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

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.

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.

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.

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.

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.

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.

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.

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.