Abdikhaim Osman Mohammed & another v Independent Electoral and Boundaries Commission & 2 others [2014] KECA 637 (KLR)
The bottom line
#Kenya's Court of Appeal overturned the 2013 Garissa governor's election because serious counting errors made the winning margin unreliable, ordering a fresh 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 or not the trial judge appreciated the Constitutional and legal threshold for a free, fair and verifiable election
- 2.whether or not there were irregularities and errors in the conduct of the Garissa County gubernatorial election and if so whether or not those irregularities and errors affected the credibility and the integrity and/or the result of that election
- 3.whether or not the appellants pleaded for scrutiny and whether or not the trial judge exercised his discretion judicially in refusing scrutiny
- 4.whether or not the appellants discharged their burden of proof
- 5.what is the appropriate order on costs
Key legal issues
#Effect of proved irregularities on an election result
Once irregularities are proved, the election is void if they violate the Constitution/electoral law or affect the result; a result that becomes indeterminate, or where the margin is significantly narrowed, is affected
Section 83 of the Elections Act adopts the substantial-compliance test from Morgan v Simpson. The court found the trial judge glossed over massive irregularities: unsigned and unstamped forms 35, missing forms, uncountersigned alterations, cancelled results at Mathahlibah, unreflected streams at Modika and Danyere, and an 859-vote exaggeration. Cumulatively these rendered the result indeterminate and dented the integrity of the election.
Scrutiny in election petitions
Scrutiny may be ordered suo motu under section 82(1) of the Elections Act and Rule 33 allows an application at any stage; refusal of scrutiny despite abundant material is a whimsical exercise of discretion
The trial judge declined scrutiny solely because it was not prayed in the petition, yet a chamber summons is a pleading under the Civil Procedure Act and section 82(1) permits suo motu orders. The judge himself had acknowledged scrutiny was the surest way to resolve the discrepancies. The court held discretion must be exercised judicially, not whimsically, and that scrutiny was justifiably needed.
Voting outside the gazetted polling day
Voting conducted on 5th March 2013 at Saka Primary School was a nullity; those votes must be excluded, but the irregularity did not of itself invalidate the entire election
Regulation 66(1) confines voting to the polling day and Regulation 66(2) extends it only to those already on the queue at 5.00 pm. Polling closed at about 10.40 pm while voters were still on the queue, with no reason given, contravening the Regulations. The remedy was exclusion of those votes, not nullification of the entire election.
Scope of appellate jurisdiction in election petitions
Appeals lie only on matters of law under section 85A, but evaluation of evidence and exercise of discretion are matters of law
The court held that whether the trial court evaluated evidence properly, and whether irregularities amounted to breaches of the Constitution, statute, rules or regulations, are questions of law. The manner of exercising discretion is also an issue of law. It may interfere with findings of fact based on no evidence, misapprehension of evidence, or a wrong principle.
Legal principles established
#- A document not signed by its author is not owned by that author; unsigned statutory forms' results must be excluded from the tally
- Irregularities that significantly narrow the margin between candidates or render the result indeterminate affect the result and vitiate the election
- An election court may order scrutiny suo motu; refusal of scrutiny despite abundant material justifying it is a misdirection on discretion
- Voting conducted outside the prescribed polling day is a nullity and those votes must be excluded from the final tally
- Appellate court interferes with a finding of fact if it is based on no evidence, on misapprehension of the evidence, or on a wrong principle
Court orders
#- 1.Appeal allowed; judgment of Mabeya J upholding the election of Nathif Jama Adan set aside
- 2.Petition dated 25th March 2013 allowed with costs
- 3.Declaration that the 3rd Respondent was not validly elected as Governor for Garissa County and quashing of any certificate issued to that effect
- 4.A fresh gubernatorial election for Garissa County to be held as stipulated by law
- 5.A certificate in terms of Section 86 of the Elections Act to issue to the Independent Electoral and Boundaries Commission and the Speaker of the Garissa County Assembly
- 6.1st and 2nd Respondents to meet the appellants' costs in the High Court capped at Kes. 2 million and the costs of the appeal capped at Kes. 2 million; the 3rd Respondent to bear his own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garissa (heard at Nairobi)
- Garissa Election Petition No. 2 of 2013
- Jurisdiction invoked
- Section 85A of the Elections Act, 2011 (appeals from election petition decisions confined to matters of law)
Relief refused
#Finding that the voting at Saka Primary School on 5th March 2013 rendered the entire gubernatorial election invalid
The court held the votes from that voting were a nullity to be excluded from the tally, but that this did not of itself invalidate the entire election
Ground 6 of appeal (Rule 21 delivery of documents)
Nothing turned on the issue as counsel was able to mount full cross-examination and missing forms 35 were confirmed
Costs
The 1st and 2nd Respondents shall meet the costs of the appellants in the High Court capped at Kes. 2 million and the costs of this appeal capped at Kes. 2 million. The 3rd Respondent shall bear his own costs.
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.
In the result, we find that the cumulative effect of the irregularities stated above, is that the gubernatorial election in Garissa County was not conducted in an efficient, accurate and accountable or verifiable manner thereby compromising its integrity.
We declare that as a consequence of our findings herein, the 3rdRespondent was not validly elected as the Governor for Garissa County and we quash any certificate issued in that regard.
We order that a fresh gubernatorial election for Garissa County be held as stipulated by law.
The voting at Saka Primary School polling centre, though a nullity, did not of itself render the entire Garissa County gubernatorial election invalid.
judicial discretion must always be exercised judicially and not whimsically and where it is denied reasons for such denial must be stated.
Issues in the judgment
#The judgment is internally inconsistent on the date of the trial judgment: the cause title says it was delivered on 25th September 2013 while the disposal paragraph says 24th September 2013
The 3rd Respondent's name appears variously as NATHIF JAMA ADAN and NATHIF JAMA ADEN in the disposition paragraph
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mary Mukami Mbachia v Land Registrar, Thika & 7 others [2021] KEELC 3957 (KLR)[2021] KEELC 3957 (KLR)18 Mar 2021applied
- Rodgers Katami Wambia & 2 others v Rachel Odera & 2 others; Board of Management – Marula Primary School (Interested party) [2020] KEELC 485 (KLR)[2020] KEELC 485 (KLR)13 May 2020
- Kitur v Keter & another (Petition 27 of 2018) [2018] KESC 77 (KLR)[2018] KESC 77 (KLR)21 Dec 2018
- Philip Kyalo Kituti Kaloki v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 555 (KLR)[2018] KECA 555 (KLR)8 Jun 2018
- Moses Lutomia Washiali v Zephaniah Ngaira Angweye & another [2018] KECA 640 (KLR)[2018] KECA 640 (KLR)7 May 2018followed
Cite this brief
#Cite this brief
Caselaw, "Abdikhaim Osman Mohammed & another v Independent Electoral and Boundaries Commission & 2 others [2014] KECA 637 (KLR)", Case Analysis (2014). Civil Appeal No. 293 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/637/eng@2014-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.