Mohamed Mahamud Ali v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 409 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the Changamwe MP's 2017 election, ruling that proving voting irregularities is not enough—you must show they 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 Court of Appeal, on an election petition appeal under section 85A of the Elections Act, may evaluate evidence afresh and make its own findings of fact
- 2.Whether the trial court erred in holding that the burden of proof in an election petition lies squarely on the petitioner
- 3.Whether the trial court erred in its treatment of the alleged constitutional and statutory breaches occasioned by the 1st and 2nd respondents
- 4.Whether the trial court misdirected itself in holding that the illegalities and irregularities were not of such a magnitude as to justify invalidation of the election
- 5.What is the effect of the variance between the online portal results and the results declared in Form 35B
- 6.Whether the award of costs of KShs. 8,000,000.00 against the appellant was excessive
- 7.Whether the Court should declare section 83 of the Elections Act null and void for inconsistency with the Constitution
Key legal issues
#Scope of the Court of Appeal's jurisdiction on election petition appeals
The Court is confined to matters of law under section 85A(1) of the Elections Act; it may not wade into the evidence to make its own factual determinations, though poor drafting of grounds of appeal should not shut out genuine grounds of law
The Court held that its engagement with facts is limited to background and context and to verifying whether the trial judge's conclusions rest on the evidence or are perverse. Although the memorandum of appeal alleged errors of fact, the Court declined to strike it out, finding genuine matters of law raised, guided by Wavinya Ndeti. The Court expressly resisted counsel's invitations to reassess witness credibility.
Burden of proof and adverse inferences
The legal burden remains on the petitioner throughout; failure by a respondent to call witnesses does not shift the burden or warrant an adverse inference that would allow the petition
Relying on Raila Odinga 2013 and 2017, Ranguma, and John Munuve Mati, the Court held that the onus probandi rests on the person asserting a fact; drawing an adverse inference against a respondent with no legal burden would be wrong in law. The petitioner had to present cogent evidence establishing a prima facie case that the election was not conducted in accordance with the law.
Effect of irregularities on election validity
Irregularities, even if proved, cannot nullify an election unless shown to have affected the result; isolated malpractices by polling clerks or improper influence of a single voter are insufficient
Applying Gatirau Peter Munya and the Raila Odinga 2013 two-limb test, the Court found a lack of nexus between the alleged breaches and the election result. Even disregarding the affected votes, the margin between the 3rd respondent and the runner-up remained wide. Echoing Magara v Nyamweya, courts endeavour to preserve elections where the result was unaffected by the breaches.
Disregard of polling station results where votes cast exceed voters who turned up
The trial court misdirected itself by holding that only the excess votes, rather than the results of the entire polling station, should be disregarded under Regulation 83(1)(c), though this error did not vitiate the election
The Court accepted the appellant's reading of Regulation 83(1)(c): the results of the entire polling station ought to have been disregarded where votes cast exceeded the number of voters who turned up. However, the Court deferred consideration of the effect of this misdirection to its overall analysis of whether the irregularities were of sufficient magnitude to invalidate the election, which they were not.
Award of costs capped at KShs. 8,000,000
The costs award was excessive and had to be interfered with; costs follow the event but should not be a scarecrow to chase away deserving litigants
Relying on Albeity Hassan Abdalla, Kaloki, and Owino Paul Ongili Babu, the Court held that KShs. 8,000,000 was simply astronomical. It reduced the 3rd respondent's costs to Kshs. 1,500,000 at trial and Kshs. 500,000 on appeal, and denied the 1st and 2nd respondents any costs because their conduct in the election left much to be desired and necessitated the petition.
Constitutionality of section 83 of the Elections Act raised for the first time on appeal
The Court declined to pronounce on the constitutionality of section 83 because the issue was raised for the first time on appeal without deliberation before the trial court
The Court held that the High Court, as the first port of call in interpreting the Constitution, ought to have been accorded the opportunity to pronounce itself on the issue. The appellant's challenge to the second limb of section 83 as offering excuses for illegalities and irregularities was therefore not entertained, being sprung on the Court at the appellate stage.
Legal principles established
#- Appeals to the Court of Appeal in election petitions are confined to matters of law only; the appellate court may examine trial findings only to gauge whether they are based on the evidence or are perverse, and may not re-evaluate facts or witness credibility
- The legal burden of proof in an election petition rests on the petitioner at all times, and an adverse inference should not ordinarily be drawn simply because a respondent chooses not to call witnesses
- A petitioner must prove not only non-compliance with electoral law but that the non-compliance affected the validity of the election; courts will preserve an election where the breaches did not affect the result
- A mere difference in votes cast between different elective seats cannot, without cogent evidence, be an inference of electoral malpractice; each election result must be challenged on its own ground
- Final results as reflected in Forms 35B supersede provisional electronic results transmitted to the online portal
Court orders
#- 1.The appellant's appeal fails and is dismissed, and the judgment of the High Court dated 28th February 2018 is upheld
- 2.The appellant shall bear the costs of the 3rd respondent incurred before the election court, to be taxed, but not to exceed Kshs. 1,500,000
- 3.The appellant shall bear the costs of the 3rd respondent in this appeal, to be taxed, but not to exceed Kshs. 500,000
- 4.The 1st and 2nd respondents are not entitled to any costs
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 Mombasa (Election Court)
- Mombasa High Court Election Petition No. 7 of 2017
- Jurisdiction invoked
- Section 85A(1) of the Elections Act, No. 24 of 2011 (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)
Relief refused
#Nullification of the Changamwe Constituency election and setting aside of the election court judgment
The irregularities were not shown to have affected the result of the election; the burden of proving that non-compliance affected validity lay on the petitioner and was not discharged
Declaration that section 83 of the Elections Act is null and void
The issue was raised for the first time on appeal and was not litigated before the trial court
Costs of the appeal and trial court against the 1st and 2nd respondents irrespective of outcome
Partially acceded to - the 1st and 2nd respondents were denied costs, but the appellant was ordered to pay the 3rd respondent's capped costs
Costs
Appeal dismissed with the appellant bearing the 3rd respondent's costs in the election court capped at Kshs. 1,500,000 and in the appeal capped at Kshs. 500,000, both to be taxed; the 1st and 2nd respondents are not entitled to any costs by reason of their conduct in the challenged elections.
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.
a. The appellant's appeal fails and is hereby dismissed, and the judgment of the High Court dated 28 th February, 2018 is hereby upheld.
In view of the 1st and 2nd respondents conduct in the challenged elections which left a lot to be desired, and which necessitated the filing of the election petition giving rise to this appeal, we are inclined to agree with counsel for the appellant that they should not be rewarded with an award for costs of any amount.
An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only.
Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections.
The legal burden of proof always remains with the petitioner and a court should be careful not to draw adverse inference when a respondent who has no legal burden to prove any fact fails to call a witness or witnesses.
We hold the view that the final results as reflected in Forms 35B supersede any provisional electronic results.
it becomes apparent that costs of KShs. 8,000,000.00 in the present case are simply astronomical.
Issues in the judgment
#Duplicate citation of the Kabogo v Thuo case with differing case-name renderings and attribution; the Court also cites the same Court of Appeal decision under variant spellings (Owino Babu Ongili v. Francis Wambugu Muriithi and Owino Paul Ongili v. Francis Wambugu Mureithi)
The judgment quotes section 83A of the Elections Act in one passage and section 85A in another when describing the confinement of appeals to matters of law; the governing provision as quoted in full is section 85A(1), and the reference to section 83A appears to be an error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Mahamud Ali v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 409 (KLR)", Case Analysis (2018). Election Petition Appeal No. 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/409/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.