Waity v Independent Electoral and Boundaries Commission & 3 others [2018] KECA 420 (KLR)

The Court distinguished its decisions in Lesirma Simeon Saimanga and Musa Cherutich Sirma, where notices filed at the High Court were never transmitted to the Court of Appeal Registry. Here the notice was stamped by the Nyeri registry on 7th February 2018 and served the next day. Any non-conformity with the prescribed format was a curable irregularity under Article 159 of the Constitution.

Applying Gatirau Peter Munya v Dickson Mwenda Kithinji and John Munuve Mati, the Court held that although the memorandum alleged errors 'in law and in fact', counsel never identified an error of interpretation or construction, an erroneous application of law to facts, or conclusions so perverse that no reasonable tribunal would reach them. Poor drafting does not oust jurisdiction, but the grounds as argued failed the statutory threshold.

Relying on the Supreme Court's principles in Gatirau Peter Munya, the Court noted that scrutiny does not lie as a matter of course and must be confined to disputed polling stations. The appellant was a Jubilee agent stationed at the Nanyuki High School Tallying Centre, did not dispute any named polling station, and did not testify on specific forms or discrepancies warranting scrutiny.

The affidavits of Danson Apaol Ngimor and others were attached only as annextures to the 2nd petitioner's supporting affidavit. Once the 2nd petitioner was allowed to withdraw, his affidavit had no legs to stand on, and the annextures could not remain on record independently. The appellant's complaint was therefore unmerited.

The appellant could not, in the election petition, challenge the 2nd respondent's clearance by the Registrar of Political Parties, which he had never challenged. Citing The Speaker of the National Assembly v Karume, Jared Odoyo Okelo and Hon. Silverse Lisamula Anami, the Court held that matters determined by the PPDT or the IEBC DRC cannot be re-litigated in an election court, otherwise litigation would be open-ended.

Citing Raila 2013 on burden of proof and Musikari Nzioki Kombo v Moses Masika Wetangula on standard of proof, the Court agreed with the trial Judge that although serious allegations were made, no agent testified, the appellant himself was not present at the polling stations, and affidavit evidence that was never tested by cross-examination could not sustain the petition.

Relying on Hon. Dickson Daniel Karaba v Hon. Kibiru Charles Reubenson and Cornel Rasanga v William Odhiambo Oduol, the Court accepted that petitions reserve the right to take up on appeal issues regarding rulings made in the petition, since appeals do not lie against interlocutory rulings; failure to file notices of appeal against each ruling was therefore not fatal.

Costs follow the event under Section 84 of the Elections Act, but are meant to compensate rather than to operate as a commercial enterprise, which would shut out aggrieved litigants. Guided by the principles of fairness, justice and access to justice articulated in Karaba and Kaloki, the Court found the cap disproportionate and reduced it.