| Issue 119| Newsletter Archive | Friday 05th August 2010 |

Case of the Week | Kenya Gazette Notices | Forward this newletter


Reported by Njeri Githang’a Kamau-Advocate

“the jurisdiction of the petition Court is limited to determining only the question whether the person has been validly elected as a member of the National Assembly and that can only relate to a sitting member who was declared by a Returning Officer at an election as having been duly elected. Hence the power to declare another person validly elected, after a process such as a scrutiny does not exist” 

William Maina Kamanda v. Margaret Wanjiru Kariuki & 2 others [2010] eKLR (www.kenyalaw.org)
High Court at Nairobi (Milimani Commercial Court),
P. Kihara Kariuki J.
July 30, 2010 

The High Court has nullified the election of Bishop Dr. Margaret Wanjiru Kariuki, the Member of Parliament for Starehe Constituency after it found that the election had not been conducted in accordance with the law. The first respondent, Bishop Wanjiru, had reportedly garnered 29, 496 votes while the petitioner, Mr. Kamanda, had garnered 28,601 votes.

Mr. Kamanda had filed an election petition against Bishop Wanjiru, Mr. Manasseh Mugasia, who was the Returning Officer for the election, and the ECK. The ECK was subsequently disbanded by a constitutional amendment that established the Interim Independent Electoral Commission (IIEC) as its successor and the IIEC had succeeded to the suit in the place of the ECK.

Mr. Kamanda averred that there had been non compliance with the Constitution, the National Assembly and Presidential Elections Act, the Regulations and the Election Offences Act. According to him, the elections had not been conducted in accordance with the law or in compliance with the principles underlying those laws.  It was Mr. Kamanda’s case that the election had been heavily tainted with illegality and had to be declared null and void. He urged the Court to declare him the duly elected Member of Parliament for Starehe Constituency in place of Bishop Wanjiru.

It was further alleged that Bishop Wanjiru had committed explicit electoral offences namely undue influence by threatening electors with violence and that as a Bishop of a Church known as Jesus Is Alive Ministries [“JIAM”], she had influenced the members of her Church to vote for her.  Mr. Kamanda also claimed that Bishop Wanjiru and her agents bribed electors and election officials to ensure her election.  Those breaches and complaints according to Mr. Kamanda affected the result of the said election.

Mr. Kamanda averred that the total votes cast at the Parliamentary elections as tallied by the second Respondent were 70,853 votes and 84,452 votes for the Presidential election.  He claimed that the difference between the two figures was prima facie evidence of a flawed Parliamentary election and on that ground he applied for and was allowed his request for scrutiny and/or recount of the votes cast at the election. 

The report of the scrutiny showed that at the time the ballot boxes were received, the seals on sixty-one (61) boxes were broken those on fifteen (15) boxes were opened and the seals on seventy-eight (78) boxes were not properly closed. The report also showed that the majority of the ballot boxes had at least one of the rivets missing. 

After Scrutiny, the report showed that Mr.Kamanda had 49,310 votes and Bishop Wanjiru had 34,874 votes.  The report also showed that there were 1,106 disputed votes, 1,125 rejected/spoilt votes and 92,757 total votes cast.  There were 130 ballot boxes without polling day forms, 74 boxes with polling day forms, 167 boxes without packets of marked register, 37 boxes with packets of marked register.  The report further showed that there were 68 ballot boxes without Form 16A, 136 boxes with Form 16A.  There were 140 boxes with Form 16A affixed outside and 64 boxes without Form 16A affixed outside.  There were 37 boxes with broken seals and 167 boxes intact.  There were 138 boxes with form 16A inside and 66 boxes without Form 16A inside.  There were 84 boxes with Form 16A stamped but not signed and 14 Form 16As in a ballot box neither signed nor stamped.  28 signed and stamped Forms 16A were found inside the ballot boxes.  66 Forms 16Aaffixed outside the boxes were signed but not stamped while 9 Forms 16A affixed outside ballot boxes were neither stamped nor signed.  66 Forms 16A affixed outside ballot boxes were signed and stamped and 4 affixed in similar manner were stamped but not signed.

