Annie Wanjiku Kibeh v Clement Kungu Waibara another [2018] KECA 418 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated Annie Kibeh as Gatundu North MP, ruling that minor election errors do not justify nullifying a candidate's win.
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 1st respondent's Notice of Motion dated 9th April 2018 to strike out the Notice of Appeal and the entire appeal should be allowed
- 2.Whether the appellant was eligible to contest the seat of Member of Parliament for Gatundu North Constituency (1st respondent's cross-appeal)
- 3.Whether the 1st respondent should be excluded from the investigations into an election offence ordered by the election court
- 4.Whether the election court's order of scrutiny of 10 representative polling stations was proper when no specific particulars were pleaded
- 5.Whether the learned judge established a new per se test to invalidate elections, displacing the two tests applicable to section 83 of the Elections Act
- 6.Whether the learned judge based his nullification of the election on historical context rather than on the proven facts of the case
- 7.Whether the learned judge determined the petition upon findings of a forensic audit of Form 35As and Polling Station Diaries conducted after closure of proceedings, on matters neither pleaded nor proved
- 8.Whether the learned judge misapprehended the law when nullifying the election for Gatundu North Constituency
Key legal issues
#Existence of a 'per se' standard for nullifying elections
The learned judge misapplied the law by introducing a per se standard; the correct threshold is the substantial-compliance framework in section 83 of the Elections Act as interpreted by the Supreme Court in Raila 2017, comprising the qualitative and quantitative tests
The court traced section 83 to its UK origins and noted that Kenya's version was purposively harmonised with Articles 81 and 86 of the Constitution. Applying Raila 2017, nullification requires proof that the election substantially violated constitutional principles and written law, or that irregularities affecting the result occurred. A judge cannot lower the threshold by creating a third, stricter standard under which any violation of Articles 81 and 86 automatically voids an election.
Improper order of scrutiny of 10 polling stations
The scrutiny order was injudicious because the petitioner's pleadings were random and unspecific, identified no polling stations, and the judge gave no reasons, contrary to section 82(1) of the Elections Act, Rules 28 and 29, and the Munya guidelines
Rule 29(4) confines scrutiny to polling stations in which results are disputed. The petition's allegations of fake ballots and ballot stuffing identified no polling stations, so the judge selected stations by consultation with the parties. Scrutiny for undefined reasons was a fishing expedition. Although the court had power to order scrutiny on its own motion, the order was not made suo moto and the threshold conditions were not met, warranting interference with the discretion.
Forensic audit conducted suo moto by the election court on unpleaded matters
The judge's independent forensic audit of Form 35As and Polling Station Diaries was conducted without the parties' participation, relied on unpleaded matters, and could not sustain nullification; the pleaded irregularities were mere administrative errors
Articles 25 and 50 guarantee a fair hearing; a court cannot make findings on matters not raised in pleadings nor present its own analysis as evidence. The audit findings on unsigned forms, missing diaries and checklists were not pleaded. Even the pleaded delinquencies - missing IEBC stamps, an unsigned form, cancellations on one Form 35A - were administrative or procedural errors incapable of vitiating the election.
Use of historical context in constitutional interpretation
Courts are mandated to take historical context into account when interpreting the Constitution, including electoral provisions; however, the judge's nullification rested on the irregularities and missing materials, not on history alone
Relying on Article 259 and authorities such as the Kenya National Human Rights Commission Advisory Opinion, Re Interim Independent Election Commission and IEBC v Maina Kiai, the court held that purposive and contextual interpretation includes historical context. The complaint that history displaced proof failed because the judge actually nullified for non-compliance with electoral laws and missing electoral materials - though the Court itself found those grounds insufficient.
Ballot box tampering and missing electoral materials
Although tampering occurred and 332 votes plus other materials were missing, the IEBC's failure to secure materials did not amount to a substantial violation warranting nullification, given no evidence of deliberate stage-managing and the insignificance of the missing votes against the appellant's 39,447-vote margin
Article 86(d) and section 86 of the Elections Act impose a duty of safekeeping on the returning officer. But none of the missing items were among those pleaded, no deliberate manipulation by IEBC or the appellant was established, and the 332 missing votes were insignificant against the margin. Procedural and administrative irregularities occasioned by human imperfection are not by themselves enough to vitiate an election.
Election court's jurisdiction over eligibility/qualification disputes
The election court erred in declining jurisdiction over the appellant's qualification, since eligibility goes to the root of an election, but the judge nonetheless properly exercised his discretion to refuse production of the employment records
Citing Kennedy Moki, the court held that an election petition encompasses nomination disputes touching eligibility. The issue was also specifically pleaded at paragraph 39 of the petition. However, the strict constitutional timelines for election petitions were a relevant discretionary factor, and since the judge took relevant matters into account and reached the right conclusion, the cross-appeal ground failed.
