Kyalo & 2 others v Wanjohi & 7 others (Election Petition Appeal E006, E005 & E009 of 2023 (Consolidated)) [2023] KECA 948 (KLR)
The bottom line
#The Court of Appeal upheld the Starehe MP's 2022 election, ruling that minor, explainable irregularities cannot cancel an election result.
What this practically means
#Executive summary
#Key legal issues
#Exercise of discretion on extension of time, amendment and further affidavits in election petitions
The trial judge did not exercise his discretion capriciously; refusal to allow late amendments and affidavits did not amount to bias, and allowing respondents' late responses after pre-trial was within the court's discretion under rule 19 and rule 5 read with Article 159(2)(d).
Election petitions are special proceedings governed by strict timelines, but rule 19 allows extension of time to prevent injustice. The appellants raised their objection to the respondents' documents only at the hearing, long after pre-trial; upholding it would have left the petition undefended. The proposed amendments would have expanded the petition's scope outside the 28-day window. The appellate test for interference with discretion (misdirection in law, misapprehension of facts, wrong considerations, or plainly wrong decision) was not met.
Whether admitted irregularities and illegalities warranted nullification under section 83 of the Elections Act
Although the appellants proved irregularities, they were procedural or administrative, explainable, and did not substantially affect the result; the election was conducted substantially in accordance with the Constitution and electoral law and could not be nullified.
Section 83 sets the test for nullification. The standard of proof is higher than balance of probabilities but the burden rests on the petitioner, with a presumption of regularity of official results. Failure to tally results of 5 polling stations out of over 1,000, with a margin of 15,229 votes, could not have affected the outcome. Non-stamping and faint stamping of forms is not mandatory in law, and the alleged imposter agent was introduced by the UDA candidate who never disowned him.
Allegations of voter bribery
Bribery is both a criminal and electoral offence requiring proof beyond reasonable doubt; the appellants adduced no evidence identifying givers or recipients and the allegations remained mere allegations.
Section 9 of the Election Offences Act creates the offence. No witness adduced evidence of bribery; there was no identification of givers or recipients, no evidence of the form of the bribe or who gave it, no identification of the alleged police officer or chief, and no photographs or exhibits. In the technological age it is easy to capture bribery on camera; the failure to produce any corroborative material was fatal.
Alleged violence and pre-election disputes
The trial judge erred in treating the violence as pre-election disputes barred from the petition, since an election is a process transcending the election date; however, the appellants failed to prove the violence affected free and fair elections or the voters' choice.
Pre-election, election-day and post-election processes form an integral part of the election process, so the ground was properly raised. But the appellants produced no affidavits of voters deterred from voting, no evidence of election-day violence preventing participation, and nothing showing the 4th respondent gained advantage. The ground failed on proof even though it was properly before the court.
Scrutiny report and missing ballot boxes
The irregularities observed in scrutiny were explained and of a nature that would not invalidate the election; the missing two ballot boxes and unaccounted unused ballot papers had no effect on the outcome.
Scrutiny is a necessary tool for assessing electoral credibility, but newly discovered irregularities must be shown to have affected the results. The 3rd respondent satisfactorily explained the two unavailable ballot boxes; parties placed additional seals during retrieval; and the missing 100 votes could be retrieved from sealed envelopes never opened. The irregularities therefore had no effect on the outcome.
Excessive costs
The award of Kshs. 4 million by the trial court, considering the numerous interlocutory applications at the appellants' behest, was not manifestly excessive and the appellate court would not interfere.
Section 84 of the Elections Act provides that costs follow the cause, and rule 30 confers discretion on the election court to determine amounts. Costs are meant to reimburse a successful litigant and should not discourage litigants of modest means, but there was no evidence the trial judge exercised his discretion injudiciously or arbitrarily so as to occasion injustice.
Legal principles established
#- Section 83 of the Elections Act bars nullification of an election for non-compliance where the election was conducted substantially in accordance with constitutional and statutory principles and the non-compliance did not substantially affect the result; proven irregularities of a procedural or administrative nature, explainable and not affecting the outcome, do not vitiate an election.
- An appellate court will not interfere with a discretionary decision of a trial court unless the decision is manifestly wrong, on the grounds set out in United India Insurance v East African Underwriters.
- Pre-election events such as violence are part of the election process and may be raised in an election petition, but the petitioner must prove the violence affected the conduct of free and fair elections.
- Allegations of voter bribery, being both a criminal and electoral offence, must be proved beyond reasonable doubt.
- An election court may under rule 19 extend time for doing acts under the Election Petition Rules judiciously, guided by Article 159(2)(d), to avoid injustice.
Court orders
#- 1.The three consolidated appeals are dismissed with costs to the respondents
- 2.The appellants shall jointly and severally pay the costs of these appeals to the respondents, capped at Kshs. 1,000,000/= to each respondent
- 3.The costs imposed by the High Court for the proceedings in the High Court are not disturbed
- On appeal from
- High Court of Kenya
- Election Petition No. E001 of 2022
- Jurisdiction invoked
- Section 85A of the Elections Act (appellate jurisdiction restricted to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kyalo & 2 others v Wanjohi & 7 others (Election Petition Appeal E006, E005 & E009 of 2023 (Consolidated)) [2023] KECA 948 (KLR)", Case Analysis (2023). Election Petition Appeal No. E006 of 2023 (Lead File). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/948/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.