Case Metadata |
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Case Number: | Election Petition 2 of 2013 |
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Parties: | Emmanuel Okore Sanko & Joseph Makokha Ouma v Paul Cheruiyot Kones, Independent Electoral & Boundaries Commission & Stephen Omenda Mukanga |
Date Delivered: | 01 Aug 2013 |
Case Class: | Civil |
Court: | Election Petition in Magistrate Courts |
Case Action: | Judgment |
Judge(s): | Thripsisa Wanjiku Cherere (Ms) CM |
Citation: | Emmanuel Okore Sanko & another v Paul Cheruiyot Kones & 2 others [2013] eKLR |
Advocates: | none |
Case History: | none |
Court Division: | Civil |
County: | Busia |
Advocates: | none |
History Docket No: | none |
Case Summary: | Emmanuel Okore Sango and another v Paul Cheruiyot Kones and 2 others Election Petition No 2 of 2013 Chief Magistrate’s Court at Busia Thripsisa Wanjiku Cherere CM Aug 1, 2013 Reported by Emma Kinya Mwobobia & Obura Paul Michael
Electoral law- invalidation of elections- invalidation of elections for county representative in Bunyala south ward- where the 1st petitioner claimed that his name had been printed as against the wrong party name and symbol- the 2nd petitioner claimed that his party symbol was missing- whether the anomaly was sufficient to render the elections invalid- Elections Act, section 83, 86(1) |
History Magistrate: | none |
Advocates For: | none |
Case Outcome: | Petition dismissed |
Sum Awarded: | none |
Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE’S COURT AT BUSIA
ELECTION PETITION NO.2 OF 2013
EMMANUEL OKORE SANGO................................................................................................1ST PETITIONER
JOSEPH MAKOKHA OUMA………………………………………………...…….2ND PETITIONER
VERSUS
PAUL CHERUIYOT KONES…………………………….…...........................................1ST RESPONDENT
INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ………….….2ND RESPONDENT
STEPHEN OMENDA MUKANGA………………………..………….……..……3RD RESPONDENT
JUDGMENT
Following the General Elections held on the 4th day of March 2013, the 3rd respondent was returned as the County Representative for Bunyala South Ward. The elections were presided over by the 2nd Respondent and the 1st respondent was the returning officer.
The Petitioners, being dissatisfied with the manner the elections were conducted, moved to this court vide his petition dated 2nd April 2013 and filed on 3rd April 2013. The petitioners pray for orders that
1st PETITIONER’S CASE
2nd PETITIONER’S CASE
WITNESS AFFIDAVITS
1ST AND 2ND RESPONDENTS’ CASE
3RD RESPONDENTS’ CASE
I have considered the evidence on record and the issue in question is whether or not the petitIoners have proved their case on the balance required in election petition cases which was restated in Raila Odinga & others versus IEBC and others- Petition No. 5 of 2013 to be higher than a mere balance of probability.
EVIDENCE
Evidence was presented by way of affidavits pursuant to rules 12 and 15 of the elections (parliamentary and county elections) petition rules, 2013 (rules). The petitioners called six (6) witnesses who swore affidavits and were duly cross-examined by the respondents’ counsels and re-examined by their advocates. The 1st and 2nd respondents were represented by the returning officer, Paul Cheruiyot Kones while the 3rd respondent was the only witness to his case.
SUBMISSIONS
The petitioner and 1st and 2nd respondents filed their submissions while the 3rd respondent sought to rely on submissions by the 1st and 2nd respondents.
ISSUES FOR DETERMINATION
The issues for determination are as follows:-
It is not disputed that there was an anomaly in the ballot paper in that instead of UDF Party whose symbol was a pair of capped hands; there appeared against 1st petitioner’s name UDM Party whose symbol is a flag. It is not disputed that there was an anomaly in the ballot paper in that in that the 2nd petitioner’s party symbol was missing. The petitioners did not become aware of teh anomalies until 3rd March 2013 and they therefore would not raised their formal protestations before the elections were conducted as submitted by the 3rd respondent. I therefore find that this petition is properly before the court.
In support of this issue; 2nd petitioner relies produced a newspaper cutting from Nation Media Group of the 5th March 2013.
