Hussein Abshiro Herin & 22 others v Independent Electral and Boundaries Commission & 2 others [2018] KECA 424 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed 23 Mandera North voters' challenge to a 2017 MP election, ruling that irregularities must be proven to have 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 learned Judge erred in holding that the appellants failed to discharge their burden of proof, to the required standard, to establish that the election was not conducted in accordance with the constitutional principles for the conduct of elections and in accordance with electoral laws and regulations
- 2.Whether the Judge erred in failing to apply Regulation 5 of the Elections (General) Regulations, 2012 requiring a list of proposed presiding officers to be shared with political parties and independent candidates prior to appointment
- 3.Whether the Judge erred in holding that IEBC could use forms that had alterations without the same being countersigned
- 4.Whether the Judge erred in failing to find that the failure by IEBC to supply SD cards violated the principle of accountability under Articles 81 and 86 of the Constitution
- 5.Whether the elections were not conducted by an independent body in accordance with Articles 81 and 86 of the Constitution to the extent that IEBC delegated delivery of election materials to police officers and changed the tallying centre
- 6.Whether the Judge erred in accepting that polling could take place in polling stations that had not been gazetted
- 7.Whether the appellate court should interfere with the election court's award of costs
Key legal issues
#Burden and standard of proof in election petitions
The petitioner bears the legal and evidential burden of proving non-conformity with electoral law and that such non-conformity affected the result; the burden shifts to the respondent only once sufficient evidence warranting impugning the election is adduced.
The Court applied the Supreme Court's pronouncements in Raila 2017, holding that a petitioner must adduce cogent and credible evidence 'to the satisfaction of the court', and that although the evidential burden may shift during trial, the legal burden remains on the petitioner throughout. Failure to discharge that burden is fatal to a petition.
Deference to findings of fact by the election court
An appellate court sitting on an election appeal under Section 85A of the Elections Act interferes only with findings of fact that were arrived at without evidence or which are perverse.
Counsel for the respondents invoked Section 85A(1) limiting the appeal to matters of law, and the Court adopted the test in Damodar Lal vs Sohan Devi: findings are perverse only if arrived at by ignoring or excluding relevant material, relying on inadmissible material, or defying logic. Since the Judge's findings were demonstrably supported by evidence, the Court had no basis to interfere.
Effect of uncountersigned alterations on statutory forms
Uncountersigned alterations do not by themselves invalidate an election; the purpose of countersigning is to authenticate the amendment, and absent evidence of improper motive, an altered document is as genuine as an unamended one.
Following the Supreme Court's reversal of the Court of Appeal position in Munya, procedural irregularities occasioned by human imperfection are not enough to vitiate an election. Scrutiny of the SD cards ascertained only 503 votes were affected against a margin of over 10,000 votes, so the result could not have been affected.
Independence of IEBC and involvement of the police
Deployment of police to provide security and escort for election materials does not amount to an abdication by IEBC of its duty or compromise the independence of the electoral body.
Section 105 of the Elections Act imposes a duty on police officers to maintain law and order necessary for the conduct of an election and to support the Commission. Given evidence of chaos outside IEBC offices, IEBC was entitled to rely on police for security, and there was no complaint that any polling station lacked materials.
Costs in election petitions
Under Section 84 of the Elections Act costs follow the cause; an election court dismissing a petition is entitled to award costs against the losing party, and an appellate court will not interfere absent misdirection in the exercise of that discretion.
The Court held the power to award costs is discretionary and, applying Mercy Kirito Mutegi, interference requires misdirection or misapprehension of law. The irregularities alluded to did not affect the result or the outcome of the petition, so the Judge was entitled to award costs against the appellants and to cap instruction fees.
Legal principles established
#- A petitioner who seeks nullification of an election bears the burden of proving non-conformity or irregularities with cogent and credible evidence, and must also prove that any non-conformity affected the result of the election.
- An appellate court will not interfere with findings of fact by an election court unless those findings are unsupported by evidence or perverse.
- Alterations on election results forms that are not countersigned do not, without more, vitiate an election where the alterations are explained and the result is unaffected.
- The police have a statutory duty under Section 105 of the Elections Act to provide support to IEBC in the conduct of elections, and reliance on police for security does not compromise the independence of IEBC.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.Instruction fees capped at Kshs. 1,500,000.00 in favour of the 1st and 2nd respondents
- 3.Instruction fees capped at Kshs. 1,500,000.00 for the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 7 of 2007 [as printed; petition concerned the 2017 general election]
- Jurisdiction invoked
- Section 85A(1) of the Elections Act (appeals from election court limited to matters of law)
Relief refused
#Interference with the trial Judge's finding that Regulation 5(2) was complied with
Findings were demonstrably supported by evidence; the witnesses who testified were not officials of the political parties nor independent candidates entitled to receive the list
Nullification of the election on account of altered forms not countersigned
Scrutiny ascertained only 503 votes were affected against a margin of over 10,000 votes; alterations were explained and did not affect the result
Invalidation of the election for failure to supply SD cards for two polling stations
The results of those two polling stations were excluded from the final tally and no candidate benefitted
Finding that the election was not conducted by an independent body due to police involvement and movement of the tallying centre
IEBC was entitled to police support under Section 105 of the Elections Act; the tallying centre issue was live in a different pending appeal
Interference with the costs order of the election court
Costs follow the cause under Section 84 of the Elections Act; no basis laid to disturb the Judge's discretionary award
Costs
Appeal dismissed with costs to the respondents; instruction fees capped at Kshs. 1,500,000.00 in favour of the 1st and 2nd respondents and at the same amount for the 3rd respondent.
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 upshot of the foregoing is that the appellants appeal is devoid of merit and is dismissed with costs to the respondents. The instruction fees shall be capped at Kshs. 1,500,000.00 in favour of the 1 st and 2nd respondents and at the same amount for the 3rd respondent. Orders accordingly.
Beyond the burden of proving that there was non-conformity with the electoral laws, the appellants also had the burden to prove that such non-conformity affected the validity of the election.
we caution ourselves that we can only interfere with the Judge’s findings if the same were arrived at without evidence.
Procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election.
The purpose of countersigning alterations is to authenticate the amendment.
the police have a duty under the law generally, and under Section 105 of the Elections Act in particular, to maintain law and order and to provide support to IEBC as circumstances may demand.
No basis has been laid for us to interfere with the Judge’s exercise of discretion in awarding and in capping the costs as she did.
Issues in the judgment
#The appeal is stated to be from Election Petition No. 7 of 2007, yet the petition concerns the 8th August 2017 general election and was dated 5th September 2017; the year 2007 appears to be an error for 2017.
The judgment refers to the 2nd respondent both as the Mandera North Constituency Returning Officer in the cause title and as the Independent Electoral and Boundaries Commission (IEBC) in the body of the judgment, an internal inconsistency.
The judgment cites the same Supreme Court decision in Obado v Oyugi under two slightly different renderings of the parties' names (Zachary Okoth Obado and Zachariah Okoth Obado), suggesting a typographical inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hussein Abshiro Herin & 22 others v Independent Electral and Boundaries Commission & 2 others [2018] KECA 424 (KLR)", Case Analysis (2018). Election Petition Appeal No. 16 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/424/eng@2018-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.