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Court of AppealDismissedCivil Appeal No. 105 of 2017· [2017] KECA 477 (KLR)

Independent Electoral and Boundaries Commission v Kiai & 5 others (Civil Appeal 105 of 2017) [2017] KECA 477 (KLR)

Court of Appeal of Kenya
23 June 2017
ASAsike-MakhandiaWilliam OukoW. OukoPKP. O. KiageKMK. M'inotiAMA. K. Murgor
23,028 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 confirmed that constituency presidential results are final and cannot be changed by the electoral commission at the national tallying centre.

What this practically means

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Executive summary

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The Independent Electoral and Boundaries Commission appealed against a High Court decision (Muchelule, Korir and Mwita JJ., 7th April 2017) declaring that sections 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c) of the Elections (General) Regulations, 2012 were unconstitutional in so far as they treated constituency presidential election results as provisional or subject to confirmation by the Commission. The Court of Appeal, in a unanimous five-judge judgment, dismissed the appeal on all three grounds. First, it held that the High Court had jurisdiction under Article 165(3)(d) to determine the constitutionality of legislation notwithstanding the Supreme Court's exclusive jurisdiction over presidential election disputes, following the Supreme Court's advisory opinions. Secondly, it rejected the plea of res judicata based on the 2013 Raila Odinga petition, since the constitutionality of the impugned provisions was neither directly and substantially in issue there nor were the parties the same. Thirdly, on the merits, and after a detailed survey of Kenya's electoral history including the Kriegler and Kiraitu/Orengo reports, the Court held that the polling station and constituency are the true locus of the voters' will; results declared there are final and can be disturbed only by an election court. The chairperson's role under Article 138(10) is narrowly confined to tallying results as received and declaring the result. The Court also censured the Commission for amending the Regulations in bad faith while the appeal was pending. The appeal was dismissed with no orders as to costs owing to its public interest nature.

Key legal issues

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01

Jurisdiction of the High Court to hear a constitutional petition on the constitutionality of electoral provisions

Holding

The High Court had jurisdiction under Article 165(3)(d); the Supreme Court's exclusive jurisdiction over presidential election disputes under Articles 140 and 163(3)(a) does not oust the High Court's power to interpret the Constitution.

Reasoning

The Court distinguished between a challenge to the validity of a presidential election (reserved for the Supreme Court) and a challenge to the constitutionality of a law (vested in the High Court). Relying on the Supreme Court's advisory opinions, the Court held that where a matter entails constitutional interpretation, it should first come before the High Court, with the Supreme Court exercising only appellate review, so that the two jurisdictions do not come into conflict.

p. 34
02

Whether the petition was res judicata by virtue of the Raila Odinga 2013 presidential election petition

Holding

The petition was not res judicata; the issues and parties in the two proceedings were not identical and the constitutionality of the impugned provisions was never raised or determined in the earlier suit.

Reasoning

The Court restated the conjunctive elements of Section 7 of the Civil Procedure Act and held the appellant had failed to demonstrate that the issues were directly and substantially in issue in the former suit, or that the parties were the same or litigating under the same title. Mere reference to past elections, or association with a former party's director, does not attract the doctrine.

p. 36
03

Constitutionality of section 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c)

Holding

They are unconstitutional, null and void to the extent that they render constituency presidential election results provisional or subject to confirmation by the Commission.

Reasoning

Tracing Kenya's electoral history including the Kriegler Report and the Kiraitu/Orengo Report, the Court held that the polling station and constituency are the locus of the free exercise of the voters' will, clothed with finality. The chairperson's role under Article 138(10) is narrowly circumscribed: to tally results exactly as received and declare the result, verifying only compliance with the Article 138(4) thresholds, without altering figures.

p. 56
04

Distinction between announcement and declaration of election results

Holding

Declaration takes place at every stage of tallying - polling station, constituency and county - culminating in the issuance of the certificate; the terms are not terms of art and the reasoning in Hassan Ali Joho was adopted.

