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Court of AppealPartially AllowedCivil Appeal 38 of 2013· [2014] KECA 884 (KLR)

Dickson Mwenda Githinji v Gatirau Peter Munya & 2 others

Court of Appeal
12 March 2014
AVAlnashir VisramJMJ. MohammedJOJ. Otieno-Odek
40,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~161 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal nullified the Meru Governor's 2013 election because tallying errors on a razor-thin margin made the declared result unreliable.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Visram, J. Mohammed and J. Otieno-Odek, JJA) allowed the appellant's appeal against the dismissal by Makau J of his petition challenging the election of Gatirau Peter Munya as Governor of Meru County in the 4th March 2013 elections, won by a margin of 3,436 votes (0.819% of votes cast). The Court held that the trial Judge failed his cardinal duty to independently evaluate the evidence, adopting the phraseology and an erroneous margin figure from the 1st Respondent's written submissions, and failed to evaluate the testimony of DW10, the IEBC witness who admitted multiple tallying errors. Applying quantitative and qualitative tests, the Court found the tallying process inaccurate, inefficient and unverifiable: results were omitted from the final tally, Forms 35 and 36 contained unexplained discrepancies, alterations were not countersigned, and Forms were unsigned. Given the narrow margin, these errors materially affected the declared result. The Court also established binding propositions: the evidential burden to prove registered voters lies on the IEBC; human error must be proved and is no blanket excuse; scrutiny of a constituency means scrutiny of all its polling stations; estoppel and waiver are inapplicable in electoral law; and the Court of Appeal has jurisdiction over interlocutory election-court rulings. The High Court judgment was set aside, Munya's election declared null and void, a certificate ordered to issue to IEBC, the arrest orders against PW4 and PW6 set aside in favour of a DPP recommendation, and costs awarded against the 2nd Respondent, with the 1st Respondent bearing his own costs of the appeal.

Key legal issues

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01

Materiality of tallying irregularities on a narrow margin

Holding

The errors and irregularities disclosed materially affected the results given the 3,436-vote (0.819%) margin; the declared results were not accurate, verifiable and accountable.

Reasoning

The Court applied both quantitative and qualitative tests. The scrutiny and recount revealed errors in all seven stations; DW10's testimony disclosed unexplained discrepancies, unsigned and uncounted forms, and results omitted from the tally. With a margin under one per cent, accurate tallying would significantly reduce or wipe out the margin, so the result was materially affected.

02

Independent evaluation of evidence by the trial judge

Holding

The trial Judge failed to independently evaluate the evidence, adopting the phraseology of the 1st Respondent's written submissions and an erroneous margin figure.

Reasoning

The judgment mirrored paragraphs 62-65 of the 1st Respondent's submissions, and the margin figure shifted between 3,336 and 3,436 following the Respondents' submissions. The Court held the coincidences too many to be typographical and found the Judge failed his cardinal duty of independent evaluation, including of DW10's testimony.

03

Burden of proving registered voters

Holding

The trial Judge erred in placing the burden of proving the total number of registered voters on the Petitioner; that evidential burden lies on the IEBC under section 112 of the Evidence Act.

Reasoning

The IEBC is the constitutional and statutory custodian of the voters' register. The number of registered voters is a fact especially within IEBC's knowledge; failure to produce a certified figure meant IEBC did not discharge its evidential burden. This duty is constant and cannot shift to the Petitioner.

p. 31
04

Scope of scrutiny - polling stations vs constituencies

Holding

The trial Judge erred in placing a restrictive, technical interpretation on rule 33(4); scrutiny of a constituency means scrutiny of all polling stations in it.

Reasoning

Guided by article 159 and purposive interpretation, and by precedent where courts ordered constituency-wide scrutiny, the Court held section 82 of the Elections Act empowers scrutiny of votes, not polling stations only, and a regulation cannot add a limitation absent from the statute. The trial Judge also erred in not ordering scrutiny in all polling stations in the four pleaded constituencies.

p. 42
05

Expunged annexures DMK2, DMK3 and DMK4

Holding

The trial Judge erred in striking out the annexures; being expressly referred to in the Petition they were part of the pleadings, and the decision was made per incuriam.

Reasoning

Rule 9(3)(b) makes the supporting affidavit mandatory and admissible; documents referred to in pleadings become part of them. Errors in the annexures went to weight, not admissibility. Striking them out breached natural justice and denied the Judge the chance to test the allegations judicially.

06

Human error as a defence

Holding

Human error may excuse single, isolated, random errors, but the Respondents failed to prove its existence for the multiple errors on record.

