Christopher Odhiambo Karani v David Ouma Ochieng & 2 others [2018] KECA 367 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the nullification of Ugenya MP Christopher Karani's election, confirming that missed election petition deadlines can cost a respondent their voice entirely.
What this practically means
#Executive summary
#Key legal issues
#Extension of time for filing a response to an election petition
The election court judicially refused extension of time where the appellant's explanation was founded on falsehoods; extension is an equitable remedy available only to a deserving party and lack of candour disqualifies a litigant.
The court applied the seven Salat principles. The appellant's claim of hospitalization was disproved by the hospital's own letter; service by advertisement was effective under Article 87(3) of the Constitution and time ran from publication. The decision on timelines was a discretionary one, reached after considering procedural technicalities, the overriding objective and public interest, and could not be disturbed on appeal absent misdirection. The appellant had squandered his opportunities to be heard.
Constitutionality and application of Rule 11(8) of the Election Petition Rules, 2017
Rule 11(8) is not unconstitutional, but it should not be applied in isolation to extinguish a respondent's right to test adverse evidence by cross-examination; the election court retained discretion under Rules 4 and 5 and Article 159(2)(d).
Githinji JA held the stipulation is a consequence of failure to comply with Constitution-sanctioned timelines. Okwengu JA, concurring, found that barring the appellant from cross-examining witnesses violated Article 50, but held the remedy of retrial was unavailable as the six-month window had expired. Both agreed no relief could flow to the appellant and the appeal failed.
Jurisdiction under section 85A - matters of law only
Grounds attacking the credibility of witnesses and the sufficiency of evidence are questions of fact outside the Court's jurisdiction under section 85A; only conclusions based on no evidence or so perverse that no reasonable tribunal could reach them are reviewable.
Following the Munya decision, the Court held that the words of the memorandum are not determinative; the substance governs. Most grounds of appeal and cross-appeal sought re-evaluation of evidence and credibility findings, which the Court has no jurisdiction to entertain. The appeal and cross-appeal grounds on evidence were accordingly dismissed, while genuinely legal issues (non-joinder, burden of proof, effect of non-compliance on results) were determined.
Whether the proved malpractices affected the result and justified nullification
The malpractices - smear campaigns, mishandling of assisted voters, canvassing in queues and coercion of Presiding Officers - were of such magnitude that they affected the result and put the narrow 347-vote margin in doubt, justifying nullification.
Applying section 83 of the Elections Act as construed in Munya's case and the 'affected the result' test from Mbowe v Eliufo, the Court held the election court considered the winning margin and the subversion of free and fair campaigning. The malpractices went to the core constitutional principles of free expression of the will of electors through a free and fair election.
Non-joinder of persons whose conduct is complained of
Failure to join as respondents persons adversely mentioned in a petition is not fatal; the definition of respondent in the Rules is permissive, not mandatory.
Following Cornel Rasanga's case, the Court held that a petition gives reasonable notice to persons mentioned, who may respond by affidavit with leave or be called as witnesses. Making joinder mandatory would protract and inflate election proceedings. The cross-appeal ground on non-joinder was rejected.
Legal principles established
#- The Election (Parliamentary and County Elections) Petition Rules, 2017 have the same legal force as statutory provisions in the Elections Act, and timelines for filing responses are mechanisms sanctioned by the Constitution for timely resolution of electoral disputes, not mere procedural technicalities.
- An election court is not rendered powerless by the mandatory terms of Rule 11(8); it retains discretion, read with Rules 4 and 5 and Article 159(2)(d) of the Constitution, and Rule 11(8) ought not to extinguish a respondent's opportunity to challenge evidence adduced in support of the petition by cross-examination.
- An appellate court cannot interfere with the exercise of judicial discretion by an election court unless it is satisfied the judge misdirected himself or was clearly wrong in the exercise of the discretion.
- Service of an election petition by advertisement in a newspaper of national circulation is effective service under Article 87(3) of the Constitution, and time for filing a response runs from the date of publication of the advertisement.
- An appellate court cannot remit an electoral dispute to the High Court or order a retrial after the six-month limit in Article 105(1) and (2) of the Constitution has lapsed; it cannot resurrect the jurisdiction of exhausted election courts.
- Nullification of an election is not an available remedy for violation of an individual's right to fair trial, which is a right in personam.
- Failure by a petitioner to join as respondents persons whose conduct is complained of is not fatal to a petition; such persons may be called as witnesses or seek leave to file affidavits and give evidence.
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent which costs shall be taxed
- 2.The Cross-appeal by the 2nd and 3rd respondents is dismissed with costs to the 1st respondent which costs shall be taxed
- 3.The 2nd and 3rd respondents shall bear its/his own costs of the appeal and the Cross-appeal
- 4.The appellant shall bear his own costs of the cross-appeal
- On appeal from
- High Court of Kenya at Kisumu (sitting as election court, Siaya High Court Election Petition No. 1 of 2017)
- Siaya High Court Election Petition No. 1 of 2017
- Jurisdiction invoked
- Section 85A(1) of the Elections Act - appeal from the High Court in an election petition concerning membership of the National Assembly lies to the Court of Appeal on matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dado v Godhana & 2 others (Election Petition Appeal E002 of 2023) [2023] KECA 869 (KLR)[2023] KECA 869 (KLR)7 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "Christopher Odhiambo Karani v David Ouma Ochieng & 2 others [2018] KECA 367 (KLR)", Case Analysis (2018). Election Petition Appeal No. 13 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/367/eng@2018-08-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.