Awiti & another v Independent Electoral and Boundaries Commission & 3 others
The bottom line
#Supreme Court reinstated Homa Bay election results because courts ignored a scrutiny report that didn't change the outcome.
What this practically means
#The Supreme Court ruled that when a court orders a scrutiny of votes, it must consider that report. In this case, the trial court ordered scrutiny but then ignored it when annulling the election. The Court of Appeal also failed to correct this error. The Supreme Court said this violated fair hearing rights and reinstated the original election results because the scrutiny showed no change in the winner.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Does the Supreme Court have jurisdiction to hear and determine this electoral matter?
- 2.Was the appellate court in error, in failing to consider the scrutiny report, upon finding that the trial Court had passed over the said report?
- 3.Is it necessary for this court to undertake an examination of the said scrutiny report?
- 4.Was there a violation of the appellant’s rights of fair hearing, under articles 25(c) and 50 of the Constitution, by the first two superior courts failing to consider material evidence lawfully recorded — and material that would shed light on the condition of irregularity, the primary factor in the trial cause?
- 5.Was there a violation of article 88(4) of the Constitution, in preferring the election data records of 3rd and 4th respondents, in place of the official ones held by the Independent Electoral and Boundaries Commission?
- 6.What are the appropriate reliefs, and orders regarding costs?
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an election appeal where the core question involves the relevance of a scrutiny report to the proper disposal of the election dispute.
The Supreme Court has jurisdiction because the core question—the relevance of the scrutiny report—involves the interpretation and application of Article 86(a) of the Constitution and the guarantee of fair trial under Articles 25(c) and 50.
The court found that the trial judge passed over the scrutiny report he had ordered, and the appellate court declined to act on that error, claiming lack of jurisdiction. The appellants argued that had the scrutiny report been considered, it would have shown the election was conducted substantially in accord with Article 86(a). The Supreme Court held that this is a clear case of interpretation and application of the Constitution, particularly Article 86(a), and therefore falls within its jurisdiction under Article 163(4)(a). The court also relied on sections 20 and 21 of the Supreme Court Act to consider whether the trial court's conclusions were valid.
Whether the Court of Appeal erred in law by failing to consider the scrutiny report after finding that the trial court had erred in law by ignoring it.
The Court of Appeal erred in law. Having found that the trial court committed an error of law by ignoring the scrutiny report, the appellate court was duty-bound to correct that error and could not abdicate jurisdiction by characterizing the issue as one of fact.
The appellate court found that the trial court had committed an error of law by failing to consider the scrutiny report. However, it then held that it lacked jurisdiction to disturb findings of fact by the trial court. The Supreme Court held that the conclusions of the trial judge were not supported by any evidence from the scrutiny report, and that hardly any reasonable tribunal would have arrived at the trial judge's conclusion. This raised a question of law that fell within the appellate court's mandate under section 85A of the Elections Act. The appellate court's failure to act on its own finding of an error of law was itself a distinct error of law.
Whether the failure of the trial court and the appellate court to consider the scrutiny report violated the appellants' right to a fair hearing under Articles 25(c) and 50 of the Constitution.
Yes, the failure to consider the scrutiny report violated the appellants' right to a fair hearing. The scrutiny report was crucial evidence that would have shed light on the condition of irregularity, and its disregard rendered the trial unfair.
The court noted that the scrutiny report was ordered by the trial court upon the request of the 3rd and 4th respondents themselves, and was prepared under the superintendence of the court's Deputy Registrar. The trial court inexplicably made no reference to it when annulling the election. The appellate court acknowledged this as an error of law but declined to remedy it. The Supreme Court held that a determination not resting upon critical evidence and not according the parties fair hearing was a clear instance inviting annulment. The disregard of the scrutiny report subjected the appellants to unfair hearing in terms of Article 50(1) and failed to adhere to the inviolable right under Article 25(c).
Whether the trial court erred in preferring the election data records of the 3rd and 4th respondents over the official records of the Independent Electoral and Boundaries Commission, in violation of Article 88(4) of the Constitution.
Yes, the trial court erred. Article 88(4) designates the IEBC as the sole agency mandated to conduct elections and manage the balloting process. The trial court should have deferred to the official records of the IEBC unless there was proof of tampering.
The court noted that the trial court annulled the election based on information contained in an alien version of Form 37A produced by the 3rd and 4th respondents, to the exclusion of the Forms 37A produced by the constitutionally-mandated agency. The appellate court itself recognized that 'there can never be two sets of results, as the only results recognized in law [are those] announced by the [Independent Electoral and Boundaries Commission]'. The Supreme Court held that neither superior court accorded deference to the prima facie legitimacy of official records from the IEBC, nor to the established procedure for evaluating evidence bearing upon claims of irregular conduct of election.
Legal principles established
#- A court that orders scrutiny must consider the resulting report; ignoring it is an error of law.
- An election cannot be annulled without cogent factual evidence; scrutiny helps determine if such evidence exists.
- If a recount or scrutiny does not change the final vote tally, the margin of victory is legally irrelevant.
- The Court of Appeal must correct a trial court's error of law in ignoring a scrutiny report; it cannot decline jurisdiction.
- Failure to consider crucial evidence like a scrutiny report violates the constitutional right to a fair hearing.
