Embu High Court upholds Wamuthende win, says irregularities did not affect result

In a detailed judgment, the court held that although several electoral irregularities and malpractices were established during scrutiny, the evidence presented did not meet the constitutional and statutory threshold required to nullify the election.

The court extensively examined allegations surrounding assisted voters, finding that Regulation 72 of the Elections (General) Regulations had been violated in relation to 1,072 assisted voters whose details were not recorded in the physical register as required by law. The judge further noted that the only available evidence confirming the existence of assisted voters were Forms 32, which contain declarations of secrecy.

The court also found breaches involving six individuals who made multiple declarations while assisting voters, contrary to Regulation 72(5), which limits a person to assisting only one voter.

However, despite the irregularities, the court ruled that it was impossible to determine which candidate benefited from the assisted votes and concluded that the violations did not ultimately affect the will of the electorate.

In the judgment, the court reaffirmed the principle that parties in election petitions are bound by their pleadings, citing several Supreme Court and Court of Appeal decisions, including Raila Odinga and Others v IEBC 2013 and Gatirau Peter Munya v Dickson Mwenda Kithinji.

The judge emphasized that scrutiny of election materials is not intended to create a new case for a petitioner, but rather to verify allegations already pleaded before the court.

Even so, the court stated that scrutiny findings may still form part of the broader evidentiary matrix in assessing whether an election met constitutional standards of integrity, accountability and verifiability under Articles 81 and 86 of the Constitution.

On allegations of bribery and voter influence, the court found there was uncontroverted evidence suggesting electoral malpractice involving two witnesses. However, the judge held that the evidence did not demonstrate that the alleged bribery was widespread enough to substantially affect the election result as required under Section 83 of the Elections Act.

The court also dismissed claims of widespread third-party interference with voter registers, unlawful handling of election materials, violence, abuse of state resources and voter disenfranchisement, finding that the petitioner failed to provide sufficient evidence linking the alleged irregularities to the final outcome of the election.

While acknowledging isolated incidents of irregularities, including a broken chain of custody in one polling station and isolated unlawful alterations of voter registers, the court concluded that the election substantially complied with constitutional and legal requirements.

“The decisive question is not whether each irregularity was individually pleaded, but whether the election taken as a whole complied with the constitutional and statutory standards,” the judge held.

Consequently, the court dismissed the petition after finding it had not been proved to the required legal standard.