Reasoning

The burden of proving human error rests on the party asserting it. Multiple, persistent errors point to inefficiency, negligence or deliberate conduct and affect the credibility of declared results. The Court could not say with certainty that human error caused the mistakes because there was no evidence.

07

Arrest and prosecution of PW4 and PW6

Holding

The trial Judge erred in ordering their arrest and prosecution without complying with sections 87(1) and (2) of the Elections Act.

Reasoning

PW4 and PW6 were not parties on trial. The proper course upon satisfaction that an electoral offence may have been committed was to report to the DPP after giving the persons an opportunity to be heard, as section 87 requires. The order was set aside and substituted with a recommendation to the DPP.

08

Jurisdiction over interlocutory rulings of the Election Court

Holding

The Court of Appeal has jurisdiction to hear appeals from interlocutory rulings of the High Court sitting as an election court.

Reasoning

Article 164(3) does not exclude interlocutory appeals; section 80(3) of the Elections Act is not an ouster clause. Karanja v Kabugi and Mudavadi v Kibisu support supervisory appellate control over interlocutory election proceedings, and the Supreme Court's Joho dictum guided the Court to assume jurisdiction.

Legal principles established

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  • The Court of Appeal has jurisdiction to hear appeals from interlocutory orders of the High Court sitting as an election court; section 80(3) of the Elections Act is not an ouster clause.
  • The evidential burden to prove the total number of registered voters rests on the IEBC as statutory custodian of the voters' register and cannot shift to the Petitioner.
  • Human error is not a blanket excuse for tallying errors; the party raising it must prove it, and multiple persistent errors cease to be human error.
  • Scrutiny and recount in a constituency means scrutiny and recount in all polling stations within that constituency; a regulation cannot add a limitation absent from the enabling statute.
  • The doctrine of estoppel or waiver is inapplicable in electoral law; absence of a complaint at a polling station does not bar challenge to declared results.
  • A margin of less than one per cent (0.819%) between winner and runner-up cannot be described as wide; errors materially affecting such a margin vitiate the declared result.
  • A trial judge must independently evaluate the evidence; cut-and-paste adoption of a party's written submissions is an error of law.

Court orders

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  1. 1.Judgment of the High Court dated 23rd September 2013 and all consequential orders and decree set aside
  2. 2.Declaration that the Meru gubernatorial elections of 4th March 2013 did not meet the constitutional threshold in article 81(e)(iv) & (v) and article 86 of the Constitution
  3. 3.Election of the 1st Respondent as Governor for Meru County declared null and void; 1st Respondent declared not validly elected
  4. 4.Certificate to issue to IEBC under section 86(1) of the Elections Act certifying the nullity; IEBC to notify the relevant Speaker
  5. 5.Order directing arrest and prosecution of PW4 and PW6 set aside and substituted with a recommendation to the Director of Public Prosecutions to investigate
  6. 6.Costs orders as set out below, to be verified and taxed by the Deputy Registrar

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 3, 38, 81, 81(e), 86, 159, 164(3), 165(3)(a)
  • Elections ActSections 2, 63, 64, 75, 80(1)(c), 80(1)(d), 80(3), 82, 83, 85A, 86(1), 87(1) & (2)
  • Elections (General) Regulations, 2012Regulations 5(4), 33(4), 62, 69, 74, 75(3) & (4), 79, 80, 82, 83(1)(a), 85, 87
  • Election (Parliamentary and County Elections) Petition Rules, 2013Rules 9(3)(b), 10, 12(4), 17(1)(d), (g), (j), 33(4), 35
  • Evidence ActSection 112
  • Oaths and Statutory Declaration Act (Cap 15)Sections 4 & 5
  • IEBC ActSection 25(e)
  • Appellate Jurisdiction ActSection 3
  • Civil Procedure ActSection 3 (referred to)

Cases cited (65)

  • Raila Odinga & others v Independent Electoral and Boundaries Commission & others
    Petition No 5 of 2013

    Burden and standard of proof; materiality principle; BVR register; electronic transmission; data-specific requirements

  • John Kiarie Waweru v Beth Wambui Mugo & 2 others
    [2008] eKLR

    Standard of proof in election petitions - higher than balance of probabilities, lower than beyond reasonable doubt

  • Morgan v Simpson
    [1975] QB 15, [1974] 3 All ER 722

    Lord Denning's three-limb test on when elections are vitiated

  • William Kabogo Gitau v George Thuo & 2 others
    [2010] eKLR

    Invalidity of unsigned/unaltered-countersigned forms; returning officer cannot delegate; discrepancies as malpractice

  • Manson Oyongo Nyamweya v James Omingo Magara & 2 others
    Kisii Election Petition No 3 of 2008

    Failure to sign Form 16A; inflated results; ballot counterfoils; qualitative test

