Pius Yattani Wario v Independent Electoral & Boundaries Commission & 3 others
The bottom line
#Kenya's Court of Appeal upheld the election of Marsabit's governor, confirming that election appeals can only challenge legal errors, not facts.
What this practically means
#Executive summary
#Key legal issues
#Scope of appellate jurisdiction in election petition appeals
Section 85A of the Elections Act, confining appeals to the Court of Appeal to matters of law only, is constitutional; the 4th respondent's constitutional challenge was rejected as already decided by the Supreme Court in Outa.
The Supreme Court in Outa and Munya had squarely addressed and upheld the validity of section 85A, holding that it gives effect to the constitutional value of timely resolution of electoral disputes under Article 87(1). The provision is not a limitation on the Court's Article 164(3) jurisdiction but donates the appellate jurisdiction contemplated under Article 105(3). This Court is therefore confined to matters of law only.
Authenticity of Form 37Bs
No basis was shown to displace the trial court's finding that the original Form 37Bs produced in court were authentic; errors in B series forms that do not affect results in A series forms cannot nullify an election.
The trial judge heard the returning officers and agents and found the forms were signed at different times, plausibly given the movement of agents. Failure of an agent to sign is not per se a ground for nullification. Form 37A is the primary source of results, which the appellant did not challenge, and no evidence showed discrepancies between the B series and the A series results.
Assisted voters
The trial court's finding that assisted voters were handled in accordance with regulation 72 was supported by evidence; no assisted voter was called to testify to coercion.
The petitioners' witnesses' allegations were general and were rebutted by presiding officers and party agents who witnessed the process. The trial judge, who saw and heard the witnesses, preferred one version over the other; this Court cannot re-evaluate that evidence absent perversity. Over 50% of voters in Marsabit County required assistance, and there was no evidence of instructions to coerce voters.
Violence and candidate eligibility
The violence complaint was not pleaded, and the IEBC fines imposed for supporters' misconduct did not disqualify either candidate; no evidence showed the violence affected the result.
The IEBC itself cleared both candidates after finding the violence was caused by supporters, not the candidates personally; no objection was raised at the time; the issue was an afterthought not pleaded in the petition; and no evidence demonstrated that the incident disfranchised any voter or gave an undue advantage. An election should not be nullified absent proof that violence affected voting and the final result.
Transfer of the Laisamis Constituency returning officer
The transfer of Galgalo was a normal administrative transfer, not a new appointment requiring compliance with regulation 3; no evidence showed party consultation was denied, or that the 3rd respondent instigated the transfer, or actual bias.
Regulation 3 addresses initial appointments, which were complied with and gazetted. The transfer was published in corrigenda a month before the election, was a course-of-business move affecting others too, and Galgalo was from Isiolo, not Marsabit. His role was confined to tallying polling-station results which he could not alter, and shared ethnicity alone cannot disqualify a returning officer without proof of bias.
Disenfranchisement
No registered voter was denied the right to vote; those turned away were not on the register or sought to vote with acknowledgement slips contrary to the regulations.
The evidence showed the persons named could not be traced in the register of voters, some were registered elsewhere, and presiding officers could not lawfully allow persons with acknowledgement slips to vote. The appellant's challenge was merely an invitation to re-evaluate evidence the trial judge had considered, which this Court on a matter-of-law appeal cannot do.
Preservation of election materials and seals
The trial judge did not misapprehend the deputy registrar's report; the ballot boxes were substantially intact and seals bearing serial numbers rather than IEBC logos satisfied regulation 61(4)(e).
The report found all ballot boxes intact save minor issues (one lid slightly broken, one missing turnout figure). The regulation requires a seal of the Commission suitable for the purpose; logo branding is not mandated, and the seals used had serial numbers identifying them as the Commission's. There was no misdirection in the judge's reading of the report.
Judicial notice of evidence from another petition
The trial judge erred in considering evidence from the Woman Representative petition, but the error could not assist the appellant since all of that evidence fell to be excluded.
Evidence not adduced in the petition before the court could not be tested by cross-examination and was not a matter of public notoriety for judicial notice. Having found the reference improper, the Court could not approve consideration of other aspects of the same evidence; upon exclusion, the alleged variations in the six elections remained unproven.
Quantum of costs
The costs awarded (Kshs 2,500,000 each to IEBC/2nd respondent and to the 3rd respondent) were not manifestly excessive; no irrelevant factor was shown to have influenced the trial judge.
Costs follow the event under section 84 of the Elections Act and rule 90 of the Petition Rules. The hearing took over four months and involved travel from Nairobi to Marsabit. The appellant and 4th respondent voluntarily inherited the petition and could not complain of late joinder, since the respondents were in the petition from the beginning.
Standard for nullification under section 83 of the Elections Act
To nullify an election, the court must be satisfied of non-compliance with the Constitution or written law, or that non-compliance affected the result; breaches must be substantial.
Relying on the Supreme Court's reading of Morgan v. Simpson, section 83 applies disjunctively but requires that, looking at the conduct of the whole election, the court be satisfied the election substantially breached constitutional and electoral principles. No election can be perfect; trivial breaches do not void an election. On the whole, no substantial breach was proved here.
Legal principles established
#- Appeals to the Court of Appeal in election petitions lie on matters of law only; section 85A of the Elections Act is constitutional and its 'matters of law' limitation is not a restriction of the Court's jurisdiction under Article 164(3)(a).
- The parameters of a question of law in election appeals are: interpretation or construction of the Constitution, statutes or regulations relating to elections; their application to facts established at trial; and whether the trial judge's conclusions are unsupported by evidence or perverse.
- An appellate court will not interfere with trial findings of fact where there is some acceptable evidence on record supporting them; perversity is required.
- Grounds of appeal in election petitions that are a composite of 'errors of law and fact' are inappropriate and probably incompetent; appellants must frame issues with precision.
- Violence in an election does not justify nullification unless it is shown to have affected the voting and the final result of the election.
- Regulation 61(4)(e) requires only a seal of the Commission suitable for the purpose; seals need not bear the IEBC logo if they are positively identifiable as belonging to the Commission.
- A trial judge may not consider evidence adduced in a different petition, nor take judicial notice of it, as such evidence is not of public notoriety and was not subject to cross-examination.
- An appellate court will not interfere with a trial court's award of costs unless it is shown the trial court took irrelevant matters into consideration.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Appellant and 4th respondent to jointly and severally pay costs of Kshs 500,000.00 to the IEBC and a like sum to the 2nd respondent
- 3.Appellant and 4th respondent to pay costs of Kshs 1,500,000.00 to the 3rd respondent
- On appeal from
- High Court of Kenya at Marsabit
- Election Petition No. 2 of 2017 (Formerly Nairobi EP No. 15 of 2017)
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals to the Court of Appeal on matters of law only); Article 164(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pius Yattani Wario v Independent Electoral & Boundaries Commission & 3 others", Case Analysis (2018). Election Petition Appeal No. 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/490/eng@2018-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.