Oscar Omoke Ocholla & 2 others v Independent Electoral and Boundaries Commission (IEBC) & 4 others [2018] KECA 363 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the Langata MP election, ruling that small procedural errors do not invalidate an election unless they actually changed the result.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge misapplied the law and selectively allowed scrutiny in only 6 polling stations instead of in 57 polling stations
- 2.Whether the learned judge failed to consider the manner in which the presiding officers were appointed and assigned to polling stations
- 3.Whether the learned judge rightly held that the results for Member of National Assembly were not required to be transmitted electronically
- 4.Whether the IEBC and the 2nd respondent prevented the appellants' agents from accessing the polling stations to participate in observing the conduct of the elections
- 5.Whether the learned judge wrongly found that there was no violence, intimidation and improper influence at the polling stations
- 6.Whether the learned judge disregarded the appellants' evidence and submissions on irregular possession of election materials by a Presiding Officer, and PW6's evidence on the results as contained in Form 35A for Kongoni Primary School Polling Station 3
- 7.Whether the wrong Form 35As were used in several polling stations and whether the learned judge was wrong to accept the reasons given by the Returning Officer
- 8.Whether the Form 35B used to declare the results at the Constituency Tallying centre was fake
- 9.Whether there were blank and illegible Form 35As used in the tabulation, tallying and announcement of the results
- 10.Whether the trial court exceeded its jurisdiction in awarding costs in respect of instruction fees only
Key legal issues
#Scrutiny and recount of votes in 57 polling stations
The election court exercised its discretion judicially in granting recount only in 6 polling stations where discrepancies were apparent and declining scrutiny, as the application was in general terms and most stations were not pleaded
Rule 29(4) confines scrutiny to polling stations where results are disputed. The amended motion referred to 57 stations, most unpleaded, with no direct relationship between the complaints and the prayers, hence a fishing expedition. The judge considered relevant matters; the appellate court cannot substitute its discretion for hers absent demonstration that she misdirected herself or acted on wrong matters.
Appointment of presiding officers
The regulations require the IEBC to provide lists of proposed presiding officers to parties 14 days prior to appointment, but nothing precludes assigning presiding officers a day before elections absent prior objections, and no effect on the result was shown
Regulation 5(2) of the Elections (General) Regulations requires a list to be provided to political parties and candidates 14 days before appointment. The appellants neither contested the appointments nor raised objections, and did not show how any late appointment affected the election, so the trial court was right to dismiss the complaint.
Electronic transmission of parliamentary results
Since no specific complaint was pleaded about transmission of individual polling station results, the general allegation that results were not transmitted through the portal was without basis
The petition generally alleged results were not transmitted through the IEBC website or portal, without identifying specific polling stations where incorrect results were transmitted or where portal results did not tally with Forms 35A and 35B. The returning officer testified he uploaded all results to the portal and declared results based on Forms 35A and 35B, which the law recognizes.
Use of improvised Forms 35A to declare results of other polling stations
The use of improvised forms for three polling stations was a procedural or administrative irregularity that did not affect the result and did not invalidate the election
Section 26 of the Statutory Instruments Act provides that a document purporting to be in a prescribed form is not void for deviation that does not affect substance or is not calculated to mislead. The returning officer explained the forms were missing due to a printer problem and he directed use of available forms; the contents were for the correct polling stations and no ill motive was proved.
Errors in the Form 35B used to declare results
The error of adding valid votes to total registered voters per polling station in the Form 35B did not affect the total valid votes or the final results, and was not sufficient to nullify the election
Comparing both forms, the appellants' form showed total valid votes well in excess of the 700-voter limit per polling station under section 38A of the Elections Act, while the IEBC's form showed figures below 700. The error arose from the excel program picking up all registered voters; the total valid votes and votes per candidate were identical in both forms, so the final result was unaffected.
Blank and illegible Forms 35A
The issue of blank and illegible Forms 35A was not pleaded, and the court could not entertain it
The petition alleged discrepancies between Forms 35A and 35B, not that results could not be ascertained. Parties are bound by their pleadings; adjudicating unpleaded matters would ambush the respondents and amount to a denial of justice. The appellants also relied on uncertified photocopies rather than original forms.
Award of costs capped at instruction fees
The trial court misdirected itself by specifying only instruction fees rather than the total or maximum costs, and the Court of Appeal capped costs at Kshs. 2,500,000 each
Section 84 of the Elections Act makes costs mandatory and costs follow the cause. Rule 30(1) of the Elections (Parliamentary and County) Petition Rules, 2017 requires the court to specify the total or maximum amount of costs payable. In line with precedent capping costs, the court capped costs at Kshs. 2,500,000 each for the respondents.
Legal principles established
#- Irregularities must be of a magnitude affecting the election result before an election is nullified; procedural or administrative errors occasioned by human imperfection are insufficient
- A deviation from a prescribed statutory form does not void the document where the deviation does not affect the substance or is not calculated to mislead
- Scrutiny and recount must be confined to polling stations in which results are disputed, on a properly pleaded basis with sufficient clarity and particularity
- The Court of Appeal in an election petition appeal is limited to matters of law under section 85A of the Elections Act, and matters of fact found by the election court bind it
- A court is bound by the pleadings of the parties and may not pronounce on claims or defences not raised in the pleadings
- The failure or refusal of an agent to sign a declaration form does not of itself invalidate election results
- An election court's award of costs must specify the total or maximum amount of costs payable, not merely instruction fees
Court orders
#- 1.Dismissal of the appeal
- 2.Costs capped at Ksh.2,500,000 each payable to the 1st and 2nd respondents on one part and the 3rd respondent on the other part
- 3.The appellants to bear the costs of the appeal, to be taxed
- 4.The Preliminary Objection challenging jurisdiction was dismissed
- 5.The 4th and 5th respondents were granted leave to withdraw from the appeal with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Election Petition Appeal No. 20 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeal on matters of law from election court)
Relief refused
#Nullification of the Langata Constituency National Assembly election and an order for a fresh election
The irregularities proved were procedural or administrative and did not affect the result
Scrutiny and retallying of all polling materials in 57 polling stations
The application was in general terms and lacked a pleaded basis for scrutiny in the disputed stations
Nullification based on blank and illegible Forms 35A
The issue of blank and illegible Form 35As was not pleaded in the petition
Costs
Costs capped at Ksh.2,500,000 each payable to the 1st and 2nd respondents on one part and the 3rd respondent on the other part; the appellants shall bear the costs of the appeal which shall be taxed
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This appeal has no merit and is hereby dismissed.
The costs are capped at Ksh.2, 500,000 each payable to the 1 st and 2nd respondents on one part and the 3rd respondent on the other part.
Otherwise, procedural or administrative irregularities and other errors occasioned by human imperfection are not enough by and of themselves to vitiate an election".
any form that departs from the prescribed form would not be voided if the departure does not affect the substance of the form or is not calculated to mislead.
In effect, it fell short of the threshold for ordering retallying and scrutiny, and instead bore the characteristics of a fishing expedition.
We are therefore precluded from venturing into an area that was not raised in the pleadings, as to do so would be to unfairly and indiscriminately mount an ambush on the respondents who would not have had an opportunity to prepare their case and to answer the allegations as necessary.
Consequently, we are satisfied that the Notice of Appeal was properly filed, and that this Court has jurisdiction to hear and determine this appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oscar Omoke Ocholla & 2 others v Independent Electoral and Boundaries Commission (IEBC) & 4 others [2018] KECA 363 (KLR)", Case Analysis (2018). Election Petition Appeal No. 23 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/363/eng@2018-08-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.