A perusal of the said brief shows that it was authored on behalf of the Nation Media Group by one Isaac Ngwiri. The said Isaac Ngwiri was not called as a witness to verify the authenticity of the said brief.
The respondents denied that the elections had been postponed as alleged by the petitioners and their witnesses. The 1st respondent stated that elections can only be postponed by a court order or a notice in the Kenya Gazette. The 1st respondent testified that there was a 91 voter turn out in the Budalangi Constituency in which Bunyala South Ward falls. Accordingly; I have come to the conclusion that the voter turnout would have been lower had elections for County Representative for Bunyala South Ward been postponed as alleged by the petitioner.
Having found that there is no evidence that the 2nd respondent had postponed the election for County Representative for Bunyala South Ward County; I also find that the doctrine of legitimate expectation espoused by the petitioner does not apply to this case. Even if it did apply; this court would have no jurisdiction to consider the doctrine which according to the petitioner is a review administrative action which falls in the realm of the High Court.
The 1st respondent testified that other than the party name and symbol; candidates and more particularly the petitioners could be identified not only by their names but also their
The petitioners did not have nicknames and they have conceded their names and Photographs were properly printed on the ballot paper.
A perusal of forms 35 shows that 1st petitioner received majority of votes in the following two (2) polling stations
328 votes as against the 3rd respondent’s 88 votes.
ii. BINYANGA/BUSUCHA ISLAND
20 votes as against the 3rd respondent’s 18 votes.
A perusal of forms 35 shows that 2nd petitioner received majority of votes in the following polling stations
251 votes as against the 3rd respondent’s 232 votes.
ii. OSIEKO PRIMARY SCHOOL
iii. BUKHUMA MOBILE ISLAND
99 votes as against the 3rd respondent’s 39 votes.
vi.. RUKALA MARKET
115 votes as against the 3rd respondent’s 102 votes.
V. NAKHAYIRIRA BEACH
26 votes as against the 3rd respondent’s 11 votes.
I have considered the provisions of section 83 of the Election Act which states as follows:
No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election
Other than that there appeared against 1st petitioner’s name UDM Party whose symbol is a flag instead of UDF Party whose symbol was a pair of capped hands and that the 2nd petitioner’s party symbol was missing from the ballot paper; there is no iota of evidence that the election was not conducted in accordance with the principles laid down in the Constitution and other written law. From the fact that petitioners received majority of votes in the above quoted polling stations; I have come to the conclusion that the ballot paper contained sufficient information by which the petitioner could satisfactorily be identified by the voters and the anomaly in the ballot paper did therefore not affect the results of the election.
I have no doubt in my mind that the mischieve intended to be cured by the requirement that a candidate’s photo, name, party colour and party symbol appear on the ballot paper was to enable voters to identity their preferred candidates not only by name but also by other means such as photos, party colour and party symbol especially in regions where the illiteracy level of voters is high. It came out during the testimony of the 1st respondent that the level of illiteracy in Budalang’i is very high i.e. 70% to 80%. It therefore follows that most voters could most likely not tell if their preferred candidate’s name had been misspelt or not and that they most likely highly relied on the candidates Party symbol, colour and candidates Photograph.
From the foregoing therefore; I find that the 1st petitioner has failed to prove that the inaccuracy of his party name and party symbol on the ballot paper had any material effect on the election that would justify invalidation of the election results. I also find that the 2nd petitioner has failed to prove that the missing party symbol on the ballot paper had any material effect on the election that would justify invalidation of the election results.
I have considered RE K.A.THABITI [1967] E.A 722 cited by the petitioners and I find that is distinguishable since unlike in the case at hand; the party symbols in the cited case had been exchanged so that the petitioner’s party symbol was printed against the name of his rival.
Costs follow the event. Unless otherwise for sufficient reason ordered, the unsuccessful party/parties pays costs to the succeessful party/parties.
Consequently; this court finds that:
Delivered in open court and Signed on 1st day of August 2013
Thripsisa Wanjiku Cherere (Ms.)
Chief Magistrate
In the presence of
cc………………………….....................……....………..
1st Petitioner………………………......................……..
2nd Petitioner............................................................................
1st and 2nd respondents…………………………….
3rd respondent………...................……………………