Reasoning

Following the Supreme Court in Hassan Ali Joho, the Court held that declarations occur at each level of the tallying process through a plurality of officers, with finality depicted by the certificate in Form 38. The reference to the Commission in Article 138(3)(c) is to be construed as the returning officers, not the chairperson alone.

p. 52
05

Approach to constitutional interpretation

Holding

A purposive, holistic interpretation is mandatory under Article 259, incorporating text, context, intent, history and the spirit of the Constitution.

Reasoning

The Court drew on local and comparative authority, including the Supreme Court's jurisprudence on holistic and purposive interpretation, to reject the Attorney-General's contention that interpretation should be formalistic or restricted to the literal text and that purposive interpretation is confined to the Bill of Rights.

06

Criticism of the appellant's post-judgment amendments to the Regulations

Holding

The Court censured the appellant for amending the Regulations by Legal Notice No. 72 of 21st April 2017 while its appeal was pending, in a manner calculated to circumvent the High Court's declaration.

Reasoning

The Court found that the amendments renamed the declaration forms and reintroduced verification at the national tallying centre, and that re-enacting regulations already found unconstitutional while pursuing an appeal was done in bad faith.

p. 55

Legal principles established

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  • Constituency presidential election results, once tallied and declared after the elaborate polling-station and constituency process, are final and cannot be confirmed, varied, altered or verified by the Commission or its chairperson at the national tallying centre; only an election court may disturb them.
  • Section 39(2) and (3) of the Elections Act and regulations 83(2) and 87(2)(c) of the Elections (General) Regulations, 2012 are unconstitutional to the extent that they treat constituency presidential results as provisional or subject to confirmation by the Commission.
  • The High Court retains jurisdiction under Article 165(3)(d) to determine the constitutionality of electoral legislation notwithstanding the Supreme Court's exclusive jurisdiction under Articles 140 and 163(3)(a) over presidential election disputes.
  • For res judicata to apply under Section 7 of the Civil Procedure Act, the elements must be satisfied conjunctively: identity of the matter directly and substantially in issue, of parties, of title, final determination, and competence of the former court.
  • The Constitution must be interpreted purposively under Article 259, having regard to intent, purpose, historical socio-political context, values, aspirations and spirit, not confined to the literal text or to the Bill of Rights.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs due to the public interest nature of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 1
  • Constitution of Kenya, 2010Article 2(1) and (4)
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 259
  • Constitution of Kenya, 2010Article 81
  • Constitution of Kenya, 2010Article 82
  • Constitution of Kenya, 2010Article 86
  • Constitution of Kenya, 2010Article 87(2)
  • Constitution of Kenya, 2010Article 88
  • Constitution of Kenya, 2010Article 89
  • Constitution of Kenya, 2010Article 138
  • Constitution of Kenya, 2010Article 140
  • Constitution of Kenya, 2010Article 163(3)(a)
  • Constitution of Kenya, 2010Article 163(6)
  • Constitution of Kenya, 2010Article 165(3)(d)
  • Constitution of Kenya, 2010Article 165(5)(a)
  • Constitution of Kenya, 2010Article 250
  • Constitution of Kenya, 2010Article 253
  • Constitution of Kenya, 2010Sixth Schedule, clause 9
  • Elections Act, 2011section 2
  • Elections Act, 2011section 13
  • Elections Act, 2011section 14
  • Elections Act, 2011section 39(1), (1A), (1B), (1C), (1D), (2) and (3)
  • Elections Act, 2011section 44
  • Elections Act, 2011section 44A
  • Election Laws (Amendment) Act, No. 36 of 2016
  • Elections (General) Regulations, 2012regulation 3(1), (4)
  • Elections (General) Regulations, 2012regulations 73 to 90
  • Elections (General) Regulations, 2012regulation 83(2) and (3)
  • Elections (General) Regulations, 2012regulation 84(1)
  • Elections (General) Regulations, 2012regulation 87(2)(c)
  • Elections (General) Regulations, 2012regulation 93(1)
  • Elections (General) (Amendment) Regulations, 2017
  • Elections (Technology) Regulations, 2017
  • Independent Electoral and Boundaries Commission Actsections 5, 10 and 30
  • Election Offences Actsection 13
  • Civil Procedure Act, 2010section 7
  • Court of Appeal Rules, 2010rule 29
  • Supreme Court (Presidential Election Petition) Rules, 2013rule 12

