The High Court in Embu has dismissed an election petition challenging the election of Leo Wamuthende, ruling that the petitioner failed to prove that the alleged irregularities substantially affected the outcome of the poll.

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 relating to assisted voters and found that Regulation 72 of the Elections (General) Regulations had been violated in respect of 1,072 assisted voters whose details were not recorded in the physical register as required by law. The judge noted that the only available evidence confirming the existence of the assisted voters were Forms 32, which contain declarations of secrecy.

The court also established 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.

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

In its 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 findings arising from scrutiny may still form part of the broader evidentiary matrix in determining whether an election met the 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 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 that it had not been proved to the required legal standard.