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Court of AppealPartially AllowedElection Petition Appeal No. 18 of 2018 (Kisumu)· [2018] KECA 434 (KLR)

George Mbogo Ochilo Ayacko v Independent Electoral & Boundaries Commission & 2 others [2018] KECA 434 (KLR)

Court of Appeal of Kenya
27 July 2018
9,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld Migori Governor Obado's 2017 election, ruling the losing candidate failed to prove his fraud allegations to the required legal standard.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Makhandia, Gatembu Kairu and M'Inoti, JJ.A) dismissed, in the main, an appeal by Dr. George Mbogo Ochilo Ayacko against the dismissal by the High Court at Migori (Chemitei, J) of his petition challenging the election of Zakaria Okoth Obado as governor of Migori County in the 8th August 2017 general election. The Court first confirmed jurisdiction under Section 85A of the Elections Act, holding that a challenge to the trial judge's conclusions on whether the election met constitutional standards raises matters of law. On the merits, applying Articles 81 and 86 of the Constitution and Section 83 of the Elections Act, the Court held that the appellant failed to discharge his burden of proving falsification of votes, multiple voting, ballot stuffing, non-identification of voters, or unprocedural use of manual registers, and that the trial judge's findings were supported by the evidence and not perverse. Allegations of election offences, including bribery, treating, violence and use of public resources, were required to be proved beyond reasonable doubt; the testimonies of the appellant's witnesses raised only suspicion and fell short of the standard. The complaint of denial of fair trial, premised on the striking out of pleadings and refusal of scrutiny of SD cards, failed because the election court had properly exercised its discretion and parties may not travel beyond their pleadings. The only ground on which the appeal succeeded was costs: the Court found the capped instruction fees of Kshs. 6,000,000.00 manifestly excessive and reduced them to Kshs. 1,500,000.00 against the appellant for each set of respondents, while capping appeal costs at Kshs. 1,000,000.00 per set of respondents. This decision binds subordinate courts and election courts within its jurisdiction on the standards of proof and appellate review it articulates.

Key legal issues

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01

Scope of appellate jurisdiction under Section 85A of the Elections Act

Holding

The appeal properly lies as the appellant challenges the trial judge's conclusions on whether the election met constitutional standards, which are matters of law.

Reasoning

Section 85A confines election petition appeals to matters of law. Relying on the Munya Case and John Munuve Mati, the Court held that conclusions of a trial judge based on no evidence, unsupported by the evidence, or so perverse that no reasonable tribunal would reach them are questions of law. Since the appellant challenged the judge's conclusion that the election was conducted in accordance with constitutional principles, the appeal was properly before the Court.

p. 3
02

Whether the election was conducted in accordance with the Constitution and electoral laws

Holding

The appellant failed to discharge his burden of proving falsification of votes, multiple voting, ballot stuffing, non-identification of voters or unprocedural use of manual registers.

Reasoning

Applying Articles 81 and 86 and Section 83 of the Elections Act, the petitioner must both plead and prove non-compliance and its effect on the result to a standard above balance of probability. Reviewing the evidence of PW22, PW18, PW21, PW26 and the appellant against IEBC's witnesses, the Court found the trial judge's conclusions were supported by the evidence and could not be disturbed absent perversity.

p. 6
03

Whether election offences (bribery, treating, violence, incitement, use of public resources) were committed

Holding

No; the evidence was weak and circumstantial and did not meet the beyond-reasonable-doubt standard required for election offences.

Reasoning

Citing Moses Masika Wetang'ula and Phillip Kyalo Kituti Kaloki, the Court reaffirmed that election offences must be proved beyond reasonable doubt. The many witness testimonies raised only suspicion, which is not enough; the evidence fell short of clear-cut proof that the bribery or treating was by or with the knowledge and consent of the 3rd respondent.

p. 7
04

Whether the appellant was denied a fair trial by the striking out of pleadings and refusal of scrutiny of SD cards

Holding

No; the election court properly exercised its discretion in refusing scrutiny and recount and in striking out material that introduced new matters beyond the pleadings.

Reasoning

Rulings on scrutiny under Section 82 of the Elections Act are discretionary; scrutiny does not lie as a matter of right. Applying Mbogo v Shah, an appellate court will not interfere absent misdirection. The judge was entitled to hold parties to their pleadings, consistent with Raila 2017, and the appellant's applications were properly rejected as a fishing expedition and an attempt to expand the petition.

p. 9
05

Whether the costs awarded were excessive

Holding

Yes, in part; the capped instruction fee of Kshs. 6,000,000.00 was manifestly high and was reduced to Kshs. 1,500,000.00 for each set of respondents.

