Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedElection Petition Appeal No. 5 of 2018· [2018] KECA 700 (KLR)

Mati v Returning Officer Mwingi North Constituency & 2 others (Election Petition Appeal 5 of 2018) [2018] KECA 700 (KLR)

Court of Appeal of Kenya
22 March 2018
5,505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal dismissed John Munuve Mati's challenge to the Mwingi North MP election, confirming the election was validly conducted and Paul Nzengu keeps his seat.

What this practically means

#

Executive summary

#
This is a judgment of the Court of Appeal (Warsame, M'Inoti and Otieno-Odek, JJA) dismissing John Munuve Mati's appeal against the dismissal by the High Court at Kitui of his petition challenging the election of Paul Musyimi Nzengu as Member of the National Assembly for Mwingi North Constituency in the 8th August 2017 general election. The Court first dealt with interlocutory applications. It rejected the appellant's contention that the 7-day notice of appeal requirement in rule 6(2) of the Court of Appeal (Election Petition) Rules 2017 conflicted with the 30-day period in section 85A of the Elections Act or with rule 35 of the Elections (Parliamentary and County Elections) Petition Rules 2017, holding that the notice of appeal is a mandatory notification mechanism and that the 2017 Rules prevail over the 2010 Rules. Exercising its discretion under rule 6(5), the Court extended time and declined to strike out the notice of appeal since no party was prejudiced. On the merits, the Court held that section 85A confines election appeals to matters of law; credibility findings belong to the trial court absent perversity. It held that the KIEMS kit is not part of the register of voters under section 4 of the Elections Act and that the appellant, having never pleaded or applied for its scrutiny, could not fault the trial court. The burden of proof remained on the petitioner notwithstanding the respondents' failure to call presiding officers. Finding no material irregularity in the scrutiny report and no evidence justifying nullification, the Court dismissed the appeal, upheld the High Court judgment and ordered the appellant to bear the costs of the appeal capped at Kshs 1 million.

Key legal issues

#
01

Compatibility of the 7-day notice of appeal requirement with the 30-day appeal period in section 85A of the Elections Act

Holding

The 2017 Rules are not inconsistent with the Elections Act, the Elections (Parliamentary and County Elections) Petition Rules 2017 or the 2010 Court of Appeal Rules; the notice of appeal is a reasonable notification mechanism and a mandatory prerequisite

Reasoning

Section 85A's 30-day limit governs filing of the appeal, not abolition of the notice of appeal. The notice formally notifies parties that the dispute has moved to the Court of Appeal and prevents ambush. The 2017 Rules are later in time, dedicated to election petition appeals, and rule 4(2) expressly provides they prevail over the 2010 Rules in the event of conflict.

p. 4
02

Whether to strike out the notice of appeal or extend time despite non-compliance

Holding

The Court exercised its discretion under rule 6(5) of the 2017 Rules to extend time and decline striking out, since no party was prejudiced and the appeal could be determined within the prescribed timelines

Reasoning

Although timelines in electoral disputes must be strictly observed, the 2017 Rules confer discretion to determine the effect of non-compliance, balancing justice without undue regard to procedural technicalities against timeliness. The record of appeal was already before the Court, no prejudice was shown, and the three objects of the Rules (just, impartial and expeditious determination) would not be compromised.

p. 6
03

Whether the KIEMS kit forms part of the register of voters and whether scrutiny should have been ordered

Holding

The KIEMS kit is not part of the register of voters under section 4 of the Elections Act; it is a gadget for biometric voter identification and transmission of results. Further, the appellant never pleaded or applied for its scrutiny.

Reasoning

Section 4 exhaustively defines the register of voters (poll, ward, constituency, county and residence registers) and the KIEMS kit is not among them. Section 44 establishes the integrated electronic electoral system and section 44A a complementary mechanism. Having failed to plead and lay a basis for scrutiny in the petition or the scrutiny application, the appellant cannot fault the trial court.

p. 8
04

Whether the trial court erred in evaluating the evidence and on witness credibility

Holding

Credibility findings are the province of the trial court; the appellate court may intervene only where conclusions are perverse. No credible evidence supported the allegations of partiality, and the scrutiny report revealed no material irregularity.

