Jackton Nyanungo Ranguma v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 537 (KLR)
The bottom line
#Kenya's Court of Appeal upheld Nyong'o's Kisumu gubernatorial win, confirming that election challengers must plead and prove irregularities with hard evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Jurisdiction of this Court vis-à-vis the grounds urged in the memorandum of appeal
- 2.The finding by the trial court that un-pleaded issues cannot be determined
- 3.The discrepancy in the votes cast in the Presidential, Senatorial, Women Representative and the gubernatorial elections
- 4.Failure to find that the irregularity by IEBC in declaring results without results from five polling stations was fatal to the integrity and results of the Kisumu County gubernatorial elections
- 5.The alleged high number of rejected votes
- 6.Failure on the part of the 1st and 2nd respondents to call witnesses for cross-examination
- 7.Issues related to the legal and evidentiary burden of proof and whether the trial court erred in applying the evidentiary burden and standard of proof
- 8.Alleged failure on the part of the trial court to consider the probative value and evidence of PW2 and PW3
- 9.Failure of the trial court to order scrutiny and recount of the votes
- 10.Alleged erroneous finding by the trial court and erroneous interpretation of Section 39 of the Elections Act on electronic transmission of gubernatorial election results
Key legal issues
#Discrepancies in votes cast across electoral seats
Mere differences in votes cast between Presidential, Senatorial and gubernatorial elections do not, per se, prove electoral malpractice; each election result must be challenged on its own ground and a factual basis for malpractice in each polling station must be established.
Reviewing case law (Gitau v Thuo, Ndolo v Mwangi, Mohamed Tubi Bidu, Moses Wanjala Lukoye, Supeyo, M'nkiria), the Court held that voters may choose not to vote in all races and stray or rejected ballots explain small differences. Comparison across elections is only informative; using one election's results to impugn another is speculative extrapolation. The trial court correctly found no factual basis for the alleged malpractices, and this ground failed.
Rejected votes in sampled polling stations
The appellant could not extrapolate findings from a sample of 95 polling stations to the whole county; extrapolation is not allowed in law and leads to conjecture and speculation.
Relying on Gatirau Peter Munya v Dickson Mwenda Kithinji and Nathif Jama Adam, the Court held that courts must act only on ascertained facts and demonstrate how the final statistical outcome was compromised. A generalized observation on the percentage of rejected votes, without demonstration that variation affected the results or the will of the people, cannot ground nullification.
Failure to call witnesses for cross-examination
An adverse inference should not be drawn against a respondent who fails to call witnesses, as no particular number of witnesses is required to prove a fact and the legal burden of proof remains with the petitioner; further, the appellant never requested the witnesses, waiving the right to cross-examine.
Section 143 of the Evidence Act provides that no particular number of witnesses is required. Drawing an adverse inference would wrongly shift the legal burden from petitioner to respondent. The appellant neither requested nor applied for the eleven witnesses to be called, so either their testimony was unchallenged or he waived cross-examination. The trial court did not err.
Legal and evidentiary burden of proof
There is no onus on the respondent to prove, upon a shown breach, that the election was substantially in accordance with the law; the evidentiary burden does not shift absent prima facie cogent and credible evidence from the petitioner.
Relying on Raila Odinga (2013) and St. Claire Simon v Winston Baldwin Spencer, the Court held the legal burden rests on the petitioner at all times. Because the appellant failed to produce prima facie cogent evidence that he won or that irregularities affected the result, there was nothing on which the evidentiary burden could shift to the respondents. The trial judge correctly applied the burden of proof.
Declaration of results omitting five polling stations
Declaring results before all polling station results are received is an irregularity, but it vitiates the election only if it affects the result; with a margin of 115,164 votes and a maximum of 3,500 disputed votes, the omission did not vitiate the election.
The 2nd respondent admitted declaring results on the basis of an unassailable lead, which the Court held was not legally authorized. However, following Kores v Ole Lenku and the trial court's reasoning, even adding all the votes of the five stations to the appellant would not change the outcome. The will of the people of Kisumu County was loudly and clearly stated and was not vitiated.
Electronic transmission under Section 39 of the Elections Act
Section 39(1C) makes electronic transmission mandatory only for presidential elections; transmission for other elective seats under Sections 39(1A) and (1B) is not mandatory electronic transmission.
The Court analysed the text of Sections 39(1A), (1B) and (1C) and agreed with the trial judge that voting, counting, tallying and transmission for the gubernatorial seat is mainly manual, with results recorded in Form 37B. There was also no evidence that any failure of electronic transmission affected the gubernatorial results. The trial judge did not misdirect himself on Maina Kiai.
Un-pleaded issues and particularity of fraud allegations
Parties to an election petition are bound by their pleadings; reproducing constitutional provisions is not pleading with particularity, and allegations of fraud must be specifically pleaded with particulars on the face of the pleading.
