Stanley Muiruri Muthama v Rishad Hamid Ahmed & 2 others [2018] KECA 407 (KLR)
The bottom line
#Kenya's Court of Appeal restored an MP's 2017 election, ruling that tallying errors that don't change the result cannot nullify 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 Court of Appeal has jurisdiction under section 85A of the Elections Act to entertain the consolidated appeals given that the grounds of appeal are couched as alleging errors of 'law and fact'
- 2.Whether the trial judge erred in law in nullifying the election on the basis of discrepancies between Forms 35A and 35B in two polling stations
- 3.Whether the discrepancies in Forms 35A and 35B affected the result of the election
- 4.Whether the trial judge erred in rejecting the defence of human error and finding a deliberate suppression of votes
- 5.Whether the costs order against the appellant was warranted
Key legal issues
#Scope of the Court of Appeal's jurisdiction under section 85A of the Elections Act
Despite grounds being couched as 'law and fact', the appeals raised questions of law within section 85A, including the application of constitutional and statutory provisions to facts and challenges to conclusions based on no evidence or perverse conclusions; purely factual grounds were declined.
Applying the Supreme Court's Munya guidance on 'matters of law only', the Court found that several grounds directly concerned the application of constitutional and statutory provisions to the evidence and the correctness of the trial judge's conclusions, while other grounds alleging errors in vote-loss figures raised only questions of fact which the Court declined to entertain. Drafting inelegance should not defeat a competent appeal.
Whether discrepancies between Forms 35A and 35B justified nullification
The discrepancies in two of 122 polling stations did not affect the result; after adjustment the appellant still won with a margin of 141 votes, so nullification was erroneous in law.
The trial judge failed to consider the purpose of scrutiny and recount, which is to determine who actually won and the integrity of the election. Even after accounting for all transposition errors the appellant remained the winner. The margin of victory being narrow is immaterial; not every irregularity vitiates an election.
Human error and the finding of deliberate vote suppression
The trial judge's finding of deliberate suppression was unsupported by evidence; the errors were isolated (two of 122 stations), not multiple, persistent or systemic, and the reference to the DPP was unwarranted.
A finding of grave electoral misconduct requires clear, recorded evidence. Applying Munya, the burden of proving human error rests on the party asserting it, but conversely a finding of deliberate suppression also requires proof. The transposition errors were isolated and did not reveal a pattern favouring any candidate.
Costs against a party exonerated of blame
The trial court's order of Kshs.1,500,000 costs against the appellant, whom it had exonerated of all blame, was unwarranted and was overturned.
The trial court expressly found that the evidence did not link the appellant to the discrepancies, yet it still ordered him to pay costs to the 1st respondent. Since the sole ground for nullification was one for which the appellant bore no blame, the costs order against him could not stand.
Legal principles established
#- Discrepancies in statutory forms that do not alter the outcome of an election after scrutiny and recount are insufficient to nullify the election
- A candidate who obtains the majority of votes is declared the winner irrespective of the margin, and tallying errors that do not change the result do not justify nullification
- A finding of deliberate vote suppression by electoral officials must rest on clear, recorded evidence
- Where trial court findings of fact are possible on the evidence, they are not perverse and cannot be interfered with on appeal; a mere wrong finding of fact is not a question of law
- An issue of jurisdiction may be raised at any time, in any manner, even for the first time on appeal and even by the court itself
Court orders
#- 1.The order by the trial Court nullifying the appellant's election and ordering a fresh election is quashed and set aside
- 2.A certificate confirming that the appellant was duly elected as member of the National Assembly for Lamu West Constituency during the elections held on 8th August, 2017 shall issue in accordance with section 86(1) of the Elections Act and be forwarded to the I.E.B.C. and the Speaker of the National Assembly
- 3.The appeals are allowed; the trial court's judgment is set aside in its entirety and substituted with an order dismissing the 1st respondent's Election Petition in the High Court
- 4.The 1st respondent shall bear the costs of the petition in the High Court, capped at Kshs.3,000,000, of which the appellant shall be paid Kshs.1,500,000 and the 2nd and 3rd respondents the other Kshs.1,500,000
- 5.The appellant and the 2nd and 3rd respondents are awarded costs of the appeal as against the 1st respondent, capped at Kshs.1,500,000, shared equally between the appellant on the one hand and the 2nd and 3rd respondents on the other
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Election Petition No. 1 of 2017
- Jurisdiction invoked
- Article 87(1) of the Constitution as read with section 85A of the Elections Act (appeals to the Court of Appeal on matters of law only)
- Consolidated with
- Election Petition Appeal No. 3 of 2018
Relief refused
#The 1st respondent's challenge to the merits of the appeals (implicit defence of the nullification)
The 1st respondent's submissions were limited to jurisdiction and did not address the merits of the grounds raised
Implied reference of the matter to the Director of Public Prosecutions for electoral malpractice
There was no basis for such a reference as the errors were not shown to be deliberate, multiple or persistent
Costs
The 1st respondent shall bear the costs of the petition in the High Court, capped at Kshs.3,000,000, with the appellant receiving Kshs.1,500,000 and the 2nd and 3rd respondents Kshs.1,500,000; the appellant and the 2nd and 3rd respondents are also awarded costs of the appeal as against the 1st respondent, capped at Kshs.1,500,000, shared equally between the appellant on the one hand and the 2nd and 3rd respondents on the other.
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.
We hereby allow the appeals, set aside the trial court's judgment in its entirety and substitute therefor an order dismissing the 1 st respondent's Election Petition in the High Court.
The order by the trial Court nullifying his election and ordering a fresh election is hereby quashed and set aside. We find that the said election was conducted in accordance with the required constitutional and statutory provisions.
The discrepancy in the entries in Forms 35A and 35B was not sufficient cause to negate the will of the voters in Lamu West Constituency. It is not every irregularity or infraction of the law that is sufficient to nullify an election.
if there would be counting or tallying errors which after scrutiny and recount do not change the result of an election, then a trial court would not be justified, merely on account of such shortfalls, to nullify such an election.
For a court to hold that an electoral official or body deliberately suppressed the votes of a candidate so as to deny him or her victory in a political contest, which is a grave election offence if sufficiently proved, there must be clear evidence to that effect.
Surely, all the above are clearly matters of law. We think it would be pedantic to summarily reject the entire appeal that raises such clear issues of law simply because the appellant's learned counsel did not craft the grounds as elegantly as required.
Issues in the judgment
#Inconsistent spelling of the 3rd respondent's name between the caption and the body of the judgment
The trial court's costs award is stated inconsistently as Kshs.3,000,00 in one passage and as Kshs.3,000,000 (with Kshs.1,500,000 components) elsewhere
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanley Muiruri Muthama v Rishad Hamid Ahmed & 2 others [2018] KECA 407 (KLR)", Case Analysis (2018). Election Petition Appeal No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/407/eng@2018-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.