Case Metadata |
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Case Number: | Election Petition 1 of 2013 |
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Parties: | Tadeyi Mukudi Muliro v Paul Cheruiyot Kones, Independent Electoral And Boundaries Commission & Fred Musirimba |
Date Delivered: | 01 Aug 2013 |
Case Class: | Civil |
Court: | Election Petition in Magistrate Courts |
Case Action: | Judgment |
Judge(s): | Thripsisa Wanjiku Cherere |
Citation: | Tadeyi Mukudi Muliro v Paul Cheruiyot Kones & 2 others [2013] eKLR |
Court Division: | Constitutional and Human Rights |
County: | Busia |
Case Summary: | Electoral Law-election petition- name of candidate-name of candidate to appear on the ballot paper-inaccuracy of candidate’s name on ballot paper-whether inaccuracy had any material effect on the election that would justify invalidation of county representative - Elections (General) Regulations, 2012 regulation 22 |
Case Outcome: | Petition Dismissed |
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.1 OF 2013
TADEYI MUKUDI MULIRO................................................................................................................PETITIONER
VERSUS
PAUL CHERUIYOT KONES…………………………….…...........................................1ST RESPONDENT
INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION ………….….2ND RESPONDENT
FRED MUSIRIMBA………………………………………..………….……..……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 North 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
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 petitioner has proved his 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 petitioner called five (5) 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 petitioners; 1st and 2nd respondents and the 3rd respondent filed their written submissions
ISSUES FOR DETERMINATION
The issues for determination are as follows:-
It is not disputed that there was an anomaly in the ballot paper and petitioner’s name was inaccurately printed as MUKDUDI. T . MULIRO instead of MUKUDI. T. MULIRO
In support of this issue; petitioner relies on a computer printout of a press briefing allegedly made by the 2nd respondent’s chairperson that is attached to his supplementary affidavit sworn on 30th April 2013.
A perusal of the said brief shows that it was authored and posted on the Nation Media Group website 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 petitioner and his witnesses and 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% percent voter turn out in the Budalangi Constituency in which Bunyala North Ward falls. Accordingly; I have come to the conclusion that the voter turnout would have been lower had elections for County Representative for Bunyala North 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 North Ward County Assembly; 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 name; candidates and more particularly the petitioner could be identified not only by their names but also their
The petitioner did not have a nickname but he conceded that his Party symbol; Party name and Photograph were properly printed on the ballot paper.
The petitioner came 3rd in the elections and received majority of votes in the following five (5) polling stations
285 votes as against the 3rd respondent’s 27 votes.
ii. BULAGU NURSERY SCHOOL
68 votes as against the 3rd respondent’s 21 votes.
iii.. KENYA GAUZE PRIMARY SCHOOL
125 votes as against the 3rd respondent’s 16 votes.
iv. BUDUBUSI PRIMARY SCHOOL
99 votes as against the 3rd respondent’s 39 votes.
v. ISENYE PRIMARY SCHOOL
409 votes as against the 3rd respondent’s 81 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 the petitioner’s name on the ballot paper was inaccurately printed as MUKDUDI. T . MULIRO instead of MUKUDI. T. MULIRO; 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 petitioner 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 petitioner has failed to prove that the inaccuracy of his name on the ballot paper had any material effect on the election that would justify invalidation of the election results. In arriving at this decision; I am guided by MAHEO VS BABU UDAI PRATAP SINGH & OTHERS 1966 AIR 824, 1966 SCR(2) 564 cited by the 1st and 2nd respondent.
I ahve aslo considered RE K.A.THABITI [1967] E.A 722 cited by the petitioner but 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………………………….....................……....………..
Petitioner………………………......................…………
1st and 2nd respondents…………………………….
3rd respondent………...................………………...........