Bowen David Kangogo v Sammy Kemboi Kipkeu & 2 others [2018] KECA 474 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated Bowen Kangogo as Marakwet East MP, ruling the election petition failed because key irregularities were never properly pleaded or proven.
What this practically means
#Executive summary
#Key legal issues
#Scope of section 85A jurisdiction on election appeals
The Court has jurisdiction to examine the record to determine whether the election court's conclusions were supported by the evidence or were perverse, without reassessing credibility.
Relying on the Supreme Court's Peter Munya decision, the Court held that a matter of law includes conclusions based on no evidence or so perverse that no reasonable tribunal would reach them. Appellate consideration of facts is limited and deferential, maintaining fidelity to the trial record. The grounds here questioned whether findings were supported by evidence or involved wrong application of the law, squarely within jurisdiction.
Application of the section 83 nullification test
The election court's classification of excusable/inexcusable irregularities did not depart from Raila 2017; it addressed the second limb of the disjunctive test.
The pre-amendment section 83, as interpreted in Raila 2017, permits nullification either on substantial violation of electoral principles or on irregularities affecting the result. The election court's classification of minor omissions versus irregularities affecting results was addressing the second limb. However, the petition failed because the pleaded irregularities were minor and the unpleaded ones were neither proved nor shown to affect the outcome.
Effect of unpleaded matters and broken seals
The election court improperly extended the petition by deciding on unpleaded complaints (Embokala, Kitmekinget, broken seals), and the broken seals finding was speculative.
General allegations were insufficient to give notice of specific complaints about particular polling stations, denying respondents a fair hearing. The broken seals discovered during post-evidence scrutiny could not ground an adverse inference since respondents had no opportunity to explain. Quantitatively, the errors were insignificant and the leading candidates' tallies were unaffected.
Burden and standard of proof
The petitioner bore the burden to adduce cogent evidence to the standard higher than balance of probabilities but lower than beyond reasonable doubt, and failed to discharge it.
The Court reaffirmed Raila 2013 and Raila 2017: the petitioner must discharge the initial burden with cogent and credible evidence, and the standard in electoral disputes is above balance of probabilities but below beyond reasonable doubt. The 1st respondent failed to prove the pleaded irregularities to that standard, so the judgment could not stand.
Legal principles established
#- A party must plead allegations of irregularities with precision; an election court may not base its judgment on matters not specifically pleaded.
- On an election petition appeal under section 85A, the Court may consider facts to determine whether the trial court's conclusions were supported by evidence, but may not question credibility or probative value.
- An election may not be nullified on speculative grounds where a quantitative analysis shows the results of the leading candidates were unaffected.
Court orders
#- 1.Appeal and the 2nd and 3rd respondents' cross-appeal allowed
- 2.Judgment of the election court and all consequential orders set aside
- 3.Petition dismissed and the election of Bowen David Kangogo as Member of National Assembly for Marakwet East Constituency confirmed
- 4.Order for costs made by the election court set aside and substituted with costs in favour of the appellant and the 2nd and 3rd respondents as against the 1st respondent in the election court, capped at Kshs Two million
- 5.Costs of the appeal and cross-appeal awarded to the appellant and the 2nd and 3rd respondents respectively as against the 1st respondent
- On appeal from
- High Court of Kenya at Eldoret
- Election Petition No. 2 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals 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.
- Awiti & another v Independent Electoral and Boundaries Commission & 3 others[2019] KESC 68 (KLR)7 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Bowen David Kangogo v Sammy Kemboi Kipkeu & 2 others [2018] KECA 474 (KLR)", Case Analysis (2018). Election Petition Appeal No. 15 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/474/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.