M'nkiria Petkay Shen Miriti v Ragwa Samuel Mbae & 2 others [2014] KECA 698 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the Tharaka-Nithi governor's 2013 election win, ruling the losing candidate failed to prove irregularities changed the result, but cut the costs cap.
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) and did not cross-appeal the trial court's ruling on competency, so the issue was not open for consideration.
The respondents had raised timeliness of the Petition before the trial court, which dismissed the objection. They neither cross-appealed that ruling nor sought leave to raise competency at the hearing of the appeal as Rule 104(b) requires. Further, the Certificate of Delay showed proceedings were supplied on 26th November 2013; time stopped running on 10th October 2013 when proceedings were requested, so the appeal filed on 20th December 2013 was within time.
The Court's jurisdiction under Section 85A of the Elections Act
Jurisdiction is limited to matters of law only; the grounds of appeal, attacking the trial court's evaluation of evidence and legal conclusions, raised issues of law.
Section 85A confines appeals from election petitions concerning membership of the National Assembly, Senate or the office of county governor to matters of law. Drawing on King'ara and the Mary Harvey formulation, the Court held that whether the trial Judge properly considered and evaluated the evidence and arrived at a correct determination supported by law is an issue of law, though due allowance is made for not having seen the witnesses' demeanour.
Burden and standard of proof in election petitions
The burden lay on the petitioner to prove the malpractices, irregularities and offences alleged; the standard is above balance of probabilities but below beyond reasonable doubt, save for offences of a criminal nature such as bribery which require proof beyond reasonable doubt.
Relying on Raila Odinga, the Court affirmed the petitioner's burden to prove both non-compliance and its effect on validity. Allegations of bribery and of witchcraft (undue influence) are quasi-criminal and must be strictly proved. The appellant admitted neither he nor his witnesses saw the 1st respondent bribe voters; agency had to be proved by employment or authorisation. PW1's evidence was recanted and uncorroborated, and the 1st respondent's alibi stood unimpeached.
Whether the trial court erred in considering an unpleaded issue (participation of public officers under Section 43 of the Elections Act)
The trial court erred by considering the issue, which was neither pleaded nor framed, and on which the 1st respondent had no fair notice; but the error did not affect the outcome.
Pleadings serve to give fair notice of the case to be met so the opposing party may direct evidence to the issues disclosed. An issue raised for the first time in written submissions cannot afford the adversary an opportunity to lead evidence. However, since the appellant otherwise failed to prove his case, the error was not determinative of the appeal.
Scrutiny and recount and consideration of Forms 35 and 36
The discretion to order scrutiny under Section 82(1) was properly not exercised absent a basis; the trial court nonetheless considered Forms 35 and 36 annexed to the pleadings.
The power under Section 82(1) is discretionary and an appellate court will not interfere absent a demonstration that the discretion was not exercised judicially. Without proof of the alleged irregularities, ordering scrutiny would have been a fishing expedition. The ballot boxes were not availed following the court's security concerns, but Forms 35 and 36 were annexed by both sides and the Judge expressly went through them, finding the discrepancies trivial and typographical.
Who should fill in Form 35
Form 35 is completed at the polling station by the Presiding Officer, not the Returning Officer; the requirement in Regulation 83 that the Returning Officer complete it is humanly impossible and absurd.
Form 35 is a declaration of results at a polling station; the Presiding Officer is the custodian of the supporting documents and accountable for the data, and his role cannot be taken over by any officer other than his deputy. The Returning Officer fills Form 36 from information in Form 35. The trial court's recommendation for amendment of Regulation 83 to remove the absurdity was endorsed.
Whether disclosed errors and irregularities materially affected the election results
The alterations to Form 36 were lawful corrections of typographical and mathematical errors affecting all candidates, and the appellant failed to show the affected votes were substantial; the 15,275-vote margin remained intact.
Applying the quantitative test, the number of impugned votes must exceed the margin between winner and runner-up to cast doubt on the true winner; even crediting the appellant's claims, the margin of 15,275 would remain huge. Qualitatively, the appellant failed to show the election was not free, fair, transparent, accurate, accountable and verifiable as required by Articles 81 and 86. The will of the electorate was therefore reflected in the result.
Costs
Costs follow the event and the trial Judge's discretion was properly exercised in principle, but the cap of Kshs. 5 million was excessive; it was reduced to Kshs. 2.5 million.
An appellate court interferes with a discretionary award only where the judge misdirected himself or was clearly wrong. Rule 36 of the Elections Rules empowers an election court to cap total costs. Comparing the caps imposed in comparable petitions from the 2013 general elections, the Kshs. 5 million cap was excessive and out of line, warranting substitution with Kshs. 2.5 million, with the actual costs to be taxed by the taxing master.
Legal principles established
#- On an election appeal under Section 85A of the Elections Act, the Court of Appeal's jurisdiction is confined to matters of law only, and whether the trial Judge properly considered and evaluated the evidence is a matter of law.
- The burden of proof in an election petition lies on the petitioner, who must prove both non-compliance with the electoral law and that the non-compliance affected the validity of the election; the standard is higher than a balance of probabilities but below beyond reasonable doubt.
- Issues for determination in a suit flow from the pleadings, and a court cannot pronounce judgment on issues neither pleaded nor framed, since pleadings exist to give the opposing party fair notice to direct its evidence.
- An allegation that agents were unlawfully excluded from a polling station can only succeed upon proof that the excluded person was an authorized agent; proof of authorization is the sine qua non.
- Whether irregularities affected an election result is determined by both a quantitative and a qualitative test, including whether the impugned votes exceed the margin between the winner and the runner-up.
- An objection to the competence of an appeal may only be raised at the hearing with leave of the Court under Rule 104(b) of the Court of Appeal Rules if not brought by application under Rule 84.
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.Costs in the High Court not to exceed Kshs. 2.5 million
- 3.Costs of the appeal not to exceed Kshs. 1 million
- 4.The appeal, save for the ground on costs, dismissed with costs to the respondents
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; Article 164(3) of the Constitution
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 unaffected
Scrutiny and recount of votes
No basis was laid for scrutiny and recount; ordering it without basis would be a fishing expedition
A finding of bias against the trial Judge
No proof of bias; the trial court's credibility findings were grounded in its advantage of seeing and hearing the witnesses
Costs
Appeal dismissed with costs to the respondents; costs in the High Court capped at Kshs. 2.5 million; costs of the appeal capped at Kshs. 1 million; the trial court's cap of Kshs. 5 million set aside and substituted with a cap of Kshs. 2.5 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.
We find that the gubernatorial election results for Tharaka-Nithi reflected the will of the electorate.
We are of the considered view that there was no proof of bias on the part of the learned Judge as against the appellant.
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.
Issues in the judgment
#The judgment cites 'Section 63 of the Evidence Act' for the offence of undue influence, but the provision referred to throughout is Section 63 of the Elections Act; this appears to be a mis-citation.
The judgment spells the 2nd respondent's name inconsistently as 'INDEPENDENT ELECTORAL & BONDERIES COMMISSION' in the coram, a typographical error for 'Boundaries'.
The judgment states the trial court capped costs at Kshs. 3 million for the 1st respondent and Kshs. 2 million for the 2nd and 3rd respondents (total Kshs. 5 million), and elsewhere describes the cap simply as 'a cap of 5 million on the total amount of costs payable to the respondents'; the framing differs but the arithmetic is consistent.
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 698 (KLR)", Case Analysis (2014). Civil Appeal No. 47 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/698/eng@2014-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.