Zaheer Jhanda & 1 other v The Independent Electoral & Boundaries Commission & 3 others
The bottom line
#Kenya's Court of Appeal upheld an MP's 2017 election win, confirming that election appeals are limited to questions of law and procedural rules must be strictly followed.
What this practically means
#Executive summary
#Key legal issues
#Scope of appellate jurisdiction in election petition appeals
Appeals lie on matters of law only; the appellate court must defer to the trial judge's findings on credibility and probative value and may only disturb factual findings that are perverse
Relying on the Supreme Court's decision in the Munya case and Fredrick Otieno Oira, the Court held that while it may navigate the evidential landscape, it must maintain fidelity to the trial record. Credibility findings are for the trial court which had first-hand perception of witnesses. The evaluation of evidence on appeal is only to determine whether the trial court's conclusions were supported by the evidence or so perverse that no reasonable tribunal would have reached them.
Scrutiny of votes under section 82 of the Elections Act
Scrutiny is discretionary; it must be sought with specificity, before conclusion of the hearing, and on a laid basis; it cannot be a vehicle for introducing fresh evidence or better particulars
The Court found that prayers (c), (d) and (f) of the application were disguised requests for further and better particulars and discovery. The application was filed after the formal hearing had concluded and directions on submissions given, two days past the deadline, hence an afterthought. None of the appellant's ten witnesses laid a basis for scrutiny. Allowing scrutiny of the expunged exhibits would have reintroduced them through the backdoor.
Expungement of affidavit annextures for non-compliance with rule 9 of the Oaths and Statutory Declarations Rules
The requirement that exhibits be sealed and serialized is mandatory; a preliminary objection on this pure point of law may be raised orally at any stage, and Article 159(2)(d) does not cure the omission
The rule prevents mischief, ensures a deponent owns and secures exhibits, and prevents litigants sneaking documents into the record to the prejudice of opponents. The non-compliance was undisputed and purely a point of law. Article 159 is not a panacea and was never meant to oust the obligation of litigants to comply with procedural imperatives.
Whether the election was vitiated by illegalities and irregularities
The alleged irregularities were either unproved, based on hearsay or incredible evidence, remedied, or immaterial to the result; the election complied with the Constitution and the law
The Court affirmed findings that voters were identified by Kiems kits biometrically or alphanumerically with remedial measures where kits failed; assisted voters and indelible ink allegations were unproved; agents who signed forms 35A without protest could not later allege irregularities; only duly appointed agents have access to polling stations; electronic transmission of results is not mandatory for non-presidential elections; and bribery and violence require proof beyond reasonable doubt.
Award of costs in election petitions
Costs are discretionary and the trial court's award would not be disturbed absent a showing of wrong principles or excessive amount
The appellant complained the capped costs were punitive and a fetter to the constitutional audit system of elections, but did not demonstrate how they were prohibitive or unjustly excessive, nor that the trial court applied wrong principles. The 3rd respondent noted the trial court considered counsel's seniority, research and time spent in capping costs at Kshs. 5.4 million and Kshs. 3 million respectively.
Legal principles established
#- An 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, and the Court must show deference to the trial judge's findings on credibility of witnesses and probative value of evidence
- An application for scrutiny must be couched in specific terms with particularity as to polling stations, must not be used to introduce fresh evidence or as a fishing expedition, and may not be made after conclusion of the hearing
- A preliminary objection on a pure point of law may be raised at any stage of the proceedings, orally, without a formal application
- Exhibits annexed to an affidavit must be sealed and serialized under rule 9 of the Oaths and Statutory Declarations Rules, and non-compliance cannot be cured by Article 159(2)(d)
- Section 39(1C) of the Elections Act does not impose a duty to transmit results electronically except in presidential elections
- Voter bribery and violence or intimidation are criminal offences whose standard of proof is beyond reasonable doubt
Court orders
#- 1.Acceptance of the 2nd appellant's notice of withdrawal of his appeal
- 2.Dismissal of the 1st appellant's appeal with costs to the 1st, 2nd and 3rd respondents
- 3.Costs capped at Kshs. 1,500,000/- for the 1st and 2nd respondents and Kshs. 2,500,000/- for the 3rd respondent, payable by the 1st appellant
- On appeal from
- High Court of Kenya at Kisii
- High Court Election Petition No. 10 of 2017
- Jurisdiction invoked
- Article 164(3) of the Constitution as read with section 85A(1) of the Elections Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zaheer Jhanda & 1 other v The Independent Electoral & Boundaries Commission & 3 others", Case Analysis (2018). Election Petition Appeal No. 33 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/432/eng@2018-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.