Karua v Independent Electoral & Boundaries Commission & 3 others (Civil Appeal 12 of 2018) [2018] KECA 41 (KLR)

The Court relied on Timamy Issa Abdalla and John Munuve Mati, following the Supreme Court's decision in Gatirau Peter Munya, to define 'matters of law' as including the evidentiary element - evaluation of the conclusions of a trial court on the basis of the evidence on record. Since the appellant's complaints challenged whether the conclusions reached by the election court accorded with the evidence, the appeal raised matters of law and the contention that it was incompetent was rejected.

The grant or refusal of recusal is discretionary and an appellate court interferes only where the judge misdirected herself in law, misapprehended the facts, or was plainly wrong (Mbogo v Shah). The Court held the words used by the Judge were of the same group as 'scandalous', 'frivolous' or 'vexatious' used of defective pleadings, and that the bias issue had been conclusively determined in the first appeal.

The appellant's prayer 4 for supply of certified photocopies of Forms 37A and 37B was granted 'as prayed', obliging IEBC to supply them to the court as well. Had that been done, the contention that the forms were not part of the record would not have arisen, and provided reference was confined to pleaded and relevant matters, no prejudice would be occasioned to respondents who originated the forms. The error nonetheless did not warrant nullification.

Documents marked for identification are not proved merely by marking; the markers of the photographs (Kennedy Muriithi and Edward Njoka) were never called. Affiant witnesses not called for cross-examination under Rule 12(13) of the Petition Rules had no probative value. The attempt to produce PW7's mobile phone video in re-examination was procedurally improper and prejudicial. The Court also held its Rule 29 jurisdiction could not be used to re-introduce evidence wrongly excluded at trial.

The burden of proving the claims in the petition remained on the appellant throughout. Rule 12(13) of the Elections (Parliamentary and County Elections) Petition Rules, 2017 (as discussed in Alfred Kiptoo Keter) renders an untested affidavit of no probative value, but that does not convert an unproven petitioner's case into a proven one. The complaint therefore had no merit.

Bribery is an election offence under Section 9 of the Elections Offences Act and must be proved beyond reasonable doubt (Wetangula; Outa). PW3 and PW4 did not see money change hands, no voter was called, and the alleged incidents rested on hearsay. The Court reiterated that findings of fact may only be interfered with if perverse (Damodar Lal) and the evidence here fell short of the 'cogent, reliable, precise and unequivocal' standard.

The Court accepted that in some polling stations something hampered the agents' admission, but the appellant's witnesses largely spoke from information received, and none of the affected agents testified to explain their exclusion or delayed access. Following Damodar Lal on perversity, the Court found some acceptable evidence on record and declined to disturb the finding.

Section 84 of the Elections Act provides that costs follow the cause, but the award of costs is discretionary (Mercy Kirito Mutegi). The Court construed the decision as leaving assessment of disbursements to the taxing officer, and no misdirection was demonstrated to justify interference.

Guided by the Supreme Court's decision in Lemanken Aramat, and comparative Nigerian authority (ANPP v Goni; Akpanudoedohe), the Court held that timelines in the special electoral dispute regime are sacrosanct and cannot be moved by judicial construction, however harsh the result. It acknowledged the tension with fair hearing but held courts lack mandate to extend the fixed period, suggesting legislative/rule reform instead.