Citing Arikala Narasa Reddy, Charles C. Sande, Standard Chartered Bank v Intercon Services, Vijay Morjaria and Kinyanjui Kamau, the Court held that the appellant's paragraph 20 reproducing Article 86 was not a pleading with particularity and the alleged electoral fraud carried no particulars. The trial judge nonetheless evaluated the evidence of PW2 and PW3 and correctly found it to be opinion evidence without factual basis.
Section 83 of the Elections Act
The trial court did not misdirect itself on Section 83: quantitatively the missing five stations could not affect the result, and qualitatively the election was conducted substantially in accordance with constitutional principles and written law.
Applying the disjunctive limbs of Section 83 as interpreted by the Supreme Court in Raila (2017), the Court found the appellant had not demonstrated substantial non-compliance with electoral principles, nor irregularities affecting the result. The appellant's only quantitative evidence was self-generated results from the 'JR Secretariat' and 'Prof. Nyongo IT Team', entities with no constitutional or legal authority to declare results.
Scrutiny and recount
The Court could not entertain the scrutiny and recount ground: no relief was prayed for in the memorandum of appeal, scrutiny involves facts outside the Court's jurisdiction, and the complaint was a belated afterthought with no notice of appeal filed against the access rulings.
Citing Raila (Supreme Court Ruling of 28th October 2017) and Francis Mwangangi Kilonzo, the Court noted scrutiny must be for sufficient reason and confined to disputed stations, not a fishing expedition. Under Great Lakes Transport v Kenya Revenue Authority a court cannot grant unpleaded relief. The appellant never raised non-compliance with the Read Only Access Order before the trial court.
Legal principles established
#- The appellate jurisdiction of the Court of Appeal in election petitions is confined to matters of law under Section 85A of the Elections Act.
- Mere differences in votes cast across electoral seats cannot, without cogent evidence, be treated as proof of electoral malpractice; each election must be challenged on its own ground.
- Extrapolation of evidence from sampled polling stations to an entire election is impermissible in election petitions.
- An adverse inference should not ordinarily be drawn against a respondent merely for declining to call witnesses; the legal burden of proof remains with the petitioner at all times, and there is no onus on the respondent to prove substantial compliance once a breach is shown.
- A returning officer can only declare results once results of all polling stations have been received; declaring partial results is an irregularity, but it vitiates the election only if it affects the result.
- Electronic transmission of results under Section 39(1C) of the Elections Act is mandatory only for presidential elections, not for other elective seats.
- Reproducing a constitutional provision is not pleading with particularity; allegations of fraud or electoral malpractice must be specifically pleaded and particularised.
- Only results declared by the IEBC have legal sanction; self-generated results from private sources lack probative value.
Court orders
#- 1.This appeal has no merit
- 2.The judgment delivered on 3rd January 2018 in Kisumu High Court Election Petition No. 3 of 2017 be and is hereby confirmed and upheld in its entirety
- 3.The appellant shall bear the costs of this appeal, to be taxed if not agreed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C. Election Petition No. 3 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appellate jurisdiction confined to matters of law)
Relief refused
#Scrutiny and recount of votes
No relief was prayed for in the memorandum of appeal on this ground; scrutiny and recount would involve facts outside the Court's jurisdiction; and the issue was a belated afterthought, no notice of appeal having been filed against the rulings on access.
Nullification of the declaration of the 3rd respondent as Governor-elect
No cogent and credible evidence of substantial non-compliance or of irregularities affecting the result within either limb of Section 83 of the Elections Act.
Costs
The appellant shall bear the costs of this appeal, to be taxed if not agreed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
(a) This appeal has no merit. (b) The judgment delivered on 3 rd of January, 2018 in Kisumu High Court Election Petition No. 3 of 2017 be and is hereby confirmed and upheld in its entirety. (c) The appellant shall bear the costs of this appeal, to be taxed if not agreed.
We remind ourselves about the provisions of Section 85 A of the Elections Act which restricts and confines the appellate jurisdiction of this Court only to matters of law.
It is impermissible to use the results of one elective position to challenge or prove that the result of another elective post is vitiated.
Once again, we reiterate that extrapolation of evidence is not allowed in law.
unless expressly authorized by law, the presiding or returning officer can only declare results once the results of all polling stations have been received. It is an irregularity to declare partial results.
we are satisfied that electronic transmission of results is a mandatory requirement for presidential elections. It is not a mandatory requirement for all other electoral seats.
The legal burden of proof always remains with the petitioner and a court should be careful not to draw adverse inference when a respondent who has no legal burden to prove any fact fails to call a witness or witnesses.
In our view, reproducing a constitutional or statutory provision is not a pleading with specificity and particularity.
We find that as a matter of law, the only lawful and legal results for any electoral seat is the results released and declared by the IEBC
Issues in the judgment
#The appellant's witness PW2 is referred to inconsistently within the judgment as 'Jacob Onyango K'Odera' and 'John Onyango K'Odera'.
The judgment contains an apparent slip where the appellant's submission on burden shifting is attributed to 'the respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackton Nyanungo Ranguma v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 537 (KLR)", Case Analysis (2018). Election Petition Appeal No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/537/eng@2018-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.