Chris Munga N Bichage v Richard Nyagaka Tong'i, Independent Electoral and Boundaries Commission & Robert K Ngeny
The bottom line
#Supreme Court cannot admit new evidence in election petition appeals; only legal issues allowed.
What this practically means
#In Kenya, the Supreme Court only hears appeals on points of law, not new facts. This is especially strict in election disputes. After losing in the High Court and Court of Appeal, a candidate tried to introduce a document (Form 38) to the Supreme Court. The Court refused, saying it cannot consider new evidence on second appeal. Also, the document was already in the court record anyway. The Court directed the appeal to proceed on legal issues only.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether this Court should grant leave to the applicant to file a document out of time
- 2.does the document in question form part of the record as alleged?
- 3.if so, then why does the applicant seek to have it admitted one more time, at this stage?
- 4.would a repeat-admission of the document occasion prejudice to any party?
Key legal issues
#Whether the Supreme Court has jurisdiction to admit a supplementary affidavit introducing new evidence in an election petition on second appeal under Article 163(4)(a) of the Constitution.
The Supreme Court, sitting on second appeal under Article 163(4)(a), is restricted to matters of law only and will not grant leave to file a supplementary affidavit introducing new evidence.
The Court distinguished its exclusive original jurisdiction in Presidential election petitions (where it can deal with facts) from its appellate jurisdiction under Article 163(4)(a). It held that Section 85A of the Elections Act limits the Court of Appeal to matters of law only, and this restriction logically extends to the Supreme Court on second appeal. While Rules 8(1) and 18(1) and (2) of the Supreme Court Rules allow for admission of further affidavits, the Court must exercise this discretion judiciously, considering the constitutional imperative for timely resolution of electoral disputes under Article 87. The Court also noted that the document (Form 38) was already part of the record, making the application unnecessary.
Whether the document (Form 38) sought to be introduced was already part of the record of appeal.
The Form 38 was already part of the record of the trial Court proceedings, as confirmed by the 2nd and 3rd respondents and a scrutiny of the record of appeal.
The Court examined Volume 6 of the record of appeal (at page 1636) and found that the 2nd respondent had produced Form 36 and Form 38 in terms of Rule 21 of the Elections Petition Rules. The Court noted that the applicant's attempt to re-introduce a document already on the record lacked a proper basis, distinguishing the case from Wetangula where Form 38 was not part of the record.
Legal principles established
#- Supreme Court appellate jurisdiction under Article 163(4)(a) is limited to matters of law only.
- Section 85A of the Elections Act restricts election petition appeals to law, even on second appeal to the Supreme Court.
- The Court's discretion to admit additional evidence must respect constitutional timelines for electoral disputes.
- A document already part of the trial record cannot be reintroduced by a supplementary affidavit.
- The Supreme Court distinguishes its original jurisdiction in Presidential petitions from its appellate jurisdiction in other election petitions.
Court orders
#- 1.The application dated 18th May, 2015, is disallowed.
- 2.A hearing date for the appeal in this matter shall be issued by the Registrar, on the basis of priority.
- 3.The costs of this application shall abide the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Kisumu
- Civil Appeal No. 48 of 2013
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya 2010
Relief refused
#leave to lodge a supplementary affidavit annexing the certificate of election results (Form 38)
The Court, sitting as a second appellate Court under Article 163(4)(a), is restricted to matters of law and will not grant leave to file the supplementary affidavit.
Costs
The costs of this application shall abide the appeal.
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.
This Court, sitting as a second appellate Court, and exercising its jurisdiction under Article 163(4)(a) of the Constitution, will not grant leave to file the supplementary affidavit.
A hearing date for the appeal in this matter shall be issued by the Registrar, on the basis of priority.
The costs of this application shall abide the appeal.
This Court, in the exercise of its appellate jurisdiction under Article 163(4)(a) of the Constitution, is restricted to matters of law.
Although Rule 8(1) and (2) of the Supreme Court Rules provides for the admission of further affidavits, it is still a relevant question that the Court is here dealing with an election petition on second appeal.
Key timeline
#Practical implications
#Focus on legal errors, not new facts
When handling election petition appeals to the Supreme Court, concentrate exclusively on legal errors from the lower courts. Do not attempt to introduce new evidence or factual arguments. The Court will not entertain them. Prepare your case based solely on the record from the High Court and Court of Appeal.
Election outcomes gain finality at trial
Businesses involved in election-related disputes should recognize that factual determinations are final after the High Court hearing. The Supreme Court will not re-open facts. Ensure all evidence is presented at trial stage. This promotes certainty in electoral outcomes, which is important for business planning in politically sensitive sectors.
Present all evidence early in election case
If you are a candidate in an election petition, you must submit all your evidence at the High Court. You cannot add new documents at the Court of Appeal or Supreme Court. Plan your case thoroughly from the start. The Supreme Court will only review whether the law was applied correctly, not whether you have new facts.
Frequently asked questions
#Can the Supreme Court of Kenya consider new evidence in an election petition appeal?+
No, in an election petition appeal under Article 163(4)(a), the Supreme Court is limited to matters of law only. It cannot admit new evidence or factual arguments. This restriction also applies to the Court of Appeal under Section 85A of the Elections Act.
What is the difference between the Supreme Court's jurisdiction in Presidential election petitions and other election petitions in Kenya?+
In Presidential election petitions, the Supreme Court has original jurisdiction to hear both facts and law. But in appeals from other election petitions, its jurisdiction is appellate only, limited to questions of law. This was confirmed in Chris Munga Bichage v. Richard Nyagaka Tong'i.
If I lost an election petition in the High Court of Kenya, can I introduce new evidence at the Court of Appeal?+
No, the Court of Appeal in election petitions is limited to matters of law under Section 85A of the Elections Act. You cannot introduce new evidence. The same restriction applies to the Supreme Court on second appeal. All evidence must be presented at the High Court trial.
What does 'matters of law only' mean in Kenyan election petition appeals?+
It means the appellate court can only review whether the lower court made a legal error, such as misinterpreting a statute or applying wrong legal principles. It cannot re-evaluate facts or consider new evidence. The factual findings of the trial court are final unless they are so unreasonable that no reasonable tribunal could have made them.
Cite this brief
#Cite this brief
Caselaw, "Chris Munga N Bichage v Richard Nyagaka Tong'i, Independent Electoral and Boundaries Commission & Robert K Ngeny", Case Analysis (2015). Petition 17 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/5/eng@2015-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.