Buyu v Independent Electoral and Boundaries Commission & 2 others (Civil Appeal 40 of 2013) [2014] KECA 809 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the challenge to Kisumu West MP's election, ruling that failing to serve the petition on respondents was fatal, though undue-influence findings were overturned.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure to serve the election petition on the 2nd and 3rd respondents personally or by advertisement was a fatal defect or a waivable irregularity
- 2.Whether the election court could apply provisions of the Civil Procedure Act to election petitions, a special jurisdiction
- 3.Whether the appellant proved threats, intimidation and undue influence attributable to the respondents to the requisite standard
- 4.Whether irregularities in Forms 35 and 36 (unsigned, undated, altered) affected the result of the election so as to void it
- 5.Whether the deposit of security for costs was made in time and in a valid manner
- 6.Whether the election court was entitled to cap costs at Kshs. 1,500,000 rather than remit them to the Registrar for taxation
Key legal issues
#Effect of failure to serve an election petition on respondents
Failure to serve the petition on the 2nd and 3rd respondents personally or by valid advertisement went to the root of the petition; the trial judge erred in treating it as a waivable irregularity under civil procedure principles.
The court traced the constitutional footing of service (Article 87(3)), the Elections Act section 77(2) and Rule 13 of the 2013 Rules, and reviewed a line of Kenyan, English and Indian authority holding election petitions to be a special statutory jurisdiction in which strict compliance with service rules is mandatory and cannot be waived by participation. The judge's contrary holding was a misdirection on the law.
Undue influence through threats and intimidation
The appellant did not prove undue influence to the requisite standard; the trial judge's finding against the respondents was unsupported by the evidence and was set aside.
The only witness on the allegation saw a defaced billboard, did not herself report to police, and her suspected authors were never established; the proposed witnesses never swore affidavits; the police took no action; and the trial judge had himself found no eyewitness and no basis to blame the 3rd respondent. His finding of undue influence was therefore a misdirection.
Irregularities in Forms 35 and 36 and their effect on the result
Non-compliance with the written law relating to Forms 35 and 36 did not void the election because the appellant did not prove that it affected the result within the meaning of section 83 of the Elections Act.
The court applied section 83 of the Elections Act, which spares an election from being declared void where the election was conducted in accordance with constitutional principles or the non-compliance did not affect the result. The overall picture was that the final results announced were reflective of the votes garnered by each candidate.
Deposit of security for costs
The deposit of security for costs by two bankers' cheques on 19th April 2013, within 10 days of presentation of the petition on 10th April 2013, was a valid and timely payment.
Section 78(1) of the Elections Act requires deposit within 10 days of presentation. The endorsement on the deposit slip that cheques would be given value when paid has no legal bearing; the legal requirement was payment by a means recognised in normal banking processes.
Award and capping of costs in election petitions
Unlike section 27 of the Civil Procedure Act which confers a discretion, section 84 of the Elections Act mandates the election court to award costs, which follow the cause, and Rule 36 empowers it to specify and cap the total amount payable.
The court distinguished the mandatory costs regime under the Elections Act and the 2013 Rules from ordinary civil practice, upheld the capping of costs at Kshs. 1,500,000 as within the election court's mandate, but clarified that the 1st and 2nd respondents and the 3rd respondent, being separately represented, were each awarded costs not exceeding that sum.
Legal principles established
#- Service of an election petition on every respondent is a fundamental step; failure to serve goes to the root of the petition and cannot be cured by waiver or participation in proceedings, and civil procedure rules on service do not apply to election petitions.
- Electoral law is a special jurisdiction created by the Constitution and statute and must be interpreted strictly within its own provisions; ordinary civil process is inapplicable except where the election rules are silent.
- Article 159(2)(d) of the Constitution does not excuse non-compliance with mandatory procedural requirements in election petitions.
- Payment of security for costs by bankers' cheques within the 10-day period stipulated by section 78(1) of the Elections Act is a good and proper payment notwithstanding an endorsement that cheques will be given value when paid.
- An election court has statutory authority under Rule 36 of the Petition Rules, 2013 to specify and cap the total amount of costs payable rather than leaving taxation to the Registrar.
Court orders
#- 1.The appellant's appeal is dismissed with costs to the respondents
- 2.The findings of the learned judge on undue influence against the respondents are set aside
- 3.The order on costs is varied so that the 1st and 2nd respondents, on the one hand, and the 3rd respondent, on the other, are each awarded costs not to exceed Kshs. 1,500,000
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- Kisumu Petition No. 2 of 2013
- Jurisdiction invoked
- Section 85A of the Elections Act No. 24 of 2011 (appeals limited to matters of law only); Rule 35 of the Elections (Parliamentary and County Elections) Petition Rules, 2013
Relief refused
#Appellant's prayer that the appeal be allowed and the election of the 3rd respondent be set aside
Appeal had no merit; appellant did not prove to the required standard that irregularities or undue influence affected the election result
Appellant's claim of undue influence through threats and intimidation
Evidence was hearsay; police took no action; no eyewitness to the alleged destruction of the billboard
Appellant's claim that unsigned and altered Forms 35 and 36 voided the election
Non-compliance did not affect the result; final results were reflective of votes garnered by each candidate
Respondents' cross-appeal against the capping of costs at Kshs. 1,500,000
Rule 36 of the 2013 Rules gave the election court authority to specify the total amount of costs payable
Costs
Appeal dismissed with costs to the respondents; cross-appeals succeed in part: the 1st and 2nd respondents, on the one hand, and the 3rd respondent, on the other, are each awarded costs not to exceed Kshs. 1,500,000; the findings on undue influence are set aside
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.
Having considered the whole matter, the Memorandum of Appeal, the cross-appeals, the submissions made before us and the law, we are satisfied that the appeal has no merit and we accordingly dismiss it with costs to the respondents. The cross -appeals succeed to the extent that we set aside the findings of the learned judge on undue influence against the respondents and we also vary the order on costs as set out in this judgement.
Failure to serve the petition upon the respondents went into the root of the petition and the petition could not stand when there was failure to serve the same.
the courts in Kenya and elsewhere have interpreted electoral law strictly within the corners and confines of the same as electoral law is a special jurisdiction created by the constitution and statues and civil process is not applicable to the same.
It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from courts of law
we are of the respectful opinion that it is difficult to find how the learned judge could have reached the conclusion that any of the respondents were involved in any act that amounted to threats or intimidation that would constitute undue influence.
the appellant did not prove to the required standard that there were anomalies or irregularities in the conduct of the election that affected the results as would void the same.
The election court was within its mandate to cap costs as it did as the relevant rule which we have set out gave it authority to do so.
Issues in the judgment
#The judgment refers in one place to the Elections (Parliamentary and County Election) Petition Rules 2012 and elsewhere to the Elections (Parliamentary and County Elections) Petition Rules, 2013, quoting the same Rule 13
The Rules quote of Rule 36 subrule (3) appears incomplete in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Buyu v Independent Electoral and Boundaries Commission & 2 others (Civil Appeal 40 of 2013) [2014] KECA 809 (KLR)", Case Analysis (2014). Civil Appeal No. 40 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/809/eng@2014-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.