Ndeti & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition Appeal 8 of 2018) [2018] KECA 552 (KLR)
The bottom line
#Kenya's Court of Appeal nullified the Machakos governor's election because results were declared without verifying them against polling station documents, forcing a fresh election.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal fell within 'matters of law' under Section 85A of the Elections Act
The appeal was properly before the Court because it raised questions of interpretation and application of constitutional and statutory provisions and whether the trial court's conclusions were supported by the evidence.
The Court applied the Supreme Court's definition in Gatirau Peter Munya of 'matters of law only' under Section 85A, including interpretation and application of constitutional and statutory provisions and conclusions based on no evidence. The Court held that Section 85A is not a blanket 'no entry zone' and that appellants must show the trial court's assessment of evidence was wrong, not merely ask for re-assessment.
Whether IEBC's engagement of County Government workers as election officials compromised the independence of the election
Although there was sufficient evidence that IEBC used County staff, the appellants failed to show that this engagement, by itself, compromised the election or IEBC's independence; no law bars IEBC from engaging public officers as election officials.
The Court found there was sufficient evidence that IEBC used County staff, but no evidence that any of the workers did anything suggesting lack of impartiality, and no legal provision barring IEBC from engaging public officers as returning officers, presiding officers or clerks. The Court cautioned IEBC to avoid conflicts of interest and to conduct recruitment openly and transparently.
Whether the election court erred on the burden of proof regarding public officers acting as agents of the 3rd respondent
The trial judge misdirected himself; having established that Urbanus Wambua Musyoka, a public officer, acted as agent of the 3rd respondent's party, the burden shifted to the respondents to rebut, which they failed to do.
The Court found the judge erred by speculating about Article 35 information the appellants could have sought, thereby shifting the burden and imposing unreasonable standards on the party that had provided the names and identity card numbers. Applying Raila 2017, once the petitioner adduces sufficient evidence, the evidentiary burden shifts to the respondent to prove compliance. The appellants proved that a public officer acted as an agent contrary to law.
Whether the validity of Form 37C was sufficiently pleaded
The complaints regarding the validity of Form 37C and the declaration of results were anchored in the petition; the respondents had due notice of the grievances.
Despite the respondents' objection that the issue was not pleaded, the Court found the petition specifically averred that results were not verifiable and that the 1st respondent failed to use standardized statutory forms, rendering results inaccurate and invalid. The judge himself had acknowledged that Form 37C contained the results being challenged. The issue was therefore sufficiently pleaded.
Whether the gubernatorial results declared in Form 37C met the constitutional threshold of verifiability
The results failed the constitutional test of verifiability because the county returning officer declared results without reference to Forms 37A, the primary documents, and used a form that did not capture results from each polling station.
The Court held that the county returning officer's verification role includes verifying that Form 37B results are an accurate record of polling station results, making Form 37A relevant to her task. Section 39(1B) and Regulation 87(1) require prescribed-form declarations capturing results per polling station. The Raila 2017 principle that primary documents underpin all verification applies equally to gubernatorial elections. The excel-format form omitted essential substance, so the Interpretation and General Provisions Act saving did not apply.
Whether the 3rd respondent was ineligible for knowingly aiding contravention of Section 15(1) of the Election Offences Act
The declaration of ineligibility was declined because election offences are quasi-criminal and the evidence did not establish beyond reasonable doubt that the 3rd respondent knowingly aided the contravention.
Applying Frederick Otieno Outa and Moses Masika Wetangula, allegations of election offences must be strictly proved to a higher standard than preponderance of probabilities. The 3rd respondent testified that agent recruitment was a party affair run by the party's chief executive officer and that he had no role. The ingredients of the offence were not definitively proved against him personally.
Legal principles established
#- The county returning officer in a gubernatorial election is under a duty to verify results against the primary documents (Forms 37A) and cannot validly declare results in Form 37C without linking them to Forms 37A; declaring results without reference to the primary source fails the constitutional test of verifiability.
- Once a petitioner adduces cogent and credible evidence establishing a fact (such as a public officer acting as an election agent), the evidentiary burden shifts to the respondent to rebut that evidence or prove compliance with the law.
- Section 85A of the Elections Act confines election appeals to the Court of Appeal to matters of law, but it is not a blanket bar: grounds involving interpretation or application of constitutional and statutory provisions, or conclusions based on no evidence, are within the Court's province.
- Where a form is prescribed by written law, a deviation is only excused if it does not affect the substance of the document or is not calculated to mislead; a form that omits required information from polling stations cannot benefit from that saving provision.
Court orders
#- 1.Appeal allowed and the judgment and order of the High Court given on 9th February 2018 set aside
- 2.Declaration that the 3rd respondent was not validly declared as the Governor of Machakos County
- 3.IEBC directed to organize and conduct a fresh election for the position of governor Machakos County in conformity with the Constitution, the Elections Act and the relevant Regulations
- 4.Certificate issued by the Election Court pursuant to Section 86 of the Elections Act set aside and substituted with a Certificate that the 3rd respondent was not validly declared as having been elected as governor in the elections held on 8th August 2017
- 5.1st and 2nd respondents to pay appellants' costs before the election court, to be taxed, capped at Kshs. 1,500,000.00
- 6.3rd respondent to pay appellants' costs before the election court, to be taxed, capped at Kshs. 1,500,000.00
- 7.1st and 2nd respondents to pay appellants' costs of the appeal, to be taxed, capped at Kshs. 1,000,000.00
- 8.3rd respondent to pay appellants' costs of the appeal, to be taxed, capped at Kshs. 1,000,000.00
- On appeal from
- High Court of Kenya at Machakos
- Machakos gubernatorial election petition (Election Court)
- Jurisdiction invoked
- Section 85A(1) of the Elections Act - appeal from High Court election petition concerning the office of county governor lies to the Court of Appeal on matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndeti & another v Independent Electoral and Boundaries Commission & 2 others (Election Petition Appeal 8 of 2018) [2018] KECA 552 (KLR)", Case Analysis (2018). Election Petition Appeal (Court of Appeal, Machakos gubernatorial election petition appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/552/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.