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Court of AppealPartially AllowedCivil Appeal 36 of 2013· [2014] KECA 888 (KLR)

Timamy Issa Abdalla v Swaleh Salim Swaleh Imu & 3 others

Court of Appeal
13 January 2014
HOH M OkwenguMAM A Asike-MakhandiaFSF Sichale
16,807 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~67 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated Lamu Governor Timamy, ruling that missing ballot counterfoils and vote bundles were administrative mistakes that did not affect the election result.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Malindi (Okwengu, Asike-Makhandia and Sichale, JJA) reserving reasons, under rule 32(6) of the Court of Appeal Rules, for its 21st November 2013 decision reinstating Timamy Issa Abdalla as Governor of Lamu County. The appeal lay under section 85A of the Elections Act on matters of law only, from Muchemi J's judgment of 25th September 2013 dismissing Election Petition No 4 of 2013 (Swaleh Salim Swaleh Imu) but allowing Election Petition No 5 of 2013 (Fahim Yasin Twaha) and nullifying the Appellant's election. The court held the appeal competent despite some fact-based grounds, and that the Election Court misdirected itself in law: it wrongly required counterfoils to be in ballot boxes under the Elections (General) Regulations 2012, which require counterfoils to be delivered to the Returning Officer in tamper proof envelopes, and it relied on authorities decided under the repealed former regulations. The missing vote bundles revealed an administrative mistake, not deliberate manipulation, and neither irregularity affected the result or undermined the electoral process under section 83 of the Elections Act. The will of the electorate could not be determined through conjecture; the Appellant led after scrutiny. Consolidation under rule 18 did not merge the petitions, and the 1st Respondent could not piggyback on the scrutiny. The main appeal was allowed, the Appellant declared validly elected, the nullification quashed, and the cross-appeal dismissed with costs; the 1st and 2nd Respondents were ordered to equally bear the Appellant's costs in the Election Court and this appeal.

Key legal issues

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01

Whether counterfoils were required to be in ballot boxes under the current regulations

Holding

No. Regulation 81(2) of the Elections (General) Regulations 2012 lists what goes into the ballot box and excludes counterfoils; regulation 73(3) and (4) requires counterfoils to be sealed in tamper proof envelopes delivered to the Returning Officer. The Election Court erred by relying on decisions under the repealed National Assembly and Presidential Elections Act.

Reasoning

The court contrasted the old regime, where regulation 34 of the Presidential and Parliamentary Elections Regulations required counterfoils to be sealed in packets placed inside ballot boxes, with the new regime under the 2012 Regulations. Because the trial judge relied on Magara and Musau, decided under the former law, her conclusion that counterfoils were absent from the ballot boxes was a fundamental misapprehension of the applicable Regulations and a wrong application of the law.

p. 22
02

Whether IEBC failed its constitutional duty under article 86 by not placing counterfoils in ballot boxes

Holding

No. IEBC had a duty to safeguard electoral materials including counterfoils, but absent specific orders for production of counterfoils, and given genuine confusion caused by the change in regulations, IEBC and the 4th Respondent could not be faulted.

Reasoning

The court held that under rule 21 IEBC was only obliged to deliver ballot boxes to the Registrar; without specific court directions for counterfoils, no failure could be alleged. The change in the Regulations reflected genuine confusion rather than negligence, and the absence of counterfoils from the ballot boxes was neither non-compliance with statutory requirements nor breach of constitutional duty.

p. 23
03

Whether missing vote bundles evidenced manipulation vitiating the election

Holding

No. The facts established an administrative mistake, not deliberate manipulation; the missing bundles did not affect the outcome as the Appellant maintained his lead after scrutiny.

Reasoning

The missing bundles (134, 191 and 59 votes) were attributable to IEBC, but counterfoils existed for two of the three stations and there was no complaint of manipulation in any of the three stations. The Election Court had itself found other irregularities inadvertent, and section 83 of the Elections Act barred nullification where non-compliance did not affect the result.

p. 25
04

Whether the Election Court could rely on unpleaded matters and conjecture

Holding

No. The will of the electorate could not be determined through conjecture and supposition; the judge erred in speculating that scrutiny of all 136 stations would have shown more.

