Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 272 of 2013· [2014] KECA 878 (KLR)

Steven Kariuki v George Mike Wanjohi & 2 others

Court of Appeal
18 March 2014
David Kenani MaragaD. K. MaragaSKS. Gatembu KairuJMJ. Mohammed
6,073 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that once IEBC declares election results and issues a certificate, it cannot reverse itself — the Mathare seat went to a fresh election.

What this practically means

#

Executive summary

#
Following the 4th March 2013 general elections, the Returning Officer for Mathare Constituency announced on 6th March 2013 that the appellant had been elected Member of the National Assembly with 34,957 votes against the 1st respondent's 32,156, and issued him a certificate of results (Form 38). Two days later, after the 1st respondent's election petition was withdrawn, the IEBC purported to cancel that certificate and issued a new one to the 1st respondent, who was then gazetted as the winner. The appellant petitioned the High Court (Election Court), which dismissed his petition, holding that results announced at the tallying hall and the Form 38 certificate were provisional under regulation 87(9) of the Elections (General) Regulations, 2012, relying on the Court of Appeal's decision in Joho v Shahbal (Civil Appeal 12 of 2013). The appellant appealed. The Court of Appeal, bound by the Supreme Court's later decision in Joho v Shahbal (Petition No 10 of 2013) under article 163(7) of the Constitution, held that the certificate in Form 38 declares the winner, terminates the Returning Officer's mandate and shifts jurisdiction over electoral disputes to the Election Court; the IEBC and Returning Officer therefore became functus officio upon the declaration on 6th March 2013 and had no power to cancel the certificate. The Court also held that the six-month timeline in article 105 of the Constitution does not limit its power to remit matters to the election court. Declining the respondents' invitation to declare the 1st respondent the winner under section 74(3)(b) of the Elections Act because the tallies announced on different dates conflicted irreconcilably, the Court allowed the appeal, set aside the election court's judgment and ordered a fresh election, with costs against the 2nd respondent capped at Kshs 1 million in the High Court and Kshs 500,000 in the Court of Appeal, the 1st respondent bearing his own costs.

Key legal issues

#
01

Whether the IEBC became functus officio upon declaration of results and issuance of the certificate of results

Holding

Yes. Following the Supreme Court's decision in Joho v Shahbal, the certificate in Form 38 declares the winner and terminates the Returning Officer's mandate; the IEBC could not cancel the certificate and issue another one.

Reasoning

Article 86(c) obliges IEBC to ensure results are openly and accurately collated and promptly announced by the Returning Officer. Article 88(4)(e) excludes disputes subsequent to the declaration of election results from IEBC's mandate. The Supreme Court's interpretation of Form 38 as declaring the winner and shifting jurisdiction to the Election Court binds this Court under article 163(7).

p. 10
02

Whether the six-month constitutional timeline for election petitions bars remittance by an appellate court

Holding

No. Article 105 does not limit the Court of Appeal's power to remit a matter to the election court; it must be construed in light of the constitutional right of appeal.

Reasoning

The respondents argued that the six-month period in article 105 and section 85A(b) of the Elections Act deprived the Court of jurisdiction to remit. The Court held this was a misapprehension: the timeline provision must be read alongside the equally important constitutional right of appeal, which preserves appellate powers to remit with appropriate directions.

p. 10
03

Whether the Court could declare the 1st Respondent the winner under section 74(3)(b) of the Elections Act

Holding

No. The results announced on different dates varied irreconcilably, so the Court was unable to determine the winner of the election.

Reasoning

The Returning Officer announced on 6th March 2013 that the appellant had 34,957 votes against the 1st respondent's 32,156, but on 8th March 2013 announced 26,916 against 27,262. The appellant's own tally gave yet different figures. Given these conflicting figures, the Court could not evaluate the Forms 35 and 36 to declare a winner and instead nullified the election.

p. 10

Legal principles established

#
  • Upon declaration of election results and issuance of a certificate of results (Form 38), the IEBC and the Returning Officer become functus officio and cannot cancel or alter the certificate; any dispute lies with the Election Court.
  • The six-month time limit in article 105 of the Constitution does not curtail an appellate court's power to remit a matter to the election court for reconsideration.

