Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018] KECA 455 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the Tarbaj Constituency election appeal, confirming that only substantial, result-affecting irregularities can nullify an election.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of section 83 of the Elections Act
Section 83 is read disjunctively, but only substantial breaches affecting the result when the whole election is considered justify nullification; the interpretation of the Supreme Court in Raila Amolo Odinga binds this Court.
The Court noted the Supreme Court's holding that the word 'or' requires disjunctive reading, but that trivial breaches should not void an election. The Court inferred 'substantially' in the phrase 'if it appears', requiring the court, looking at the conduct of the whole election, to be satisfied that the breach was substantial and affected the result before voiding the election. The trial judge applied the provision consistently with that interpretation.
Scope of scrutiny and recount in election petitions
Scrutiny is not a licence to unearth new irregularities not pleaded; it serves only to verify allegations hinged on pleadings, and a party may not latch onto irregularities allegedly unearthed in scrutiny that were never complained of.
The Court held that the appellant's complaints about the scrutiny reports were his own subjective views beyond the limited scope of the scrutiny orders. Relying on Gideon Mwangangi Wambua and the Supreme Court in Munya, it reaffirmed that scrutiny must be based on pleadings and evidence, and that courts are bound by parties' pleadings and may only adjudicate on matters raised by them.
Primacy of Form 35A over provisional KIEMS data in parliamentary elections
In National Assembly elections, electronically transmitted results are provisional under regulation 82(2); Form 35A records the final results, so alleged KIEMS kit discrepancies cannot vitiate the election.
The Court distinguished the Supreme Court's presidential-election jurisprudence on KIEMS, noting that section 39(1)C mandating electronic transmission applies to presidential elections, whereas in parliamentary elections regulation 82(2) declares electronically transmitted results provisional. Shifting the evidential burden on KIEMS functioning would therefore have been a futile quest.
Exhaustion of prescribed dispute resolution mechanisms for campaign and code of conduct complaints
Complaints about breaches of the Electoral Code of Conduct and campaign misrepresentation must first be taken to the IEBC under Article 88(4)(e) of the Constitution and the Code's enforcement mechanisms, not raised for the first time in an election petition.
The Court held that where the Constitution deliberately provides a dispute resolution mechanism for a particular stage of an election, it must be strictly resorted to. Enforcement of the Code lies with the IEBC's Enforcement Committee. Further, the standard of proof for quasi-criminal election offence allegations is beyond reasonable doubt, which the evidence could not satisfy, particularly as no witness testified to having been misled.
Appellate interference with findings of fact and perversity
Findings of fact by the trial judge who saw and heard witnesses cannot be interfered with on appeal; a decision is perverse only where no reasonable tribunal could have reached it on the evidence.
Applying section 85A, the Court confined itself to questions of law. It accepted the trial judge's factual findings on the ballot box seals, signed Forms 35A, and the chief agent's tally, holding that a wrong or different reading of evidence does not constitute perversity, following the Supreme Court of India in Damodar Lal.
Legal principles established
#- Section 83 of the Elections Act must be read disjunctively, but only substantial breaches of the Constitution or electoral law - not trivial ones - justify nullification of an election; the breach must affect the result when the conduct of the whole election is considered.
- Where the Constitution or statute prescribes a specific dispute resolution mechanism for a particular stage of the election (such as the IEBC's jurisdiction over campaign and code of conduct disputes), that mechanism must be resorted to before invoking the court's jurisdiction.
- Scrutiny and recount may not be used as a licence to unearth new, unpleaded irregularities; scrutiny only verifies allegations hinged on pleadings.
- Leave to file a supplementary affidavit does not permit a petitioner to expand the scope of the petition beyond the pleaded issues.
- In parliamentary elections, results electronically transmitted or recorded in KIEMS kits are provisional, and Form 35A remains the primary and final record; alleged KIEMS discrepancies cannot of themselves invalidate the Form 35A results.
- A judgment is perverse only where no reasonable tribunal could have reached it on the evidence; a wrong or different reading of evidence alone does not amount to perversity, which is a question of law.
- Where criminal or quasi-criminal allegations (such as election offences) are made in an election petition, the applicable standard of proof is beyond reasonable doubt.
- In election petition appeals, the Court of Appeal's jurisdiction under section 85A of the Elections Act is confined to matters of law, excluding questions of mixed law and fact.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The appellant to pay costs of Kshs. 1,500,000.00 to the 1st respondent
- 3.The appellant to pay costs of Kshs. 500,000.00 to the IEBC
- 4.The appellant to pay costs of Kshs. 500,000.00 to the 3rd respondent
- On appeal from
- High Court of Kenya at Nairobi (originally filed at Garissa)
- Garissa H.C. EP. No. 6 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act - appeals to the Court of Appeal in election petitions on matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018] KECA 455 (KLR)", Case Analysis (2018). Election Petition Appeal No. 19 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/455/eng@2018-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.