Reasoning

Although the scrutiny findings originated from the pleadings and could not be ignored, the judge's conclusion rested on speculation about unscrutinised stations and on matters not pleaded or disputed. The will of the electorate was demonstrated by the majority votes cast for the Appellant in an election that was apparently free and fair.

p. 3
05

Whether consolidation under rule 18 required one undifferentiated determination for both petitions

Holding

No. Consolidation was for expediting the hearing only; the Election Court was obliged to make specific findings on each petitioner's grounds, and its differing outcomes were proper.

Reasoning

Rule 18 requires petitions relating to the same election to be heard and determined as one petition in so far as the inquiry into the election is concerned, but does not extinguish each petition's individual character. The court found no selective application of the scrutiny results and no violation of the 1st Respondent's article 27 rights.

p. 3
06

Competence of the appeal under section 85A (matters of law only) and appealability of the scrutiny order

Holding

The appeal was competent: several grounds raised pure questions of law, and an appeal against the interlocutory scrutiny order could only crystallise after final judgment.

Reasoning

Following Bracegirdle v Oxley and Marakaru, the court distinguished primary facts from conclusions of law, holding it would interfere only with unreasonable conclusions of law. Relying on Peter Gichuki King'ara, the omnibus jurisdiction under section 85A covers all points of law whether arising interlocutorily or in final judgment.

p. 20
07

Costs

Holding

The Election Court's costs orders were within its unfettered discretion and exercised judiciously; the appellate court would not interfere.

Reasoning

Under section 84 of the Elections Act and rule 36(2) of the Petition Rules, costs follow the cause but the court may impose the burden on the party causing unnecessary expense. Imposing costs on IEBC and the 4th Respondent, whose conduct led to Petition No 5 being allowed, and ordering the dismissed 1st Respondent to bear his own costs, was judicious.

p. 4

Legal principles established

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  • Under the Elections (General) Regulations 2012, counterfoils of used ballot papers are not required to be sealed in the ballot box; they must be delivered to the Returning Officer in tamper proof sealed envelopes.
  • Consolidation of election petitions under rule 18 is for expediting the hearing only; the Election Court must still make specific findings on each petitioner's grounds, and a petitioner in one petition cannot piggyback on scrutiny ordered in respect of another.
  • In an election appeal under section 85A limited to matters of law, the Court of Appeal interferes only where a conclusion of law cannot reasonably be drawn from the lower court's findings of primary fact.
  • Only irregularities that affect the result and undermine the integrity of the electoral process justify nullification; administrative mistakes absent deliberate manipulation do not.

Court orders

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  1. 1.The main appeal is allowed and the order allowing Petition No 5 of 2013 is set aside and substituted with an order dismissing the Petition.
  2. 2.It is declared that the Appellant was validly elected as County Governor of Lamu and the order nullifying his election and ordering fresh elections is quashed and set aside.
  3. 3.The certificate issued by the Judge pursuant to section 86 of the Elections Act 2011 is set aside and substituted with a Certificate confirming that the Appellant was duly elected as governor during the elections held on 4th March 2013.
  4. 4.The cross appeal is dismissed with costs.
  5. 5.The 1st and 2nd Respondent shall equally bear the costs of the Appellant in the Election Court as assessed by the Court and the costs of the Appellant in this Appeal to be assessed by the Court registrar.

Authorities

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Legislation

  • Appellate Jurisdiction Act (cap 9)section 3(1)
  • Constitution of Kenya, 2010articles 27, 38, 81(e), 86(d), 88(5), 164(1)(3), 182(4)(5)
  • Court of Appeal Rules, 2010 (cap 9 Sub Leg)rules 32(6); 94
  • Election (Parliamentary and County Elections) Petition Rules, 2013 (Act No 11 Sub Leg)rules 9(a); 18; 21; 33; 34(1); 36(1)(2); 39(3)
  • Elections (General) Regulations, 2012 (Act No 11 Sub Leg)regulations 73(3)(4); 74; 77(1)(d); 78; 79(6)(7); 8(1)(2); 83(1)(a); 86; 93(1); 97(1)
  • Elections Act, 2011 (Act No 24 of 2011)sections 2; 80(3); 82(1); 83; 85A
  • Evidence Act (cap 80)sections 107, 108, 112, 119
  • National Assembly and Presidential Elections Act (cap 7) (Repealed)section 23(4)

Cases cited (23)

