Independent Electoral and Boundaries Commission & another v Pauline Akai Lokuruka & another [2018] KECA 473 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated Joyce Emanikor as Turkana Woman Representative, ruling the election court relied on unproven irregularities and unpleaded allegations.
What this practically means
#Executive summary
#Key legal issues
#Competence of a cross-appeal filed one day out of time
The cross-appeal was admitted; the seven-day timeline in Rule 10(3) of the 2017 Rules is not a constitutional or statutory timeline and the Court extended time under Rule 14(1) where no prejudice was caused.
The Court computed time under Rule 3 of the 2010 Rules, found the cross-appeal one day late, but held the seven-day rule was procedural only. All parties had notice and responded; Article 159(2) against undue regard to procedural technicalities applied, and time was extended.
Jurisdiction over matters of fact in election appeals under section 85A
Although the appeal lies on matters of law only, the Court may examine the evidence for the limited purpose of determining whether the trial court's conclusions were supported by evidence or were perverse.
Following the Peter Munya decision and Timamy Issa Abdalla, the Court held that examining facts, including circumstantial evidence, is permissible to test whether conclusions of law were properly drawn; the objection to the cross-appeal as raising issues of fact failed.
Three sets of results
The election court erred: portal results are provisional and gazette publication is informational only; the finding of three sets of results had no evidentiary or legal basis.
Form 39C is the final declaration for county woman representative; the IEBC portal results are provisional and gazette notices merely inform the public. The gazette was not produced in court and could not be judicially noticed under sections 59, 60 and 85 of the Evidence Act.
Unpleaded issues and the inquisitorial jurisdiction of an election court
Although an election court has an inquisitorial mandate, its inquiry cannot go outside the pleadings; findings on 39 incidences of irregularities tabulated only in submissions were unsupported.
The petition pleaded more than five polling stations, but the further affidavit and submissions introduced new allegations beyond the pleadings. Consent could not cure this. The election court was required to particularise findings against specific pleaded allegations.
Irregularities in statutory forms and effect on results
Stamping of forms is not a legal requirement; absence of agent signatures does not invalidate results; either presiding or deputy presiding officer's signature suffices; and the petitioner failed to show the irregularities affected the results.
Applying section 83 of the Elections Act disjunctively and the burden of proof under section 107 of the Evidence Act, the Court held the discrepancies were at most administrative shortcomings and no demonstration was made that they swayed the roughly 4,000-vote margin.
Electoral malpractices of a criminal nature
The allegations of bribery, intimidation and use of relief food rested on hearsay and uncorroborated testimony, insufficient under the beyond-reasonable-doubt standard; the election court's rejection of these claims was not perverse.
Following Raila 2017, malpractices of a criminal nature must be proved beyond reasonable doubt. The key witnesses relied on hearsay, did not report incidents, and photographic and audio evidence had no probative value. Credibility findings were for the trial court.
Legal principles established
#- Electronic transmission and publication of results in the IEBC portal is only a legal requirement for presidential elections; portal results are provisional, and for county woman representative the final declaration of results is in Form 39C.
- Publication of results in the Kenya Gazette does not prove the accuracy of declared results and the Gazette must be produced in court; it cannot simply be judicially noticed.
- There is no legal requirement that statutory results declaration forms bear the IEBC stamp; the signatures of the presiding officer and agents authenticate the forms.
- It is not mandatory for both the presiding officer and deputy presiding officer to sign results declaration forms; a signature by either is sufficient.
- Failure by agents to sign results declaration forms does not of itself invalidate election results.
- An election petition must be pleaded with particularity specifying the alleged infraction and the polling station; an election court cannot make findings on unpleaded matters merely tabulated in submissions.
- A party alleging electoral irregularities bears the burden of proving them and demonstrating that they affected the results; consent of parties cannot sanctify an act done outside the law.
- Uncertified photocopies of statutory forms cannot found a nullification decision; statutory forms are public documents provable by certified copies.
- Where allegations of electoral malpractice of a criminal nature are made, the standard of proof is beyond reasonable doubt.
- The two limbs of section 83 of the Elections Act are applied disjunctively: an election is voided if it substantially breached electoral principles or if proven irregularities affected the result.
Court orders
#- 1.The judgment of the election court and the order nullifying the election of Women Representative for Turkana County is set aside
- 2.The election of the 2nd respondent as the Women Representative for Turkana County is upheld and confirmed
- 3.The 1st respondent's cross-appeal is dismissed with costs
- 4.The 1st respondent shall pay costs of the appeal and the 2nd respondent's cross-appeal as taxed and costs in the election court to the appellant and the 2nd respondent as taxed, subject to capping of Kshs Two million
- On appeal from
- High Court of Kenya at Lodwar
- Election Petition No. 5 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act - appeal on matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Timamy Issa Abdalla v Independent Electoral and Boundaries Commission & 3 Others[2018] KECA 886 (KLR)9 Aug 2018followed
Cite this brief
#Cite this brief
Caselaw, "Independent Electoral and Boundaries Commission & another v Pauline Akai Lokuruka & another [2018] KECA 473 (KLR)", Case Analysis (2018). Election Petition Appeal No. 31 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/473/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.