REPUBLIC OF KENYA

IN THE APPEALS TRIBUNAL AT KISUMU

TRIBUNAL APPEAL NO. 34 OF 2022

VICKINS BONDO …………….………………..…………………….1ST APPELANT

MARY ANYANGO GAYA…………………………..……………….2ND APPELLANT
-VERSUS-
NATIONAL ELECTIONS BOARD..…………..……….....…..1ST RESPONDENT
RETURNING OFFICER, HOMA BAY EAST…………………2ND RESPONDENT
PETER AKEYO ONGILI…………………………………..….….3RD RESPONDENT

JUDGEMENT OF THE TRIBUNAL

(WEST KASIPUL WARD)
The Appellants, rivals in the just concluded nomination exercise in West
Kasipul Ward, form an unlikely alliance in challenging the entire exercise plus
the final results. The Appellants are aggrieved and by way of the two
Statements of Appeal, challenge the nomination exercise on a number of
grounds believing them to be so atrocious as to shake the conscience of this
Tribunal and move it to make a finding in its favour. They allege that in the
history of poor performances in an election, there has never been one where
the candidates are so hopeless as to note even cast a vote for themselves.
According to the Appellants, it is not possible that some of them got out of
this nomination exercise without a single vote-including that of their own.
They beef this ground with four other grounds that we have extensively
analysed in this decision.
The 1st Appellant has moved this Tribunal vide a Statement of Appeal dated
15th of April, 2022 in which he adduces the following main grounds for setting
aside the appeal:
1) Results were never announced at each polling centers as is
expected by law
2) The agents were not allowed to accompany the
gadgets/represent the aspirant fully
 3) Agents were not given the declaration forms to sign at the end
of the exercise
4) The configuration of the gadgets was not conducted in a proper
manner
5) The results were not displayed to show performance of each
candidate in the ward
6) The figure of 365 used to declare the winner has no
basis/source as the Returning officer didn’t indicate its source
In the oral submissions, Counsel for the 1st Appellant, Mr. Wamukoya
submitted that in complete disregard of the requirement under the ODM Party
primaries Rules to announce the results at each polling centre, this
requirement was completely disregarded. He further argued that the results
announced were only from one polling station, being the stronghold of the 3rd
Respondent. He listed the results to be as follows;
a) Peter Okeyo- 365 votes
b) Vickins Bondo-270 votes
c) Mola Ochola -33 votes
d) Mary Onyango Gaya-1 vote
Counsel submitted that the other 6 candidates did not garner even a single
vote. It was counsel’s submission that the results did not indicate in a detailed
manner, in which polling stations they came from and who got what. It was
Counsel’s strong belief, which belief he invites this Tribunal to borrow, that
the results announced were from only one polling centre, which was the 3rd
Respondent’s stronghold, that would explain why some candidates did not
even get a single vote. It is on this basis that he invites this Tribunal to allow
the Petition and give the people of West Kasapul Ward their democratic right
to express their will in the choice of their preferred leader.
Counsel for the 2nd Respondent, Mr. Onsongo, associating with the
submissions of the 1st Appellant argues that whilst the voting took place in all
the polling centres, the results for the rest of the centres were not declared.
He argued that the violence that took place during the Results declaration at
the tallying center interfered with the announcement of the rest of the results
and as such, there was no way it could be presumed that the 3rd Respondent
was therefore the winner of the nomination exercise.
Counsel submitted extensively on the press release, released by the 1st
Respondent on the 15th of April, 2022. The Press statement was adduced in
