal No 8 of 2010
– (Distinguished)
6. Mbowe v Eliufoo (1967) EA 240 – (Followed)
7. Mochorwa, Paul Gitenyi v Timothy Bosire Election Petition No 8 of 2013 – (Explained)
8. Mogere, Charles Oigara v Independent Electoral & Boundaries Commission & 2 others Election
Petition No 9 of 2013 – (Mentioned)
10. Munyao v Munuve & 4 others [2008] 2 KLR (EP) 20 – (Explained)
11. Ndile, Richard Kalembe & another v Patrick Musau & 2 others Election Petition No 1 & 7
(Consolidated) – (Explained)
12. Odinga, Raila & 5 others v Independent Electoral & Boundaries Commission & 3 others Petition
Nos 5, 4 and 3 of 2013 – (Followed)
13. Oduol, William Odhiambo v Independent Electoral & Boundaries Commission & 2 others
Election Petition 2 of 2013 (Explained)
14. Oyioka, John Oroo v Independent Electoral & Boundaries Commission & 2 others Election
Petition no 2 of 2013 – (Explained)
15. Sirat, Mohamud Muhamud v Ali Hassan Abdirahiman & 2 others Petition No 15 of 2008 –
(Explained)
16. Waititu, Ferdinand Ndung’u v Independent Electoral & Boundaries Commission & 8 others
Election Petition 1 of 2013 – (Explained)
United States;
1. Islington West Division Case, Medhurst vs Lough and Gasquet (1901) 5 O’M & H 120, 17 TLR
210, 230 – (followed)
Statutes
East Africa;

1. Civil Procedure Act (cap 21) In general – (Interpreted)
2. Constitution of Kenya, 2010 articles 35, 38(3); 83; 88 (4) (e); 159; 188; 105 – (Interpreted)
3. Criminal Procedure Rules (cap 75 Sub Leg) order 16 rules 6, 11 – (Interpreted)
4. Election (General) Regulations, 2012 (Act No 24 Sub Leg) regulations 2(a); 79 (6); (7) –
(Interpreted)
5. Election Act, 2011(Act No 24 of 2011) section 2 - 4, 28, 58, 83, 56, 58(o); 67(1); 67(1)(g)(iii);
80 (1)(a); 87(1) – (Interpreted)
6. Evidence Act (cap 80) sections 33, 63, 66, 68, 69 – (Interpreted)
7. Penal Code (cap 63) section 9 – (Interpreted)
Advocates
1. Mr Odhiambo H/B for Ondieki - for the 1st Respondent

2. Mr Odhiambo for the 2nd - 11th Respondent

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