Edward Akong’o Oyugi v Independent Electoral And Boundaries Commission, Jairus Obaga & Zacharia Okoth Obado
Edward Akong’o Oyugi v Independent Electoral And Boundaries Commission & 2 others  eKLR
High Court upholds the elections of the Governor for Migori County in the March 4, 2013 General Elections
Edward Akong’o Oyugi v Independent Electoral and Boundaries Commission & 2 others
Petition No 3 of 2013
High Court of Kenya at Kisii
E N Maina, J
September 5, 2013
Reported by Nelson K Tunoi & Beatrice Manyal
Whether the election of the Governor for Migori County held on 4th March 2013, (was credible, free and fair), whether it was in conformity with the Constitution of Kenya 2010, the Elections Act and Regulations, and other Laws relating to elections.
Whether the declaration of Zacharia Okoth Obado (3rd respondent) as the Governor for Migori County was valid.
Whether the declaration of Zacharia Okoth Obado (3rd respondent) as the Governor for Migori County ought to be nullified and Edward Akong’o Oyugi (petitioner) declared the Governor.
Who should bear the costs of the Petition?
Constitution of Kenya, 2010 article 81(e) provided;
81(e) elections must be free and fair and shall be:-
By secret ballot
Free from violence, intimidation, improper influence or corruption;
Conducted by an independent body
Administered in an impartial, neutral, efficient, accurate and accountable manner.
Electoral law – election petition – gubernatorial election – petition seeking to nullify and declare void the election of the 3rd respondent as the Governor for Migori County on the elections held on 4th March, 2013 –whether the election of the Governor for Migori County held on 4th March 2013,was credible, free and fair- whether it was in conformity with the Constitution of Kenya 2010, the Elections Act and Regulations thereunder and other Laws relating to elections- whether the declaration of the 3rd respondent as the Governor was valid or whether it ought to be nullified and the petitioner declared the Governor -Constitution of Kenya, 2010 articles 10,81,86 ; IEBC Act, 2011 section 25
Electoral law-election malpractices-claims that the agents did not sign Forms 35 or given copies of the form 35 - claims that there were two Forms 36 for Rongo Constituency, one handwritten and the other typed which bore different results; that the County Returning Officer for Migori County announced the results from a laptop computer –that the public did not know the details of the results as expected under the Law-that there was no simultaneous projection of the results onto a screen for public viewing and there was no printout posted at the door or entrance of the tallying center-where in some constituencies Form 36 exceeded the votes cast -Constitution of Kenya, 2010 articles 10, 81 and 86; Elections (Parliamentary and County Elections) Petition Rules, 2013 rule 12, 33(4); Elections(General)Regulations, 2012 regulations 73(3) (4),79,81 & 83
Electoral law– electoral offences - claims that there was intimidation, bribery and violence during the elections- whether the petitioner had proved the allegation to the required standard of proof.
Under section 83 of the Election Act an election could not be declared void for non-compliance with written law if it was conducted according to the principles of law. This position would however only apply where the IEBC and its officers conducted the elections in conformity with the principles laid out in the Constitution and the written Law but nevertheless errors and irregularities occur. Where the law was not complied with at all then there was no debate and the election had to be nullified.
The burden of proof in election petition lay with the petitioner as he was the person who sought to nullify an election. While the proof had to be done to the satisfaction of the court it could not be said that the standard of proof required in an election petition was beyond reasonable doubt. Like in fraud cases, the standard was higher than on a balance of probabilities and where there were allegations of election offences a very high degree of proof was required.
There was no complaint regarding the manner in which the actual voting was conducted at the polling stations. The petitioner did however testify that his name was missing from the register but was nevertheless allowed to vote and that did not affect the result.
The allegation that some electors did not find their names in the register or that some of the polling stations opened late were not proved. No one swore an affidavit to that effect and that allegation was made only by the petitioner.
