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Court of AppealDismissedElection Petition Appeal No. 24 of 2018· [2018] KECA 439 (KLR)

John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 439 (KLR)

Court of Appeal
26 July 2018
10,391 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld the Kacheliba MP's election, confirming that statutory result forms beat the IEBC portal and that certificate-less electronic evidence is inadmissible.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Githinji, Okwengu and Mohammed, JJ.A) dismissed an election petition appeal against the election of Mark Lomunokol as Member of Parliament for Kacheliba Constituency. The 3rd respondent's application to strike out the appeal as filed out of time failed: applying section 57 of the Interpretation and General Provisions Act to the 30-day period in section 85A(1)(a) of the Elections Act, the Court held that 31st March 2018 (a Saturday) and Easter Sunday and Easter Monday were excluded days, so filing on 3rd April 2018 was in time. On the merits, the Court held that the appeal raised matters of law within section 85A, but found no merit in any ground. Following Maina Kiai and Ranguma, it held that results in the statutory Forms 35A are final; results on the IEBC public portal are provisional under Regulation 82, and variance between the portal, tallying-centre announcements and Form 35B could not invalidate the election. The Forms 35A downloaded by the appellant and his social-media screenshots were inadmissible for non-compliance with the certificate requirement of section 106B of the Evidence Act. Allegations of bribery and bias, being quasi-criminal, required proof beyond reasonable doubt on cogent evidence, which was not adduced. The legal burden of proof remained on the petitioner and never shifted. No non-compliance substantially affected the result under section 83 of the Elections Act, and the costs of Kshs. 2,500,000 awarded by the election court were not inordinately high. The election court's judgment dismissing the petition was affirmed, and the appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the record of appeal was filed within the 30-day period under section 85A(1)(a) of the Elections Act

Holding

The 30-day period expired on 31st March 2018, a Saturday, followed by Easter Sunday and Easter Monday, both excluded days; filing on 3rd April 2018 was therefore in time and the striking-out application failed.

Reasoning

The Elections Act and the 2017 Court of Appeal Rules do not provide for computation of time, so section 57 of the Interpretation and General Provisions Act applies. That section deems periods of days exclusive of the first day and extends periods ending on Sundays, public holidays or official non-working days to the next working day. Section 85A(1)(a) prescribes the 30-day period, and the record of appeal filed on the next working day after the excluded days was properly before the Court.

p. 4
02

Whether the appeal raises matters of law under section 85A of the Elections Act

Holding

The appeal raises points of law; the Court is not precluded from considering facts with the objective of evaluating the conclusions the election court arrived at.

Reasoning

Relying on the Munya and Obado decisions of the Supreme Court, the Court reiterated that 'matters of law only' includes issues of interpretation or application of legal provisions and conclusions of the trial judge said to be based on no evidence or so perverse that no reasonable tribunal would reach them. The Wavinya Ndeti authority confirms that points of law may be difficult to separate from factual determination, and the appellant must show the trial court's assessment of evidence was wrong rather than ask for reassessment.

p. 7
03

Whether three differing sets of results (tallying centre, IEBC portal and Form 35B) invalidated the election

Holding

No. The results in the statutory forms are final; portal results are provisional and errors in transmission cannot of themselves invalidate the declared results.

Reasoning

Section 39(1)(1A)(i) of the Elections Act obliges the constituency returning officer only to tally, announce and declare polling-station results for the National Assembly election; there is no statutory requirement of electronic transmission or portal publication for non-presidential elections. Regulation 82 makes electronically submitted results provisional. The Maina Kiai and Ranguma authorities establish the primacy and finality of the polling-station forms.

p. 8
04

Whether the election court erred in excluding the Forms 35A downloaded from the IEBC portal and the social-media screenshots

Holding

No. Both sets of electronic records were inadmissible for failure to comply with section 106B of the Evidence Act, including production of a certificate.

Reasoning

Section 106B deems computer output a document only where its conditions, including a certificate identifying the electronic record and describing the manner of its production, are met. The appellant admitted on cross-examination that he attached WhatsApp and Facebook communications accessed on his personal computer without a certificate. The Court endorsed the County Assembly of Kisumu authority on the mandatory nature of the certificate requirement to vouchsafe authenticity of electronic records.

p. 9
05

Whether allegations of bias and bribery against the 3rd respondent were proved

Holding

No. Bribery is a criminal and electoral offence to be proved beyond reasonable doubt on cogent evidence; the appellant merely alluded to bribery without evidence, and the bias evidence was inadmissible electronic material.

Reasoning

Applying Wetangula and Outa, election offences are quasi-criminal, requiring clear pleadings, elaborate allegations and focused, definitive evidence. Kituti Kaloki confirms the high burden, above balance of probabilities. The appellant produced no cogent evidence of bribery or of the 3rd respondent's involvement in election offences, and the screenshots of agents' social-media messages failed the section 106B certificate requirement.

p. 9
06

Whether the burden of proof was correctly applied and whether it shifted to the respondents

Holding

The legal burden remained with the appellant throughout; it never shifted because he did not adduce prima facie cogent and credible evidence of irregularities or non-conformity.

Reasoning

Relying on Raila Odinga 2017 and 2013 and Ranguma, the Court held that the evidential burden shifts only once the petitioner adduces sufficient evidence warranting impugning of the election; there is no onus on the respondent to prove substantial compliance in the absence of such prima facie evidence. The appellant did not specify disputed polling stations or defective Forms 35A and did not demonstrate that the trial judge misapplied the burden.

p. 10
07

Whether non-compliance with electoral law warranted nullification under section 83 of the Elections Act

Holding

No. There was no material upon which to find the election substantially departed from constitutional principles and electoral laws; conceded minor errors could not change the result.