  • James Omingo Magara v Manson Oyongo Nyamweya
    [2010] eKLR

    Presiding officer personally signing forms; free and fair process

  • William Odhiambo Oduol v IEBC & others
    Election Petition 2 of 2013

    Alterations and errors decided on own merits; countersigning of alterations

  • Musinguzi Garuga James v Amama Mbabazi & The Electoral Commission
    Election Petition No HCT-05-CV-EPA-003 of 2001

    Qualitative test applied despite large margin

  • Simon Nyaundi Ogari & another v Joel Omagwa Onyancha & 2 others
    [2008] eKLR

    Scrutiny anomalies; exclusion from tallying centre and effect on outcome

  • Thomas Malinda Musau & 2 others v IEBC
    [2013] eKLR

    Duty to report malpractices; failure to sign Form 35 does not necessarily nullify elections

  • Benard Shinali Masaka v Boni Khahvale & 2 others
    [2011] eKLR

    Presence of District Commissioner at tallying centre not illegal

  • Phillip Osore Ogutu v Michael Onyura Aringo & 2 others
    (2013) eKLR

    Evidence beyond pleadings must be rejected or disregarded

  • Wavinya Ndeti v IEBC & 4 others
    (2013) eKLR

    Guarding against sneaking in fresh evidence

  • Rishad Hamid Ahmed Amana & 2 others
    Malindi Election Petition No 6 of 2013

    Margin unaffected even if disputed votes added

  • Medhurst v Lough and Gasquet
    (101) 5 O'M & H 120, 17 TLR 210, 230

    Election not void for innocent transgressions not affecting result

  • Joho v Nyange
    (2008) 3 KLR (EP)

    Deliberate vs innocent errors; not every non-compliance invalidates an election

  • Shri Kirpal Singh v Shri V Giri
    [1970] INSC 191

    Undue influence is criminal in nature, requiring cogent proof

  • Steven Kariuki v George Mike Wanjohi & others
    Nairobi EP No 2 of 2013

    Section 83 in negative language; rebuttable presumption of proper conduct

  • Mohammed Ali Mursal v Saadia Mohammed & 2 others
    [2013] eKLR

    Rebuttable presumption in favour of respondents

  • Mokwaledi Bagwasi v Seabe Morueng & another
    Misc App F 228 of 2004

    Petitioner alleging bias must adduce evidence of the manner of bias

  • Harun Meitamei Lempaka v Lemanken Aramat
    EP No 2 of 2013 (Nakuru)

    No evidence that breaks in counting were for manipulation

  • Abubakar v Yar'Adua
    [2009] All FWLR (Pt 457) 1 SC

    Burden of proof in election petitions lies on the petitioner

  • Col D Kizza Besigye v Museveni Yoweri Kaguta & Electoral Commission
    Election Petition No 1 of 2001

    Burden of proof lies on petitioner to satisfaction of court

  • Olusola Adeyeye v Simeon Oduoye
    [2010] LPELR-CA-1/EPT/NA/67/08

    Must tally votes affected by malpractices and their impact on result

  • Nyangau v Nyakwara
    [1986] KLR 712

    Referenced on appeals from interlocutory rulings

  • Bhagat Singh v Ramanlal P Chauhan & 2 others
    (1956) 23 EACA 178

    Orders in original jurisdiction are appealable as of right

  • Karanja v Kabugi
    [1981] KLR 270

    Court of Appeal jurisdiction over interlocutory orders of election court

  • Mudavadi v Kibisu & another
    [1970] EA 585

    Appeal lies from interlocutory order not determining validity of election

  • Matiba v Moi
    [2008] KLR 525

    Appeal lies from every High Court decision unless expressly excluded; election court retains original jurisdiction

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

    Jurisdiction over interlocutory appeals; quantitative test; tallying duties of returning officer

  • Benjamin Ogunyo Andama v Benjamin Andola Andali & 2 others
    Civil Application No 24 of 2013 (UR 11/13)

    Principle of timely disposal of election petitions

  • Kakuta Hamisi v Peris Tobiko & others
    Nairobi EP No 5 of 2013 [2013] eKLR

    Registered voters fixed at close of registration; place of Forms 35 and 36

  • Mwangi v Wambugu
    (1984) KLR 453

    Appellate court will not interfere with findings of fact absent no evidence or wrong principles

