Arthur Kibira Apungu v Independent Electoral & Boundaries Commission & 2 others [2014] KECA 630 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the Luanda MP election challenge, ruling minor errors like a misspelt ballot name cannot overturn an election unless they changed the result.
What this practically means
#Executive summary
#Key legal issues
#Effect of misspelling of a candidate's name on the ballot paper
The misspelling of the appellant's surname from Kibira to Kibara did not affect the election result; the test from Thuo Mathenge on validity of ballot, candidature, will of the people and outcome was not satisfied.
Regulation 68 requires the ballot to carry the candidate's name, symbol, photograph and colour as alternative identifiers. The appellant's own evidence showed at most isolated voters turned away; none were called to testify, the estimated loss of one third of votes was unverified, and agents who signed Forms 35 and polling diaries never raised the complaint. An educated candidate was deemed to have read the gazette notice carrying the misspelt name.
Proof of voter bribery
Voter bribery, being both a penal and election offence, must be proved beyond reasonable doubt; the evidence fell far short of that threshold.
The arrest of Tom Amatala Ombima was for possession of a voters' register without authority, not bribery, and no evidence linked it to the 3rd respondent. The agent Ominde watched alleged bribery for five hours without reporting it to the police yet signed Forms 35; the claims against the Chief were actuated by admitted bad blood and contradicted by the Peace Committee witnesses.
Discretion of the election court on scrutiny and recount
The learned Judge properly exercised his discretion under section 82(1) of the Elections Act in ordering partial scrutiny confined to 12 disputed polling stations; the errors found were minor and inconsequential.
Guided by section 82 of the Elections Act, Rule 33 of the Petition Rules and the Mbogo v Shah principle, the court found the Judge gave cogent reasons and considered all relevant factors. The scrutiny report revealed only small gains or losses of votes, the alien Forms 35 were forgeries with no bearing on results, and the alleged three stuffed ballot boxes were unsupported by evidence such as serial numbers.
Introduction of additional witnesses' affidavits out of time
The trial Judge properly exercised discretion in striking out affidavits filed out of time in a clear case of abuse of court process.
Rule 12(1) required affidavits to accompany the petition; the appellant filed two, then sought to add thirty out of time, was directed to choose ten, returned with twenty including four new ones. Given the strict statutory timelines for election disputes, negligence and complacency have no room, and the court was empowered to prevent abuse of process.
Costs of the withdrawn 2nd appellant's appeal
An advocate who acts without instructions must personally bear the costs occasioned by that representation.
The 2nd appellant denied ever instructing the firm of D.W. Muyundo & Associates by affidavit; the firm never controverted that affidavit despite directions to respond. The firm therefore acted for the 2nd appellant without instructions and must bear the costs of the withdrawn appeal.
Legal principles established
#- On appeal from an election court under section 85A of the Elections Act, only matters of law fall for determination, including whether the trial judge properly evaluated the evidence.
- An election will not be vitiated for non-compliance with electoral law unless the non-compliance affected the result of the election.
- The burden of proof in an election petition rests on the petitioner, to a standard higher than a balance of probability but below beyond reasonable doubt, except where the alleged malpractice amounts to a criminal or election offence.
- No appeal lies to the Court of Appeal from an interlocutory order, ruling or direction of an election court; an aggrieved party must await the final judgment.
- Scrutiny cannot be used as a fishing expedition and must be confined to the polling stations in which the results are disputed; the appellate court will not interfere with the election court's discretion on scrutiny absent misdirection.
Court orders
#- 1.Appeal dismissed
- 2.Appellant to bear costs of the appeal in the sum of Kshs. 300,000/- in respect of the 1st and 2nd respondents and Kshs. 200,000/- in respect of the 3rd respondent
- 3.The firm of D.W. Muyundo & Associates to bear the costs of the 2nd appellant's withdrawn appeal for acting without instructions
- On appeal from
- High Court of Kenya at Kakamega
- Election Petition No. 7 of 2013
- Jurisdiction invoked
- Section 85A of the Elections Act - appeals from election courts on matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur Kibira Apungu v Independent Electoral & Boundaries Commission & 2 others [2014] KECA 630 (KLR)", Case Analysis (2014). Civil Appeal No. 53 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/630/eng@2014-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.