Clement Kungu Waibara v Bernard Chege Mburu & 2 others [2011] KECA 410 (KLR)
The bottom line
#Kenya's Court of Appeal restored an MP's seat, ruling that not every election irregularity nullifies a vote—only serious ones that actually affected the result.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge properly allowed the petition on grounds which were not pleaded (irregularities in Forms 16A and 17A)
- 2.Whether the absence of an order for the provision of security for costs rendered the petition incompetent
- 3.Whether the alleged leakage of the court's decision before delivery amounted to a mistrial and undermined the independence and impartiality of the court
- 4.What is the standard of proof in election petitions
- 5.Whether the irregularities noted on Forms 16A and 17A were so grave as to render the election not transparent, free and fair
Key legal issues
#Whether the trial court could rely on irregularities in Forms 16A and 17A not expressly pleaded
The issue was pleaded by necessary implication and, in any event, was canvassed at trial so the court could decide it, per Odd Jobs v. Mubia
The appellant's counsel could not point to any objection in the record to evidence on Forms 16A. The parties had scrutinised the forms against Regulation 35A and cross-examined witnesses on them. Applying Odd Jobs v. Mubia, an issue canvassed at hearing and on which a decision was necessary may be determined even if not expressly pleaded. No prejudice was demonstrated.
Whether the irregularities in Forms 16A and 17A justified nullification of the election
No: the trial court relied on documents whose authenticity was not established; the originals were in the ballot boxes and were never scrutinised; and the few impugned polling stations could not have affected the result
Both PW2 and RW8 produced copies of Forms 16A, some of which were said to be forgeries. The trial court failed to order opening of the ballot boxes to verify authenticity. Having discredited the principal witnesses, it could not act on their evidence without question. The impugned polling stations were too few, out of over 56 polling centres, to tilt the result.
Duty of the election court where authenticity of documents is impugned
It was incumbent on the trial judge to order the opening of the ballot boxes in the presence of the parties to avail the originals for scrutiny
Regulation 19 of the Election Petition Rules 1993 requires election papers to be sealed and handed to the election court precisely so they are available for the court's examination. Where copies tendered in evidence are impugned as forgeries, they must be compared with the authentic originals in the ballot boxes, which formed the very basis of the decision.
Appellate interference with the judgment of the election court
The trial judge erred in principle by failing to give due weight to his own findings on the doubtful integrity of the three principal actors, warranting interference on a first appeal
Applying Selle v. Associated Motor Boat Co., a first appeal is by way of retrial, but interference requires an error of principle. The judge found all three main actors (PW2, the appellant and RW8) to be of doubtful integrity, yet accepted their evidence on Forms 16A without caution. That was an error in principle justifying reversal.
Legal principles established
#- Not every non-compliance with electoral law leads to nullification of an election; the court must consider the gravity of the transgression and whether it was inadvertent or deliberate
- The standard of proof in election petitions is higher than the balance of probabilities
- Forms 16A and 17A are essential electoral documents whose accuracy underpins the credibility of an election
- A trial court must base a decision nullifying an election on credible and sufficient evidence, exceeding the ordinary civil standard
Court orders
#- 1.Appeal allowed
- 2.Decision of the Election Court nullifying the election of the appellant, and any consequential order, set aside
- 3.Petition dated 23rd January, 2008 dismissed
- 4.Each party to bear its own costs of both the appeal and the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Election Petition No. 24 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal against the judgment of the High Court sitting as an election court (no specific constitutional provision cited in the judgment)
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.
In the result, we allow this appeal, set aside the decision of the Election Court nullifying the election of the appellant and any consequential order, and order that the petition dated 23 rd January, 2008, be and is hereby dismissed.
That being the case, we consider it proper that each party bears its own costs of both the appeal and the petition.
The court has a duty to consider the gravity of the transgression and whether such transgression was inadvertent or deliberate before coming to a decision whether or not to nullify an election.
It means that in England election matters are taken to be on the same plane with criminal matters, or put another way, it is analogous to a criminal trial.
If the irregularities had no effect or substantial effect on the result, then there would be no proper basis for nullifying the appellant's election.
Issues in the judgment
#The judgment describes the petition as filed on 24th January, 2008 but the final orders dismiss 'the petition dated 23 rd January, 2008', an internal date discrepancy
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Peter Kipkirui Langat v Robert Kipkirui Metet & 2 others [2013] KEMC 28 (KLR)[2013] KEMC 28 (KLR)30 Aug 2013applied
Cite this brief
#Cite this brief
Caselaw, "Clement Kungu Waibara v Bernard Chege Mburu & 2 others [2011] KECA 410 (KLR)", Case Analysis (2011). Civil Appeal No. 205 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/410/eng@2011-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.