evidence. The same had been released by the 1st Respondent in bid to address
the nomination exercise in Homa Bay County had been marred by serious
violence resulting in the illegal confiscation of a number of the voting kits. The
statement further noted that the results that had been released were to be
treated as interim results until the party could recover the confiscated kits and
thereafter release the final results. Counsel therefore invites this Tribunal to
find the results released for the West Kasipul ward could not be used to declare
the winner as they were only interim.
The 3rd Respondent, has put up a spirited fight in defending what he terms as
a legitimate win. Scared by the thought of a nullification, he valiantly urges
the Tribunal to ignore, disregard and using the nearest exit possible, send out
this appeal into the trashcan it belongs. He argues that the same is frivolous,
vexatious, and baseless and that no ground has been established.
It is Mr. Kisukwa’s argument, Counsel for the 3rd Respondent, the Appellants
carry the burden of proof as per section 107 of the Evidence Act. In his
argument, he asserts that the statement by the 1st Respondent does not make
reference to West Kasipul. He states that even if there was violence, the same
did not affect the voting process and thus the result. Counsel that it is
important that a link is established between the existence of the violence and
it impact on the final result. He argued that all other grounds had not been
established and further that the lost kits did not belong to West Kasipul Ward.
In the rejoinder, Counsel for the 1st Appellant asserted that the fact that the
3rd Respondent did not plead the number of votes he won the election with,
meant that he too, did not know what he had gotten. Mr Onsongo on the other
hand submitted that the impact of the violence at the Tallying centre was that
data was lost. He argued that the 3rd Respondent cannot be allowed to benefit
from a flawed process.
Having heard the parties, reviewed the documents presented to us, the
Tribunal has identified the below issues for determination.
a) Whether or not there was violence in West Kasipul Ward, and
Whether the Violence affected the voting process and the Final
Result
b) Whether or not the Results announced, were results from all the
Polling Centres
 c) Whether the 3rd Respondent was validly elected as the Member
of County Assembly, West Kasipul Ward, Homa Bay County.
Before proceeding to determine the above issues, we must address the
question as to the burden and standard of proof required in election matters.
What is settled in law and jurisprudence is that election matters are unique in
their own ways. Besides the fact that they are governed by a special code of
electoral laws, they concern disputes which revolve around the conduct of
elections in which voters exercise their political rights as enshrined under
Article 38 of the Constitution. And because of the peculiar nature of election
petitions, the law requires that they are proved on a higher standard of proof
than the one required to prove ordinary civil cases. This was succinctly
captured by Maraga J. as he then was, in Joho v Nyange & Another (2008)
3 KLR (EP) 500 when he stated:
“Election Petitions are no ordinary suits. Though they are
disputes in rem fought certain parties, election petitions
are nonetheless disputes of great public importance-
KIBAKI V MOI, civil Appeal No. 172 of 1999. This is because
when elections are successfully challenged, by elections
ensue which not only cost the country colossal sums of
money to stage but also disrupts the constituents’ social
and economic activities. It is for these reasons that I
concur with the election court’s decision in WANGUHU
NGANGA &ANOR V GEORGE OWITI & ANOR, Election
Petition No. 41 of 1993, that “Election Petitions should not
be taken lightly”

