Joho & another v Shahbal & 2 others (Civil Appeal 12 of 2013) [2013] KECA 435 (KLR)

The court applied the presumption of constitutionality of statutes and the harmonisation principle under Article 259. Article 87(2) prescribes no medium of declaration, so Parliament was entitled under Article 87(1) to specify the Gazette as the medium. The Gazette is the official government publication with evidentiary character under sections 68 of the Interpretation and General Provisions Act and 85 of the Evidence Act, and gazettement crowns the electoral process with certainty, finality and legality.

Reading Article 87(2) with Article 86, sections 2 and 39 of the Elections Act and Regulations 83-87, the court held that announcement is an oral communication of provisional results while declaration is a formal written record; the presidential-election provisions (Articles 138 and 140), where the Chairperson personally declares results, confirm that declaration was not intended to be left to Returning Officers. Election results mean the declared outcome - the winner - which the Gazette Notice contains.

Since the constitutional declaration of results occurs upon gazettement, and the definition of 'election period' in section 2 of the Elections Act runs to gazettement of the results, the petition becomes ripe for filing only after gazettement. The High Court erred in treating the Returning Officer's announcement of 6th/7th March 2013 as the declaration, and erred in relying on Mututho, a decision on the contents of a petition under repealed rules, to construe the limitation trigger.

Applying Lillian's case and Samuel Kamau Macharia, the court held that once the trial Judge found the petition filed outside the mandatory period and anchored on a void provision, he had no discretion but to down his tools. Fairness cannot revive a dead petition; a void act is incurably bad and no life can be breathed into it. However, because the court upheld the constitutionality of section 76(1)(a), this reasoning did not affect the outcome.