Butichi Khamisi v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 448 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the Ikolomani MP's election, ruling that a small, verifiable clerical error at one polling station does not invalidate an entire election.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the memorandum of appeal meets the threshold of section 85A of the Elections Act as raising matters of law only
- 2.Whether the error in relation to Ikhulili Polling Station 2 of 2 was so substantial as to warrant nullification of the election
- 3.Whether the appellant proved the first limb of section 83 of the Elections Act, namely substantial violation of the principles of the Constitution and written electoral law
- 4.Whether the election court properly evaluated the electoral irregularity in light of the principles in the authorities on innocent human error and verifiability
Key legal issues
#Whether the appeal raised matters of law only under section 85A of the Elections Act
The appeal complied with section 85A(1) because the remaining framed issues involved interpretation and application of constitutional and statutory provisions, not pure questions of fact.
Applying the Munya three elements (technical, practical, evidentiary), the court held that whether the election court properly applied constitutional principles, whether irregularities affected results, and the legal effect of the Ikhulili 2 error are questions of law. Jurisdiction being everything, the objection could be raised at any time, but it failed on the merits.
Whether the Ikhulili 2 transposition error was so substantial as to nullify the election
No. The admitted error of copy-pasting Ikhulili 1 of 1 results into Ikhulili 2 was an innocent human error, verifiable against the primary Form 35A, affecting a single polling station out of 103, and did not affect the result.
The court held that a limited-scale irregularity cannot be extrapolated to invalidate an entire election. The Returning Officer's unchallenged explanation showed a data entry error, no fraud was pleaded or proved, the error affected all candidates, and deducting the erroneous votes left the declared winner ahead. Form 35A as primary document confirmed accuracy and verifiability.
Whether the appellant proved the first limb of section 83 of the Elections Act
The appellant did not prove substantial violation of the constitutional and statutory principles of elections; the election court's factual findings on the pleaded allegations of violence, undue influence and malpractices could not be disturbed on appeal.
The legal burden under section 83 never shifts and the threshold is above balance of probabilities but below beyond reasonable doubt. The election court considered each pleaded grievance and made findings of fact against the petitioner; an appellate court may not re-examine probative value or witness credibility, and must defer to the trial judge's findings absent perversity.
Whether the election court misapplied the principles on evaluation of electoral irregularities
No fault was found with the election court's approach; it properly applied the principles that innocent, non-deliberate, verifiable human errors do not impeach an election.
The court approved the Mochara, Joho and Nadimo reasoning that accuracy does not mean freedom from error and that arithmetical mistakes under exhausting conditions are forgivable if verifiable. The winning margin was not determinant of substantiality, no scrutiny was sought, and there was no evidence of pervasive irregularities.
Legal principles established
#- A jurisdictional challenge under section 85A of the Elections Act may be raised at any time, including for the first time on appeal; Rule 19(1) of the Court of Appeal (Election Petition) Rules, 2017 does not bar it.
- A proved error in a single polling station cannot, without more, invalidate an entire election; the appellant must establish a factual basis for malpractice in each polling station or a critical number of them.
- The legal burden of proof under both limbs of section 83 of the Elections Act rests on the petitioner and never shifts; only the evidential burden shifts.
- Procedural or administrative irregularities occasioned by human imperfection are not, by themselves, sufficient to vitiate an election; an innocent, non-deliberate, verifiable human error does not impeach an election result.
- The winning margin in a non-presidential election bears only transient relevance and is immaterial unless inextricably linked to a definite uncertainty as to who won the election.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant shall pay the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kakamega (sitting as an Election Court)
- Election Petition No. 2 of 2017
- Jurisdiction invoked
- Article 164(3) of the Constitution as operationalized by section 85A of the Elections Act
Relief refused
#Nullification of the election for Member of the National Assembly for Ikolomani Constituency
The appellant failed to prove to the required standard that the Ikhulili 2 error was substantial, that it breached constitutional or statutory principles, or that it affected the result of the election
Costs
Appeal dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Being of that view, we find no merit in this appeal and we order that it be and is hereby dismissed with costs.
procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election
It is trite that the legal burden of proof of any or both limbs of section 83 lies with the petitioner in an election petition and never shifts. Only the evidential burden shifts.
without the appellant establishing a factual basis for alleged malpractices or irregularities in each polling station, or a critical number of them, there would be no basis for concluding that the declared results for the entire Ikolomani Constituency were neither accurate, verifiable or were lacking in credibility
We defer to the reasoning in those authorities and find and hold that the appeal before us is compliant with section 85 A (1) of the Elections Act.
Issues in the judgment
#The judgment inconsistently renders the same authority as 'Zacharia Okoth Ovado' in the memorandum of appeal but 'Zacharia Okoth Obado' elsewhere.
The agreed contested issues list inconsistently attributes Rule 8(1) to the Elections (Parliamentary and County Elections) Petition Rules, 2017 while ground 4 of the memorandum cites 'Rule 83 (a) & (e) of the Elections (General) Regulations, 2012 read together with Rule 3 (3) (c) & Rule 3 (5)'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Butichi Khamisi v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 448 (KLR)", Case Analysis (2018). Election Petition Appeal No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/448/eng@2018-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.