M'nkiria Petkay Shen Miriti v Ragwa Samuel Mbae & 2 others [2014] KECA 493 (KLR)
The bottom line
#The Court of Appeal upheld the Tharaka-Nithi governor's election, ruling that losing petitioners must prove errors actually changed 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.Can the competency of the appeal be raised at the hearing of the appeal?
- 2.What is the Court's jurisdiction in respect of this appeal?
- 3.Who bears the burden of proof in election petitions and what is the standard of proof required?
- 4.Did the appellant prove his case to the requisite standard?
- 5.Did the learned Judge contravene Rule 21 of the Elections Rules by directing the 2nd respondent not to avail ballot boxes before the election court?
- 6.Did the learned Judge misdirect herself in declining to issue an order for scrutiny and recount of the votes?
- 7.Did the learned Judge consider the results contained in Forms 35 & 36?
- 8.Was the learned Judge biased against the appellant?
- 9.Who is required to fill in Form 35?
- 10.Did the errors and irregularities exposed (if any) affect the election results?
- 11.Did the learned Judge properly exercise her discretion in respect of costs?
Key legal issues
#Whether the competency of the appeal could be raised at the hearing
The 1st respondent did not seek leave under Rule 104(b) to raise competency at the hearing, and no cross-appeal challenged the trial court's ruling on competency; the issue was not open for consideration.
Rule 84 of the Court of Appeal Rules requires objections to competency to be brought by application within thirty days of service of the record. Once that window lapses and the appeal is set down for hearing, a respondent may only raise competency with leave under Rule 104(b). The respondents neither sought leave nor cross-appealed the trial court's ruling of 24th June 2013, so the issue of the Petition's timeliness was not before the Court.
Jurisdiction under Section 85A of the Elections Act
The Court's jurisdiction is limited to matters of law only; the grounds of appeal, which questioned whether the trial Judge properly considered the evidence and arrived at a correct determination, raised issues of law.
Section 85A confines appeals from election petitions on the office of county governor to matters of law, filed within thirty days and determined within six months. The Court adopted its earlier holding that whether the trial Judge properly evaluated the evidence and reached a legally supported determination is a question of law, with the usual caveat that the appellate court did not see the witnesses' demeanour.
Burden and standard of proof
The burden lay on the appellant to prove the alleged malpractices, irregularities and offences; the standard is above balance of probabilities but below beyond reasonable doubt, except for offences of a criminal nature such as bribery which require proof beyond reasonable doubt.
Relying on the Supreme Court's decision in Raila Odinga v IEBC and comparative authority from Uganda, Canada and Nigeria, the Court held the petitioner bears the burden throughout. Allegations of bribery must be strictly proved; there was no evidence connecting the 1st respondent to the alleged bribing agents, and agency required proof of authorisation, employment or adoption of the agents' acts.
Whether the alleged election offences and malpractices were proved
Bribery, communication with voters, witchcraft and denial of agents' access were not proved; the 1st respondent's alibi was strong and PW1's evidence was discredited by two irreconcilable affidavits.
The appellant admitted neither he nor his witnesses saw the 1st respondent personally bribe voters and no link between candidate and agents was established. The witchcraft allegation rested on PW1, whose two contradictory affidavits destroyed his credibility, and PW7's speculative evidence, against a corroborated alibi. The alleged excluded agents were never identified or shown to be authorised badge-holding agents.
Consideration of an unpleaded issue (public officers' participation)
The trial court erred by considering the alleged breach of Section 43 of the Elections Act, an issue neither pleaded nor framed, which denied the 1st respondent fair notice and the opportunity to lead evidence.
Issues for determination flow from the pleadings; a court can only pronounce judgment on issues arising from the pleadings or framed by the parties. Raising the issue for the first time in written submissions could not give the 1st respondent the opportunity to adduce evidence. However, this error was not sufficient to overturn the result given the failure of proof overall.
Who must complete Form 35 and whether alterations to Form 36 were illegal
Form 35 is properly completed at the polling station by the Presiding Officer; the requirement in Regulation 83 that the Returning Officer complete it is humanly impossible. The alterations to Form 36 were lawful corrections of typographical and mathematical errors affecting all candidates.
The Presiding Officer is the custodian of the supporting documents and accountable for the data; only he or his deputy can complete Form 35. The Returning Officers demonstrated that the errors were transposition mistakes affecting all three candidates, and correcting errors before announcing results is part of the Returning Officer's duty. Mere alteration is not proof of manipulation.
Whether errors and irregularities materially affected the result
The appellant did not prove that affected votes were substantial enough to cast doubt on the winner; even accounting for them, the 15,275-vote margin remained huge, and the results reflected the will of the electorate.
Applying the quantitative test, the impugned votes were far fewer than the margin between winner and runner-up. On the qualitative test under Articles 81 and 86, the appellant did not establish that the errors compromised the transparency, accuracy, accountability or verifiability of the election. Courts strive to preserve elections conducted substantially in accordance with the law where the result is unaffected.
