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Millitonic Mwendwa Kimanzi Kitute v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR THE REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI ELECTION PETITION NO 1 OF 2017. MILLITONIC MWENDWA KIMANZI KITUTE............................................PETITIONER VERSUS 1. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION.........................................................1ST RESPONDENT 2. THE KITUI EAST CONSTITUENCY RETURNING OFFICER......2NDRESPONDENT 3. NIMROD MBITHUKA MBAI.........................................................3RD RESPONDENT RULING Introduction The hearing of the Election Petition filed herein by the Petitioner commenced on 6th November 2017. The Petitioner is challenging the election of the 3rd Respondent as Member of Parliament for Kitui East Constituency in the general elections held by the 1st Respondent on 8th August 2017. Prior to the hearing, this Court had directed the parties during the pre-trial conference held on 13th October 2017 to file their list of contested documents. On 17th October 2017, the 1st and 2nd Respondents filed a list of contested document dated 16th October 2017, in which the photograph marked “NMLI” annexed to the affidavit of Nicholas Matuku Luvai sworn on 4th September 2017 was indicated as one of the contested documents. The 3rd Respondent on the same date also filed a list of contested documents dated 16th October 2017 indicating that they were contesting the exhibit marked “NML1(a)” annexed to the witness affidavit of Nicholas Matuku Luvai in the bundle of the Petitioner’s documents. On 24th October 2017 this Court directed that formal objections to the said documents be made at the time of production of the same for ruling by the Court. Nichloas Matuku Luvai was called to testify as a witness for the Petitioner today, the 23rd November 2017, and after the adoption of his affidavit sworn on 4th September 2017 as his evidence, the counsels for the 1st, 2nd and 3rd Respondents objected to the production of the photograph annexed to the said affidavit and marked as “NMLI”. http://www.kenyalaw.org - Page 1/3

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Kitute v. Independent Electoral and Boundaries Commission

Judgment

Question Presented: Is electronic evidence submitted in support of allegations of election fraud subject to the Evidence Act, which requires authentication or certification by an appropriate authority or expert?

Alleged Acts: The plaintiff alleged that an unnamed party tampered with ballots and interfered at voting locations, and that these actions caused him to lose his campaign for a seat in Kenya’s Parliament.

Procedural history: The plaintiff submitted their complaint to the High Court of Keyna in September 2017.

Summary: In September 2017, Millitonic Kitute, a candidate for a parliamentary seat in Kenya’s Kitui East Constituency, challenged the election results after he lost the election. As part of his case, the plaintiff submitted computer printouts that he claimed were credible post-election reports that showed evidence of voter fraud and interfering with voter ballots. Notably, the plaintiff did not submit any further verification with the electronic records and only attested to the Court that they were “credible.” He did not specify his source for the records or explain the security of the computers from which he gathered the evidence, and had no experts verify the evidence’s credibility. The respondents argued that supposed printouts of electronic records of election data collected by the country’s election management system were insufficient according to evidentiary standards established by the court. As the plaintiff submitted no expert testimony along with his evidence that verified the reports, the respondents argued that such printouts could easily be falsified and that the petitioner had not established any satisfactory credibility for the evidence. Thus, the respondents argued that the electronic records were not admissible as evidence in the suit and the case should be dismissed.

Conclusion: The court dismissed the evidence submitted by the petitioner as inadmissible, and further dismissed the entire case based on a lack of evidence. According to Kenyan case law, any documents introduced in an election related court case are subject to the conditions of the country’s Evidence Act – namely, authentication and certification of the evidence by an appropriate authority or expert. The petitioner submitted no such accompanying authentication with the supposed evidence. While the court does not identify any appropriate authorities that could verify such evidence, it establishes a heightened standard for claiming election fraud and submitting accompanying evidence to the court.

Legal Issue(s)

Civil Procedure
Disputing Results
Electoral Administration Irregularities
Electoral Integrity
Electronic Voting

Applicable Law(s): Kenya Evidence Act (Chapter 80 of the Laws of Kenya)

Region: Africa

Country: Kenya

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: Nov 6, 2017

Geolocation

Latitude: -1.3603455852818376

Longitude: 36.87744095921517

: Geolocation

Primary Documents

Kitute v. Independent Electoral and Boundaries Commission.pdf
english
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