Timamy Issa Abdalla v Independent Electoral and Boundaries Commission & 3 Others
The bottom line
#Kenya's Court of Appeal upheld the Lamu governor's 2017 election but slashed the winning side's costs from Kshs.12 million to Kshs.3 million.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 3rd and 4th respondents' out-of-time application to strike out the Notice and Record of Appeal should be allowed
- 2.Whether the Notice of Appeal was invalid for being filed in the Election Court contrary to Rule 6 of the Election Appeal Rules
- 3.Whether a Notice of Appeal indicating an appeal against the 'whole judgment' divests the Court of jurisdiction under Section 85A of the Elections Act
- 4.Whether documents drawn by an advocate without a current practising certificate are invalid
- 5.Whether the learned Judge erred in applying Section 83 of the Elections Act conjunctively
- 6.Whether the learned Judge erred in her interpretation and application of the burden and standard of proof
- 7.Whether the learned Judge erred in concluding that the election was conducted in accordance with the Constitution and electoral law
- 8.Whether the learned Judge erred in finding that the illegalities and irregularities did not affect the results
- 9.Whether the learned Judge erred in capping costs at Kshs.12,000,000
Key legal issues
#Extension of time for an out-of-time application to strike out an appeal
Time was extended because the application raised a jurisdictional objection, which can be raised at any time
Rule 5 of the Election Appeal Rules confers discretion to determine the effect of 'any' non-compliance, whether the rule breached is directory or mandatory. Discretion must be exercised judiciously, balancing the overriding objective and constitutional timelines. Because the application attacked the competency of the appeal and the Court's jurisdiction, a threshold question best taken at inception, extension was warranted despite inordinate delay of about 49 days.
Validity of a Notice of Appeal filed in the Election Court contrary to Rule 6
The Notice was saved because it was also filed in this Court's registry within time and no prejudice was occasioned
Whether a Notice of Appeal against an Election Court decision is invalid for non-compliance with Rule 6 depends on the circumstances of each case. Here the appellant filed the same Notice in this Court's registry on even date within the requisite time, which mitigated the anomaly and activated the appellate jurisdiction. The respondents were served with the same Notice on time and suffered no prejudice.
Appeal against the 'whole judgment' and mixed grounds of fact and law under Section 85A
The Court adopts the liberal school: it looks beyond the craftsmanship of the Notice or grounds to determine whether points of law are raised
Two schools of thought exist on mixed grounds. The Court aligns with the liberal approach in Stanley Muiruri and Wavinya Ndeti: Section 85A is not a blanket 'no entry zone'; poor drafting should not shut out genuine grounds since points of law may be difficult to separate from factual determination. The Court abridged the 41 grounds into five points of law and addressed them.
Documents drawn by an advocate without a current practising certificate
The Notice and Record of Appeal were not rendered invalid; Section 34B(2) of the Advocates Act preserves their validity
The Supreme Court in National Bank of Kenya held that a legal document's validity cannot be questioned merely because it was drawn by an advocate without a current practising certificate; this was crystallized by Section 34B inserted in 2017. The Law Society's letter confirmed the advocate was certified from 27th April 2018, and he first appeared in Court on 10th May 2018, after certification.
Application of Section 83 of the Elections Act
The learned Judge correctly appreciated that the two limbs of Section 83 apply disjunctively
Section 83 as amended provides that no election shall be void for non-compliance if it was conducted in accordance with constitutional principles or the non-compliance did not affect the result. The Supreme Court in Raila Odinga 2017 held the two limbs apply disjunctively. On perusal of the impugned judgment, the Court found the learned Judge correctly appreciated this.
Burden and standard of proof and deference to Election Court findings of fact
The legal burden remains with the petitioner throughout; appellate interference is limited to conclusions unsupported by evidence or perverse findings
A petitioner must adduce cogent and credible evidence proving irregularities and their effect on the result to the satisfaction of the court. The evidential burden shifts only after the initial burden is discharged. Findings on denial of the right to vote, impartiality, the officer swap, assisted voters, pre-marked ballots, unverified voting, Form 36B and vote variance were findings of fact or probative assessments beyond the Court's mandate under Section 85A.