Costs
Costs follow the event and the trial court's discretion was otherwise properly exercised, but the cap of Kshs. 5 million was excessive and inconsistent with caps in comparable election petitions; it was reduced to Kshs. 2.5 million.
An appellate court interferes with discretionary awards only where the judge misdirected himself or was clearly wrong. The trial Judge only placed a cap, leaving taxation to the taxing master. The cap of Kshs. 5 million was, however, excessive relative to the average caps of Kshs. 2-2.5 million in similar 2013 election petitions, justifying substitution with Kshs. 2.5 million.
Legal principles established
#- The Court of Appeal's jurisdiction over appeals from election petitions concerning the office of county governor is confined to matters of law only, and whether the trial Judge properly considered and evaluated the evidence and arrived at a correct determination is a matter of law.
- An objection to the competence of an appeal cannot be raised for the first time at the hearing of the appeal without leave of the Court under Rule 104(b) of the Court of Appeal Rules.
- The burden of proof in election petitions lies on the petitioner, who must prove not only non-compliance with the electoral law but that such non-compliance affected the validity of the election.
- The standard of proof in election petitions is higher than a balance of probabilities but not beyond reasonable doubt, save where offences of a criminal nature such as bribery are in question.
- For an allegation that agents were excluded from a polling station to succeed, it must first be proved that the person excluded was an authorised agent of a political party; this is the sine qua non of the allegation.
- Issues neither pleaded nor framed for determination cannot be decided by an election court, as parties are entitled to fair notice of the case they must meet.
- A court will not order scrutiny and recount of votes where no basis has been laid; to do so would be a fishing expedition.
- In determining whether errors and irregularities materially affected election results, both a quantitative and a qualitative test must be applied; irregular votes must exceed the margin between the winner and the runner-up.
- An election court may summon a witness of its own motion in furtherance of the overriding objective of the just determination of an election petition.
Court orders
#- 1.The cap of Kshs. 5 million on the total costs payable to the respondents set aside and substituted with a cap of Kshs. 2.5 million
- 2.The appeal, save for the ground on costs, dismissed with costs to the respondents
- 3.Costs in the High Court capped at Kshs. 2.5 million
- 4.Costs of the appeal capped at Kshs. 1 million
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- Election Petition No. 4 of 2013
- Jurisdiction invoked
- Section 85A of the Elections Act (appeal from High Court in an election petition concerning the office of county governor, on matters of law only)
Relief refused
#Nullification of the election of the 1st respondent as Governor for Tharaka-Nithi County
The appellant failed to prove election offences, malpractices or irregularities to the requisite standard, and the margin of 15,275 votes was too large for the alleged irregularities to affect the result
Scrutiny and recount of votes
The appellant did not lay any basis for scrutiny and recount; ordering it without basis would amount to a fishing expedition
Claim that the appeal on competency and merits should succeed
The appeal was competently before the Court but failed on the merits; the trial court's findings on credibility and evidence were sound
Costs
Appeal dismissed with costs to the respondents; cap on total costs payable to respondents in the High Court reduced from Kshs. 5 million to Kshs. 2.5 million; costs of the appeal capped at Kshs. 1 million
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.
Save for the ground on costs, we find that this appeal has no merit and is accordingly dismissed with costs to the respondents. We direct that the costs in the High Court shall not exceed Kshs. 2.5 million while costs of this appeal shall not exceed Kshs. 1 million.
We therefore, set aside the cap of Kshs. 5 million on the total costs payable to the respondents and substitute it with a cap of 2.5 million.
Based on the foregoing provision, the jurisdiction of this Court on an appeal from the decision of an Election Court is limited to matters of law only.
For such an allegation to succeed, it must be proved that the person allegedly excluded was an authorized agent - this is the sine qua non for the allegation to have a legal foothold. Upon proof that the person was an authorized agent, then proof of exclusion is to follow.
In determining whether errors materially affected election results a quantitative and qualitative test should be carried out.
We find no fault in the learned Judge declining to grant the order for scrutiny and recount because the appellant had not laid any basis for the same.
We find that the trial court erred by considering the issue of alleged participation of public officers in the elections. This is because the issue was neither pleaded nor framed as an issue for determination.
the burden of proof in election petitions as in other civil cases is settled. It lies on the Petitioner to prove his case to the satisfaction of the Court.
Issues in the judgment
#The judgment gives two different numbers for the appeal within which the King'ara jurisdiction holding was made, and the same case appears in the record with inconsistent appeal numbers
The name of the second respondent is misspelled in the cause title as 'BONDERIESCOMMISSION' and the Muiya citation appears with inconsistent years and citations
The 1st respondent's submission on the filing deadline contains an internally inconsistent date, stating the appeal ought to have been filed on or before 27th October, 2011 whereas the judgment below was delivered in 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'nkiria Petkay Shen Miriti v Ragwa Samuel Mbae & 2 others [2014] KECA 493 (KLR)", Case Analysis (2014). Civil Appeal No. 47 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/493/eng@2014-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.