There was no evidence of violence, intimidation or bribery. It was not proved that the two people caught bribing voters were doing so on behalf of the 3rd respondent. Although the 3rd respondent disassociated himself from those two people he went out of his way and obtained the proceedings of the criminal case which he tendered as proof that the man was absolved from those allegations
No agent swore an affidavit stating that the presiding officer did not give them a copy of the Form 35 and in any event one of the petitioners witness testified that the petitioner’s Secretariat, which he headed, received those results. Even if it were true that copies were not given to the agents, no prejudice was occasioned to the petitioner. The Form 35s submitted by the 1st respondent were signed by agents. Moreover, Regulation 79(b) provided that the refusal or failure by a candidate or agent to sign a declaration or to record the reasons for their refusal to sign should not by itself invalidate the results announced.
The failure to affix the results at the polling stations and tallying centers was not proved by the petitioners.
Although the County Returning Officer did not announce the results of each constituency before declaring the final result, the same was not a requirement under regulation 87(3)(a). The regulation did not require announcement of the results received from the Constituency and so once again that ground could not hold. There was evidence that results at the constituencies were tallied and announced at the constituencies in compliance with regulation 83(1).
Whereas there was openness in the tallying, the petitioner had proved that tallying was not done accurately. There were many errors in the transposition of results from Form 35 to Form 36. In some instances the results for the candidates were interchanged and in others the candidates were given more than they had garnered. In others they were given less. This however applied only to two polling stations. The errors in this case though negligent were not deliberate and had not been proved to have affected the result.
The law did not prohibit reading of results from the computer unless it was shown that it affected the results, which it did not. This would have been tantamount to “elevating technicalities to a fetish” which was forbidden by article 159 of the Constitution of Kenya, 2010
The declaration of the 3rd Respondent as the Governor for Migori County was valid.
There were errors established in the tally. These errors were admitted by the officers of the 1st respondent including the 2nd respondent. Even the 3rd respondent had a table of errors in his own tally and this court also confirmed the errors. The same were occasioned by the negligence and casual manner of the officers of the 1st respondent. The 1st respondent would do well to ensure that its officers are more diligent and efficient but for now it had to bear the costs of the petition
Petition dismissed; certificate under section 86 to issue; the 1st respondent shall bear the costs of the Petitioner and the 3rd Respondent, The 2nd Respondent shall bear his own costs.; That the costs be taxed by the Deputy Registrar but so as not to exceed Kshs 1 million (one million shillings) for each party.
1.Besigye, Kizza v Yoweri Kaguta Museveni Election Petition No 1 of 2001 –(Mentioned)
2.Gitau v Thuo & 2 others  1 KLR 526–(Explained)
3.Joho v Nyange & another (No 4) (2008) 3 KLR (EP) 500-(Explained)
4.Masaka v Khalwale & 2 others Election Petition No 2 of 2008 –(Explained)
5.Mbowe v Eliufoo  EA 240 –(Explained)
6.Munyao v Munuve & 4 others (2008) 2KLR (EP) 20 –(Explained)
7.Nga’ng’a & Another v Owiti & another (No 2) (2008) 1 KLR (EP) 9 –(Explained)
8.Nyamweya, Manson Onyongo v James Omingo Magara & 2 others Election Petition No 3 of 2008 –(Explained)
9.Odinga, Raila Amolo & 2 others v Independent Electoral and Boundaries Commission & 3 others Election Petition No 5 of 2013 –(Explained)
10.Omiti v Osebe & 2 others  2 KLR 181 –(Explained)
1.Constitution of Kenya, 2010 articles 2, 10, 81, 88 –(Interpreted)
2.Elections Act, 2011 (Act No 24 of 2011) sections 39, 64, 83, 86(1) –(Interpreted)
3.Elections (General) Regulations, 2012 (Act No 24 of 2011 Sub Leg) regulations 79, 83 38(a) –(Interpreted)
1.Mr Muenesi & Miss Ogutu for the Petitioner
2.Mr Murugu for the 1st & 2nd Respondents
3.Mr Sagana for the 3rd Respondent