I answer to the allegations made against her, Bishop Wanjiru gave evidence where she denied the allegations made against her. More so, she denied Mr. Kamanda’s claim that as a Bishop in a Church known as Jesus Is Alive Ministries [JIAM], on a number of occasions during the run up to the election in her sermons in Church she ordered all the worshipers and faithful to vote for her and threatened to curse any one of them who failed to do so. 

After synopsis of the evidence given at the trial and the reports submitted, the definitive question according to the Court was whether the election was conducted in accordance with the law and the relevant regulations and whether Bishop Margaret Wanjiru was validly elected as the Member of Parliament for Starehe Constituency.  

The Court found that the several complaints raised by the Mr. Kamanda were valid in view of the testimony given in Court and more specifically the discoveries made by Deputy Registrar Riechi during the scrutiny and re-count. Among the complaints found to be valid were; that Mr. Kamanda garnered the highest number of valid votes cast yet the Returning Officer declared the Bishop Wanjiru who received fewer votes as the winner; that the Returning Officer did not announce all the results of the Parliamentary candidates; that the statutory forms namely Form 16A and Form 17A were fraudulently altered and contained erasures effected by means of white out or substituted with photocopies, that the said statutory forms were not duly signed by the Presiding Officers or their Deputies to authenticate the accuracy of the results and that they were also not signed by the agents of the candidates as required by law. 

The allegations of election offences (bribery, intimidation, undue influence, treating) were however rejected on the basis that no credible evidence had been placed before the Court in support of those allegations.  While the High Court found that Mr. Kamanda had failed to establish any electoral offence on the part of Bishop Wanjiru, it found that the evidence disclosed that the election was not conducted in accordance with the law.  This finding was consistent with the results of the scrutiny and recount which revealed serious manipulation with the ballot papers and other election materials but it was impossible to ascertain who interfered with the election materials and when.

The Court noted that the condition in which the boxes were found could not rule out the possibility that at some stage additional ballot papers had been added in the ballot boxes.  On the return announced by the Returning Officer Bishop Wanjiru had 29,496 votes and Mr. Kamanda had 28,601 votes.  In the re-count Mr. Kamanda came top with 49,310 while Bishop Wanjiru had 34,874 - a difference of 14,436.  Furthermore the Returning Officer’s report showed that the total number of votes cast during the election was 70,853 while the scrutinizer’s report put the total number of votes cast at 92,757 a difference of 21,904 votes.  According to the Court, the figures meant either that the Returning Officer gave wrong figures when he announced the results or that additional ballot papers found their way into the ballot boxes while they were in the custody of the ECK.  On that evidence, the Court was unable to determine one way or the other whether the results shown after the scrutiny represented the actual results of the election. 

The Court rejected Mr. Kamanda’s submission that since the scrutiny and recount gave him more votes than Bishop Wanjiru, he be declared the Member of Parliament of Starehe. It emphasized that it had no power to declare Mr. Kamanda as having been validly elected. In any event, the Court noted that Mr. Kamanda had admitted in his petition and in evidence that the Parliamentary election in the Starehe Constituency was flawed. The Court found that a flawed election could not produce a legitimate result on which the Petitioner could rely to claim the crown.

Ultimately, the Court was satisfied that the election had not been conducted in accordance with the law and accordingly declared that Bishop Margaret Wanjiru had not been validly elected as the Member of Parliament for the Starehe Constituency.  The Court declared the election null and void and ordered that a certificate of the nullification be issued to the Speaker of the National Assembly. As Mr. Kamanda only succeeded on prayers (a) (b) and (d) in his petition, it was ordered that he be awarded fifty per centum (50%) of his costs to be borne by the second and third Respondents jointly and severally. 

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