Ng’weshemi v. Attorney – General Misc. Civ. Cause 5-M-70 ; Onyiuke J.

Ng’weshemi v. Attorney – General Misc. Civ. Cause 5-M-70 ; Onyiuke J.

This is an election petition presented by Ng’wshemi the unsuccessful candidates at the Parliamentary election in the Karumo Constituency. The petitioner received 7700 votes and the successful candidate polled 7707, and thus a majority of 7 votes. The grounds of challenge were generally that (a) there were more votes counted then the number of registered voters: (b) there was failure to keep the pool open at some of the polling stations; (c) there was failure to provide screened compartments wherein electors could cast their votes secretly:

(d) a substantial number of voters were denied the opportunity to vote.

            Held: (1) [After going through the evidence and finding the irregularities proved] “The final point is to consider the effect of these irregularities on the result of the election. Section 123 provides as follows:- “The election of a candidate as a member shall be declared void on any of the following grounds which are proved to the satisfaction of the Court, namely:- (C) non –compliance with the provisions of this Act relating to election, if it appears that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the results of the election”. A corresponding section (s. 99) of the National Assembly (Elections) act, No. 11 of 1964 has been discussed in a series of decisions of this Court. (MBOWE v. ELIUFOO [1967] E. A. 240; BURA v. SARWATT [1967] E. A. 234; See also the decision of SAIDI J. (as he then was ) in RE K. A. THABITI [1967] E. A. 777 in District Council election). In the light of these authorities I would hold that the question whether noncompliance with the provisions of the act relating to elections affected the result of the election would depend on the nature of the particular complaint or irregularity and on the margin of victory. Where a specific irregularity has been proved and the number of votes affected established with some provision, then allowance should be made for that and if after such adjustments have been made the successful candidate still retains some margin of victory then the irregularity has not really affected the result of the election in BURA v. SARWATT, cited above, it was proved that 480 votes which would have been cast for the petitioner were spoilt because the presiding officer, contrary to the provisions of the Act, recorded more than one vote on behalf of some of the illiterate electors by putting a (V) mark against the name of the candidate of his choice and an (X) mark against the name of the candidate for whom he did wish to vote; these votes were conceded to the petitioner and yet the successful candidate still had a majority of about 46 votes. It was held that the irregularity did not affect the result of the election. Where, however, the complaint goes to the root of free election such as a case of organized campaign or undue influence, and it appears that a substantial number of votes were obtained thereby, then since the full extent of such wrong practice may never be known the Court may be inclined to hold that it affected the result of the election without proof of actual reversal of the result (MBOWE v. ELUFOO, RE K. A. THABITI cited above0. lastly, the non –compliance may not be substantial and may have no effect on the result of the election as it merely creates conditions which are the same for the candidates. Such was the case where some electors were, contrary to the revisions of the Act, switched from one polling station to another solely to relieve pressure on the former (BURA v. SARWTT at page 238). I now proceed to apply the above principles to the issues raised in this case.” (2) “On issue (5) it was clearly established that there was a surplus of 56 votes. One cannot say for whom those votes had been cast and considering that he successful candidate had a tiny

Majority of 7 votes any adjustment in favour of the petitioner would clearly affect the result of the election. I hold that the petitioner succeeds on this ground.” (3) “The petitioner also succeeds on Issue (3). The failure to keep the poll open at the Rugarama Mission polling station contrary to the provisions of the act affected a number of voters in that it deprived them of the opportunity to cast their vote. One the evidence 30 to 40 voters, at least, were affected and had they voted it cannot be said that their votes could not have affected the result of the election having regard once again to the margin of victory.” (4) “As to Issue (2), the failure to provide screened compartments wherein the electors could cast their vote secretly, screened from observation, contravened the principle of the secrecy of the ballot but considering that it affected 4 out of 106 polling stations and there was no question of any sinister motive, it cannot be said that it affected the result of the election. The conditions were the same for both candidates. Had it affected a majority of the polling stations then one may possibly say that this was not really an election as envisaged by the Act. I dismiss this ground.” (5) “The petitioner must also succeed on Issue (1). A substantial number of voters were denied the opportunity to vote and had they voted the result of the election could have been affected having regard to the narrowness of the margin of victory.” (6) Petition allowed. Elections declared void.