Double victory for Dagoretti MP as poll case is thrown out

John Kiarie Waweru v Beth Wambui Mugo & 2 others
[2008] eKLR (www.kenyalaw.org)
High Court of Kenya at Milimani
Justice Luka Kimaru
September 12, 2008

The election petition had been filed by Mr John Kiarie, the Orange Democratic Movement (ODM) candidate in last year’s General Election for Dagoretti constituency against Mrs Beth Mugo, the Party of National Unity (PNU) candidate.

In his petition, Mr Kiarie contended that Mrs Mugo, Mr S.K. Njuguna, the returning officer for Dagoretti and the ECK had committed several electoral offences and malpractices during the parliamentary elections in the constituency.

Mr Kiarie alleged that Mrs Mugo had unduly influenced voters through bribery, that her agents had altered and filled in new forms 16A at the tallying centre and that she had used government resources while campaigning. Also, that she had made false statements regarding the character of Mr Kiarie to defame him.

Further, Mr Kiarie alleged that the ECK and its returning officer declared results which they knew or had cause to believe to be false.

Reasonable doubt

In analysing the evidence, Mr Justice Kimaru observed that electoral courts required a higher standard of proof than that of balance of probability, but slightly lower than beyond reasonable doubt in matters touching on the democratic expression of the people in choosing their representative. Such burden is placed on the petitioner, who must discharge it for his petition to succeed.

Mr Kiarie’s allegations fell into three categories; the conduct of Mrs Mugo during the campaigns, conduct of the presiding officers on the voting day and the conduct of the returning officers and the ECK during the tallying of the results.

In regard to Mrs Mugo’s conduct during the campaigns, Mr Kiarie alleged that she had violently disrupted his campaigns at Waithaka Shopping Centre. But Mrs Mugo denied this allegation.

Further, Mr Kiarie alleged that Mrs Mugo had expressly stated that he (Mr Kiarie) was a comedian and a joker not deserving of political leadership, which he argued was defamatory of his character. Mrs Mugo in her defence said that Mr Kiarie had referred to her as cucu (grandmother) and this belittled her.

Voter bribery

The allegation of voter bribery against Mrs Mugo was also dismissed. Also, no evidence of misuse of State resources during the campaigns was found.

Allegations on the conduct of ECK and its returning officers were also dismissed for lack of sufficient evidence. However, the court criticised the returning officer who was the second respondent, for withholding results after receiving them at the tallying centre and carrying out the tallying of the results in privacy yet the law required him to tally them in the presence of candidates and their agents.

The court concluded that voting and counting of votes at the polling stations was free and fair and that the petitioner could not have been prejudiced by the announcing of results at the ECK Press centre instead of at the tallying centre.

The poll petition against Mrs Mugo was therefore dismissed with the second and third respondents being ordered to pay costs to the MP for neglect of duty.