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Court of AppealAllowedCivil Appeal 219 of 2013· [2014] KECA 890 (KLR)

Independent Electoral and Boundaries Commission & another v Mule & 3 others

Court of Appeal
31 January 2014
GKGBM KariukiPKPO KiageKMK M'Inoti
4,527 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 restored an MP's election, ruling judges cannot nullify elections over issues nobody raised in the petition.

What this practically means

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Executive summary

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The Court of Appeal (GBM Kariuki, PO Kiage and K M'Inoti, JJA) allowed an appeal against the High Court's nullification of the election of the Member of Parliament for Matungulu Constituency in the 2013 General Election. Although the 1st respondent had been re-elected in a by-election while the appeal was pending, the court declined to treat the appeal as moot, electing to pronounce on important questions of law. First, the court held that parties are bound by their pleadings, which limit the issues a trial court may pronounce upon; the learned judge, having dismissed all the pleaded grounds as unproved, erred reversibly by unilaterally framing and determining new issues arising from scrutiny - the absence of counterfoils in some ballot boxes and the lack of IEBC stamps on some Forms 35 - thereby descending into the arena. Second, on a reading of regulations 73(3)(c), 73(4) and 81(2) of the Elections (General) Regulations, 2012, the court held there is no legal requirement that counterfoils of used ballot papers be stored in ballot boxes; the boxes carry only sealed tamper-proof envelopes and prescribed statements, and counterfoils found in some boxes were an accidental happening. Third, regulation 79 requires only the signatures of the presiding officer and candidates' agents to authenticate Form 35; an IEBC stamp is not required, and stamping where done is a superfluous administrative act incapable of invalidating unstamped forms. The court also held the judge acted per incuriam in applying Manson Onyongo v Magara, decided under a superseded statutory regime. The High Court judgment and decree were set aside and the petition dismissed with costs against the 2nd to 4th respondents.

Key legal issues

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01

Determination of a petition on issues not pleaded

Holding

The trial judge committed a reversible error by framing and determining new issues (counterfoils and IEBC stamp) that arose only from scrutiny and were not pleaded or answered by the parties.

Reasoning

Relying on Malawi Railways v Nyasulu, Libyan Arab Uganda Bank v Vassiliadis, Jones v National Coal Board and Adetoun Oladeji, the court held that in an adversarial system the parties' pleadings set the agenda for trial. A judge who descends into the arena and decides unpleaded matters acts contrary to the character of adjudication and denies parties the chance to respond.

p. 6
02

Storage of counterfoils in ballot boxes

Holding

Regulations 73(3)(c), 73(4) and 81(2) require counterfoils to be sealed in tamper-proof envelopes and delivered separately from the ballot boxes; there is no requirement that counterfoils be placed inside the ballot boxes.

Reasoning

The court read regulations 73 and 81(2) together: the ballot box is to contain only the sealed tamper-proof envelopes of classified ballot papers and the statements under regulations 78 and 79. Counterfoils found in some boxes were an accidental happening, not compliance with any legal requirement, and could not found a finding of grave irregularity.

p. 7
03

IEBC stamp on Form 35

Holding

Regulation 79 requires only the signatures of the presiding officer and candidates' agents to authenticate Form 35; stamping is not required and, where done, is a superfluous administrative act incapable of creating a statutory obligation.

Reasoning

The stamping requirement in regulation 69 applies to ballot papers and counterfoils, not to Form 35. The trial judge correctly stated that no stamping was specifically required but then speculated that unstamped forms lacked approval. Signatures authenticate the form; absence of a stamp cannot invalidate results.

p. 8
04

Application of superseded authority (per incuriam)

Holding

The trial judge erred by applying Manson Onyongo v Magara, decided under a repealed statutory regime, without regard to the changed Elections (General) Regulations, 2012.

Reasoning

The court held that the judge applied a legal position bad for obsolescence: the earlier case's statement that a ballot paper is validated by its counterfoil was based on a statutory regime that had since significantly changed, so reliance on it was per incuriam.

p. 7

Legal principles established

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  • Parties are bound by their pleadings, which limit the issues upon which a trial court may pronounce; a decision based on unpleaded issues is a reversible error.
  • There is no legal requirement that counterfoils of used ballot papers be stored in ballot boxes; the ballot box contains only the sealed tamper-proof envelopes and statements under regulations 78 and 79.
  • A Form 35 declaration of results requires only the signature of the presiding officer and candidates' agents; an IEBC stamp is not a statutory requirement and its absence cannot invalidate the form.

Court orders

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  1. 1.The judgment and decree of the High Court set aside
  2. 2.An order dismissing the Petition with costs substituted for the High Court judgment
  3. 3.The 2nd, 3rd and 4th respondents to pay the appellant and the 1st respondent the costs of the appeal and of the petition at the High Court

Authorities

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Legislation

  • Court of Appeal Rules, 2010rule 86(1)
  • Elections Act, 2011section 85A
  • Elections (General) Regulations, 2012regulation 69
  • Elections (General) Regulations, 2012regulation 73(3)(c) and (4)
  • Elections (General) Regulations, 2012regulation 78
  • Elections (General) Regulations, 2012regulation 79
  • Elections (General) Regulations, 2012regulation 81(1) and (2)

Cases cited (6)

  • Libyan Arab Uganda Bank For Foreign Trade and Development & another v Adam Vassiliadis
    [1986] UGCC 6

    Adversarial system: judge hears and determines issues raised by parties, not an investigation on behalf of society.

  • Nyamweya, Manson Onyongo v James Omingo Magara & 2 others
    Election Petition No 3 of 2008, [2009] eKLR

    Earlier statutory regime on counterfoils validating ballot papers; distinguished as based on superseded regulations.

  • Adetoun Oladeji (Nig) Ltd v Nigeria Breweries Plc
    SC 91/2002

    Parties are bound by their pleadings; evidence at variance with pleadings goes to no issue.

  • Malawi Railways Ltd v Nyasulu
    [1998] MWSC 3

    Court is bound by pleadings; it must adjudicate only on specific matters raised by the parties.

  • Jones v National Coal Board
    [1957] 2 QB 55

    Judge sits to hear and determine issues raised by parties, not to conduct an investigation.

  • Yuill v Yuill
    [1944] P 15; [1945] All ER 183

    Judge descending into the arena has his vision clouded by the dust of conflict.

On appeal from
High Court of Kenya at Machakos
Election Petition No. 2 of 2013
Jurisdiction invoked
Section 85A of the Elections Act, 2011 (appeals to the Court of Appeal from election courts 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, "Independent Electoral and Boundaries Commission & another v Mule & 3 others", Case Analysis (2014). Civil Appeal 219 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/890/eng@2014-01-31

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