Zebedeo John Opore v Independent Electoral & Boundaries Commission & 2 others [2018] KECA 443 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the Bonchari MP's 2017 election win, ruling that minor errors cannot nullify an election and appeals only cover legal questions.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's jurisdiction in election petition appeals
The Court is confined to matters of law only: interpretation or construction of constitutional/statutory provisions, their application to facts, and whether conclusions were based on no evidence or were perverse. It cannot re-evaluate evidence or witness credibility.
Relying on the Supreme Court's decision in Munya and subsequent decisions including Outa and Munuve Mati, the Court restated the meaning of 'matters of law only'. Although a first appeal, it lacks the latitude of ordinary civil first appeals. It may look at the evidence only to test whether the trial court's findings were perverse, not to reach its own conclusions.
Whether the trial court correctly applied the electoral principles and section 83 of the Elections Act
The trial court properly applied Articles 81 and 86 principles and section 83; an election will not be voided for trivial breaches, and the whole conduct of the election must be examined to determine whether it substantially breached constitutional principles.
The Court adopted the Supreme Court's interpretation in Raila 2017 that the word 'substantially' is inferred in section 83 and that no election is perfect. The trial court considered both quantitative and qualitative aspects, and whether infractions were deliberate, orchestrated, substantial or widespread enough to affect the result.
Credibility and fairness of the election, including appointment of Presiding Officers
The appointment of Presiding and Deputy Presiding Officers was lawful, effected through delegated authority; the complaint that only Commissioners could appoint them was an untenable misinterpretation.
Under Regulation 3(3) of the Elections (General) Regulations, the 2nd respondent short-listed and interviewed applicants and forwarded names to political parties for objections. On the appellant's objection, one Presiding Officer was dismissed and five redesignated. The appellant failed to show the list was not supplied to his party.
Validity of the declaration of results given the date discrepancy in form 35B
The error in dating form 35B (8th instead of 9th August 2017) was a factual finding of honest human error attributable to fatigue, covered by section 83, and could not void the election.
The burden shifted to the respondents to explain the discrepancy, which they did; the form's date was pre-printed and the omission to alter it was inadvertent. A re-tallying undertaken at the appellant's instance unearthed no anomalies. An appellate court cannot disturb a conclusion reasonably made on the evidence.
Extension of time for filing responses to the petition
The trial judge properly exercised his discretion under rules 5(1) and 19(1) of the Election Petition Rules to deem late-filed responses properly filed, applying Article 159(2)(d) in favour of substantive justice.
The Rules confer express discretion to extend time even after expiry, except for periods fixed for filing, hearing or determining the petition itself. The judge extended the same benefit to the appellant, ensuring no party was prejudiced. Interference is only warranted where discretion is clearly wrong.
Standard of proof and allegations of violence, election offences and bribery
The trial court correctly identified the standards: higher than balance of probability but below beyond reasonable doubt for election irregularities, and beyond reasonable doubt for criminal or quasi-criminal allegations, which must also be attributed to the elected candidate or his agents.
Most complaints were criminal or quasi-criminal in nature. The appellant failed to prove the acts were attributable to any respondent. The violence was an isolated incident on the eve of the election with no demonstrated effect on turnout, which exceeded 74%. The ground inviting re-evaluation of evidence contravened section 85A.
Scope of scrutiny and recount and weight to be given to the scrutiny report
The court properly limited scrutiny to the 12 disputed polling stations, guided by the Munya principles; the report confirmed the accuracy of results and the errors were negligible and non-systemic.
Scrutiny requires a basis established by pleadings, affidavits or evidence, and is confined to specific disputed polling stations. In the absence of the register of voters, scrutiny was justified only where figures in forms 35As and 35Bs differed. The errors detected were neither systemic, pervasive nor calculated to benefit the 3rd respondent.
Alleged disenfranchisement of registered voters
The appellant failed to prove that any registered voter was turned away; no witness testified to being a registered voter who presented themselves and was denied the vote.
A voter is a person in the current register of voters; without proof of registration the allegation could not stand. The appellant also abandoned an application to compel production of the Kiems kits record. Section 107(1) and 108 of the Evidence Act place the burden on the appellant, which he did not discharge.
Legal principles established
#- An appeal to the Court of Appeal on an election dispute lies on matters of law only and the Court may not re-evaluate evidence or assess witness credibility
- The Court may, however, examine the facts and evidence to determine whether the trial court's conclusions were perverse or unsupported by evidence
- Scrutiny and recount is not a roving inquiry or fishing expedition; the trial court may properly limit its scope to specific disputed polling stations
- Mere detection of an error, however minor, does not justify an automatic order for scrutiny and recount of all polling stations
- Where allegations of election offences of a criminal or quasi-criminal nature are made, the petitioner must prove the offence and that it was committed by the elected candidate or his agents, to the standard of beyond reasonable doubt
- Election courts have jurisdiction under rule 19(1) of the Election Petition Rules to extend timelines set by the Rules (though not those set by the Constitution or the Elections Act), in the interest of substantive justice
Court orders
#- 1.The appeal is dismissed
- 2.Costs to the respondents, capped at Kshs. 1,500,000/- jointly for the 1st and 2nd respondents and a similar amount payable to the 3rd respondent by the appellant
- On appeal from
- High Court of Kenya at Kisii
- High Court Election Petition No. 2 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals to the Court of Appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zebedeo John Opore v Independent Electoral & Boundaries Commission & 2 others [2018] KECA 443 (KLR)", Case Analysis (2018). Election Petition Appeal No. 16 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/443/eng@2018-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.