Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 others [2018] KECA 365 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated Martin Wambora as Embu Governor, ruling that minor election irregularities that don't change the result cannot void an election.
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 notice of appeal filed initially in the High Court registry rendered the appeal incompetent
- 2.Whether the learned Judge erred in relying on the handwritten notes of the Deputy Registrar rather than the scrutiny report placed on the court record
- 3.Whether the Judge erred in allowing the execution of ex parte preservation orders of Muchemi, J. and in failing to determine the question of interference with electoral materials
- 4.Whether there was a sufficient basis for the orders of scrutiny and recount
- 5.Whether the Judge erred in determining the petition on matters beyond the pleadings and evidence
- 6.Whether the irregularities identified (unaccounted ballots, missing counterfoils, missing or illegible Forms 37A, excess ballot papers) affected the results so as to justify nullification under section 83 of the Elections Act
- 7.Whether the Judge misapplied the principles of the standard and burden of proof
- 8.Whether the 1st respondent's application dated 6th July 2018 to call for the High Court file after judgment was reserved could be entertained
Key legal issues
#Whether an election court may determine a petition on the basis of unpleaded irregularities surfaced by scrutiny
It may not, unless the scrutiny was ordered suo motu by the court and parties were given an opportunity to address the new findings; the Wetangula illegality exception did not apply because the malpractices there were pleaded
The Court distinguished Moses Masika Wetangula: it involved pleaded election offences (treating and bribery) which section 87(1) required the court to investigate, whereas the irregularities here were neither pleaded nor part of the scrutiny report. Under Zacharia Okoth Obado and the adversarial system, parties are bound by their pleadings and scrutiny is not a fishing expedition to unearth new evidence.
The nullification test under section 83 of the Elections Act
An election substantially conducted in accordance with the Constitution and electoral law is not voidable for irregularities unless they affected the result; administrative errors occasioned by human imperfection are insufficient
Section 83 creates a rebuttable presumption that declared results are correct. The trial Judge had himself found the election was substantially conducted according to law and exonerated the respondents of complicity, attributing the irregularities to fatigue or incompetence; yet he nullified the election. That was contradictory, and the estimated affected votes were unsupported by empirical proof or identification of specific polling stations.
Burden and standard of proof in election petitions
The legal burden rests on the petitioner throughout; where no criminal or quasi-criminal allegations are made, an intermediate standard above balance of probability but below beyond reasonable doubt applies
Relying on Raila Odinga (2013) and (2017), the Court reiterated that the petitioner must raise firm and credible evidence of departures from the law, and although the evidential burden may shift once sufficient evidence is adduced, the legal burden remains on the petitioner. The 1st respondent's claim that votes cast exceeded registered voters was rebutted by the Forms 37Bs and 37Cs and the testimony of the Returning Officers.
Whether the discretionary orders for scrutiny and recount were properly granted
The grant of scrutiny and recount was a judicial exercise of discretion under section 82 of the Elections Act and would not be disturbed on appeal
Scrutiny is discretionary under section 82; the Judge properly considered the conditions to be met, supported his determination with decided cases and the law, and was satisfied there were sufficient grounds in his rulings of 18th and 24th January 2018. An appellate court will not overturn such discretion unless it results in injustice or was exercised without basis. That ground accordingly failed.
The relevance of a narrow margin of victory
A narrow margin bears only transient relevance where counting or tallying errors are alleged; where scrutiny does not change the result, the margin is immaterial, and an election may be annulled only on cogent and ascertained factual premises
The Judge and the 1st respondent were preoccupied with the narrow margin (985 votes). Citing Gatirau Peter Munya, the Court held that where a recount, re-tally or scrutiny does not change the result, the margin however narrow is immaterial. Article 180(4) provides that a gubernatorial election is determined by the candidate with the greatest number of votes.
Whether Regulations 73 and 81 of the Elections (General) Regulations, 2012 conflict on sealing counterfoils
They do not conflict and must be read together: counterfoils are sealed in a tamperproof envelope which is in turn sealed in the ballot box
Regulation 81(1)(d) as amended requires the presiding officer to seal counterfoils of used ballot papers in a tamperproof envelope in each ballot box upon completion of a count. Although Regulation 73 does not mention sealing counterfoils in a ballot box, a plain reading shows the two regulations are complementary, so the failure to seal counterfoils as found could not be characterised as the fundamental non-compliance alleged.
Legal principles established
#- Under Rule 6 of the Court of Appeal Election Petition Rules, the notice of appeal in an election petition appeal must be filed in the Court of Appeal, but a notice initially filed in the High Court and shortly thereafter filed in or transmitted to the Court of Appeal registry within time is not fatal to the appeal.