  • Albeity, Hassan Abdalla v Abu M Abu Chiaba & another
    Election Petition No 9 of 2013

    Election Court's special inquisitorial jurisdiction in election disputes

  • Amana, Richard v Independent Electoral and Boundaries Commission & 2 others
    Election Petition No 6 of 2013

    Irregularities attributable to innocent mistake or human error cannot impeach an election result

  • Attorney General v David Marakaru
    [1960] EA 484

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

  • Bura v Sarwatta
    [1967] EA 234

    Transfer of voters to other polling stations was non-compliance that did not affect the result

  • Bwana, Bwana Mohamed v Shakilla Abdalla Mohamed
    Election Petition No 7 of 2013

    Nullifying results of only the polling stations with missing counterfoils, not the entire election

  • Waititu, Ferdinand v Independent Electoral and Boundaries Commission & 8 others
    Election Petition No 1 of 2013

    Comparison of electoral margins in considering integrity of an election

  • Joho v Nyange
    [2008] 3 KLR (EP) 500

    Not every non-compliance with election regulations invalidates an election

  • King'ara, Peter Gichuki v Independent Electoral & Boundaries Commission & 2 others
    Civil Appeal No 23 of 2013

    Omnibus ex-ante jurisdiction under section 85A covering all points of law including interlocutory ones

  • Mbowe v Eliufoo
    [1967] EA 140

    Whether election results were 'affected' - whether the contest became much closer than first determined

  • Owners of the Motor Vessel "Lillians" v Caltex Oil (Kenya) Limited
    [1989] KLR 1

    Jurisdiction - a court downs its tools the moment it holds it is without jurisdiction

  • Musau, Thomas Mulinda & 2 others v Independent Electoral and Boundaries Commission & 2 others
    Election Petition No 2 of 2013

    Missing counterfoils are grave as ballot papers cannot be verified as duly cast

  • Musimba, Patrick Mweu v Richard N Kalembe Ndile & 3 others
    Civil Application No 231 of 2013

    Court's power under sections 80(1)(d) and 82(1) of the Elections Act to order scrutiny suo motto

  • Nairobi City Council v Thabiti Enterprises
    [1995-1998] 2 EA 231

    A court cannot deal with issues not pleaded

  • Ndile, Richard Kalembe v Patrick Musimba
    Election Petition No 117 of 2013

    The purpose of scrutiny in election petitions

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

    Recount cannot cure absence of statutory documents from ballot boxes; counterfoil validates ballot paper

  • Odinga, Raila & 3 others v Independent Electoral and Boundaries Commission & 2 others
    Petition No 5 of 2013

    Petitioner must prove non-compliance and that it affected the validity of the election; presumption of regularity

  • Peters v Sunday Post
    [1958] EA 424

    Principles for a first appeal - re-evaluation of evidence to be exercised cautiously

  • Selle & another v Associated Motor Boat Co Ltd
    [1968] EA 123

    First appellate court may reconsider evidence and draw its own conclusions, but cautiously

  • Speaker of the Senate & another v Attorney General & another & 3 others
    Advisory Opinion Reference No 2 of 2013

    Jurisdiction is a fundamental issue that must be resolved at the beginning

  • Wambua, Gideon Mwangangi v Independent Electoral and Boundaries Commission & others
    Election Petition No 4 of 2013

    Scrutiny assists the Court to verify allegations, which must be hinged on pleadings

  • Associated Provincial Picture Houses Ltd v Wednessbury Corporation
    [1947] EWCA Civ 1; [1948] 1 KB 223

    Wednesbury reasonableness test applied by the Election Court

  • Bracegirdle v Oxley
    [1947] 1 All ER 126; [1947] KB 349

    Distinction between primary facts and conclusions from those facts in determining questions of law

  • Morgan v Simpson
    [1974] 3 All ER 722

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

On appeal from
High Court of Kenya at Malindi (Election Court)
Election Petition No. 4 of 2013 Consolidated with Election Petition No. 5 of 2013
Jurisdiction invoked
Section 85A of the Elections Act, 2011 (appeals from High Court in election petitions on matters of law only), read with Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act (cap 9)

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, "Timamy Issa Abdalla v Swaleh Salim Swaleh Imu & 3 others", Case Analysis (2014). Civil Appeal 36 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/888/eng@2014-01-13

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