' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CONSTITUTIONAL PETITION NO E001 OF 2023
LIVINGSTONE OMBODO MUHINDI……………………………1 ST PETITIONER
COMMUNITY BASED ORGANIZATION…………….…………2 ND PETITIONER
VERSUS
MAHANGA MARKET COMMITTEE……………………………1 ST RESPONDENT
CHARLES ANIALE ONGOSE & 2 OTHERS……………………2 ND RESPONDENT
IEBC VIHIGA CONSTITUENCE………………………………INTERESTED PARTY
JUDGMENT
INTRODUCTION
In their Petition dated 24 th October 2023 and filed on 30 th October 2023, the Petitioners herein sought an order that this court declares the 1 st Petitioner as the elected Chairperson of Mahanga Market Management Committee, un-opposed, since his challenger was barred by law due to his bankruptcy. The said Petition was not supported by any affidavit. However, subsequently, the Petitioners filed Supplementary Affidavit on 31 st January 2024. The same was sworn by the 1 st Petitioner on even date.
The 1 st and 2 nd Respondents’ response (sic) to the said Petition was dated 17 th April 2024 and filed on 2 nd May 2024. The Interested Party did not file any response and/or submissions to the Petition.
The Petitioners’ Written Submissions were dated 8 th May 2024 and filed on 30 th August 2024 while those of the 1 st and 2 nd Respondents were dated 16 th June 2025 and filed on 17 th June 2025. This Judgment is, therefore, based on the said Written Submissions which parties relied on in their entirety.
PETITIONERS’ CASE
It was the Petitioners’ case that the 1 st Petitioner was a registered trader in Mahanga Market and that in October, 2022, the County Government of Vihiga organised a tri-annual election of Mahanga Market Management Committee. However, the said elections did not take place in the said year but took place on 15 th September 2023.
They contended that despite the 1 st Petitioner having been the only bona-fide candidate for the post of the committee chairperson, the 2 nd Respondent was declared the winner. They asserted that the 2 nd Respondent had been declared bankrupt by a Kisumu court in the year 1991 and the Presiding Officer allowed the vote of the 2 nd Respondent’s her daughter, Emma Kedogo, although she was not registered as a voter.
They pointed out that the Vihiga County Bills, 2018 were used contrary to the allegations by County Trade Official that Mahanga Market Community Based Organization Rules were used during the market election. They added that since 2019 when previous market election was held and presided over by KNCCI and the Social Services Vihiga County, the 2 nd Respondent had never convened any meeting of security, development or/any other yet these cases were prevalent frequently to market traders.
They averred that all the four (4) market committee members that were elected on CBO ticket for the first time in 2019 never defended their positions in 2023 because they were segregated by the 2 nd Respondent during the tri-annual tenure. They asserted that on 9 th September 2023, the pre-election meeting of trade director Mr Owiro was boycotted by the 2 nd Respondent deliberately which was an indication of disabling the elections of 15 th September 2023.
They further contended that the trade department avoided the KNCCI, IEBC and DSDO and solely presided the elections favouring the 2 nd Respondent for he had been with them for about forty (40) years. They pointed out several election malpractices alleged to have been committed by the 2 nd Respondent and that they had presented an official complaint to the trade office but that when the 2 nd Respondent learned of that, he used election disrupters to claim that the 1 st Petitioner had insulted him and he reported that the matter at Mahanga Police Post.
It was their contention that the 2 nd Respondent’s relative and the said election disrupters also threatened the 1 st Petitioner and he reported the matter at Vihiga Police Station on 5 th October 2023 and 11 th October 2023 on OB Numbers 51/5/10/2023 and 20/11/10/2023 respectively. They asserted that they were not able to access the secretary form and the member form signed at the polling site as they were denied the same thus violating Article 47 of the Constitution of Kenya, 2010.
He urged the court to find that he was the sole bona-fide candidate having been elected unopposed and was, therefore, the lawful Chairperson of Mahanga Market Development Committee ab initio .
1 ST AND 2 ND RESPONDENTS’ CASE
The 1 st and 2 nd Respondents denied the contents of the Petitioners’ Petition and averred that the 2 nd Respondent won the election for the position of Chairperson and that the election was fair and just as per the set down rules. They added that no evidence was adduced to show that the 2 nd Respondent had been declared bankrupt. It was their contention that the Petition lacked merit and was based on false evidence. They prayed that it be dismissed with costs.
