The inner sense cannot perceive the pure meaning but as it is mixed with corporeal accidents even if it seems to be devoid of the sensible.
In the Petition dated 20th Marchthe appellant challenged the declaration of the 1st respondent as the duly elected Governor for Meru County. The Petition is founded on the grounds that: The 1st respondent and his supporters committed multiple election offences and malpractices which deprived the election of the fundamental constitutional and statutory requirements of freeness and fairness.
That the 2nd and 3rd respondents conducted the election in a manner substantially inconsistent with the provisions of the Constitution and the written laws relating thereto particularly the provisions of Articles 1, 3, 38, 81 and 86 of the Constitution.
That the electoral malpractices, offences, irregularities and breaches of electoral laws and principles vitiated the validity, integrity, credibility and result of the election.
The Appellant in his Petition cited the alleged particulars of the electoral offences, irregularities and malpractices and stated to wit: That the 1st respondent and his Mursal attachment engaged in widespread buying of voters cards, bribery and unduly influenced voters and election officials.
Further, that the 1st respondent and his supporters engaged in widespread violence, intimidation and harassment of voters and election officials. That the 2nd and 3rd respondents denied agents the right to participate in the election contrary to the statutory requirements of freeness, fairness, transparency and accountability.
That the 2nd and 3rd respondents presented Mursal attachment 36 in which the votes garnered by candidates differed materially with those recorded in Forms 35 at Nkubu Primary School and Mugure Tea Factory polling stations.
That the 2nd and 3rd respondents presented, wrong and misleading figures for the total valid votes cast in Meru for the Governor position where the total votes of each candidate did not add up giving rise to an unexplained difference of 2, votes.
That the 2nd and 3rd respondents were complicit in harassment of TNA agents by officers of the provincial administration and conducted the elections in a partisan and biased manner by misleading illiterate and incapacitated voters in favour of APK candidate.
The trial court identified three issues for determination in the Petition namely: Did the 1st respondent commit electoral offences and malpractices during the March 4th gubernatorial elections? Did the 2nd and 3rd respondents conduct the March 4th gubernatorial elections in contravention of the Constitution and electoral laws?
If the said elections were not carried out in accordance with the principles of the Constitution and written law, whether the said non-compliance materially affected the outcome of the results.
In the judgment, the trial Judge Makau J.
The standard is higher than proof on a balance of probabilities but lower than the standard of proof beyond reasonable doubt…. Allegations of electoral malpractices like for instance bribery require higher proof.
Aggrieved by dismissal of the Petition, the appellant lodged this appeal citing a plethora of thirty six 36 grounds. For brevity, the grounds can be summarized as follows: The trial court erred in not taking into account that a significant number of Forms 35 were not filled in accordance with the law.
The court further erred in holding that the multiple errors in Forms 35 and 36 were as a result of honest human error and the said errors were not material. The court erred in holding that the appellant had not challenged Form 35s in the election petition or the supporting affidavit.
The trial Judge misdirected himself on the law on validity and nullification of elections in Kenya and also misdirected himself on the incidence and shifting of the legal and evidential burden of proof. The trial court erred in law by limiting scrutiny and recount to seven 7 polling stations and erred in holding that the appellant had alleged irregularity in only the seven 7 polling stations.
The trial court erred in law by rejecting the findings of its own scrutiny and recount on the issue of votes that purportedly exceeded the number of registered voters. The trial court erred in not taking into account the damning testimony of DW List Of Members. Dr Vish Kallimani, Universiti Teknologi Petronas, Malaysia.
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Server. Happy September! As summer fades and the school year becomes more routine, this week’s newsletter offers a welcome from our interim provost, a portrait of our newest (at least in official hiring terms) face in the library, and tips on how to control your sometimes over-pondering mind.