Investigation into ballot box tampering including the 1st respondent
The order that the 1st respondent be investigated was proper; he could not rely on missing ballot papers to nullify the election while seeking to exclude himself from investigation after withdrawing the documents
Ballot box tampering is an election offence under section 13(d) of the Election Offences Act. The 1st respondent's case centrally relied on missing ballot papers, copies of which were found in his possession. He could not approbate and reprobate - seeking nullification on the missing papers while using their withdrawal to escape investigation. His assistance was essential to shed light on the missing materials.
Legal principles established
#- There is no stand-alone 'per se' standard for nullifying an election; nullification must rest on the qualitative or quantitative tests under section 83 of the Elections Act as read with Articles 81 and 86, and the violation must be substantial
- An election court has jurisdiction to hear and determine pre-election nomination disputes where the dispute goes to eligibility and qualification to vie in an election
- An order for scrutiny must be confined to specified polling stations in which the results are disputed, on the basis of pleadings and evidence, and the court must give reasons for the order
- A court may not determine a petition on the basis of its own forensic analysis or scrutiny of unpleaded matters conducted without the parties' participation; parties and the court are bound by the pleadings
- Administrative or procedural errors, such as unstamped or unsigned Form 35As, that do not affect the result cannot form a basis for nullification of an election
Court orders
#- 1.The appeal is merited and is allowed
- 2.The judgment and decree of the High Court at Kiambu dated 1st March 2018 in Election Petition No. 1 of 2017 is set aside
- 3.The appellant is declared the validly elected member of National Assembly for Gatundu North Constituency following the General election of 8th August 2017
- 4.A certificate of validity be duly issued and transmitted to the Speaker of the National Assembly
- 5.The appellant and the 2nd respondent shall have the costs in the High Court and in this Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (sitting as an election court; petition filed at Kiambu)
- Election Petition No. 1 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals to the Court of Appeal on matters of law only), following nullification of a parliamentary election by the High Court sitting as an election court
Relief refused
#1st respondent's application to strike out the Notice of Appeal and the appeal
The grounds went to form rather than substance and were curable under Article 159(2)(d) of the Constitution
1st respondent's cross-appeal on the appellant's eligibility to contest the parliamentary seat
Although the election court erred in declining jurisdiction over the eligibility issue, the judge properly exercised his discretion in declining the application for the appellant's employment records; the outcome was right
1st respondent's cross-appeal seeking exclusion from investigations into ballot box tampering
The 1st respondent cannot approbate and reprobate on the missing ballot papers; ballot box tampering is a grave offence and he should assist in shedding light on it
Costs
The appellant and the 2nd respondent shall have the costs in the High Court and in this Court
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.
The appeal is merited and is allowed; 2. The judgment and decree of the High Court at Kiambu dated 1 st March 2018 in Election Petition No. 1 of 2017 is hereby set aside; 3. The appellant is declared the validly elected member of National Assembly for Gatundu North Constituency following the General election of 8th August 2017; 4. A certificate of validity be duly issued and transmitted to the Speaker of the National Assembly; and 5. The appellant and the 2nd respondent shall have the costs in the High Court and in this Court.
By nullifying the election in the manner that he did, the learned judge failed to appreciate that the overwhelming majority of votes attained by the appellant was an explicit manifestation of the will of the people of Gatundu North Constituency, and we so declare.
we find that the irregularities and illegalities alleged were both insufficient and too insignificant to affect the result of the election
to the extent that the learned judge disregarded the threshold that the violation has to be “substantial” before an election can be voided, we are of the view that he misapplied the law
Scrutiny for undefined reasons, or for its own sake, particularly where no polling stations are indicated, had, in our view all the hallmarks of a grand fishing expedition, and an incredible journey into the unknown.
since the forensic audit report was formulated without participation of the parties, and comprised unpleaded matters, it cannot be relied upon as a basis for nullifying the election
we consider that these were administrative or procedural errors, that were not of the severity or substantive illegality as to be significant enough to void an election
Issues in the judgment
#The judgment inconsistently states the number of dismissed allegations - first twenty-nine, then 'twenty eight'
The number of missing votes is given as 322 in one passage and 332 elsewhere
The election court's quoted conclusion contains a garbled/duplicated phrase ('it was not substantially that it as not in accordance with the law')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Annie Wanjiku Kibeh v Clement Kungu Waibara another [2018] KECA 418 (KLR)", Case Analysis (2018). Election Petition Appeal No. 20 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/418/eng@2018-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.