LEGAL ANALYSIS
Having considered the Petition, the Supplementary Affidavit, the 1 st and 2 nd Respondents’ evidence and the Parties’ Written Submissions, it appeared to this court that the issues that had been placed before it for determination were: -
Whether or not the Petitioners’ Petition was competent;
Whether or not the Petitioners’ constitutional rights had been infringed upon;
If so, what reliefs were they entitled to; and
Who was to bear the costs of this Petition
The court therefore deemed it prudent to address the aforesaid issues jointly in the circumstances of this case.
The main focus of the Petitioners’ submissions in this application was that the Respondents had not served them with any responses to their Petition. This court was alive to the fact that they were laymen and had no legal representation and may not have been aware that no party could be compelled to file a response to any pleading but that there were consequences for not filing responses to pleadings. Be that as it may, they were clear in their submissions that they should be granted the prayer sought.
On their part, the Respondents submitted that the Petition was an abuse of the court process and that the same ought to be dismissed. They pointed out that a look at the pleadings showed that the Petitioners had no substantive suit. They added that the Petitioners had not set out with reasonable degree of precision that of which they complained had been infringed and the manner in which they were alleged to be infringed as held in the case of Kamlesh Mansuklal Damji Pattni & Another vs R Nairobi High Court Miscellaneous Appeal No 322 of 1999 (eKLR citation not given) and Anarita Karimi Njeru vs Republic (1979) KLR 154 .
They reiterated that the Petitioners had not proved that the 2 nd Respondent was bankrupt. They invoked Section 107(1) of the Evidence Act and placed reliance on the case of Anne Wambui Ndiritu vs Joseph Kiprono Papkoi & Another (2005) where it was held that the legal burden of proof lies upon the party who invokes the aid of law and substantially asserts the affirmative of the issue.
They added that the Petitioners had not demonstrated a prima facie case with a probability of success so as to be granted an injunction. They submitted that for a temporary injunction to be granted, the applicant had to show the following:-
A prima facie case with a probability of success;
Suffering of irreparable injury or loss which would not be adequately compensated with an award of damages and;
That if the court was in doubt, it would decide the application on a balance of convenience.
They thus urged the court to dismiss the Petition herein with costs to them.
Notably, the Petitioners had filed a constitutional petition. The threshold of demonstrating a constitutional violation, infringement or contravention was well set out in the case of Anarita Karimi Njeru vs Republic (Supra). The principle in that case was that a party that seeking relief for a constitutional violation, infringement and/or contravention was required to set out with precision the constitutional provisions that had been infringed, contravened and/or violated and how the same had been infringed, contravened and/or violated.
Based on the above analysis, the Petitioners were required to show the manner in which the rights they alleged had been infringed. They were also required to set out in a clear manner the basis of each of their grievances.
However, the Petitioners herein did not demonstrate what provision of the Constitution of Kenya had been violated, infringed and/or contravened. This court was, therefore, not persuaded that they demonstrated the threshold of being granted relief sought.
Going further, the Petitioners were required by law to prove their assertions that the 2 nd Respondent had been declared bankrupt. Indeed, Sections 107(1), (2) and 109 of the Evidence Act Cap 80 (Laws of Kenya) provides that whoever desired any court to give judgment as to any legal right or liability and depended on the existence of facts, he or she had to prove that those facts existed. The Petitioners herein failed to do so.
A perusal of the Petition showed that save for mentioning about a bankruptcy, they had not attached any documentation to show that the 2 nd Respondent had been adjudged bankrupt. In the absence of any proof, they could not succeed in overturning the impugned election.
Having failed to prove what constitutional provision had been contravened, infringed and/or violated, their prayer for an injunction fell by the wayside. In the premises, it was this court’s finding that the Petition herein was incompetent in form and thus was not merited.
DISPOSITION
For the foregoing reasons, the Petitioners’ Petition dated 24 th October 2023 and filed on 30 th October 2023 was not merited and the same be and is hereby dismissed. The Petitioners will bear the 1 st and 2 nd Respondents’ costs of this Petition.
It is so ordered.
