Joel Makori Onsando & another v Independent Electoral and Boundaries Commission & 5 others [2018] KECA 406 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the Kisii governor's 2017 election, ruling that small clerical errors in result forms cannot void an election that genuinely reflects voters' will.
What this practically means
#Executive summary
#Key legal issues
#Credibility of the register of voters
The appellants failed to prove the register was not credible; they relied on admitted transposition errors in derivative Forms B and C while the primary Forms 37A were accurate
The court distinguished between errors in figures entered in statutory forms and errors in the register itself. The 1st appellant admitted he never examined the register or Forms 37A. The register was publicly available and the appellants never sought access to it. Transposition errors affected about 1,000 votes, did not benefit any candidate, and did not dent the 95,404-vote margin of victory.
Expunging of documents JMO-17 and JMO-18
The trial judge properly expunged the documents for non-service; the omission prejudiced the respondents and was not a mere technicality excusable under Article 159
The right to a fair trial belongs to both sides. Documents central to a substantial part of the petition must be served on those directly affected, and a party cannot shift the duty to verify service onto respondents. The court relied on the Supreme Court's guidance in Lamanken Aramat that Article 159 discretion does not extend to lapses impinging on a fair hearing.
Discretion on scrutiny and recount
The trial judge correctly exercised her discretion by limiting scrutiny to four polling stations and the two leading candidates, guided by the Supreme Court's Munya principles
Scrutiny lies only in polling stations where results are disputed; a party must lay a basis to the judge's satisfaction; and the court's discretion will not be disturbed absent misdirection or failure to consider relevant matters. The scrutiny report disclosed no significant irregularity capable of affecting the outcome.
Striking out of Lumumba's petition
The appellants could not revive Lumumba's struck-out petition; consolidation is for convenience and does not confer standing to litigate another petitioner's issues
Lumumba conceded fundamental defects, withdrew his notice of appeal, and withdrew from this appeal. The appellants had themselves been excused from participating in that petition. Consolidation serves efficiency, not the merger of actions, and separate determinations remain permissible.
Recusal of the trial judge
No reasonable apprehension of bias arose from the judge's spouse having unsuccessfully contested a different seat in a different county on an ODM ticket
The objective test requires circumstances that would lead a reasonable, fair-minded and informed observer to conclude the judge would not act impartially. The judge disclosed her spouse's candidacy to all counsel present, including the appellants' advocates, and the nexus to Ongwae was tenuous at best.
Standard for nullification under section 83 of the Elections Act
Section 83 is read disjunctively, but only a substantial breach rendering the election a sham or travesty, or non-compliance affecting the result, justifies nullification
Adopting the Supreme Court's decision in Raila Amolo Odinga, the court held that no election is perfect and trivial breaches will not void an election. Looking at the Kisii election as a whole, the identified errors were trivial transposition errors and the 95,404-vote margin reflected the genuine will of the voters.
Legal principles established
#- Appeals from election petitions under section 85A of the Elections Act lie on matters of law only, arising in three situations: interpretation or construction of electoral law, its application to established facts, and whether the trial judge's conclusions are perverse; no 'mixed questions of law and fact' are entertained
- Errors in statutory result forms do not impeach the register of voters itself; a party alleging an incredible register must adduce evidence of the register itself
- Failure to serve documents founding a substantial part of a petition on the affected respondents goes to fair trial and is not a curable technicality under Article 159
- Consolidation of petitions does not merge them into one; a party cannot litigate issues specific to another petitioner's petition in which it elected not to participate
- Recusal is governed by an objective test of reasonable apprehension of bias, which mere tenuous connections cannot satisfy
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Appellants to pay costs capped at Kshs. 1,000,000.00 jointly to the IEBC and Namulungu
- 3.Appellants to pay costs capped at Kshs. 1,000,000.00 each to Ongwae, Maangi and Orina
- On appeal from
- High Court of Kenya at Kisii
- Election Petition No. 3 of 2017 (with Petition No. 7 of 2017 consolidated)
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals from election petitions confined to matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joel Makori Onsando & another v Independent Electoral and Boundaries Commission & 5 others [2018] KECA 406 (KLR)", Case Analysis (2018). Election Petition Appeal No. 17 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/406/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.