Richard Nchapi Leiyagu v Independent Electoral & Boundaries Commission & 2 others [2014] KECA 608 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the Laikipia North MP's 2013 election, ruling that only proven irregularities affecting the result can overturn an election.
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 election court erred in its findings on the recruitment, competence and impartiality of election officials in Laikipia North Constituency
- 2.Whether the re-opening of the ballot box and recounting of ballot papers at Ngenia Secondary School Stream II affected the validity and result of the election
- 3.Whether the assistance of illiterate voters contravened Regulation 72 of the Elections (General) Regulations 2012
- 4.Whether the repair of the Pois Robo dam, donation of plastic chairs and barbed wire amounted to undue influence and bribery contrary to sections 63 and 64 of the Elections Act
- 5.Whether the election court erred in the award and capping of costs against the appellant
Key legal issues
#Impartiality and qualifications of election officials
The appellant's appeal on this ground fails; IEBC did not act arbitrarily, capriciously or irrationally in recruiting locally available officials with slightly lesser qualifications where local residents could not meet the prescribed standards.
The Court held that Article 81 obliges IEBC to deliver free, fair and impartial elections and to be seen to do so, but the principle must be interpreted realistically. Clan membership alone cannot disqualify officials in a multi-clan constituency. As to qualifications, the Constitution protects marginalized communities, and importing officials wholesale from other regions would undermine the national values of inclusiveness and participation. IEBC was justified recruiting literate, honest locals without degrees or diplomas given the constituency's realities.
Effect of the opened ballot box at Ngenia Secondary School Stream II
The opening of the ballot box by the returning officer, though an irregularity not contemplated by Regulations 81, 82 and 83 of the Elections (General) Regulations 2012, did not affect the result and falls within section 83 of the Elections Act as an irregularity that does not vitiate an election.
The Court accepted the irregularity as established but applied the principle that elections should not be annulled for transgressions committed without corrupt motive where the result could not have been affected. The box was opened in good faith, in the presence and with the concurrence of all parties and agents, to reconcile figures in Form 35. No allegation was made that votes were added or removed. Although the 3rd respondent argued the issue was unpleaded, the parties had canvassed it without objection and no prejudice was shown.
Assistance of illiterate voters contrary to Regulation 72
The complaint was not proved; the presiding officer lawfully assisted the voters in the presence of agents after they improperly sought assistance from a party agent, and the trial judge's findings on credibility stand.
Regulation 72 permits an assisted voter to choose an assistant who cannot be a candidate or agent; failing that, the presiding officer may assist in the presence of all agents. The trial judge preferred the unshaken and corroborated evidence of the presiding officer over PW12 and PW13, and no complaint was lodged at the polling station or recorded on Form 35, which the agents signed. The Court deprecated the trial judge's speculation about other polling stations but held that speculation alone could not found nullification.
Undue influence and bribery by the 3rd respondent
The election offences of undue influence and bribery were not proved beyond reasonable doubt; the dam was repaired by an NGO and the chairs and barbed wire were bought by Paul Ngobia on his own account, not by or for the 3rd respondent.
Bribery and undue influence under sections 63(1) and 64(1) of the Elections Act are criminal offences attracting fines and imprisonment, requiring proof beyond reasonable doubt. The trial judge found the appellant's witnesses contradictory and unworthy of belief, and preferred the rebuttal evidence. Further, the Court of Appeal's jurisdiction under section 85A is confined to issues of law, so factual findings of the election court stand unless no reasonable tribunal could have reached them. The Court found a misapprehension in asking it to re-evaluate evidence.
Capping and award of costs
The cross-appeal on costs succeeds: the trial judge failed to avert to the order that the costs of Civil Appeal No. 18 of 2013 abide the outcome of the petition, so the Court varied the capping order to KShs.3.5 million for the High Court.
Rule 34 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 empowers the election court to cap costs, an innovation designed to rein in astronomical awards that threatened to discourage poor citizens from questioning elections. An appellate court will not interfere with costs discretion absent a wrong principle or irrelevant considerations. Here the learned judge overlooked that the reinstatement appeal's costs were to abide the petition's outcome, justifying interference.