It is therefore settled law that the burden of proof in election petitions rests
with the Appellant and the determination as to whether or not this burden has
been satisfied, the Appellant is required to establish by credible evidence that
not only did irregularities or instances of non-compliance with the law occur
in conduct of the elections but that they were of such a magnitude that they
substantially and materially affected the validity of the results.
With regards to the standard of proof, the law is that the standard should be
higher than a balance of probabilities required in civil cases but lower than
proof beyond reasonable doubt in criminal cases. In Joho vs nyange
(supra) Maraga J stated as follows:
 “The burden of proof in election petitions lies with the Petitioner
as he is the person who seeks to nullify the election. While the
proof has to be done to the satisfaction of the Court, it cannot be
said that the Standard of proof in election petitions is proof
beyond any reasonable doubt. Like in fraud cases, the standard
is higher than a balance of probabilities and where there are
allegations of election offences a very high degree of proof is
required.”
To this end, we are in agreement with the submissions of Mr. Kisukwa that
the burden of proof lies with the Appellant in this matter.
We can now turn our attention to the issues framed for determination in this
Appeal.

a) Whether or not there was violence during the election and its
effect on the conduct and results of the nomination exercise.
From the totality of the evidence adduced and the submissions of all counsels
for the parties, it is common ground that there were reported cases of
violence. We have also reviewed the press statement made by the 1st
Respondent in addressing the violence on the reported day for the
nominations. It is therefore settled that there were reported cases of violence
and the same is not disputed by any of the parties, including the 1st and 2nd
Respondents, who, even though they did not participate in these proceedings,
the press statement of 15th April, 2022 confirms their position on the issue.
What was then the effect of the violence on the conduct and result of the
nomination. On the first, it has been admitted by both parties, that the process
of voting was smooth, with voting taking place in all the polling centres in the
ward. The Petitioners confirm that during the voting, there was no reported
incident of violence and as such, we are satisfied that the right to vote under
Article 38 was not interfered with and that the residents of West Kasipul Ward
had ample time and freedom to choose the person they desired to represent
them.
We therefore must address the last ambit as to the effect of the violence on
the result. It was submitted by Counsel that the reported cases of violence
took place towards the close of the polls. It was the submission of Mr. Onsongo
that the resultant effect of the violence was the loss of data –being the votes
thus the announcement of results from only one polling centre out of the five.
The press statement by the 1st Respondent also made reference to the
confiscation of some voting kits, even Counsel for the 3rd Respondent argues
that those kits may not have been necessarily those belonging to West Kasipul
ward.
We note that the registered number of ODM party members entitled to vote
in the nomination exercise is over five thousand members. The combined total
of the votes attributed to the parties as per the 1st Appellant amounts to a
total of 669 votes. We observe that this number is strangely too low for a
region that enjoys extremely competitive elections and is extremely difficult
to manage during election periods due to the general interest in the polls. It
cannot be argued that there was general low voter turn-out, even counsel for
the 3rd Respondent confirmed that there was general voting that took place
throughout the day. None of the parties pleaded low voter turn- out so as to
be able to explain those numbers.

Consequently, the only credible explanation will be that of the 1st Appellant,
that the results used to announce the winner were those taken from one
polling center. This coupled with the admission by the 1st Respondent that
some voting kits were confiscated and that the results announced were not
only interim and further that some candidates did not even vote for
themselves, we are compelled to believe that the violence had a significant
impact on the result of the nomination exercise.

b) Whether or not the Results announced, were results from all the
Polling Centres
Counsel for the 1st Appellant submitted that the results announced were only
from one polling center out of the five. This argument was not controverted
by the 3rd Respondent. The non-participation of the 1st and 2nd Respondents
in these proceedings denied us the ability to verify this claim and we are
therefore left to our own devices. Whilst we know that some voting kits were
confiscated, which kits contained results of the elections, we have not been
told if these kits belonged to West Kasipul Ward.
Nonetheless, having observed that the final numbers announced are too low
to have been numbers collected from all the polling centres, we are persuaded
that the results announced were not from all the polling centres.
 c) Whether the 3rd Respondent was validly elected as Member of
County Assembly, West Kasipul Ward
This Appeal is a strange one. One in which candidates do not have even a
single vote in an election in which they confirm to have participated and voted.
One where an estimated number of registered voters is around Five Thousand,
according to the parties, and only a maximum of 600 votes were cast in total.
Were there nil returns in other wards? Or was this a case of low voter turn-
out? Since the 1st Respondent is not willing to explain to this Tribunal any of
the incidences, the Tribunal’s hands are compelled to nullify this process.
Having found that the reported incidences of violence affected the final result
to the extent that there were no kits from which all results could be pulled and
tallied, and having found that the results relied on were the interim results
and not results from all the polling centres and there having been no further
communication from the 1st Respondent on the final results, we are compelled
to find that the 3rd Respondent was not validly nominated as Member of
County Assembly, West Kasipul Ward.
We therefore find and hold as follows:
TRIBUNALS DECISION AND FINAL ORDERS
1. The Appeal filed by the Appellants is hereby allowed and the interim
certificate issued to the 3rd Respondent is hereby set aside.
2. The 1st Respondent is hereby compelled to conduct fresh nominations
for the position of Member of County Assembly West Kasapul Ward.
3. Each party shall bear its own costs in the appeal.
Dated at KISUMU this 21st day of April 2022
……………………………
Velma Maumo
Member

…………………………
Zakayo Alakonya
Member

…………………………
Elizabeth Nyandaro
Member