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Court of AppealPartially AllowedCivil Appeal No. 39 of 2013· [2014] KECA 848 (KLR)

Khatib Abdalla Mwashetani v Gideon Mwangangi Wambua, Hassan Nyanje Charo, The Independent Electoral & Boundaries Commission & Juma Musa Juma

Court of Appeal
23 January 2014
HOH. OkwenguKMK. M'InotiFSF. Sichale
10,838 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated Lunga Lunga MP Mwashetani, ruling that 'improper influence' is not a separate election-nullification ground and minor irregularities don't overturn elections.

What this practically means

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Executive summary

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The Court of Appeal (Okwengu, M'Inoti & Sichale, JJA) gave reasons for its decision allowing the appellant's appeal against the judgment of Odunga J of 26th September 2013, which had nullified the appellant's election as Member of National Assembly for Lunga Lunga Constituency. The 1st and 2nd respondents (voters) had petitioned on grounds of bribery, undue influence, lack of transparency and inaccuracy. The election court rejected undue influence and bribery but found 'improper influence' under Article 81(e)(ii) and administrative irregularities, nullifying the election. The Court of Appeal held that improper influence is not a distinct ground for nullification: it is the same conduct criminalised as undue influence under section 63 of the Elections Act, and must be proved to the standard of above balance of probability but below beyond reasonable doubt. The election court's finding - based on abandoned campaign promises - was condemned as an impermissible judicial audit of an MP's performance, a matter reserved to voters through the recall mechanism. The Returning Officer's correction of Form 36 was part of his collation duty; the irregularities did not affect the result and the election was substantially in accordance with the law. Preliminary objections on non-service of the Attorney General (an amicus curiae), omissions in the record, and grounds of fact were overruled. The cross-appeals on bribery and costs failed. The appeal was allowed, both petitions dismissed, the appellant declared validly elected, and the 1st and 2nd respondents ordered to bear the appellant's costs in both courts.

Key legal issues

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01

Distinction between improper influence and undue influence

Holding

There is no distinction; improper influence under Article 81(e)(ii) is the conduct covered as undue influence under section 63 of the Elections Act.

Reasoning

The court reasoned that Article 81 sets general principles given specificity by legislation; Part VI of the Elections Act operationalises Article 81(e)(ii). Black's Law Dictionary offers no separate definitions. If improper influence were distinct, its content and standard of proof would be unascertainable in advance, contrary to the requirement that prohibited conduct be spelt out with clarity. The repealed Elections Offences Act shows these are not new constitutional concepts.

p. 10
02

Standard of proof for improper influence

Holding

The election court erred in failing to address the standard of proof and in applying a lower standard than that prescribed for election offences.

Reasoning

Following the Supreme Court in Raila Odinga, the standard for election offences and such conduct is above balance of probability but below beyond reasonable doubt. The election court rejected the same evidence on undue influence yet used it to find improper influence, indicating a lower standard was applied. Failure to address the standard of proof may indicate the issue was never considered (R.G. Patel v Lalji Makanji).

p. 12
03

Judicial audit of election promises

Holding

The election court's finding that the appellant's abandoned campaign promises constituted improper influence was a judicial audit with no legal basis.

Reasoning

The finding sounded like an audit of the appellant's parliamentary performance a few months into a five-year term, with no evidence of the time frame for delivering pledges. Whether an MP keeps promises is reserved to the electorate through the recall mechanism under Article 104 and Part IV of the Elections Act. The conduct was too general and elastic to found nullification.

p. 11
04

Conduct of the Returning Officer and substantial compliance

Holding

The Returning Officer's correction of Form 36 was part of his collation duty under Article 86(c); the irregular recount did not affect the results and the election was substantially in accordance with the law.

Reasoning

The corrections rectified transposition errors from corrected Forms 35; the appellant remained in the lead. There was no persistent pattern of irregularities, no tampering with ballot boxes, and no finding of deliberate manipulation. Under section 83(3) of the Election Act and Optiz v Wrzesnewsky, only irregularities affecting the result and undermining integrity justify nullification.

p. 13
05

Competence of the appeal - preliminary objections

Holding

The objections based on non-service of the Attorney General, omissions in the record, and grounds of fact were overruled; the appeal raised issues of law under section 85A.

Reasoning

The Attorney General was amicus curiae, not a party directly affected under Rule 77(1); the cited authorities were distinguishable and predated the current constitutional dispensation under Article 159(d). Omissions were curable under Rule 92(1). Whether grounds raise law or fact required evaluation of conclusions from primary facts, so it was wrongly brought as a preliminary issue.

p. 7
06

Bribery cross-appeal

Holding

The finding that the Mwashetani Foundation's cheques did not amount to bribery involved no misdirection on the law and was upheld.