DATED and DELIVERED at VIHIGA this 27 th day of November 2025
J. KAMAU
JUDGE
'
IN THE HIGH COURT OF KENYA AT VIHIGA
CONSTITUTIONAL PETITION NO E001 OF 2023
LIVINGSTONE OMBODO MUHINDI……………………………1 ST PETITIONER
COMMUNITY BASED ORGANIZATION…………….…………2 ND PETITIONER
VERSUS
MAHANGA MARKET COMMITTEE……………………………1 ST RESPONDENT
CHARLES ANIALE ONGOSE & 2 OTHERS……………………2 ND RESPONDENT
IEBC VIHIGA CONSTITUENCE………………………………INTERESTED PARTY
JUDGMENT
INTRODUCTION
In their Petition dated 24 th October 2023 and filed on 30 th October 2023, the Petitioners herein sought an order that this court declares the 1 st Petitioner as the elected Chairperson of Mahanga Market Management Committee, un-opposed, since his challenger was barred by law due to his bankruptcy. The said Petition was not supported by any affidavit. However, subsequently, the Petitioners filed Supplementary Affidavit on 31 st January 2024. The same was sworn by the 1 st Petitioner on even date.
The 1 st and 2 nd Respondents’ response (sic) to the said Petition was dated 17 th April 2024 and filed on 2 nd May 2024. The Interested Party did not file any response and/or submissions to the Petition.
The Petitioners’ Written Submissions were dated 8 th May 2024 and filed on 30 th August 2024 while those of the 1 st and 2 nd Respondents were dated 16 th June 2025 and filed on 17 th June 2025. This Judgment is, therefore, based on the said Written Submissions which parties relied on in their entirety.
PETITIONERS’ CASE
It was the Petitioners’ case that the 1 st Petitioner was a registered trader in Mahanga Market and that in October, 2022, the County Government of Vihiga organised a tri-annual election of Mahanga Market Management Committee. However, the said elections did not take place in the said year but took place on 15 th September 2023.
They contended that despite the 1 st Petitioner having been the only bona-fide candidate for the post of the committee chairperson, the 2 nd Respondent was declared the winner. They asserted that the 2 nd Respondent had been declared bankrupt by a Kisumu court in the year 1991 and the Presiding Officer allowed the vote of the 2 nd Respondent’s her daughter, Emma Kedogo, although she was not registered as a voter.
They pointed out that the Vihiga County Bills, 2018 were used contrary to the allegations by County Trade Official that Mahanga Market Community Based Organization Rules were used during the market election. They added that since 2019 when previous market election was held and presided over by KNCCI and the Social Services Vihiga County, the 2 nd Respondent had never convened any meeting of security, development or/any other yet these cases were prevalent frequently to market traders.
They averred that all the four (4) market committee members that were elected on CBO ticket for the first time in 2019 never defended their positions in 2023 because they were segregated by the 2 nd Respondent during the tri-annual tenure. They asserted that on 9 th September 2023, the pre-election meeting of trade director Mr Owiro was boycotted by the 2 nd Respondent deliberately which was an indication of disabling the elections of 15 th September 2023.
They further contended that the trade department avoided the KNCCI, IEBC and DSDO and solely presided the elections favouring the 2 nd Respondent for he had been with them for about forty (40) years. They pointed out several election malpractices alleged to have been committed by the 2 nd Respondent and that they had presented an official complaint to the trade office but that when the 2 nd Respondent learned of that, he used election disrupters to claim that the 1 st Petitioner had insulted him and he reported that the matter at Mahanga Police Post.
It was their contention that the 2 nd Respondent’s relative and the said election disrupters also threatened the 1 st Petitioner and he reported the matter at Vihiga Police Station on 5 th October 2023 and 11 th October 2023 on OB Numbers 51/5/10/2023 and 20/11/10/2023 respectively. They asserted that they were not able to access the secretary form and the member form signed at the polling site as they were denied the same thus violating Article 47 of the Constitution of Kenya, 2010.
He urged the court to find that he was the sole bona-fide candidate having been elected unopposed and was, therefore, the lawful Chairperson of Mahanga Market Development Committee ab initio .
1 ST AND 2 ND RESPONDENTS’ CASE
The 1 st and 2 nd Respondents denied the contents of the Petitioners’ Petition and averred that the 2 nd Respondent won the election for the position of Chairperson and that the election was fair and just as per the set down rules. They added that no evidence was adduced to show that the 2 nd Respondent had been declared bankrupt. It was their contention that the Petition lacked merit and was based on false evidence. They prayed that it be dismissed with costs.