Court orders

#
  1. 1.The election court's judgment dated 13th September 2013, the decree and orders consequent thereupon set aside
  2. 2.A fresh election for the Member of the National Assembly for Mathare Constituency to be held as required by law
  3. 3.The 2nd respondent to bear the costs of the appellant both in the High Court and in the Court of Appeal, capped at Kshs 1 million in the High Court and Kshs 500,000 in the Court of Appeal
  4. 4.The 1st respondent to bear his own costs in the High Court and in the Court of Appeal

Authorities

#

Legislation

  • Constitution of Kenya, 2010article 38
  • Constitution of Kenya, 2010article 86(c)
  • Constitution of Kenya, 2010article 88(4)(e)
  • Constitution of Kenya, 2010article 105
  • Constitution of Kenya, 2010article 163(7)
  • Elections Act, 2011section 39(2)
  • Elections Act, 2011section 74(3)(b)
  • Elections Act, 2011section 85A(b)
  • Elections (General) Regulations, 2012regulation 82(1)
  • Elections (General) Regulations, 2012regulation 84
  • Elections (General) Regulations, 2012regulation 87(7)
  • Elections (General) Regulations, 2012regulation 87(9)
  • Elections (General) Regulations, 2012regulation 105
  • Industrial Court (Procedure) Rules, 2010rule 31(2)

Cases cited (13)

  • Joho, Hassan Ali v Suleiman Said Shahbal & 2 others
    Civil Appeal 12 of 2013

    Held that results announced at the tallying hall and Form 38 certificate are provisional; relied on by the election court and overruled by the Supreme Court.

  • Joho, Hassan Ali and another v Suleiman Said Shahbal and 2 others
    Petition No 10 of 2013

    Form 38 declares the winner, terminates the returning officer's mandate and shifts jurisdiction to the Election Court; binding under article 163(7).

  • Karaba v Kariuki & 2 others
    [2010] 1 KLR 321

    It is unquestionably erroneous to announce a loser as the true winner, depriving the electorate of their choice.

  • King'ara, Peter Gichuki v Independent Electoral & Boundaries Commission & 2 others
    Election Petition No 3 of 2013 / Civil Appeal No 31 of 2013

    Nullified an election where the election court erred in refusing scrutiny and recount; respondents urged it was unlawful.

  • Macharia and another v Kenya Commercial Bank and 2 others
    [2012] 3 KLR 199

    Courts cannot expand their jurisdiction through judicial craft or innovation.

  • Oboth Marksons Jacob v Otiam Otaala Emmanuel
    [2012] UGCC 2 / [2012] UGCA 2

    Applied; supports the view that power exists to declare the correct winner of an election.

  • Odinga, Raila & 5 others v Independent Electoral & Boundaries Commission & 3 others
    Petition Nos 5, 3 & 4 of 2013

    Judicial notice of failure of electronic transmission; returning officer and IEBC have no power to revoke Form 35.

  • Salat, Nicholas Kiptoo Arap Korir v Independent Electoral & Boundaries Commission & 7 others
    Election Petition No 1 of 2013

    An election petition is not a matter in which only the candidates are interested; the public is substantially interested in the outcome.

  • Waibara, Clement Kungu v Bernard Chege Mburu & 2 others
    Civil Appeal No 205 of 2011

    Where Forms 35 and 36 produced are disputed copies, the election is not transparent, free and fair and should be annulled.

  • Bracegirdle v Oxley
    [1947] 1 All ER 126

    In determining whether an election court properly performed its duty, the appellate court must be satisfied it acted judiciously and correctly applied the law.

  • Timami Issa Abdalla v Swaleh Salim Swaleh Imu and 3 others
    (2014) eKLR

    Cited for the Bracegirdle v Oxley proposition on reviewing an election court's performance.

  • John Oroo Oyoka v IEBC and 2 others
    2013 eKLR

    Cited in support of the view that power exists to declare the 1st Respondent the winner.

  • Dickson Daniel Karaba v John Ngata Kariuki and 2 others
    Election Petition No 3 of 2008 (2010) eKLR

    Erroneous declaration of a loser as winner; basis for invoking section 74(3)(b) to declare the correct winner.

On appeal from
High Court of Kenya at Nairobi (Election Court)
Election Petition No. 2 of 2013
Jurisdiction invoked
Article 163(7) of the Constitution of Kenya, 2010 (first appeal from the Election Court); Supreme Court decision in Joho binding under article 163(7)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Steven Kariuki v George Mike Wanjohi & 2 others", Case Analysis (2014). Civil Appeal 272 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/878/eng@2014-03-18

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