What Candidates Get Wrong When They Challenge an Election Result

Election petitions are expensive, slow, and as the Tharaka Nithi County case showed, very hard to win without the right kind of evidence lined up well before polling day. A candidate who lost a County Assembly seat by just 173 votes petitioned to have the result thrown out, alleging a familiar list: bribery, vote-buying, agent exclusion, illegal campaigning, and vote tallying fraud. Every single allegation failed. Understanding why is useful for any candidate weighing whether (and how) to challenge a close result, and for any campaign team hoping never to have to.

The gap between “I believe it happened” and “I can prove it happened”

The petitioner called nine witnesses to support his bribery and undue-influence claims. Under cross-examination, witness after witness admitted they had not personally seen the alleged bribery (they had heard about it, suspected it, or seen circumstantial details (someone holding cash, a vehicle in the area) that the court found fell well short of what the law requires. Kenyan courts require clear, direct, first-hand evidence for allegations of bribery specifically, because the legal consequence of potentially nullifying an election is so serious. Suspicion, hearsay, and after-the-fact reconstruction don’t meet that bar, no matter how many witnesses repeat the same story.

Timing is evidence too

One of the more instructive findings: the petitioner admitted he had not reported any bribery, undue influence, or agent exclusion to police or election officials at the time it allegedly happened, only after the results didn’t go his way. The court treated this pattern as significant. Genuine grievances tend to generate a contemporaneous record: a complaint to the presiding officer, a police report, an entry in the polling day diary. A complaint that surfaces for the first time in a post-election affidavit looks, to a court, like a reconstruction built backward from a loss rather than a realtime account of what happened.

Practical lessons for candidates and campaign agents

Assign agents specifically to observe and document, not just to be present. An agent’s job on polling day includes noting irregularities in real time (verbally to the presiding officer and, where possible, in writing) not simply witnessing quietly and raising it months later.

Report immediately, through the right channel. If something genuinely irregular happens, report it to the presiding officer and, where it may be criminal, to the police, on the day. This creates the record a court will actually credit.

Understand what evidence a bribery allegation actually requires. It’s not enough to say money changed hands nearby, or that a candidate was seen with a known campaign helper. Kenyan courts require the giver, the receiver (established as a registered voter), and the corrupt purpose to be clearly and directly proven.

Sign your agent’s copy of the results form, and keep it. Forms 36A signed by agents at the polling station, without recorded objection, are powerful evidence for whichever side relies on them later: including against the very candidate whose agent signed them without protest.

A close margin doesn’t lower the burden of proof. It’s tempting to think a 173-vote margin makes it easier to argue that “something” must have tipped the result. Courts don’t work that way: the burden to prove specific, material irregularities remains exactly the same regardless of how close the count was.

Election petitions can be a legitimate and important check on electoral integrity: but they succeed on the strength of a documented, contemporaneous record, not on the sincerity of a candidate’s belief that something went wrong.

CB Mwongela & Co. Advocates represented the returning officer and IEBC in Eliphas Nyaga Mbae v Wilson Nyaga Derebia & 2 Others in the Chuka Chief Magistrate’s Court, Election Petition No. 2 of 2017, where the court dismissed all of the petitioner’s allegations for want of the kind of evidence discussed above. Our election law practice advises candidates, agents, and electoral bodies alike on what a petition (or a defence to one) actually requires to succeed.