  • Akerlin and another v R De Mare and others
    (1959) EACA 476

    Reluctance to reverse findings on credibility of witnesses

  • Ogol v Muriithi
    [1985] KLR 359

    Trial court's advantage in assessing witnesses

  • Hahn v Singh
    [1985] KLR 716

    Appellate interference with credibility findings

  • Watt or Thomas v Thomas
    [194] AC 484

    Conflict of primary facts and credibility

  • Whitehouse v Jordan
    [1981] 1 WLR 246

    Appellate restraint on credibility findings

  • Ilanga v Manyoka
    1961 EA 705

    Court must be satisfied as to circumstances leading to unreliability

  • Tayab v Kinanu
    [1983] KLR

    No interference with credibility-based findings unless wrong in principle

  • Kibaki v Moi
    2 KLR 301

    Deponent of affidavit may be cross-examined on its contents

  • Mbowe v Eliufoo
    [1967] EA 240

    Meaning of 'affected the result'; large majority not affected by non-compliance

  • Winnie Babihuga v Masiko Winnie Komuhangi & others
    HCT-00-CV-EP 0004-2001

    Quantitative and qualitative tests nomenclature

  • Hari Vishnu Kamath v Syed Ahmed Ishaque
    (1955) 1 SCR 1104; AIR 1955

    Improper reception of votes materially affecting narrow margin voids election

  • Wabuge v Limo & another
    (2008) 1 KLR (EP) 417

    Serious and grave state of affairs from scrutiny; reasons for granting scrutiny

  • William Maina Kamanda v Margaret Wanjiru Kariuki & 2 others
    [2008] eKLR

    Purposes of scrutiny; returning officer cannot depart from Form 16A figures

  • William Maina Kamanda
    Election Petition No 5 of 2008

    Unsigned Form 16As still taken into account

  • Joy Kabatsi Kafura v Anifa Kawooya & another
    Election Petition No 25 of 2005

    Flaw in any electoral activity affects quality and result of process

  • Ayub Juma Mwakesi v Chirau Ali Mwakwere & 2 others
    Mombasa Election Petition No 1 of 2008

    Scrutiny ordered despite constituency terminology

  • Richard Kalembe Ndile v Dr Musimba Mweu & others
    Machakos Election Petition Nos 1 & 7 of 2013

    Full scrutiny in all polling stations of a constituency allowed

  • Joash Wamangoli v IEBC & others
    Bungoma HC Election Petition No 6 of 2013

    Scrutiny ordered for constituency-wide elections

  • Justus Mungumbu Omiti v Walter Enock Nyambati
    EP No 1 of 2008 (Kisii)

    All issues with potential to affect result must come under scrutiny whether pleaded or not

  • William Odhiambo Oduol v Cornell Rasanga Amoth & others
    Kisumu High Court Election Petition No 2 of 2013

    Partial scrutiny limited to constituencies; specification of polling stations under rule 33(4)

  • Phillip Mukwe Wasike v James Lusweti & 2 others
    High Court Bungoma Election Petition No 6 of 2013

    New issues or evidence in scrutiny applications

  • Nganga & another v Owiti & another
    (2008) 1 KLR (EP) 749

    Issues not pleaded cannot be introduced by evidence or submissions

  • Mohamud Muhamed Sirat v Ali Hassan Abdirahman & 2 others
    Nairobi EP No 15 of 2008 [2010] eKLR

    Decisions only on the basis of pleadings

  • Plotti v The Acasia Company Ltd
    [1959] EA 248

    Function of pleadings to give fair notice

  • Esso Petroleum Company v Southport Corporation
    [1956] All ER 864

    Function of pleadings

  • Day v William Hill
    [1949] 1 All ER 219

    Documents referred to in pleadings become part of the pleading

  • Castelino v Rodriques
    [1972] EA 233

    Reference in a document incorporates the annexture

  • Kabwimukya v John Kasiga
    (1978) HCB 251

    Incorporation of annextures by reference

  • In the Matter of Application by Mr RA Odinga to file a Further Affidavit in Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others
    [2013] KLR-SCK

    Substantial justice over technicalities; basic tenet of admitting affidavits

  • PIL Kenya Ltd v Oppong
    [2009] KLR 442

    Court must set out conflicting evidence of both parties before evaluating

  • Dickson Daniel Karaba v Hon John Ngata Kariuki & 2 others
    Election Petition No 1 of 2008 / No 2 of 2009

    Opinion on correctness of Form 35 formed after scrutiny; flawed process when matters ignored

  • Wavinya Ndeti v Alfred Nganga Mutua

    Perfection is an aspiration; errors bound to occur; did they affect the will of the people

On appeal from
High Court of Kenya at Meru
Election Petition (Meru) - judgment dated 23rd September 2013
Jurisdiction invoked
Article 164(3) of the Constitution and section 85A of the Elections Act (appeals 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 (25)

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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, "Dickson Mwenda Githinji v Gatirau Peter Munya & 2 others", Case Analysis (2014). Civil Appeal 38 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/884/eng@2014-03-12

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