Cases cited (30)

  • Raila Odinga & 2 Others v. IEBC & 3 Others
    SC. Pet. No. 5 of 2013, [2013] eKLR
  • Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others
    [2014] eKLR
  • In the Matter of the Principle of Gender Representation in the National Assembly and the Senate
    Advisory Opinion No. 2 of 2012, [2012] eKLR
  • Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others
    CA. No. 2 of 2011
  • In the Matter of the Interim Independent Electoral Commission
    Const. App. No. 2 of 2011
  • Okiya Omtatah Okoiti v. Communications Authority of Kenya & 14 Others
    [2015] eKLR
  • Africa Centre for Open Governance (AFRICOG) v. Ahmed Issack Hassan & Another
    [2013] eKLR
  • Uhuru Highway Development Ltd v Central Bank of Kenya
    [1999] eKLR
  • William Koross v. Hezekiah Kiptoo Komen & 4 Others
    [2015] eKLR
  • Lal Chand v Radha Kishan
    AIR 1977 SC 789
  • Ngugi v. Kinyanjui & 3 Others
    [1989] KLR 146
  • Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd & Others
    [1987] 1 SCC 424
  • South Dakota v. North Carolina
    (192 US 268) (1940) L ED
  • Kigula & Others v. Attorney-General
    [2005] 1 E.A. 132
  • Olum & Another v. Attorney-General
    [2002] 2 EA 508
  • Ng Ka Ling & Another v The Director of Immigration
    (1999) 1 HKLRD 315
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Pepper v. Hart
    [1992] 3 WLR
  • In the Matter of Kenya National Human Rights Commission
    Supreme Court Advisory Opinion Ref. No. 1 of 2012
  • State v. Acheson
    1991 (20 SA 805, 813)
  • Center for Rights Education and Awareness & Another v. John Harun Mwau & 6 Others
    [2012] eKLR
  • George Mike Wanjohi v. Stephen Kariuki & 2 Others
    [2014] eKLR
  • Timamy Issa Abdalla v Swaleh Salim Swaleh Imu & 3 Others
    [2014] eKLR
  • Hambarda Wakhana v. Union of India
    AIR (1960) AIR 554
  • The Queen v. Big M. Drugmart Ltd
    (1986) LRC (Const.) 332
  • Nairobi Metropolitan PSV Saccos Union Ltd & 25 Others v. County of Nairobi Government & 3 Others
    CA. No. 42 of 2014 [2014] eKLR
  • In Re The Matter of Zuma & 2 Others v The State
    Case No. CCT/5/94
  • Attorney-General (CTH) ex rel. Mckinlay v. The Commonwealth
  • Theophanous v The Herald and Weekly Times Ltd & Another
    (1994) 182 CLR 104
  • Suleiman Said Shahbal v. The Independent Electoral and Boundaries Commission & 3 Others
    Election Petition No. 8 of 2013
On appeal from
High Court of Kenya
Constitutional Petition (three-judge bench, Muchelule, Korir and Mwita JJ.)
Jurisdiction invoked
First appeal under rule 29 of the Court of Appeal Rules, 2010, from a constitutional petition instituted under Article 165(3)(d) of the Constitution

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 v Kiai & 5 others (Civil Appeal 105 of 2017) [2017] KECA 477 (KLR)", Case Analysis (2017). Civil Appeal No. 105 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/477/eng@2017-06-23

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