Julius Makau Malombe v Charity Kaluki Ngilu & 2 others [2018] KECA 460 (KLR)
The bottom line
#Kenya's Court of Appeal upheld Charity Ngilu's 2017 Kitui gubernatorial win, ruling that minor election irregularities proved by Dr Malombe did not change the result.
What this practically means
#Executive summary
#Key legal issues
#Scope of appellate jurisdiction under Section 85A of the Elections Act
The appeal was properly before the Court: grounds of appeal are not struck out merely for inelegant drafting, provided they in substance disclose issues of law.
The Court adopted the Munya test of 'matters of law only' and held that a court must decipher whether grounds, though poorly drafted, disclose matters of law. It declined to strike out grounds containing the words 'erred in fact and law' absent evidence the grounds were wholly factual, ensuring justice to parties.
Burden of proof on alleged massive inflation of votes
The appellant did not discharge the legal and evidentiary burden; the scrutiny and recount report showed only transposition errors that did not affect the outcome.
DW1's unchallenged testimony and the Deputy Registrar's scrutiny report rebutted the inflation allegation. The word 'massive' was given its ordinary meaning, and no specific polling station with massive inflation was identified on record. Even removing or adding the transposed votes could not change the declared result.
Absence of IEBC stamps and countersigning on Forms 37As
Non-stamping cannot nullify an election where results and signatures are uncontested; but alterations must in principle be countersigned by the maker.
The Court found no regulatory requirement for stamping Forms 37As and held that stamping matters only where authenticity of entries is contested. On countersigning, it rejected the 1st respondent's submission that no legal obligation exists, holding that documentary-evidence jurisprudence requires authentication of alterations, though the proven errors here did not affect the result.
Violence and voter intimidation
The proven incidents were isolated and unlinked to any candidate, and therefore could not vitiate the election.
Relying on the threshold set by the trial court and precedents, the Court held that proof of violence per se is insufficient: the violence must be widespread, traceable to the returned candidate, and must have affected voting or results. No evidence showed disenfranchisement, disruption of counting, or the candidate's linkage to the perpetrators.
Denial of access to polling stations by agents
No cogent evidence proved denial of access to any specific polling station; the trial court's factual conclusion was correct and not perverse.
PW1, PW7 and PW8 did not identify any specific station where an agent was denied entry; PW7 confirmed she remained at her station unhindered. Over 100 of the appellant's agents had signed the Forms 37As. The Court declined to reconsider this factual determination under Section 85A.
Date discrepancy between Form 37C and Form 37D
The issue was unpleaded and, in any event, the Returning Officer explained the date difference; an irregularity in Form 37D cannot vitiate the election where Form 37A results stand.
The appellant did not challenge the contents of Form 37D. Relying on the IEBC v Maina Kiai principle that the polling station is where votes are cast and counted and results there are final, the Court held that verifiable Form 37A results render any Form 37D irregularity immaterial.
Qualitative versus quantitative evaluation of irregularities
The trial court considered both aspects; collectively the proven irregularities neither affected the integrity of the declared results nor the result of the election.
Following the Supreme Court's guidance in Raila Amolo Odinga (2017) that a court should inquire into the potential effect of irregularities as good judicial practice, the Court held the trial judge rightly examined the quantitative effect, finding only transposition errors in 10 of 1454 stations and isolated violence.
Costs: cross-appeal against costs awarded against successful respondents
The trial judge erred in law in awarding costs against the successful 2nd and 3rd respondents; the Ksh. 1 million order was set aside.
Costs follow the event; the admitted transposition errors did not vitiate the election and hence there was no justification for costs against a successful party, which amounted to discrimination in principle. The Court found an injustice in the exercise of discretion, invoking Mbogo v Shah.
Capping of the appellant's costs liability
The total cap of Ksh. 5 million was excessive; the Court reduced the respondents' costs to a total of Ksh. 3 million.
Guided by comparable gubernatorial election cases (Ismail Suleman, Mohamed Ali Mursal, Waititu, Martha Wangari Karua) in which costs were capped between Ksh. 1 and 5 million, the Court held the Ksh. 5 million cap excessive and awarded Ksh. 2 million to the 1st respondent and Ksh. 1 million to the 2nd and 3rd respondents.
Legal principles established
#- Under Section 85A of the Elections Act, the Court of Appeal's jurisdiction in election appeals is confined to matters of law, but poorly drafted grounds that in substance raise questions of law are not struck out merely because they use the words 'erred in fact and law'.
- A petitioner alleging non-compliance with electoral law bears the legal and evidential burden of proving both the non-compliance and that it affected the result; unproven allegations remain mere allegations.
- Absence of an IEBC stamp on Forms 37A cannot ground nullification where the entries, results and signatures on the Forms are not contested and no legal requirement for stamping exists.
- Isolated or localized violence does not vitiate an election; the violence must be widespread, traceable to the returned candidate, and must have affected the result.
- An irregularity in Form 37D (the certificate) cannot vitiate an election if the polling-station results in Form 37A withstand scrutiny.
- Although no constitutional or statutory provision expressly requires countersigning of alterations on statutory forms, settled jurisprudence on documentary evidence requires alterations to be countersigned by the maker to authenticate the document.
- Costs follow the event, and an election court errs in law by awarding costs against a successful party absent justification.
- Failure by a respondent to call witnesses (e.g. presiding officers) does not automatically mean a petition must be allowed; the petitioner must first adduce evidence entitling judgment if unrebutted.
Court orders
#- 1.The appeal dismissed with costs
- 2.The appellant to pay the 1st respondent trial-court costs capped at Ksh. 2 million
- 3.The appellant to pay the 2nd and 3rd respondents trial-court costs capped at Ksh. 1 million
- 4.The order of the trial court that the 2nd and 3rd respondents pay the 1st respondent costs capped at Ksh. 1 million set aside (cross-appeal succeeds)
- 5.A declaration that the Kitui County gubernatorial election of 8th August 2017 was conducted in accordance with constitutional and legal principles and the 1st respondent was validly elected Governor
- 6.The appellant to pay the respondents' costs of the appeal
- On appeal from
- High Court of Kenya at Kitui
- Kitui Election Petition No. 4 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals from election petitions confined to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Accused Person (Trial-within-a-Trial on the Admissibility of a Confession Statement)[2025] KEHC 272 (KLR)24 Jan 2025applied
- Samba v Independent Electoral & Boundaries Commission & 2 others (Election Petition E003 of 2022) [2023] KEMC 4 (KLR)[2023] KEMC 4 (KLR)28 Feb 2023
- Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2023] KEMC 3 (KLR)[2023] KEMC 3 (KLR)27 Feb 2023
- Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2023] KEMC 3 (KLR)[2023] KEMC 3 (KLR)27 Feb 2023applied
Cite this brief
#Cite this brief
Caselaw, "Julius Makau Malombe v Charity Kaluki Ngilu & 2 others [2018] KECA 460 (KLR)", Case Analysis (2018). Election Petition Appeal No. 24 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/460/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.