Philip Kyalo Kituti Kaloki v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 555 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Philip Kaloki's bid to overturn the Kibwezi East MP election, ruling that minor errors cannot nullify an election without proving they changed the result.
What this practically means
#Executive summary
#Key legal issues
#Unsigned declaration forms
Only results from the three polling stations where even the presiding officer did not sign Form 35A (1,146 votes) were invalid; agent signatures are not mandatory and their absence does not invalidate results under Regulation 79(6).
Regulation 79(6) expressly provides that refusal or failure of a candidate or agent to sign, or failure to record reasons, does not by itself invalidate the results. The presiding officer's signature is mandatory; the election court correctly excluded only the three stations lacking it. Given the margin of 12,939 votes between the candidates, exclusion of 1,146 votes could not affect the outcome.
Duty to make findings on election offences under section 87
The election court did not err in failing to make a section 87 determination; the section is discretionary and a finding of criminal malpractice cannot be made without adequate evidence.
The amended section 87(1) permits, but does not compel, a determination that a criminal malpractice may have occurred. Such findings carry serious consequences, so require adequate evidence; allegations of election offences attract the criminal standard of proof beyond reasonable doubt, per Moses Masika Wetang'ula v Musikari Nazi Kombo. An unsupported determination would embarrass the party and the court.
Appointment of the returning officer
The challenge failed because the ground pleaded concerned only the returning officer's county of origin; non-compliance with Regulation 3(2) was never pleaded and no prejudice was shown.
Parties are bound by their pleadings. The Khelef Khalifa orders in the High Court related to returning officers for the 26 October 2017 repeat presidential election, not those appointed for the 8 August 2017 election. The appellant also never showed what drawbacks resulted from not being given the returning officer's name before appointment.
Right of access to information versus scrutiny in election petitions
Article 35 access to information is wide, but in the election-petition context it cannot widen the pleadings; the appellant, having particularized polling stations only in his scrutiny application, got exactly the order he sought.
Scrutiny and recount are not granted as of course; the party must establish a basis to the satisfaction of the trial judge, per the Supreme Court in Munya. Allowing scrutiny beyond pleaded grievances would amount to a fishing expedition to procure fresh evidence not in the petition, contrary to Raila Amolo Odinga. The election court granted the order as prayed and erred not.
Burden of proof and section 83 non-compliance threshold
The burden lay on the appellant, and errors such as declaration of the winner before preparation of Form 35B, though breaches, were not shown to affect the result substantially; the election was not nullified.
Elections are conducted by fallible humans; the question is whether errors affected the outcome in a substantial, material and decisive manner. There was no dispute as to the results from the polling stations and no suggestion of contradictory figures. The premature declaration was a breach of the regulations but the appellant did not show it went to the root of the election or combined with other malpractices.
Costs
The total award of Kshs.4,000,000/= was excessive; the Court interfered and reduced High Court costs to Kshs.2,000,000/= and capped its own costs at Kshs.500,000/=, rejecting the 3rd respondent's cross-appeal seeking Kshs.15,000,000/=.
Under section 84 of the Elections Act and Rule 30 of the Election (Parliamentary and County) Petition Rules, costs follow the cause, guided by fairness, justice and access to justice per Martha Wangari Karua. The Court found 4 million shillings in a parliamentary election excessive and exercised its discretion to reduce the award, while the cross-appeal for an increase to 15 million was not granted.
Legal principles established
#- An appeal to the Court of Appeal in an election petition lies on matters of law only, encompassing interpretation of legal provisions, their application to facts on record, and challenges to conclusions based on no evidence or that are perverse.
- Allegations of commission of election offences in an election petition must be proved beyond reasonable doubt.
- Section 87 of the Elections Act gives the election court discretion, not a duty, to determine whether an electoral malpractice of a criminal nature may have occurred, and only where the evidence is adequate.
- A party seeking scrutiny or recount must lay a basis in the pleadings, application or evidence; scrutiny cannot be used to expand pleadings or fish for fresh evidence.
- An election shall not be nullified for non-compliance unless the non-compliance substantially affected the result; errors that cannot change the final result do not justify nullification.
Court orders
#- 1.The appeal is dismissed as devoid of merit
- 2.The costs awarded by the election court are interfered with and reduced: High Court costs capped at Kshs.2,000,000/= to be paid by the appellant equally to the respondents
- 3.Costs at the Court of Appeal capped at Kshs.500,000/= to be paid equally by the appellant to the respondents
- On appeal from
- High Court of Kenya at Makueni
- Makueni Election Petition No 1 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act - appeals from the High Court in election petitions lie to the Court of Appeal on matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Kyalo Kituti Kaloki v Independent Electoral and Boundaries Commission & 2 others [2018] KECA 555 (KLR)", Case Analysis (2018). Election Petition Appeal No. 25 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/555/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.