Gideon Sitelu Konchellah v Elijah Mbogo & 2 others
The bottom line
#Election nullification requires proof that irregularities substantially affected the result, not just a constitutional violation.
What this practically means
#The Supreme Court overturned a Court of Appeal decision that had nullified Gideon Konchella's election as MP for Kilgoris. The Court ruled that a violation of the Constitution alone is not enough to cancel an election. Courts must also consider whether the irregularity substantially affected the outcome. Since the election in 164 out of 165 polling stations was free and fair, the isolated problem did not change the result.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal before this court meets the Constitutional threshold under article 163(4)(a) of the Constitution.
- 2.Whether the Court of Appeal erred in nullifying the election based on violation of article 86(a) of the Constitution.
- 3.Whether the Court of Appeal erred in finding that the trial court failed to determine certain issues which would have nullified the election.
- 4.Whether the Court of Appeal erred in its finding on costs.
Key legal issues
#Whether the appeal meets the constitutional threshold under Article 163(4)(a) of the Constitution.
The appeal falls within the ambit of Article 163(4)(a) because the primary issue from the election court revolved around whether the election was conducted in accordance with the principles of the Constitution, specifically Articles 81(e) and 86, and the Court of Appeal applied these provisions in its judgment.
The Supreme Court held that the appeal originated from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. The Court of Appeal's conclusion that a violation of Article 86(a) alone was sufficient to nullify the election involved the application of the Constitution. Therefore, the appellant was faulting the interpretation or application of the Constitution by the Court of Appeal, satisfying the jurisdictional test under Article 163(4)(a).
Whether the Court of Appeal erred in nullifying the election based on a violation of Article 86(a) of the Constitution alone.
The Court of Appeal erred by failing to apply the principle that a violation of the Constitution must be substantial and must affect the result of the election to warrant nullification. The court should have considered that the election in 164 out of 165 polling stations was conducted in compliance with the law and that the isolated irregularity did not affect the outcome.
The Supreme Court found that the Court of Appeal did not apply the binding precedent from Raila 2013 and Munya 2, which require a court to consider the substantial effect of the irregularity on the election result. The trial court had correctly found that the diversion of ballot boxes from one polling station, while a violation of Article 86(a), did not substantially affect the result given the margin of victory and the fact that the election in the other 164 stations was free and fair. The Court of Appeal's conclusion that any violation of the Constitution automatically leads to nullification was inconsistent with the law.
Whether the Court of Appeal erred in finding that the trial court failed to determine certain issues.
The Court of Appeal erred in finding that the trial judge failed to address all pleaded issues. The trial judge made findings on each of the issues alleged not to have been decided, and the Court of Appeal exceeded its mandate under section 85A of the Elections Act by re-evaluating the evidence on matters of fact.
The Supreme Court reviewed the High Court judgment and confirmed that the trial judge made findings on the issues of announcement of results without Form 35A, preparation of Form 35A without data, missing data entries, and missing Form 35B. The Court of Appeal's intervention on this ground required it to delve into matters of fact, which is beyond its jurisdiction under section 85A, which limits appeals to matters of law only.
Whether the Court of Appeal erred in its finding on costs.
The Supreme Court rejected the appellant's challenge to the costs order because the issue of rule 30 of the Election Petition Rules being ultra vires was raised for the first time at the Supreme Court without having been addressed in the lower courts, violating the principle of judicial hierarchy.
The appellant did not challenge the costs order on the ground of the ultra vires nature of rule 30 before the Court of Appeal. The Supreme Court emphasized the importance of respecting the judicial hierarchy and that a litigant cannot raise a new issue for the first time at the Supreme Court without a proper litigation trajectory through the lower courts. The court affirmed that the law on costs, as settled in Jasbir Singh Rai, allows for judicial discretion.
Legal principles established
#- A constitutional violation alone does not automatically nullify an election; the court must assess its substantial effect on the result.
- An election conducted substantially in accordance with the law should not be invalidated unless irregularities affected the outcome.
- The Court of Appeal's jurisdiction in election appeals is limited to matters of law only, not re-evaluation of evidence.
- The Supreme Court can hear appeals when the primary issue involves interpretation or application of the Constitution.
- A party cannot raise a new legal issue for the first time at the Supreme Court without having addressed it in lower courts.
Court orders
#- 1.The judgment of the Court of Appeal sitting at Nakuru, dated July 31, 2018 annulling the election of Gideon Sitelu Konchella as Member of National Assembly for Kilgoris Constituency, is hereby quashed and set aside.
- 2.The Petition of Appeal dated August 8, 2018, is allowed.
- 3.For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the seat of Member of National Assembly Kilgoris Constituency, is hereby restored.
- 4.The 3rd respondent shall bear the costs of the appellant, 1st respondent’s costs at the High Court, Court of Appeal and Supreme Court.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nakuru
- Civil Appeal No. 11 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
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.
It is evident to us that the Court of Appeal did not apply the principles established by this court on nullification of an election based on Constitutional violations.
If it should be shown that an election was conducted substantially in accordance with the principles of the Constitution and the Elections Act, then such election is not to be invalidated only on the ground of irregularities.
a petition which requires the appellate court to re-examine the probative value of the evidence tendered at the trial court, or invites the court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted.
The 3rd respondent shall bear the costs of the appellant, 1st respondent’s costs at the High Court, Court of Appeal and Supreme Court.
Key timeline
#Practical implications
#Apply substantial effect test in election petitions
When challenging an election, do not rely solely on proving a constitutional violation. You must also demonstrate that the violation substantially affected the result. The Supreme Court emphasized that courts must assess the magnitude of irregularities and their impact on the outcome, not just the fact of non-compliance. This principle applies to all election petitions under the Elections Act.
Technical violations may not invalidate contracts
This case reinforces that not every procedural irregularity invalidates a process. If the core requirements are met and the irregularity does not affect the outcome, the result stands. Businesses can apply this principle to internal decision-making or regulatory compliance, focusing on substantial compliance rather than minor technical breaches.
Your vote counts unless irregularities change result
If you suspect election irregularities, you must show they actually changed the outcome. The Supreme Court restored Konchella's win because the problem in one polling station did not affect the overall result. Voters should understand that isolated issues may not overturn an election, and evidence of substantial effect is required.
Frequently asked questions
#Can an election in Kenya be nullified for any constitutional violation?+
No. The Supreme Court in Konchella v Nkanae ruled that a violation alone is not enough. The court must also find that the violation substantially affected the election result. Isolated irregularities that do not change the outcome will not nullify an election.
What is the role of the Court of Appeal in Kenyan election petitions?+
The Court of Appeal can only hear appeals on matters of law under section 85A of the Elections Act. It cannot re-evaluate evidence or question witness credibility. The Supreme Court in this case reminded the Court of Appeal to stay within its legal mandate.
How does the Supreme Court decide which election appeals to hear in Kenya?+
Under Article 163(4)(a), the Supreme Court hears appeals from the Court of Appeal if the case involves interpretation or application of the Constitution. In Konchella, the primary issue was whether the election complied with constitutional principles, so the appeal was allowed.
What does 'substantial effect' mean in Kenyan election law?+
It means the irregularity must have actually changed the outcome of the election. For example, if the margin of victory is large and the problem affected only a few votes, the result stands. Courts look at whether the result would have been different without the irregularity.
Cite this brief
#Cite this brief
Caselaw, "Gideon Sitelu Konchellah v Elijah Mbogo & 2 others", Case Analysis (2018). Petition 21 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/3/eng@2018-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.