- Scrutiny and recount are not designed to discover new evidence or unpleaded matters; an election petition must be decided on the issues pleaded and on the record, and new issues may be raised only by amendment of the petition.
- Only where the trial court, suo motu, orders scrutiny, recount or re-tally and unpleaded irregularities are revealed, and parties are given an opportunity to address the new findings, may those new irregularities be relied upon in the final determination.
- An election conducted substantially in accordance with the principles of the Constitution and the relevant law cannot be invalidated on the ground of irregularities unless those irregularities were of such magnitude that they affected the result.
- An election court is confined to the Deputy Registrar's scrutiny report placed on record as part of the proceedings and may not rely on extraneous documents such as unfiled handwritten notes or submissions to introduce evidential material.
- There is no procedure for filing applications to supplement or re-open the record after the conclusion of the hearing of an election appeal; rule 25 of the Court of Appeal (Election Petition) Rules, 2017 does not envisage interlocutory applications after the conclusion of a hearing.
- The Moses Masika Wetangula decision does not overturn the pleadings principle; it concerned pleaded illegality (election offences) under section 87(1) of the Elections Act, as opposed to unpleaded irregularities.
Court orders
#- 1.The appeal is allowed
- 2.The judgment and decree of the High Court (Election Court) of 22nd February 2018 nullifying the election of the Governor of Embu County and the subsequent orders are set aside
- 3.The appellant is declared to have been validly elected Governor of Embu County (the election is upheld)
- 4.Costs of the appeal and cross-appeal awarded to the appellant and the 2nd, 3rd and 4th respondents, to be met by the 1st respondent, capped at Kshs. 1,500,000.00 subject to taxation
- 5.Costs of the petition awarded to the appellant and the 2nd, 3rd and 4th respondents, to be borne by the 1st respondent, capped at Kshs. 3,000,000 to be shared equally, subject to taxation
- 6.The 1st respondent's application dated 6th July 2018 dismissed with costs to the respondents in the application (as previously ordered ex tempore on 27th July 2018)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Embu
- Election Petition No. 1 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals from the High Court in election petitions on matters of law only)
Relief refused
#The 1st respondent's application dated 6th July 2018 to call for the High Court file and to have the Court consider specified pages of the record after judgment had been reserved
No procedure exists for such an application after the hearing; it was an attempt to introduce issues of fact contrary to section 85A(1) of the Elections Act and contravened rule 25 of the Court of Appeal (Election Petition) Rules, 2017
The 1st respondent's prayer for nullification of the gubernatorial election and declaration that he was validly elected
He failed to discharge the legal burden of proof that the identified irregularities affected the result; scrutiny and recount showed the appellant still ahead
The 2nd and 3rd respondents' cross-appeal insofar as it sought dismissal of the petition with costs
The cross-appeal necessarily succeeded with the main appeal, and its costs were awarded with the main appeal
Costs
Costs of the appeal and cross-appeal awarded to the appellant and the 2nd, 3rd and 4th respondents, to be met by the 1st respondent, to be taxed but not to exceed Kshs. 1,500,000.00. Costs of the petition awarded to the appellant and the 2nd, 3rd and 4th respondents, to be borne by the 1st respondent, capped at Kshs. 3,000,000 to be shared equally, subject to taxation. Costs of the 1st respondent's application dated 6th July 2018 awarded to the respondents in that application.
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.
In the result, we allow this appeal. Because the appellant was validly elected we set aside the judgment of the election court rendered on 22nd February, 2018 and subsequent orders.
The costs of the appeal and cross appeal, to be met by the 1st respondent are awarded to the appellant, the 2nd, 3rd and 4th respondents, to be taxed, but not to exceed Kshs. 1,500,000.00.
The process of scrutiny, recount or re-tally is not to be used as a fishing expedition, enabling a petitioner to secure evidence in support of impromptu claims.
Where however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated.
Once framed, the party, for the sake of certainty and finality, is bound by those pleadings and cannot be allowed to raise a different or fresh case without due amendment.
It was clear from the above that the 1st respondent did not discharge the legal burden of proof to the required standards to show these alleged irregularities.
The rule does not envisage the filing of “interlocutory” applications after the conclusion of a hearing.
Issues in the judgment
#The judgment records the year of the gubernatorial election as 2018 in one passage when the election was held on 8th August 2017 as stated earlier in the same judgment
The judgment inconsistently describes the margin indicated by the Deputy Registrar's report at different points, and the Judge's own estimates of affected votes are quoted with varying figures
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 others [2018] KECA 365 (KLR)", Case Analysis (2018). Election Petition Appeal No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/365/eng@2018-08-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.