Cyprian Awiti & 1 other v Independent Electoral and Boundaries Commissio & 3 others
The bottom line
#Kenya's Court of Appeal upheld the nullification of Cyprian Awiti's Homa Bay gubernatorial election, cutting awarded costs but confirming that only IEBC-declared results count.
What this practically means
#Executive summary
#Key legal issues
#Application of the amended Section 83 of the Elections Act
The trial court did not err in applying Section 83 as it existed on the date of the election; the Election Laws (Amendment) Act No. 34 of 2017 is prospective only.
Relying on the Supreme Court in Harun Mwau v IEBC and Moses Masika Wetangula v Musikari Kombo, the Court held that the validity of an election is gauged against the law as at the date of the election. The amendment came into effect on 2nd November 2017, after the 8th August 2017 election, and had not been made retrospective, so the trial judge correctly applied the unamended disjunctive Section 83.
Binding nature of the Deputy Registrar's scrutiny and recount report
The report is not binding but must be considered and evaluated; the trial court erred in law in failing to mention, consider and evaluate the report dated 24th January 2018.
The Court surveyed emerging jurisprudence and held that a scrutiny and recount report is akin to direct evidence from a judicial officer made in the presence of all parties, but any inferences and conclusions are for the trial court. The trial court's paragraph 160 referred only to the 21st November 2017 report and never mentioned the 24th January 2018 report, which was an error of law, though it did consider the earlier report as corroborative evidence.
Two sets of results
The trial court erred in law in holding there were two sets of results; electoral law recognizes only the declared result.
IEBC is the only competent authority to declare results, and any tally by a party is not a set of election results. However, the Court could not disturb the trial court's underlying findings on differences in the Forms 37A, since those were findings of fact and credibility within the trial court's province and supported by testimony of the returning officers.
Failure to call presiding officers and agents and adverse inference
The evidential burden had properly shifted to IEBC on the facts, but the trial court erred in holding that failure to call agents and presiding officers was fatal; no legal obligation exists to call any witness.
Prima facie evidence had been laid requiring explanation by IEBC, shifting the evidential burden, whose non-discharge may convert prima facie evidence into proof. But explanations need not come only from agents or presiding officers; other cogent evidence suffices. The legal burden always remains with the petitioner, and adverse inference should not be drawn merely because a respondent with no legal burden fails to call witnesses.
Appellate jurisdiction over findings of fact and credibility
The Court of Appeal cannot re-evaluate evidence or disturb findings on witness credibility except where conclusions are based on no evidence, unsupported by the record, or so perverse or illegal that no reasonable tribunal would reach them.
Guided by Gatirau Peter Munya, Frederick Otieno Outa and Zacharia Okoth Obado, the Court held that deference to the trial judge on credibility and probative value is mandatory under Section 85A. The contestations of the trial court's qualitative findings on the integrity of the tallying process were contestations of primary fact beyond appellate jurisdiction.
Alleged forgery of the petitioners' Forms 37A
The trial court did not err in failing to find forgery; the Deputy Registrar's report did not address forgery and DW11's opinion was worthless as she never saw original documents.
A document examiner cannot give credible opinion without original documents forming the basis of comparison. IEBC bore the evidential burden of proving forgery once the petitioners' documents were established to originate from IEBC, and failed to discharge it. Section 87A also bars the trial court from determining that an election offence was committed.
Legal principles established
#- A judicial scrutiny and recount report is not binding on the trial court but must be considered, evaluated and weighed with all other evidence, with reasons given for adopting or discounting it.
- Election disputes must be resolved by the election law that existed on the date of the election; amendments made after the election do not apply retrospectively.
- The only result recognized in electoral law is the result declared by IEBC; a party's self-tallied results are not a set of election results.
- There is no legal obligation on a respondent in an election petition to call any witness, including presiding officers or agents.
- The correct test under Section 83 is whether irregularities 'affected the result', not whether they had 'effect on the result'.
- An election court has no jurisdiction to determine whether an election offence has been committed; it may only determine whether an electoral malpractice may have occurred and refer the matter to the DPP.
- Observations and reports filed by parties or counsel on a scrutiny exercise are not evidence per se; they have at best corroborative probative value.
Court orders
#- 1.Subject to the order on costs, the appeal and cross-appeal by the appellants and the 1st and 2nd respondents respectively are dismissed
- 2.The appeal on costs is dismissed and the cross-appeal on costs is allowed
- 3.Subject to the variation on costs, the judgment delivered on 20th February 2018 in Homa-Bay High Court Election Petition No. 1 of 2017 is confirmed and upheld in its entirety
- 4.Costs at the High Court capped: appellants to pay the 3rd and 4th respondents costs capped at Ksh. 2 million; the 1st respondent to pay the 3rd and 4th respondents costs capped at Ksh. 3 million; total costs to the 3rd and 4th respondents reduced from Ksh. 6 million to Ksh. 5 million
- 5.No order as to costs against the 2nd respondent because of employer-employee relationship with the 1st respondent
- On appeal from
- High Court of Kenya at Homa-Bay
- Election Petition 1 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeal to the Court of Appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cyprian Awiti & 1 other v Independent Electoral and Boundaries Commissio & 3 others", Case Analysis (2018). Election Petition Appeal No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/452/eng@2018-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.