Reasoning

Costs under Section 84 of the Elections Act are discretionary, but the Court found the aggregate cap of Kshs. 6,000,000.00 in instruction fees reflected an erroneous exercise of discretion. It lowered the ceiling to Kshs. 1,500,000.00 against the appellant for each of the 1st and 2nd respondents and the 3rd respondent, while leaving taxation to the Deputy Registrar.

p. 9

Legal principles established

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  • The Court of Appeal in an election petition appeal is confined to matters of law but may examine whether the trial judge's conclusions are supported by the evidence on record or are so perverse that no reasonable tribunal would have reached them.
  • A petitioner alleging non-conformity with electoral law must prove not only the non-compliance but also that it affected the validity of the election.
  • Allegations of election offences in an election petition must be proved beyond reasonable doubt.
  • An appellate court will not interfere with the exercise of discretion by an election court unless the judge misdirected himself in law, misapprehended the facts, took into account extraneous considerations, failed to consider relevant ones, or the decision is plainly wrong.

Court orders

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  1. 1.The appellant's appeal is dismissed with costs to the respondents
  2. 2.The 1st and 2nd respondents' instruction fee in the High Court shall not exceed Kshs. 1,500,000.00 as against the appellant
  3. 3.The 3rd respondent's instruction fee in the High Court shall not exceed Kshs. 1,500,000.00 as against the appellant
  4. 4.The 1st and 2nd respondents' instruction fee of the appeal shall not exceed and are capped at Kshs. 1,000,000.00 as against appellant
  5. 5.The 3rd respondent's instruction fee of the appeal shall not exceed and are capped at Kshs. 1,000,000.00 as against appellant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 81
  • Constitution of Kenya, 2010Article 86
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Article 48
  • Elections ActSection 85A
  • Elections ActSection 83
  • Elections ActSection 82
  • Elections ActSection 84
  • Elections ActSection 87
  • Election Offences Act
  • Elections (Parliamentary and County Election) Petition Rules, 2017Rule 15(1)(h)
  • Advocates' Remuneration Order

Cases cited (18)

  • Raila Odinga vs. IEBC & 2 others
    [2017] eKLR
  • Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
  • Zacharia Okoth Obado vs. Edward Akongo Oyugi & 2 others
    [2014] eKLR
  • Mercy Kirito Mutegi vs. Beatrice Nkatha Nyaga & 2 others
    [2013] eKLR
  • The Attorney General vs. David Marakau
    [1960] EA 484
  • Timamy Issa Abdalla vs Swaleh Salim Swaleh Imu & 3 others
    [2014] eKLR
  • John Munuve Mati v Returning Officer Mwingi North Constituency & 2 others
    [2018] eKLR
  • Bracegirde vs. Oxley
    (1947) 1 All ER 126
  • Moses Masika Wetangula vs Musikari Nazi Kombo & 2 others
    [2014] eKLR
  • Raila Odinga & 5 Others v IEBC & 3 Others
    [2013] eKLR
  • Morgan & Others v Simpson & Anor
    (1974) 3 ALL ER 722
  • Nathif Jama Adam v Abdikhaim Osman Mohammed & 3 Others
    (2014) eKLR
  • Damodar Lal vs. Sohan Devi and others
    Civil Appeal No. 231 of 2015
  • M'nkiria Petkay Shen Miriti vs. Ragwa Samuel Mbae & 2 Others
    (2014) eKLR
  • Phillip Kyalo Kituti Kaloki vs IEBC and 2 others
    Nairobi Election Petition Appeal No. 25 of 2018
  • Henry Okello Nadimo vs. IEBC & 2 others
    [2013] eKLR
  • Owino Paul Ongili Babu vs Francis Wambugu Mureithi and 2 others
    EPA No. 18 of 2018, Nairobi
  • Mbogo & Another vs. Shah
    [1968] E.A. 93
On appeal from
High Court of Kenya at Migori
Election Petition No. 13 of 2017
Jurisdiction invoked
Section 85A of the Elections Act (appeals on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Mbogo Ochilo Ayacko v Independent Electoral & Boundaries Commission & 2 others [2018] KECA 434 (KLR)", Case Analysis (2018). Election Petition Appeal No. 18 of 2018 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/434/eng@2018-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.