Edward Tale Nabangi v James Lusweti Mukwe & 2 others [2018] KECA 437 (KLR)
The bottom line
#Kenya's Court of Appeal voided the Kabuchai MP election because biometric voting machines failed to record voters and ballot boxes went missing.
What this practically means
#Executive summary
#Key legal issues
#Failure of the KIEMS kit to store data on identified voters in six polling stations
The election court's finding that the voters whose data were not captured had been identified was erroneous; persons voted without electronic identification, a serious breach of the constitutional principles of transparency, accuracy and accountability sufficient to annul the results of the affected polling stations
The court accepted unchallenged evidence that in six polling stations the KIEMS kit did not record identified voters for about two hours. It held that a voter whose data are not recorded has not been accounted for and may vote again, so such persons were not eligible to vote. The subsequent recall of voters was unauthorized and amounted to tampering. Since the winning margin was only 423 votes and in three polling stations votes cast exceeded votes authenticated, the breach could have affected the result.
Non-inclusion of Bwake polling station 2 of 2 results in Form 35B
The Presiding Officer's removal of ballot boxes and election materials to his house was prima facie in breach of election law affecting the integrity of the election, and the non-inclusion of the results affected the election result
The court found ample evidence that the Presiding Officer took ballot boxes to his house for about eight hours, some were intercepted and others found in his house, and he was charged with an electoral offence. Given the narrow winning margin of 423 votes and the appellant's claim that Bwake was his stronghold with 469 registered voters, it was speculative to hold the omitted results could not affect the outcome.
Extension of time to file the notice of appeal and striking out application
The two-day delay was reasonably explained; the notice of appeal dated 6th March 2018 was deemed filed within time and the striking-out application dismissed
Rule 15 of the 2017 Rules entitled the Registrar to accept the notice filed out of time, service was within five days, no prejudice was shown, and the Court had in John Munuve Mati extended time in similar circumstances. Applying Article 159(2)(d), procedural technicalities should not bar electoral justice.
Standard and burden of proof in election petitions
The legal burden rests on the petitioner but may shift; the threshold is above balance of probability but not beyond reasonable doubt; the principles in Raila 2013 and Peter Munya were applied
The court restated the Supreme Court's jurisprudence under section 83 of the Elections Act (pre-2017 amendment): non-compliance does not void an election if it was conducted substantially in accordance with constitutional principles or did not affect the result. A petitioner must prove both non-compliance and its effect on validity, and an election is annulled only on cogent and ascertained factual premises.
Legal principles established
#- An election is not to be annulled except on cogent and ascertained factual premises
- An election conducted substantially in accordance with constitutional principles is not invalidated on ground of mere irregularities; it is invalidated only where irregularities were of such magnitude as to affect the result
- A petitioner alleging non-conformity with electoral law must prove both the non-compliance and that it affected the validity of the election; the margin of victory is immaterial
- Voters whose biometric data are not captured by the electronic identification device cannot be treated as having been identified by it; failure to capture data renders the ballot unaccounted for even if the failure was human error
- Recalling voters to re-present themselves to the electronic identification device after they had voted is a procedure not recognized by law and tantamount to tampering with the technology
- Procedural technicalities should not stand in the way of electoral justice where short delay is reasonably explained and no prejudice is caused
Court orders
#- 1.The appeal is allowed and the judgment of the election court dated 28th February, 2018 is set aside with costs to the appellant against the respondents
- 2.The petition of the appellant dated 4th September, 2017 is allowed with costs to the appellant against the respondents
- 3.A declaration that the election for member of National Assembly, Kubuchai Constituency held on 8th August, 2017 was not conducted in accordance with the principles laid out in the Constitution of Kenya 2010 and the Election Act and Regulations, rendering the results declared on 10th August, 2017 and gazetted on 22nd August, 2017 invalid, null and void
- 4.A declaration that James Lusweti Mukwe was not validly elected as member of National Assembly for Kubuchai Constituency and a certificate to that effect to issue to the Speaker of the National Assembly
- 5.A fresh election to be held for member of National Assembly for Kubuchai Constituency within the time stipulated by law
- 6.The costs of the petition and of the appeal to be shared equally by the 1st respondent on one part and the 2nd and 3rd respondents on the other part
- 7.The appellant's application for extension of time allowed and the notice of appeal dated 6th March, 2018 deemed as filed within time and incorporated in the record of appeal
- 8.The 2nd and 3rd respondents' application to strike out the notice of appeal dismissed with no order as to costs
- On appeal from
- High Court of Kenya at Bungoma
- H.C. Election Petition No. 1 of 2017
- Jurisdiction invoked
- Court of Appeal (Election Petition) Rules, 2017 - appeal from the election court under the Elections Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Tale Nabangi v James Lusweti Mukwe & 2 others [2018] KECA 437 (KLR)", Case Analysis (2018). Election Petition Appeal No. 23 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/437/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.