Dennis Magare Makori & another v Independent Electoral and Boundaries Commission & 3 others [2018] KECA 431 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the South Mugirango MP's 2017 election, ruling that minor voting irregularities and portal errors don't invalidate an election result.
What this practically means
#Executive summary
#Key legal issues
#Whether the election court erred in rejecting the application for scrutiny and recount
The election court did not err; no basis was laid in the petition, application or evidence for scrutiny, and one misdirection (reliance on Regulation 80) did not vitiate the decision.
The Court held that an order for scrutiny is not automatic and sufficient reason must be shown under Rule 29(2) of the Elections (Parliamentary and County Elections) Petition Rules, 2017. Scrutiny cannot be used to widen the scope of a petition or as a fishing expedition. Although the judge misdirected himself in holding that failure to seek a recount at the polling station under Regulation 80 diminished the application, the refusal was nonetheless justified because no basis had been laid for scrutiny.
Whether the 1st and 2nd respondents were duty bound to electronically transmit the results
Section 39 of the Elections Act requires electronic transmission only for the presidential election; final results are those in the statutory forms, and errors on the public portal did not vitiate the election.
The Court noted that while IEBC transmitted results for other elective positions via a public portal accessible to the public, the statute mandates transmission only for the presidential election. Relying on Maina Kiai, the Court affirmed that the polling station count, captured in statutory forms, is final. The election court's finding that portal discrepancies resulted from technological failure was properly anchored in law and did not affect the declared results.
Whether there was a failure by presiding officers to sign statutory forms
Failure to sign a statutory form requires exclusion of the results therein, but the election court found the forms in question had been signed, so nothing turned on this ground.
The Court accepted that Regulation 79(1) makes signing of declaration forms mandatory and that unsigned forms should be excluded from the tally. However, the election court made findings of fact that the forms 35A for the impugned polling stations had been signed by presiding or deputy presiding officers. The Court of Appeal, confined to matters of law, deferred to those findings of fact and found nothing turned on the ground.
Whether the election court exhibited bias and violated the appellants' right to a fair trial
No bias was established; the election court properly set out and determined the issues raised by each party, and similarity of responses did not prove collusion.
The Court applied the test for apprehended bias from the reasonable and fair-minded person informed of all circumstances, and the requirement of proof of a closed or prejudged mind for actual bias. On the record, the election court addressed the issues laid out by each party. Similar responses by respondents could point to a coordinated defence or joint strategy but did not establish collusion; at most it could justify a reduction of advocate costs.
Whether the court should have drawn an adverse inference from the failure of some presiding officers to testify
No adverse inference was warranted; the petitioner must first adduce evidence that would entitle it to judgment absent rebuttal, and the legal burden always remains with the petitioner.
Following Munuve Mati and Ranguma, the Court held that an adverse inference can only be drawn where there is an irresistible deduction from proven facts, and drawing one here would wrongly shift the legal burden from petitioner to respondent. The election court had found the appellants failed to establish, by evidence, which polling stations the unsealed ballot boxes related to or that they concerned the impugned election, and that a nexus to the results had to be shown.
Whether the judge erred in relying on section 83 of the Elections Act without applying Articles 81, 86, 87 and 88 of the Constitution
No error; there was no direct violation of the Constitution, and the minor non-compliance with the Regulations did not go to the root of the election or materially affect the result.
The Court explained that the Elections Act is a product of Article 87(1) of the Constitution and section 83 mandates courts not to nullify an election unless its conditions are met. Reading the constitutional provisions together, the Court found no direct constitutional violation; the evidence pointed only to minor non-compliance with the Regulations that was insufficient to go to the root of the election, and the irregularities neither were substantial nor materially affected the result.
Whether the costs awarded by the election court were manifestly excessive
The costs were not manifestly excessive given the petition was fully heard with a scrutiny application; the Court declined to interfere.
The Court applied section 84 of the Elections Act and rule 30 of the Elections Rules, 2017, reiterating that the award of costs by an election court is discretionary, appellate interference requires a misdirection, and costs compensate the successful litigant without deterring access to justice. Bearing in mind the full hearing and the scrutiny application, the awards of instruction fees of Kshs. 2.5 million to the 3rd respondent and a global Kshs. 2.5 million for the jointly defended respondents were not excessive.
Legal principles established
#- Appeals to the Court of Appeal in election petitions are confined to matters of law only; the Court cannot delve into facts as established by the election court except to satisfy itself that the conclusions are based on the evidence and not perverse
- An order for scrutiny and recount is not automatic; sufficient reason must be shown and scrutiny cannot be used to widen the scope of a petition or to fish for evidence
- A candidate's failure to request a recount at the polling station under Regulation 80 of the Elections (General) Regulations, 2012 has no bearing on an application for scrutiny or recount made during the hearing of an election petition
- Final results of an election are those found in the statutory forms, not those displayed on a public portal; section 39 of the Elections Act requires electronic transmission of results only for the presidential election
- Where a statutory form is not signed by the presiding officer, the results therein ought to be excluded from the final tally
- An adverse inference from a party's failure to call a witness cannot be drawn unless the petitioner has first adduced evidence of a nature that would entitle him to judgment even absent rebuttal; the legal burden of proof always remains with the petitioner
- Similarity of responses or evidence between respondents does not by itself prove collusion
- The award of costs by an election court is discretionary and an appellate court can interfere only where there is a misdirection; costs compensate the successful litigant and should not deter litigants of modest means
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.If the parties do not agree on the quantum of costs, the same shall be taxed by the Deputy Registrar of this Court
- On appeal from
- High Court of Kenya at Kisii
- Election Petition No 5 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act - appeals to the Court of Appeal in election petitions confined to matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dennis Magare Makori & another v Independent Electoral and Boundaries Commission & 3 others [2018] KECA 431 (KLR)", Case Analysis (2018). Election Petition Appeal No 22 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/431/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.