Scrutiny report allegations not pleaded
Missing and illegible Form 37As alleged from the scrutiny report were not pleaded and were not substantiated
Pleadings define the scope of the dispute; an election court's inquiry cannot traverse matters beyond the petition. The Court noted the Deputy Registrar did not open the ballot boxes but used the Forms 37A affixed on them, and the allegedly missing Forms 37A were in fact inside the ballot boxes. The totality showed the alleged anomalies were unsubstantiated.
Costs in electoral disputes
The award of Kshs.12,000,000 was excessive and was reduced to Kshs.3,000,000
Costs in electoral disputes must be guided by fairness, justice and access to justice; they compensate a successful litigant and are not a punishment or deterrent. Comparing comparable election disputes, the Court found the capped award excessive regardless of the number of witnesses, complexity or preparation time, and interfered with the discretion, substituting Kshs.3,000,000.
Legal principles established
#- The effect of non-compliance with the Election Appeal Rules is a matter for the Court's discretion on a case-by-case basis, guided by substantive justice, whether or not the rule breached is mandatory in terms
- The propriety of a legal document cannot be questioned merely because it was drawn by an advocate without a current practising certificate, per Section 34B of the Advocates Act
- The manner in which a Notice of Appeal or memorandum of appeal is crafted cannot in itself divest the Court of jurisdiction under Section 85A; the Court looks beyond drafting to identify points of law
- An objection on jurisdiction may be raised at any point in time and must be considered before the merits
- An appellate election court evaluates evidence only to determine whether the trial Judge's conclusions were supported by evidence or were perverse; it may not make independent findings of fact
- An inquisition into the conduct of an election cannot go outside the boundaries of the petition; parties are bound by their pleadings
Court orders
#- 1.The appellant's appeal, except in relation to costs, is dismissed
- 2.The costs capped by the Election Court at Kshs.12,000,000 are set aside and substituted with costs capped at Kshs.3,000,000 to be shared equally between the 1st and 2nd respondents on one part and the 3rd and 4th respondents on the other part
- 3.Given the partial success of the appeal, each party shall bear its own costs with regard to this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Election Petition No. 3 of 2017
- Jurisdiction invoked
- Section 85A(1) of the Elections Act - appeal from High Court election petition concerning the office of county governor on matters of law only
Relief refused
#Nullification of the election of Fahim Yasin Twaha and Abdulhakim Aboud Bwana as Governor and Deputy Governor of Lamu County
The appellant failed to discharge the burden of proof; the irregularities alleged were not substantiated as affecting the result
Striking out of the Notice of Appeal and Record of Appeal
The 3rd and 4th respondents' application was filed out of time and lacked merit
Costs
The Election Court's costs capped at Kshs.12,000,000 set aside and substituted with costs capped at Kshs.3,000,000 to be shared equally between the 1st and 2nd respondents on one part and the 3rd and 4th respondents on the other; each party to bear its own costs of the appeal given partial success.
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. The appellant's appeal, except in relation to costs, is hereby dismissed.
b. The appellant's appeal herein succeeds in part to the following extent: i. The costs capped by the Election Court at Kshs. 12,000,000 is hereby set aside and substituted with an order that the appellant shall bear costs capped at Kshs. 3,000,000 to be shared equally between the 1 st and 2nd respondent on one part and the 3rd and 4th respondents, on the other part.
c. Given the partial success of this appeal, each party shall bear its costs with regard to this appeal.
All in all, we find that the 3rd and 4th respondents' application lacks merit and is hereby dismissed and we therefore proceed to determine the substantive appeal.
We, like the learned Judge, find that the appellant had not established that the irregularities alluded to affected the results of the election. We also find that the election in question was conducted substantially in compliance with the principles laid down in the Constitution and Electoral Code.
Accordingly, we find that the appeal, except for what we shall say about costs below, has no merit and is dismissed.
Issues in the judgment
#Paragraph numbering jumps from 100 to 110 in the 3rd and 4th respondents' submissions
Election Court order (e) refers to 'the speaker of the bench', apparently an error for the Speaker
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timamy Issa Abdalla v Independent Electoral and Boundaries Commission & 3 Others", Case Analysis (2018). Election Petition Appeal No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/886/eng@2018-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.