Reasoning

Section 85A confines election appeals to matters of law. The Court cannot re-examine the probative value of evidence or calibrate credibility, per the Supreme Court in Gatirau Peter Munya. There was no report of partiality in the Polling Station Diary or Occurrence Book, and the trial judge's finding that PW13 was not a witness of truth was not perverse.

p. 7
05

Whether failure to call presiding officers shifted the burden of proof

Holding

The burden of proof lay with the petitioner throughout; failure by respondents to call witnesses does not displace it

Reasoning

It was the appellant's duty to call cogent and credible evidence to prove the allegations in the petition. A petition cannot succeed merely because a respondent offered no evidence in rebuttal; the petitioner must adduce evidence of the nature that would entitle him to judgment even if no rebuttal were offered.

p. 9

Legal principles established

#
  • Election petition appeals in the Court of Appeal lie on matters of law only; the Court's engagement with facts is limited to context and to whether the trial judge's conclusions are supported by the record or are perverse
  • The KIEMS kit is not part of the register of voters as defined in section 4 of the Elections Act
  • A notice of appeal is a mandatory prerequisite and jurisdictional precondition to an election petition appeal; the 7-day period in the 2017 Rules prevails over the 14-day period in the 2010 Rules
  • Failure by a respondent to call a witness does not automatically allow a petition; the petitioner must first adduce evidence entitling him to judgment absent rebuttal
  • Parties are bound by their pleadings; a court cannot grant relief not sought in the pleadings or applications

Court orders

#
  1. 1.The application for extension of time for filing and serving the notice of appeal is allowed with no orders as to costs
  2. 2.The applications to strike out the notice of appeal are dismissed with no orders as to costs
  3. 3.Election Petition Appeal No. 5 of 2018 is dismissed
  4. 4.The Judgment and Decree of the High Court in Kitui Election Petition No. 3 of 2017 is upheld
  5. 5.The appellant shall bear the costs of this appeal, capped at Kshs 1 million

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159(2)(d); Article 87
  • Elections Act, 2011Section 4; Section 44; Section 44A; Section 85A(1)(a); Section 86(1)
  • Court of Appeal (Election Petition) Rules, 2017Rule 4(2); Rule 6(2); Rule 6(3)(c); Rule 6(5); Rule 7
  • Elections (Parliamentary and County Elections) Petition Rules, 2017Rule 35
  • Court of Appeal Rules, 2010Rule 75; Rule 82
  • Supreme Court (Presidential Election Petition) Rules, 2017

Cases cited (20)

  • Abok James Odera T/A A.J. Odera & Associates
    Nairobi Civil Appeal No. 161 of 1999
  • Nicholas Kiptoo arap Korir Salat -v- IEBC & 7 Others
    [2014] eKLR
  • Kibaki -v- Moi
    [2000] 1 EA 117
  • Safaricom -v- Ocean View Beach Hotel Ltd & 3 Others
    CA No. 325 of 2009
  • IEBC -v- Jane Cheperenger & 2 Others
    SC, CA No 36 of 2014
  • Frederick Otieno Outa v. Jared Odoyo & 4 Others
    SC. Pet. No. 10 of 2014
  • Charles Kamuren -v- Grace Jelagat Kipchoim & 2 Others
    [2015] eKLR
  • Raila Amolo Odinga & Another -v- Independent Electoral and Boundaries Commission & 2 Others
    [2017] eKLR
  • Godwat Pan Masala Products I.P. -v- Union of India
    2004 AIR SCW 4483
  • Peter Gichuki Kingara -v- IEBC & Others
    [2013] eKLR
  • Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Ferdinand Ndungu Waititu -v- IEBC & 8 Others
    [2014] eKLR
  • Raila Amolo Odinga & another -v- IEBC & 4 Others
    [2017] eKLR
  • Richard Nchapi Leiyagu -v- IEBC & 2 Others
    [2014] eKLR
  • Nicholas Kiptoo arap Salat -v- IEBC & 6 Others
    [2013] eKLR
  • Rozah Buyu Akinyi -v- IEBC & 2 Others
    [2014] eKLR
  • Raila Odinga & others -v- IEBC & 3 Others
    [2013] eKLR
  • Ramadhan Seif Kajembe -v- Returning Officer Jomvu Constituency & 3 Others
    [2013] eKLR
  • Thomas Mwatwetwe Nyamache v IEBC & Others
    Kisii EP No. 8 of 2017
  • Elizabeth Ongoro Amollo v Francis Kajwang Tom Joseph & 2 Others
    [2017] eKLR
On appeal from
High Court of Kenya at Kitui
Kitui Election Petition No. 3 of 2017
Jurisdiction invoked
Section 85A(1) of the Elections Act, 2011 - appeals from the High Court in election petitions concerning membership of the National Assembly, Senate or County Governor lie to the Court of Appeal on matters of law only

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mati v Returning Officer Mwingi North Constituency & 2 others (Election Petition Appeal 5 of 2018) [2018] KECA 700 (KLR)", Case Analysis (2018). Election Petition Appeal No. 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/700/eng@2018-03-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.