Court orders
#- 1.The 3rd and 4th respondents’ prayer in their notice of motion of 31 July 2018, seeking — ‘a declaration that the IEBC as currently constituted is legally competent to conduct a fresh Homa Bay gubernatorial election …’ is hereby disallowed.
- 2.The 3rd and 4th respondents’ alternative prayer that — ‘a declaration be … issued that … fresh election … should … only involve candidates who participated in the original Homa Bay gubernatorial election …’ is similarly disallowed.
- 3.The 3rd and 4th respondents’ prayer for a declaration that they were duly elected as Governor and Deputy Governor for Homa Bay County, is hereby disallowed.
- 4.The 1st and 2nd respondents’ cross-appeal of 8 July 2018 is allowed.
- 5.The petition of appeal dated 23 July 2018 is allowed; and the appellate court decision of 19 July 2018 is set aside in its entirety: the effect being that the election results for Homa Bay County, in respect of the offices of Governor and Deputy-Governor as declared by the Independent Electoral and Boundaries Commission (1st respondent), will stand as the valid position under the Constitution and the law.
- 6.The 3rd and 4th respondents shall bear the appellants’ costs in the High Court, the Court of Appeal and the Supreme Court — the details thereof to be in compliance with the principles on costs enunciated in this Judgment.
- 7.The 1st and 2nd respondents shall bear their own costs.
- 8.Claims of costs shall be laid before the Deputy Registrar for taxation, in accordance with the law.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that the 3rd and 4th respondents were the validly elected Governor and Deputy Governor
The court found the election results as declared by IEBC to be valid and set aside the appellate decision that had annulled them.
Order for fresh election limited to original candidates
The court restored the original election results, making a fresh election unnecessary.
Costs
The 3rd and 4th respondents shall bear the appellants’ costs in the High Court, the Court of Appeal and the Supreme Court — the details thereof to be in compliance with the principles on costs enunciated in this Judgment. The 1st and 2nd respondents shall bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The petition of appeal dated 23 July 2018 is allowed; and the appellate court decision of 19 July 2018 is set aside in its entirety: the effect being that the election results for Homa Bay County, in respect of the offices of Governor and Deputy-Governor as declared by the Independent Electoral and Boundaries Commission (1st respondent), will stand as the valid position under the Constitution and the law.
it is now well established that once a trial court orders the conduct of scrutiny, the resulting findings are as good as the findings of the court itself ¾ and that, on this account, the court must take such findings into account.
an election is not to be annulled except on cogent and ascertained factual premises. It is by this principle, that the Constitution protects the voters’ enfranchisement under article 38(1).
Where a re-count, re-tally or scrutiny does not change the final result as to the gaining of votes by candidates, the percentage or margin of victory however narrow, is immaterial as a factor in the proper election – outcome.
The 3rd and 4th respondents shall bear the appellants’ costs in the High Court, the Court of Appeal and the Supreme Court — the details thereof to be in compliance with the principles on costs enunciated in this Judgment.
Key timeline
#Practical implications
#Scrutiny reports must be considered
When you obtain a court order for scrutiny or recount, ensure the trial judge explicitly references the report in the judgment. If the judge ignores it, you have a strong ground for appeal on a question of law. The appellate court must correct this error; it cannot claim lack of jurisdiction.
Election certainty supports business stability
This judgment reinforces that election results stand unless there is clear evidence of irregularity that changes the outcome. For businesses operating in counties, this reduces the risk of prolonged electoral disputes disrupting local governance and economic activity. Rely on declared results unless a court finds compelling proof otherwise.
Your vote counts unless proven otherwise
The Supreme Court protected voters' rights by refusing to annul an election based on unsubstantiated claims. If you voted in a disputed election, your vote remains valid unless a court finds concrete evidence of irregularities that actually affected the result. A narrow margin alone is not enough to overturn the outcome.
Frequently asked questions
#What happens if a court orders a scrutiny of votes in Kenya but then ignores the report?+
The Supreme Court in Cyprian Awiti v IEBC [2019] eKLR ruled that ignoring a scrutiny report is an error of law. The court must consider the report because it is crucial evidence. If ignored, the affected party can appeal, and the appellate court must correct the error.
Can a Kenyan election be annulled just because the margin of victory is small?+
No. The Supreme Court held that if a recount or scrutiny does not change the final vote tally, the margin of victory is legally irrelevant. An election can only be annulled on cogent factual evidence that the irregularities affected the result.
What is the role of the Court of Appeal in Kenyan election disputes regarding scrutiny reports?+
The Court of Appeal must correct any error of law by the trial court, such as ignoring a scrutiny report. It cannot decline jurisdiction by calling the issue a question of fact. Failure to act on its own finding of an error of law is itself an error of law.
Does ignoring a scrutiny report violate the right to a fair hearing in Kenya?+
Yes. The Supreme Court in Cyprian Awiti v IEBC found that disregarding a scrutiny report violates Articles 25(c) and 50 of the Constitution. A decision not based on critical evidence denies parties a fair hearing and can be set aside.
Cite this brief
#Cite this brief
Caselaw, "Awiti & another v Independent Electoral and Boundaries Commission & 3 others", Case Analysis (2019). Petition 17 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/68/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.