Ibren v Independent Electoral and Boundaries Commission & 2 others (Election Petition Appeal 9 of 2018) [2018] KECA 500 (KLR)

The Supreme Court in Munya and Outa held that limiting appeals to matters of law only actualizes constitutional values of finality and expeditious determination of electoral disputes under Article 87(1). The Elections Act is a special regime enacted pursuant to express constitutional power. The appellant's challenge was neither new nor novel and was rejected.

Following Supreme Court precedent, the Court confined itself to questions of law and declined to re-evaluate evidence, defer to trial court findings on credibility and probative value. It adopted the Indian Supreme Court's test on perversity: if some acceptable evidence supports the conclusion, the finding is not perverse and will not be disturbed.

The respondents had already annexed copies of the statutory forms to their responses; the appellant's analyst had already examined the forms before testifying. After the court ordered production of originals, it allowed the appellant time to analyse them and to make any application, but she filed none. She was master or mistress of her own interests in the litigation.

Regulation 3 required notification of initial appointments to political parties and independent candidates; the appellant's party, not her personally, was entitled to notification and no complaint of non-notification was shown. His role was to tally and announce results contained in the primary forms, which were final and which he had no power to alter. No evidence of bias or altered results was adduced.

The trial judge reviewed all evidence on turning away of voters and concluded that a majority of voters exercised their right and no eligible voter was turned away. That conclusion was supported by evidence on record and could not be described as perverse. A voter registration slip does not entitle a person whose name is not in the register to vote.

All ballot boxes had serial numbers and none was found completely without a seal; the appellant's own seals were intact. Regulation 61(4)(e) does not require seals to bear the IEBC logo. The damaged box and broken seals were explained by transportation on rough terrain, which the trial judge, who saw and heard the witnesses, accepted.

Applying the Munya guidelines, the party seeking scrutiny must establish a basis to the trial judge's satisfaction. The appellant sought scrutiny in all polling stations contrary to her pleadings, and the figures in the primary forms were unchallenged. An appellate court will not substitute its discretion for that of the trial court absent misdirection.

Judicial notice requires that the matter be so notorious as not to be disputed among reasonable persons, or capable of immediate accurate demonstration. The gubernatorial election forms did not meet that test. Since the appellant's own evidence on disparities between the six elections had been rejected as unreliable, exclusion of the other case's evidence left her contention unsupported.

The Supreme Court in Raila Amolo Odinga held that the two limbs of section 83 apply disjunctively, but even trivial breaches should not void an election; the word 'substantially' is inferred. Looking at the whole election for the Woman Representative in Marsabit County, no substantial breach justifying nullification was established.