Michael Mungai v Independent Electoral and Boundaries Commission & 2 others [2014] KECA 786 (KLR)
The bottom line
#The Court of Appeal dismissed a losing candidate's challenge to a Ford-Kenya nomination because he brought no evidence proving he had been nominated.
What this practically means
#Executive summary
#Key legal issues
#Whether the five-judge bench erred in dismissing the application for review
No error was established; no new and important matter, no error apparent on the face of the record, nor any other sufficient reason for review was raised before the High Court
The review application under Order 45 Rule 1(1) and Section 80 of the Civil Procedure Act must be grounded on discovery of new and important matter, a mistake or error apparent on the face of the record, or other sufficient reason. The appellant raised none of these in his application, grounds or supporting affidavit, and the Court could identify no other sufficient reason to have warranted the exercise of the High Court's discretion in his favour.
Whether the appellant was duly nominated as the Ford-Kenya candidate
The appellant failed to produce evidence proving his nomination or that IEBC replaced his name with that of Maloba; the burden of proof was on him and was not discharged
As the party asserting nomination, the appellant bore the legal burden. He did not annex the proceedings before the IEBC Committee, produced no party list showing his name was submitted to IEBC, and adduced no evidence that Maloba was disqualified or that IEBC substituted names. The evidential burden never shifted, and the findings of fact by the court below could not be disturbed on appeal.
Whether a repeat election should be ordered and the gazettement of the MP nullified
The Court declined; the winning candidate was from a different party and was not a party to the proceedings, and jurisdiction to nullify an election lies only in an election petition in the High Court
The seat was won by Hon. John Ndirangu of TNA, who was neither party to the High Court application nor to the appeal. Internal disputes within Ford-Kenya could not affect the lawful outcome of an election won by an outsider. Further, counsel for IEBC correctly submitted that only a High Court election petition can ground nullification of an MP's election, a jurisdiction this Court does not possess.
Whether the appellant is entitled to damages for violation of fundamental rights
The claim was not entertained because it did not arise from the impugned High Court decision
The appeal was against the dismissal of a review application; any claim for damages for violation of rights under Articles 38, 91 and 92 had never been determined by the court below and thus did not arise from the impugned decision. An appellate court cannot determine a question that was not part of the decision under appeal.
Legal principles established
#- An appellate court will not interfere with a finding of fact by the trial court unless it is based on no evidence, on a misapprehension of the evidence, or the judge acted on wrong principles
- A memorandum of appeal must set out concisely, under distinct heads and without argument or narrative, the grounds of objection to the decision appealed against
- An application for review under Order 45 Rule 1(1) must be founded on discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, and be brought before the bench that made the decision
- The legal burden in an electoral cause rests on the petitioner or applicant, with the evidential burden shifting depending on how effectively it is discharged
Court orders
#- 1.The appeal is dismissed
- 2.The appellant to pay costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- JR Cause No. 53 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court's ruling on an application for review in a judicial review cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Mungai v Independent Electoral and Boundaries Commission & 2 others [2014] KECA 786 (KLR)", Case Analysis (2014). Civil Appeal No. 206 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/786/eng@2014-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.