Reasoning

Section 83 protects an election from voidance where it was conducted in accordance with constitutional principles or where non-compliance did not affect the result. Echoing Kituti Kaloki, the Court held that elections conducted by humans will always contain errors, and the proper inquiry is whether they affected the outcome substantially, materially and decisively. The appellant presented no evidence that the conduct violated constitutional provisions.

p. 11
08

Whether the costs of Kshs. 2,500,000 awarded to each respondent were excessive

Holding

No. Costs are discretionary and compensatory; the amount was not inordinately high and the Court would not interfere with the election court's discretion.

Reasoning

The law gives the election court discretion on costs, guided by fairness, justice and access to justice. Citing Martha Wangari Karua, costs are meant to compensate a successful litigant and are not punitive or deterrent. The appellant failed to justify interference, and the 3rd respondent's point that assessment properly lies before the taxing master under Rule 33(1) of the Petitions Rules remained undisplaced.

p. 11

Legal principles established

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  • Strict adherence to electoral timelines is a condition of the court's jurisdiction over electoral disputes; breach of the time scheme removes the dispute from the court's jurisdiction.
  • Time prescribed by section 85A(1)(a) of the Elections Act for filing an election petition appeal is computed under section 57 of the Interpretation and General Provisions Act, which excludes Sundays, public holidays and official non-working days.
  • For non-presidential elections, results recorded in the statutory forms (Forms 35A/37A) are final; results transmitted electronically or published on the IEBC public portal are provisional and their variance cannot of itself invalidate the statutory forms.
  • Electronic evidence is inadmissible unless the conditions in section 106B of the Evidence Act, including the production of a certificate, are satisfied.
  • Allegations of bribery are quasi-criminal and must be proved beyond reasonable doubt on cogent, reliable, precise and unequivocal evidence.
  • The legal burden of proof in an election petition remains with the petitioner throughout; the evidential burden shifts to the respondent only after the petitioner adduces sufficient evidence warranting impugning of the election.
  • Errors in the conduct of an election justify nullification only where they affect the outcome in a substantial, material and decisive manner.

Court orders

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  1. 1.The 3rd respondent's Notice of Motion dated 13th April, 2018 is dismissed with no orders as to costs
  2. 2.The appeal is dismissed with costs to the respondents
  3. 3.If the parties do not agree on the quantum of costs, the same shall be taxed by the Deputy Registrar of this Court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 259(5), (7), (8) and (9)
  • Constitution of Kenya, 2010Article 81(e)
  • Constitution of Kenya, 2010Article 87
  • Constitution of Kenya, 2010Article 99(2)(h)
  • Constitution of Kenya, 2010Article 50
  • Elections Actsection 85A(1)(a)
  • Elections Actsection 83
  • Elections Actsection 39(1)(1A)(i) and 39(1C)
  • Elections Actsection 87(1)
  • Elections Actsection 81A(1)(a)
  • Interpretation and General Provisions Act, Chapter 2section 57
  • Evidence Act, Cap 80section 106A
  • Evidence Act, Cap 80section 106B
  • Elections (General) Regulations, 2012regulations 5, 6, 72, 73, 75, 79, 82, 83
  • Court of Appeal (Election Petition) Rules, 2017Rule 17(1); Rule 4(2); Rule 9(1)
  • Court of Appeal Rules, 2010Rule 3; rule 86(1)
  • Elections (Parliamentary and County Elections) Petitions Rules, 2017Rule 33(1)

Cases cited (20)

  • Lemanken Aramat v Harun Meitamei Lempaka & 2 others
    [2014] eKLR
  • Evans Nabwera Taracha vs. IEBC & 2 Others, Election Petition Appeal No. 30 of 2018
  • Raila Amolo Odinga & Another -vs- Independent Electoral and Boundaries Commission & 4 Others & Attorney General & Another (Raila Odinga, 2017)
    (2017) eKLR
  • Martha Wangari Karua -vs- Independent Electoral and Boundaries Commission
    [2018] eKLR
  • Khatib Abdalla Mwashetani -vs- Gideon Mwangangi Wambua & 3 Others
    [2014] eKLR
  • Timamy Issa Abdalla -vs- Swaleh Salim Swaleh Imu & 3 Others
    [2014] eKLR
  • Raila Odinga & Another v Independent Electoral and Boundaries Commission & 3 Others (Raila Odinga, 2013)
    [2013] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 others
    [2012] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (Munya Decision)
    [2014] eKLR
  • Zacharia Okoth Obado v Edward Akong'o Oyugi & 2 others
    [2014] eKLR
  • Wavinya Ndeti & another v Independent Electoral and Boundaries Commission & 2 others
    [2018]
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Jackton Nyanungo Ranguma v Independent Electoral and Boundaries Commission & 2 others
    [2018] eKLR
  • Joho v Nyange & Another
    [2008] 3 KLR (EP) 500
  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others
    [2015] eKLR
  • Moses Masika Wetangula -vs- Musikari Kombo & Others
    [2015] eKLR
  • Frederick Otieno Outa v. Jared Odoyo Okello & 4 Others
    (2014) eKLR
  • Philip Kyalo Kituti Kaloki v Independent Electoral and Boundaries Commission & 2 others
    [2018] eKLR
  • Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others
    [2018] eKLR
  • Moses Wanjala Lukoye v Bernard Alfred Wekesa Sambu & 3 Others
    [2013] eKLR
On appeal from
High Court of Kenya at Kapenguria
Election Petition No. 1 of 2017
Jurisdiction invoked
Section 85A of the Elections Act, 2011 (appeal to the Court of Appeal 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 (2)

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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, "John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 439 (KLR)", Case Analysis (2018). Election Petition Appeal No. 24 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/439/eng@2018-07-26

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