Ledama Olekina v Samuel Kuntai Tunai & 9 others [2014] KECA 694 (KLR)

The Constitution donates to Parliament under Article 87 the power to legislate on electoral disputes, exercised through the Elections Act. Section 83 codifies well-known principles, including Lord Denning's formulation in Morgan v Simpson: an election is vitiated where it is not conducted substantially in accordance with the law, or where a breach affects the result. The Supreme Court in the Raila case, binding on lower courts, endorsed the same philosophy. The section acknowledges human imperfection without lowering the constitutional standard.

Unlike ordinary first appeals, where the appellate court reappreciates evidence as in a retrial, Section 85A confines election petition appeals to matters of law. The Court applied Selle v Associated Motor Boat Co, Mwangi v Wambugu, Mwanasokoni v Kenya Bus Services and Mbogo v Shah to hold that the trial judge, having seen and heard the witnesses, was better placed to assess credibility and demeanor, and that no error of principle was demonstrated here.

The Court applied both the qualitative test (integrity and fairness of the process per Articles 81 and 86) and the quantitative or materiality test (whether the outcome could have been different). The admitted transposition, arithmetic and documentation errors were explained as human errors, affected all candidates, and were not shown to be deliberate, negligent or systemic. The margin between Olekina and Tunai was incapable of creating a reasonable doubt as to the winner.

Relying on Dickson Mwenda Kithinji v Gatirau Peter Munya, the Court held that merely stating that human error is responsible is not proof of the error. Where mistakes are premeditated, persistent, multiple, systemic or reveal a pattern, the integrity and credibility of the results are questioned. On the facts, the errors here - though numerous - were explained, affected every candidate, and did not reach the threshold of systemic failure.

After the 2010 amendments to the Court of Appeal Rules and the codification of the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act, the decree is no longer treated as a fatal primary document. Article 159 of the Constitution requires justice without undue regard to procedural technicalities. The appellant complied substantially and promptly cured the defect, and the identical certified decree was later filed by supplementary record under Rule 92 CAR.

Rule 2 of the Elections (Parliamentary & County Elections) Rules defines a respondent as including any person whose conduct is complained of in relation to an election. Since serious allegations were levelled against the Returning Officers before they were withdrawn and found unproved, their joinder was necessary. Costs follow the event mandatorily under Section 84, and the only omission in the High Court - failing to cap the costs under Rule 36 - was corrected by this Court on appeal.