LEGAL ANALYSIS
Having considered the Petition, the Supplementary Affidavit, the 1 st and 2 nd Respondents’ evidence and the Parties’ Written Submissions, it appeared to this court that the issues that had been placed before it for determination were: -
Whether or not the Petitioners’ Petition was competent;
Whether or not the Petitioners’ constitutional rights had been infringed upon;
If so, what reliefs were they entitled to; and
Who was to bear the costs of this Petition
The court therefore deemed it prudent to address the aforesaid issues jointly in the circumstances of this case.
The main focus of the Petitioners’ submissions in this application was that the Respondents had not served them with any responses to their Petition. This court was alive to the fact that they were laymen and had no legal representation and may not have been aware that no party could be compelled to file a response to any pleading but that there were consequences for not filing responses to pleadings. Be that as it may, they were clear in their submissions that they should be granted the prayer sought.
On their part, the Respondents submitted that the Petition was an abuse of the court process and that the same ought to be dismissed. They pointed out that a look at the pleadings showed that the Petitioners had no substantive suit. They added that the Petitioners had not set out with reasonable degree of precision that of which they complained had been infringed and the manner in which they were alleged to be infringed as held in the case of Kamlesh Mansuklal Damji Pattni & Another vs R Nairobi High Court Miscellaneous Appeal No 322 of 1999 (eKLR citation not given) and Anarita Karimi Njeru vs Republic (1979) KLR 154 .
They reiterated that the Petitioners had not proved that the 2 nd Respondent was bankrupt. They invoked Section 107(1) of the Evidence Act and placed reliance on the case of Anne Wambui Ndiritu vs Joseph Kiprono Papkoi & Another (2005) where it was held that the legal burden of proof lies upon the party who invokes the aid of law and substantially asserts the affirmative of the issue.
They added that the Petitioners had not demonstrated a prima facie case with a probability of success so as to be granted an injunction. They submitted that for a temporary injunction to be granted, the applicant had to show the following:-
A prima facie case with a probability of success;
Suffering of irreparable injury or loss which would not be adequately compensated with an award of damages and;
That if the court was in doubt, it would decide the application on a balance of convenience.
They thus urged the court to dismiss the Petition herein with costs to them.
Notably, the Petitioners had filed a constitutional petition. The threshold of demonstrating a constitutional violation, infringement or contravention was well set out in the case of Anarita Karimi Njeru vs Republic (Supra). The principle in that case was that a party that seeking relief for a constitutional violation, infringement and/or contravention was required to set out with precision the constitutional provisions that had been infringed, contravened and/or violated and how the same had been infringed, contravened and/or violated.
Based on the above analysis, the Petitioners were required to show the manner in which the rights they alleged had been infringed. They were also required to set out in a clear manner the basis of each of their grievances.
However, the Petitioners herein did not demonstrate what provision of the Constitution of Kenya had been violated, infringed and/or contravened. This court was, therefore, not persuaded that they demonstrated the threshold of being granted relief sought.
Going further, the Petitioners were required by law to prove their assertions that the 2 nd Respondent had been declared bankrupt. Indeed, Sections 107(1), (2) and 109 of the Evidence Act Cap 80 (Laws of Kenya) provides that whoever desired any court to give judgment as to any legal right or liability and depended on the existence of facts, he or she had to prove that those facts existed. The Petitioners herein failed to do so.
A perusal of the Petition showed that save for mentioning about a bankruptcy, they had not attached any documentation to show that the 2 nd Respondent had been adjudged bankrupt. In the absence of any proof, they could not succeed in overturning the impugned election.
Having failed to prove what constitutional provision had been contravened, infringed and/or violated, their prayer for an injunction fell by the wayside. In the premises, it was this court’s finding that the Petition herein was incompetent in form and thus was not merited.
DISPOSITION
For the foregoing reasons, the Petitioners’ Petition dated 24 th October 2023 and filed on 30 th October 2023 was not merited and the same be and is hereby dismissed. The Petitioners will bear the 1 st and 2 nd Respondents’ costs of this Petition.
It is so ordered.
DATED and DELIVERED at VIHIGA this 27 th day of November 2025
J. KAMAU
JUDGE
'