How historic petitions have shaped elections

After hearing, the court upheld the election of Uhuru and Ruto. This decision was used to uphold or dismiss some of the 2013 petitions filed by those aggrieved by the IEBC on governorship, Senate, MP, Woman Rep and MCA positions.

The then Siaya Governor Cornel Rasanga was among the first casualties in a petition that was filed by his rival William Oduol. It saw the court nullify his election, a situation that saw Siaya voters return to the ballot in a by-election that saw Rasanga win.

One of the quotes in the judgment by the Appellate court regarding the Siaya governorship election was from the presidential petition.

Justice Patrick Kiage, Agnes Murgor and Sankale ole Kantai said in their 2014 judgment that having shown election malpractices were indeed perpetrated against Oduol, it was upon them as of necessity to determine, whether they were proved to the required standard.

Beyond doubts

They quoted the Supreme Court decision: "The threshold of proof should in principle be above the balance of probability, though not as high as beyond reasonable doubt - save that would affect the normal standards where criminal charges linked to an election are in question".

And in 2017, the Supreme Court judgment which stripped President Kenyatta and his deputy of their victory was used as part of the authorities to determine various election petitions filed by politicians who lost.

Hezbon Omondi challenged the declaration of Benjamin Mwangi of the Jubilee Party as the elected MP Embakasi Central. Mwangi got 49,854 votes while Omondi came second with 38,630 votes.

Omondi accused IEBC and its agents of failing to electronically collate, tally, and transmit results accurately as per the law.

He said IEBC failed to ensure accurate, verifiable and accountable results by posting varied contradictory and even altering results in Forms 35A and Forms 35B.

He said the results from the polling stations were not accurately and transparently entered into the Kenya Integrated Election Management System (Kiems) kits at the individual polling stations.

The results, according to him, were not transmitted in accordance with the law, and that IEBC did not verify the results from all the polling stations.

Omondi said there was a legitimate expectation that the data entered into the Kiems kits should be consistent, comparable and verifiable with the information recorded in Forms 35A, yet the data displayed by IEBC at the national tallying centre was not consistent with the information and data in the respective Form 35A.

To Omondi, IEBC had essentially disregarded the decision of the Court of Appeal rendered in the case of Independent Electoral and Boundaries Commission vs Maina Kiai & five others, Civil Appeal No. 105 of 2017 [2017]eKLR ("the Maina Kiai case") which stood for the proposition that the results declared at the polling station is the true reflection of the will of the people.

IEBC, in its response, denied claims that they were involved in irregularities. Judge Louis Onguto in his judgment referred to a case by Jackton Nyanungo Ranguma vs Independent Electoral and Boundaries Commission & two Others [2018]eKLR, where after reviewing various decided cases, it was decided the petitioner bears the burden of proof.

Judge Onguto noted that Justice David Majanja, in reference to Raila Odinga and others vs Independent Electoral and Boundaries Commission and three others in Petition No 5 of 2013, held that the petitioner bears the burden of proof.

The apex court held that the petitioner must set out by raising firm and credible evidence of the public authority's departures from the prescriptions of the law.

The court noted that related to the burden of proof is the fact that the petitioner is bound to prove the case it has pleaded.

An individual, he said, is not permitted to make a case outside the pleadings and his affidavits and testimony must be consistent with and support the case pleaded.

"In Raila Amolo Odinga & another vs Independent Electoral and Boundaries Commission and two others SCK Presidential Petition No. 1 of 2017 [2017]eKLR, the Supreme Court quoted with approval the Supreme Court of India in Arikala Narasa Reddy vs Venkata Ram Reddy Reddygari and Another Civil Appeal Nos. 5710 -5711 of 2012[2014] 2 SCR where it stated that in absence of pleadings, evidence if any, produced by the parties, cannot be considered," read the judgment by Justice Onguto in part.

Abundance of caution

The judge said petitions should and must never be filed from an abundance of caution and then await documents and evidence to be lodged by those sued.

He made reference to a decision by Judge George Odunga in Mwangangi Wambua & another vs Independent Electoral and Boundaries Commission & two others [2013].

In the decision, Judge George Odunga stated, "where a party does not sufficiently plead his facts with the necessary particulars but hinges his case merely on documents filed pursuant to Rule 21 of the Rules [ballot boxes, results & other election material], the court would be justified in forming the view that the petitioner is engaged in a fishing expedition or seeking to expand his petition outside the four corners of the petition."

He said Omondi merely hinged on the documents filed by IEBC without more in the form of particular pleadings and evidence by the Petitioner. He rejected the submissions made by Omondi touching and concerning Forms 35A for the five polling stations.

The petition by Omondi was dismissed and Mwangi was declared validly elected. Judge Weldon Korir, in determining an appeal by Gerald Iha Thoya, made a reference to a decision by judge Edward Muriithi, that clarified the law on the amendment of election petitions in Musa Cherutich Sirma vs Independent Electoral and Boundaries Commission & two others [2017] eKLR when after considering the decision in Amina Hassan Ahmed (supra) that a petition cannot be amended outside 28 days from the date of the declaration of the results.

Thoya was one of the candidates in the general election held in August 2017. He was seeking to represent the people of Jilore Ward in the County Assembly of Kilifi. At the conclusion of the election, Independent Electoral and Boundaries Commission (IEBC) declared Chiriba Daniel Chai as the duly elected MCA for Jilore Ward.

Thoya was dissatisfied with the said declaration and moved to the Chief Magistrate's Court at Malindi vide Election Petition No. 2 of 2017 Gerald Iha Thoya v Chiriba Daniel Chai and IEBC seeking to upset the declaration of the results.

Lawyer Kipkoech Ng'etich said the 2013 Raila Odinga presidential petition has been a useful decision. "The court decided on what constitutes valid votes cast and the decision guided the decision of the court in the 2017 presidential polls petition," said Kipkoech.

Kipkoech said the 2017 judgment was profound. He noted that the court said before results are declared at the national tallying centre, all Form 34As should have been presented (at the national tallying centre) unless if in the opinion of IEBC they will have no impact on the results given to the runners-up candidate.

He said past decisions have shaped and guided IEBC on how to ensure the elections are free, simple, verifiable, transparent and accountable.

Lawyer Steve Biko said election losers should be appreciated for having consistently gone to court.

"The petitions have made IEBC learn from its mistakes and going forward, it has closed loopholes that could be exploited while technology has improved," he said.

Courts, he said, have provided a platform for resolution of cases, with parties avoiding streets protests.