Legal principles established
#- Appeals to the Court of Appeal from election petitions are limited to issues of law by statute, and the Court upholds findings of fact by the election court unless no reasonable tribunal could have reached that conclusion on the evidence
- Where allegations of election offences such as bribery and undue influence are made, the standard of proof is beyond reasonable doubt
- Only irregularities that affect the result of the election and undermine the integrity of the electoral process justify overturning an election; transgressions without corrupt motive that cannot have affected the result do not vitiate an election
- Vague allegations of clan ties between election officials and a candidate are insufficient to disqualify officials; a closer relationship or conduct creating a reasonable perception of lack of impartiality must be shown
- An unpleaded issue may be decided where the parties canvassed it without objection and it was left to the court, provided no prejudice is occasioned
- An appellate court will not interfere with the election court's exercise of discretion on costs unless it acted on a wrong principle or took into account irrelevant matters
Court orders
#- 1.The appellant's appeal is dismissed with costs in the High Court and in the Court of Appeal
- 2.The 3rd respondent's cross-appeal on costs is allowed and costs before the High Court capped at KShs.3.5 million
- 3.Costs allocated: KShs.1.5 million to the 1st and 2nd respondents and KShs.2 million to the 3rd respondent in the High Court
- 4.Costs to be verified and taxed by the taxing officer, with High Court costs not to exceed KShs.3.5 million and costs in the appeal not to exceed KShs.1.5 million
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- HC Election Petition No. 4 of 2013
- Jurisdiction invoked
- Section 85A of the Elections Act (appeal limited to issues of law); Section 85 of the Elections Act
Relief refused
#Nullification of the election of the 3rd respondent as Member of the National Assembly for Laikipia North Constituency
The appellant failed to prove the alleged irregularities, malpractices and election offences to the required standard; the irregularities identified did not affect the result of the election
Costs
Appeal dismissed with costs both in the High Court and in this Court; 3rd respondent's cross-appeal on costs allowed, High Court costs capped at KShs.3.5 million (KShs.1.5 million to the 1st and 2nd respondents, KShs.2 million to the 3rd respondent); costs in the appeal not to exceed KShs.1.5 million; costs to be verified and taxed by the taxing officer.
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.
Accordingly, our final orders are that the appellant's appeal is bereft of merit and the same is dismissed with costs both in the High Court and in this Court. We allow the 3rd respondent's cross appeal on costs before the High Court which we cap at KShs.3.5 million with KShs.1.5 million to the 1st and 2nd respondents and KShs.2 million to the 3rd respondent.
We accordingly direct that the costs be verified and taxed by the taxing officer, to the intent that costs in the High Court shall not exceed KShs.3.5 million while costs in this appeal shall not exceed KShs.1.5 million.
The approach that best commends itself to us is to be faithful to the injunction that our jurisdiction is limited to issues of law, and to uphold the findings of fact by the election court, unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law.
The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt - save that this would not affect the normal standards where criminal charges linked to an election, are in question.
Only irregularities that affect the result of the election and thereby undermine the integrity of the electoral process are grounds for overturning an election.
a more realistic interpretation of the constitutional principle of neutrality and impartiality in elections, as it relates to relatives, would require more than vague allegations of clan ties, to disqualify a person as an election official
Issues in the judgment
#The judgment text contains a discontinuity: the discussion of the cross-appeal and grounds for affirming is cut off mid-sentence ('sustained impeachment of the') before jumping to the costs discussion, suggesting a missing passage in the copy provided.
The reason for allowing the cross-appeal on costs is not fully developed in the text before the discontinuity; the Court introduces the cross-appeal but the passage transitions abruptly into costs principles.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Nchapi Leiyagu v Independent Electoral & Boundaries Commission & 2 others [2014] KECA 608 (KLR)", Case Analysis (2014). Civil Appeal No. 299 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/608/eng@2014-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.