Nixon Ngikor Nicholas v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 471 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the Turkana East 2017 election result, ruling that minor technical failures like brief KIEMS kit outages cannot nullify an election unless they change the outcome.
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 Court of Appeal has jurisdiction under section 85A of the Elections Act to entertain the appeal, and whether the appeal is competent as raising matters of law only
- 2.Whether the failure of KIEMS kits and the resort to the manual register without following the prescribed procedure (including failure to fill Form 32A) amounted to substantial non-compliance affecting the outcome of the election
- 3.Whether the alleged bias and discrimination in the recruitment of election officials, including the WhatsApp group, rendered the election not free and fair
- 4.Whether the election met the qualitative test under Article 86 of the Constitution and section 83 of the Elections Act
- 5.Whether the costs awarded by the election court were manifestly excessive
Key legal issues
#Jurisdiction of the Court of Appeal under section 85A of the Elections Act
The appeal was competent: the appellant challenged the election court's application of the law to the facts and the interpretation of electoral provisions, which are matters of law under the Munya framework. The application to strike out the appeal on jurisdictional grounds failed.
The Court applied the Supreme Court's Munya decision, which defines 'matters of law' as including interpretation of constitutional or statutory provisions, their application to facts on record, and challenges to trial conclusions as unsupported by evidence or perverse. The appellant's grounds, including the interpretation of section 44A, Regulation 69(e) and Regulation 26, fell within these parameters, so the appeal was properly before the Court.
Failure of KIEMS kits and use of manual register without Form 32A
The failure to strictly follow Regulation 26 of the Elections (Technology) Regulations at three polling stations for about 30 minutes was a minor infraction that did not affect the outcome of the election. Regulation 69(e) applies only where a working KIEMS kit fails to identify a particular voter.
The Court distinguished Regulation 69(e), which governs instances where the device fails to identify a specific voter (requiring Form 32A), from the wholesale failure of the technology, which is governed by Regulation 26. The election court's findings of fact that agents witnessed the voting, signed statutory forms without adverse comment, and that no prejudice was shown were not disturbed, as the appellate court may not re-examine probative value of evidence.
Alleged bias and discrimination in recruitment of election officials and the WhatsApp group
The burden lay on the appellant to prove bias; employment of relatives or county employees did not establish even an apprehension of bias sufficient to vitiate the election, and the WhatsApp group was an accepted communication innovation.
The Court applied the objective test of reasonable apprehension of bias, asking whether a fair-minded and informed observer would conclude the decision-maker did not approach the issue with an open mind. Only two polling stations were affected by employment of relatives, and the candidates concerned lost. The election court's factual findings on the WhatsApp group, including that all candidates were included, disclosed no misdirection in law warranting interference.
Compliance with section 83 of the Elections Act and the qualitative test
The election court properly applied section 83; the minor infractions identified did not affect the outcome, so the election was conducted substantially in accordance with the Constitution and electoral law.
Section 83 contains two limbs applied disjunctively: substantial violation of electoral principles, or irregularities affecting the result. The Court found only one instance of non-compliance with Regulation 26, which it characterized as minor and not outcome-affecting. The appellant failed to prove violations of the magnitude required to annul the election, so the finding that the election met the qualitative and quantitative tests was upheld.
Costs awarded by the election court
The award of Kshs 3 million in costs was not manifestly excessive and the Court declined to interfere with it.
Relying on Martha Wangari Karua v IEBC, the Court reiterated that costs compensate a successful litigant and must be guided by fairness, justice and access to justice, and are not a punishment or deterrent. Applying that standard, the costs awarded by the election court after full trial did not warrant appellate interference.
Legal principles established
#- An appeal to the Court of Appeal from an election petition lies on matters of law only, encompassing the interpretation of a provision, the application of the law to the facts on record, and challenges to conclusions said to be based on no evidence or to be perverse.
- An appellate election court cannot re-examine the probative value of evidence tendered at the trial court or question the credibility of witnesses.
- Regulation 69(e) of the Elections (General) Regulations applies where the electronic voter identification device fails to identify a particular voter while working; it does not govern the wholesale failure of the KIEMS kit, which is governed by Regulation 26 of the Elections (Technology) Regulations.
- The correct test for bias in electoral administration is the appearance of bias, judged from the perspective of a reasonable, fair-minded and informed observer.
- An election may only be annulled on cogent and ascertained factual premises, and a petitioner must demonstrate how irregularities compromised the final statistical outcome.
- Costs in election matters are meant to compensate a successful litigant, not to punish or deter litigants from accessing justice.
Court orders
#- 1.The 3rd respondent's Notice of Motion dated 3rd April, 2018 is dismissed with no order as to costs
- 2.The appeal is dismissed with costs to the respondents
- 3.In the event that the parties do not agree on the quantum of costs, the same shall be taxed by the Deputy Registrar of this Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Lodwar
- Election Petition No. 6 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act, 2011 (appeal from High Court election petition lies to the Court of Appeal on matters of law only)
Relief refused
#Application to strike out the appeal as defective for raising matters of fact
The appellant raised issues of law, including the interpretation and application of section 44A of the Elections Act and the Regulations; jurisdiction objection failed
Nullification of the election for failure of KIEMS kits and use of manual register
The minor infraction did not affect the outcome of the election; no misdirection in law warranting interference with findings of fact
Nullification for alleged bias and discrimination in recruitment of election officials
No evidence led by the appellant to prove the allegations of bias
Reduction of costs awarded by the election court
Costs of Kshs 3 million were not manifestly excessive
Costs
The appeal dismissed with costs to the respondents; the 3rd respondent's Notice of Motion dated 3rd April 2018 dismissed with no order as to costs; in default of agreement on quantum, costs to be taxed by the Deputy Registrar of the Court. The Court declined to interfere with the trial court's award of Kshs 3 million costs.
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.
It is beyond argument that the jurisdiction of this Court is limited to only issues of law by section 85A of the Elections Act.
It is clear that Regulation 69 would apply in the instance that a voter presents himself to the polling station and then not identified by the KIEMS kit.
We find no misdirection in law upon which we can interfere with the findings of fact of the election court that the evidence adduced did not prove the extent to which the failure to strictly adhere to regulation 26 of the Election (Technology) Regulations, 2012 in respect of three polling stations for 30 minutes was an irregularity that manifestly affected the outcome of the election.
the correct test to apply is whether there is the appearance of bias, rather than whether there is actual bias.
The 3rd respondent's Notice of Motion dated 3rd April, 2018 is dismissed with no order as to costs;
The appeal is dismissed with costs to the respondents;
Issues in the judgment
#The judgment variously refers to the Elections (Technology) Regulations as 2017 and 2012, and cites Regulation 26(2) of 'Election (Technology) regulations, 2012' while elsewhere calling them the Elections (Technology) Regulations 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nixon Ngikor Nicholas v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 471 (KLR)", Case Analysis (2018). Election Petition Appeal No. 28 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/471/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.