Garama v Karisa & 3 others
The bottom line
#Supreme Court dismisses election review bid as a disguised appeal.
What this practically means
#The Supreme Court dismissed an application to review its earlier election judgment. The applicant, Harrison Garama Kombe, tried to relitigate issues already decided, but the Court said review is not a second chance to appeal. The Court confirmed it correctly applied the law on election nullification, which requires proof of either illegal conduct or non-compliance with electoral laws. The application was an abuse of court process, and the applicant must pay costs to the respondents.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application meets the test for review under Section 21A of the Supreme Court Act and Rule 28(5) of the Supreme Court Rules.
- 2.Whether the Court misapplied the disjunctive test under Section 83 of the Elections Act.
- 3.Whether the Court misapplied the standard of proof in election disputes.
- 4.Whether the judgment was obtained through misrepresentation of facts.
- 5.Whether the Court failed to state which ground under Section 83 of the Elections Act was proved.
Key legal issues
#Whether the application for review met the threshold under Section 21A of the Supreme Court Act.
The application did not meet the threshold as it was a disguised appeal seeking to relitigate matters already determined.
The Court found that the applicant's grounds were a replica of the petition and submissions already dealt with in the judgment. The Court reiterated that review is not an avenue for appeal or relitigation. The alleged misrepresentation of facts was not proven; the Court had merely reproduced facts from the lower courts and applied established law. The application was therefore an abuse of process.
Whether the Court misapplied the disjunctive test under Section 83 of the Elections Act.
The Court correctly applied the disjunctive test, which was the subject of legislative reforms and affirmed in Raila 2022.
The Court explained that its judgment analyzed the Raila 2017 and Raila 2022 decisions and the legislative history of Section 83. The amendment to Section 83 was not solely based on Raila 2017 but was the result of legislative reforms leading to Raila 2022, which reaffirmed the disjunctive construction. The Court held that proof of either limb is sufficient to nullify an election.
Whether the Court failed to state which ground under Section 83 of the Elections Act was proved.
The Court was categorical that both limbs of Section 83 were satisfied.
The Court referred to paragraph 111 of its judgment, where it stated that the 1st respondent had satisfied both limbs of Section 83 of the Elections Act. This directly addressed the applicant's complaint.
Legal principles established
#- Review is not a disguised appeal; it cannot be used to relitigate decided matters.
- Under Section 83 of the Elections Act, proving either illegal practices or non-compliance is enough to nullify an election.
- Election offences require proof beyond reasonable doubt; other election claims need an intermediate standard of proof.
- A court may dismiss a review application as an abuse of process if it merely repeats earlier arguments.
- Legislative reforms and Supreme Court precedent confirm the disjunctive test under Section 83.
Court orders
#- 1.The Notice of Motion dated 6th June 2024 and filed on 13th June 2024 is hereby dismissed.
- 2.The applicant shall bear the 1st and 4th Respondents’ costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Supreme Court of Kenya
- Jurisdiction invoked
- Section 21A of the Supreme Court Act and Rule 28(5) of the Supreme Court Rules, 2020
Relief refused
#Review of the judgment dated 31st May 2024
The application is an appeal disguised as a Motion for review and does not fall within the confines of the parameters in the Fredrick Otieno Outa Case.
Order allowing the Petition of Appeal dated 1st August 2023
The application was dismissed in its entirety.
Costs
The applicant shall bear the 1st and 4th Respondents’ 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 application is an appeal disguised as a Motion for review and does not fall within the confines of the parameters in the Fredrick Otieno Outa Case as set out above and must be therefore be dismissed.
The Notice of Motion dated 6th June 2024 and filed on 13th June 2024 is hereby dismissed; and
The applicant shall bear the 1st and 4th Respondents’ costs.
the test to be applied in Section 83 is a disjunctive one and not a conjunctive one as argued by the appellant
in an allegation of an election offence or quasi-criminal conduct, the proof expected is one that is beyond reasonable doubt. In any other case, the standard has been set at an intermediate level, being higher than balance of probabilities but lower than beyond reasonable doubt.
Key timeline
#Practical implications
#Limit review to narrow grounds
When drafting review applications under Section 21A of the Supreme Court Act, ensure you identify a clear error on the face of the record or new evidence, not just rehash arguments from the main petition. The Court will dismiss disguised appeals and may award costs against your client. Focus on the Fredrick Otieno Outa test to avoid abuse-of-process findings.
Election challenges have high bars
If you are involved in election disputes as a candidate or party, understand that the Supreme Court strictly limits review. You cannot use it to reargue your case. Ensure your initial petition is thorough, because the review window is narrow. Also note that proving election offences requires a higher standard of proof than ordinary civil claims.
Review is not a second appeal
If you lose an election case at the Supreme Court, you cannot simply ask the Court to reconsider because you disagree with the outcome. Review is only for very specific errors or new evidence. This ruling shows the Court will dismiss such attempts quickly and may order you to pay the other side's legal fees.
Frequently asked questions
#What is the standard of proof in Kenyan election disputes?+
For election offences or quasi-criminal conduct, the standard is beyond reasonable doubt. For other election claims, the standard is an intermediate level—higher than balance of probabilities but lower than beyond reasonable doubt.
Can I appeal a Supreme Court decision in Kenya?+
No, the Supreme Court is the final court. You can only apply for review under Section 21A of the Supreme Court Act, but only on very limited grounds like discovery of new evidence or an error on the face of the record. This case confirms review is not a disguised appeal.
What does Section 83 of the Elections Act say in Kenya?+
Section 83 allows a court to nullify an election if it finds either that the election was not conducted in accordance with the law, or that there were illegal practices or offences. The Supreme Court confirmed these two grounds are disjunctive—proving just one is enough.
What happens if I file a frivolous review application in Kenya?+
The court can dismiss it as an abuse of process and order you to pay the other party's costs. In this case, the Supreme Court did exactly that, finding the application was a disguised appeal that wasted court time.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Macharia & another (Suing as the Administrators ad litem of the Estate of Damaris Wairimu Muriu - Deceased) v Muriu & 2 others (Environment and Land Case E084 of 2025) [2026] KEELC 4547 (KLR)[2026] KEELC 4547 (KLR)13 Jul 2026followed
- Sonko v Clerk, County Assembly of Nairobi City & 11 others[2024] KESC 43 (KLR)26 Jul 2024followed
Cite this brief
#Cite this brief
Caselaw, "Garama v Karisa & 3 others", Case Analysis (2024). Petition (Application) E020 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/45/eng@2024-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.