Dr. Thuo Mathenge & another v Nderitu Gachagua & 2 others [2013] KECA 84 (KLR)

The court held that interpretation of the Constitution is a distinct task from interpreting ordinary legislation, applying Article 259(1) and the 'always speaking' doctrine. Statutes, by contrast, are to be construed according to Parliament's intent; where words are precise and unambiguous they must be given their natural and ordinary meaning, and courts may not repair legislative blunders. The court thus evaluated both the constitutional principles of free and fair elections and the precise wording of Section 22 of the Elections Act.

Relying on Section 83 of the Elections Act and Raila Odinga v IEBC, the court held that not every breach of electoral law voids an election. The measure is whether the election substantially conformed to the law and whether the results reflect the will of the electorate. The court noted that no election is perfect, and that a petitioner must show the conduct of the election was so devoid of merit and so distorted as not to reflect the people's electoral intent.

The court found the ballot paper conformed with Form 29 in all formalities. Under Article 180(6) there is no separate election for deputy governor, so the error related to a position not being elected. The party symbol, candidate's name and photograph were accurate; voters rely on party and symbol. The appellants produced only speculative and opinion evidence of protest voting and failed to discharge their burden of proving the results were materially affected. Omar v Mbuzi and Re K.A. Thabiti were distinguished as concerning errors in party symbols of contesting candidates.

Citing Nderitu Gachagua v Thuo Mathenge, the court held the High Court enjoys original and unlimited jurisdiction under Article 165(3)(a), concurrent with the IEBC before declaration of results and exclusive thereafter. Under Galaxy Paints v Falcon Guards, issues flow from pleadings or from issues the parties framed; eligibility was an agreed issue. The court further held that an honorary degree is not an educational qualification and that the 1st appellant failed to prove he attended classes or sat examinations.

The court held that restricting recognition to the university alone would lead to absurdity, since a degree from a recognized university could still be suspect. Regulation 47(2) requires authentication of foreign bodies with the Commission for Higher Education, which is established and exercises accreditation mandate under the Universities Act; hence the trial court did not err in relying on that Act. The evidence of the Commission for University Education official was uncontroverted in showing the 1st appellant's degree could not be equated.

The court candidly acknowledged that the learned Judge had no evidential basis for his finding that Fairland University was a Seventh Day Adventist institution that held no Saturday classes, citing the principle that a Judge should not base conclusions on personal belief. However, this error occasioned no prejudice to the appellants because the totality of the evidence independently established that the degree was not earned or recognized.

Serious questions had been raised about the authenticity of the degree, including discrepancies in certificates and signatures and the revocation of Fairland University's licence. The court upheld the direction on the basis that public policy does not permit a court to ignore evidence of criminal acts lest it be seen as condoning illegality.