Alfred Kiptoo Keter v Bernard Kibor Kitur & Independent Electoral & Boundaries Commission [2018] KECA 478 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated Alfred Keter as Nandi Hills MP, ruling the election petition collapsed because it rested on hearsay evidence with no real proof of wrongdoing.
What this practically means
#Executive summary
#Key legal issues
#Status of a petitioner's supporting affidavit upon withdrawal and substitution
The supporting affidavit is an integral part of the petition and survives the original petitioner's withdrawal, but its evidential value is lost if the original petitioner is not examined and not excused or cross-examined by consent
The rules require a petition to be supported by an affidavit sworn personally by the petitioner, making the affidavit integral to the petition. Substitution under Rule 24(5) places the substituted petitioner in the same position as the original. However, because affidavit evidence stands as evidence in chief, a deponent who is not produced for examination contributes no probative value, following Moses Wanjala Lukonye v Bernard Alfred Wekesa Sambu.
Evidential status of a substituted petitioner's supplementary affidavit adopting the original affidavit
A supplementary affidavit filed three months after the petition, requiring the substituted petitioner to adopt facts not within his own knowledge, is hearsay and of no probative value
Affidavits must state the substance of evidence confined to facts the deponent can prove of his own knowledge, save with leave for information and belief with sources. The judge's order that the substituted petitioner adopt the original affidavit word for word allowed him to depone to facts he could not prove, producing defective hearsay depositions. A supplementary affidavit with the character of a witness affidavit cannot be elevated to a petitioner's supporting affidavit.
Shifting of the burden of proof on allegations of unlawful campaigns
The evidential burden was erroneously shifted to the appellant because the legal burden was never discharged; the evidence relied on was hearsay and not direct evidence
Under Raila Odinga (2013), a petitioner must discharge the initial burden before respondents bear the evidential burden. Unlawful campaigning under section 20(2) of the Election Offences Act is criminal, requiring a high legal burden. The trial judge found the evidential burden shifted based on the original petitioner's affidavit, which was hearsay. Once discounted, no evidence supported the allegations of illegal campaigns.
Whether the appellant's post-campaign-period conduct amounted to a campaign in law
It did not; the essential elements of the statutory definition of a campaign were not established
Section 2 of the Elections (General) Regulations 2012 defines a campaign as promotion of a candidate or party for purposes of an election during the campaign period. The judge gave the term an overly broad meaning that would impinge on freedom of movement and association and expose candidates to criminal sanctions. Addressing groups of fewer than 25 people at three places in a constituency of over 51,000 registered voters did not amount to a campaign.
Application of section 83 of the Elections Act to the effect of non-compliance on the result
The judge erred in failing to apply section 83; even if proved, the alleged unlawful campaigns could not have affected the result given the winning margin
Under section 83, an election is not void for non-compliance that did not affect the result. The Supreme Court in Raila Odinga and Obado requires proof that non-compliance affected the validity of the election. The alleged campaigns were confined to areas with 2,251 registered voters against a winning margin of 10,051 votes; neither petitioner deposed that the campaigns affected the results.
Whether the IEBC failed to conduct the election in accordance with the law by not enforcing the Electoral Code of Conduct
No; a mere failure to enforce the Code of Conduct on an unproven complaint does not invalidate the election
The Returning Officer testified the elections were conducted in accordance with the law save for administrative tallying errors that did not affect results. The 1st respondent admitted not lodging an official complaint under the Settlement of Disputes Rules and was directed to the police. There was no evidence of tacit approval by the IEBC, so the finding against the IEBC was neither proportional nor rational.
Legal principles established
#- A petition in an election court is an integral whole with its supporting affidavit; where the original petitioner withdraws and is substituted, the petition and supporting affidavit remain intact, but if the original petitioner does not appear for examination and is not excused or cross-examined by consent, the evidence in the supporting affidavit is of no probative value
- A substituted petitioner may not adopt word for word the original petitioner's supporting affidavit so as to testify to facts within the original petitioner's knowledge; such evidence is hearsay
- Where an alleged electoral malpractice is criminal in nature, the petitioner must discharge a high legal burden of proof before the evidential burden shifts to the respondent
- The essential statutory elements of a campaign must be established for post-campaign-period conduct to amount to unlawful campaigning; addressing a very small number of people does not amount to a campaign in law
- An election must not be declared void for non-compliance where the non-compliance did not affect the result; courts must apply section 83 of the Elections Act and consider the effect of irregularities on the results
- A returning officer's or IEBC's mere failure to enforce the Electoral Code of Conduct does not mean the IEBC did not conduct the election in accordance with the law; such a finding is neither proportional nor rational absent tacit approval of the malpractice
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the Election Court dated 1st March 2018, including its final orders, is set aside in its entirety
- 3.Election Petition No. 1 of 2017 is dismissed with costs to the appellant to be paid by the 1st respondent
- 4.The 2nd respondent's cross-appeal is allowed with costs to be paid by the 1st respondent
- 5.The 1st respondent's cross-appeal and notice of affirming the decision are dismissed with costs to the appellant to be paid by the 1st respondent
- 6.A declaration is issued that the appellant Alfred Kiptoo Keter was validly elected as member of National Assembly for Nandi Hills Constituency in the election held on 8th August 2017
- 7.The declaration by the 2nd respondent that the appellant was validly elected is upheld
- On appeal from
- High Court of Kenya at Eldoret (Election Court)
- Election Petition No. 1 of 2017
- Jurisdiction invoked
- Section 85A(1) of the Elections Act - appeal from the High Court concerning membership of the National Assembly lies to the Court of Appeal on matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Porter (Suing on Behalf of the Estate of Arthur Thomas Porter) & another v Bixby Limited & 2 others[2023] KEELC 19801 (KLR)30 Aug 2023
- Karua v Independent Electoral & Boundaries Commission & 3 others (Civil Appeal 12 of 2018) [2018] KECA 41 (KLR)[2018] KECA 41 (KLR)20 Dec 2018applied
Cite this brief
#Cite this brief
Caselaw, "Alfred Kiptoo Keter v Bernard Kibor Kitur & Independent Electoral & Boundaries Commission [2018] KECA 478 (KLR)", Case Analysis (2018). Election Petition Appeal No. 21 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/478/eng@2018-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.