Reasoning

The Foundation was registered in 2010 and carried out activities long before the electioneering period; residents sought help from it. Continuing pre-election development activities does not amount to bribery unless so intertwined with the elections that the two cannot be separated. This being an appeal on points of law, the court found no misdirection.

p. 15

Legal principles established

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  • Improper influence under Article 81(e)(ii) of the Constitution is not a distinct ground for nullifying an election; it is the same conduct criminalised as undue influence under section 63 of the Elections Act.
  • Conduct termed undue or improper influence must be established to the standard of above the balance of probability, though not as high as beyond reasonable doubt.
  • A judge determining an election petition should not audit whether a candidate has kept election promises; recall of MPs is reserved to voters under Article 104 and Part IV of the Elections Act.
  • Isolated administrative irregularities that do not affect the result do not invalidate an election; only irregularities affecting the result and undermining the integrity of the electoral process justify nullification.
  • The Attorney General attending an election petition under Rule 39 of the Elections (Parliamentary and County Election) Petition Rules is amicus curiae, not a party directly affected requiring service of notice of appeal under Rule 77(1).
  • On an appeal limited to matters of law, the appellate court interferes only where the conclusions are conclusions of law that cannot reasonably be drawn from the lower court's findings of fact.

Court orders

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  1. 1.The appeal is allowed; the judgment of the election court is set aside, including the order declaring the election of the appellant void, and is substituted with an order dismissing both petitions
  2. 2.The appellant is declared the validly elected member of the National Assembly for Lunga Lunga Constituency
  3. 3.The certificate issued by the trial Judge under section 86(1) of the Elections Act shall be recalled and a certificate shall issue confirming the election of the appellant
  4. 4.The 1st and 2nd respondents shall bear the costs of the appellant in the election court and the costs in this Court, to be assessed by the Court Registrar
  5. 5.The cross-appeals are dismissed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 101(4)(b)
  • Constitution of Kenya, 2010Article 81(e)
  • Constitution of Kenya, 2010Article 86
  • Constitution of Kenya, 2010Article 88(4)(e)
  • Constitution of Kenya, 2010Article 104
  • Constitution of Kenya, 2010Article 159(d)
  • Constitution of Kenya, 2010Article 2(4)
  • Constitution of Kenya, 2010Article 87(2)
  • Elections Act, 2011Section 85A
  • Elections Act, 2011Sections 62, 63, 64, 65
  • Elections Act, 2011Section 74
  • Elections Act, 2011Section 83(3)
  • Elections Act, 2011Section 87
  • Elections Act, 2011Section 76(1)(a)
  • Elections Act, 2011Section 86(1)
  • Election (General) Regulations, 2012Regulation 79
  • Election (General) Regulations, 2012Regulations 83(1)(a) and 86
  • Elections Offences Act (Repealed), Cap 66Section 9
  • Independent Electoral and Boundaries Commission Act
  • Court of Appeal RulesRule 32(6)
  • Court of Appeal RulesRule 77(1)
  • Court of Appeal RulesRule 91
  • Court of Appeal RulesRule 92(1)
  • Court of Appeal RulesRule 39
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 10(1)(e) and 10(3)
  • Elections (Parliamentary and County Elections) Petition Rules, 2013Rule 39
  • Appellate Jurisdiction ActSection 3B

Cases cited (12)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696

    Definition of a preliminary objection as a pure point of law

  • Ahn vs Openda
    (1982) KLR 31

    Service of notice of appeal on persons directly affected (cited by 1st respondent)

  • Ruithibo v Nyingi
    [1984] 505

    Service of notice of appeal on persons directly affected (cited by 1st respondent)

  • Onjula Enterprises Ltd. Vs Sumaria
    (1986) KLR 651

    Service of notice of appeal on persons directly affected (cited by 1st respondent)

  • Timamy Issa Abdalla v Swaleh Salim Imu Swaleh & 3 Others
    CA No 36 of 2013

    Principles governing a first appeal limited to matters of law in election appeals

  • Peters vs Sunday
    (1958) EA 424

    Principles for reconsideration of evidence on a first appeal

  • Selle vs Associated Motor Boats Company Limited
    (1968) EA 123

    First appellate court's cautious jurisdiction to re-evaluate evidence

  • Attorney General v David Marakaru
    (1960) EA 484

    A decision is erroneous in law if it is one to which no court would reasonably come

  • Raila Odinga and Others vs Independent Electoral and Boundaries Commission & 3 Others
    Supreme Court Election Petition No 5 of 2013

    Standard of proof in election petitions - above balance of probability, below beyond reasonable doubt

  • R. G Patel vs Lalji Makanji
    (1957) EA 314

    Importance of a court addressing its mind to the standard of proof

  • Islington West Division Case, Nedhurst vs. Lough and Gasquet
    [1901] 5 O & H 120, 17 TLR 210, 230

    An election ought not be void for transgressions without corrupt motive where the result was not affected

  • Optiz vs Wrzesnewsky
    [2012] SCC 55

    Only irregularities affecting the result and undermining electoral integrity are grounds for overturning an election

On appeal from
High Court of Kenya at Mombasa
H.C. Election Petition No. 4 of 2013 consolidated with Election Petition No. 9 of 2013
Jurisdiction invoked
Section 85A of the Elections Act (appeal from election court on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Khatib Abdalla Mwashetani v Gideon Mwangangi Wambua, Hassan Nyanje Charo, The Independent Electoral & Boundaries Commission & Juma Musa Juma", Case Analysis (2014). Civil Appeal No. 39 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/848/eng@2014-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.