Justice Chemitei in Election Petition Appeal No. E002 of 2023 as Consolidated with No. E005 of 2023: Josiah Obegi Mange’ra -Versus- Joseph Nyarag’o Ondari & 2 Others has affirmed the elections principle that, for an election to be invalidated, the irregularity or irregularities must be so gross and so bad that it violates all the known principles thus left with no option but to declare the election null and void.
The election appeal arose from the decision of the Principal Magistrate at Nyamira Law Court where the appellant’s election as the member of the county assembly of Esise ward in Nyamira County was nullified. The nullification was on grounds that, lack of counterfoils on Forms 36As and that the margin of 174 votes substantially affected the election outcome. These irregularities were discovered after the trial court had ordered a scrutiny and recount in four (4) polling stations.
In the reassessment and reevaluation of the case, the High Court discussed the net effect of lack of counterfoils which were not present in 2 streams of a polling station and whether it called for invalidation of the election results. Further, on whether it was glaring and its material omission affected the wishes of electorates of the Esise Ward. On this basis the Court held that, for an election to be invalidated, the irregularity or irregularities must be so gross and so bad that it violates all the known principles thus left with no option but to declare the election null and void. The court noted that the voting in other polling station did not indicate deliberate sabotage of the elections. The errors that had been found in other stations upon scrutiny indicated no variance. Further, the rest of the stations received positive remarks from the court after scrutiny had been undertaken. On the issue margins, the Court held that the margin of 174 votes was not so wide that the lack of the counterfoils which were misplaced or lost would not have aided the 1st respondent’s case.
It was the High Court’s opinion that, absence of any doctoring or meddling with the paperwork by any parties lack credence to the fact that the elections to a large extent were within the acceptable legal parameters of valid elections. Hence, the errors alleged did not vitiate the general desires and wishes of the electorates of Esise ward.
In totality, the High Court reversed the decision of the Magistrate’s Court nullifying the election and thereof, upheld the election of the appellant as a member of the County Assembly of for Esise ward.
In conclusion, this case is among the many where the Supreme Court decision in Petition No. 2b of 2014: Gatirau Peter Munya -Versus- Dickson Mwenda Githinji & 2 others  eKLR which held that, election should be conducted substantially in accordance with the principles of the Constitution, as set out in Article 81 (e) has been the controlling precedent. Voting is to be conducted in accordance with the principles set out in Article 86. The Elections Act, and the Regulations thereunder, constitute the substantive and procedural law for the conduct of elections. If it should be shown that an election was conducted substantially in accordance with the principles of the Constitution and the Election Act, then such election is not to be invalidated only on ground of irregularities.
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