Garama v Karisa & 3 others (Election Petition Appeal 1 of 2023) [2023] KECA 974 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the nullification of the Magarini Constituency 2022 election, ruling that unlawfully reopened ballot boxes invalidated a 21-vote win.
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 election of the Member of the National Assembly for Magarini Constituency was conducted in accordance with the Constitution and the law
- 2.Whether there was non-compliance with the Constitution and the law in the conduct of the elections of Magarini Constituency
- 3.Whether there were election offences committed as alleged
- 4.Whether the alleged irregularities affected the results of the election of the MNA for Magarini Constituency
- 5.What order as to costs
Key legal issues
#Whether the Court of Appeal could entertain grounds based on the amendment of the petition
No notice of appeal was filed against the interlocutory ruling of October 25, 2022 permitting amendment; the parties are locked out of raising that issue on the final appeal
Rule 6(2) of the Court of Appeal (Election Petition) Rules requires notice of appeal within seven days of the decision appealed against. Although an appeal on an interlocutory order normally falls under the Court's deferred or consequential jurisdiction, failure to file a notice of appeal against the amendment ruling means the issue cannot be taken up at the hearing of the final appeal. The amendment grounds were therefore disposed of at the outset.
Whether the reopening of sealed ballot boxes and recount at the tallying centre was an irregularity
Yes; the returning officer's breaking of seals, retrieval of Form 35A and recount at the tallying centre in the absence of all agents contravened the finality of polling-station counts and the constitutional tests of transparency and accountability
Relying on the Maina Kiai decision that votes counted at the polling station are final, the Court held that the finality of counting would make no sense if a window for recounting remained open at the tallying centre. Internal manuals and PSD guidelines could not bypass that rule. The presiding officer also failed to comment on alterations, and not all agents witnessed the recount, so the process failed the transparency test. The issue had been pleaded in paragraph 33 of the petition.
Whether the trial judge could rely on unpleaded matters emerging from the scrutiny report (Majenjeni/Mjanaheri results and unstamped counterfoils)
No; findings of ballot stuffing based on unpleaded scrutiny revelations and the erroneous finding on the repealed regulation 69 stamping requirement were erroneous and set aside as bases for nullification
Following Walter Enock Nyambati Osebe and Gatirau Peter Munya, scrutiny exists to verify pleaded allegations, not to unearth new grounds. The Majenjeni/Mjanaheri mix-up and the unstamped counterfoils were not pleaded, so they could not support nullification. Further, the requirement in regulation 69 that counterfoils be stamped had been amended or repealed by Legal Notice 72 of 2017, so the finding of an offence of failing to stamp ballot papers was erroneous.
The proper interpretation of section 83 of the Elections Act and whether the irregularities affected the result
Section 83 envisages two alternative scenarios: non-compliance with constitutional principles, or non-compliance affecting the result; applying a holistic approach, the cumulative irregularities plus the major irregularity of the unlawful recount, against a 21-vote margin, warranted nullification
Adopting Raila 2017, the Court held that a court must inquire whether irregularities were of such nature or magnitude as to affect the result or compromise electoral integrity. Individual irregularities, taken singly, might not have affected the outcome, but a holistic assessment weighing the major irregularity of the unlawful reopening of ballot boxes alongside admitted interchanges and alterations of votes justified the trial judge's conclusion on the slim margin.
Whether the High Court's award of costs against the 3rd Respondent personally should be disturbed
No; costs are discretionary and the trial judge's exercise of that discretion disclosed no error warranting interference
Guided by Jasbir Singh Rai v Tarlochan Singh Rai, section 84 of the Elections Act and Rule 30 of the Election Petition Rules, 2017, and the principle in Mbogo v Shah that an appellate court will not interfere with a discretionary decision unless it is shown to have been wrongly exercised, the Court declined to disturb the costs award. Both the appeal and cross-appeal were accordingly dismissed.
Legal principles established
#- An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor lies to the Court of Appeal on matters of law only
- Once ballot boxes are sealed at the polling station, there is no authority to break them open without an order of the court, and votes counted at the polling station are final; a recount at the tallying centre without all agents present breaches transparency and accountability
- Revelations of a scrutiny and recount report cannot found nullification of an election where the underlying grounds were not pleaded in the petition
- In determining whether irregularities affected the result, a court must take a holistic view; several minor irregularities coupled with a major one such as unlawful reopening of ballot boxes may justify nullification where the margin is negligible, but a small margin alone never justifies nullification of an otherwise properly conducted election
- The right to representation through a fair, transparent and accountable electoral process cannot be sacrificed on account of the cost of a by-election
- Failure to give notice of intention to appeal against an interlocutory order locks a party out from raising that issue at the hearing of the appeal against the final decision
Court orders
#- 1.The appeal is dismissed
- 2.The cross-appeal is dismissed
- 3.Costs of the appeal to the 1st Respondent, to be borne by the Appellant, capped at Kshs 1,500,000.00
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Malindi Election Petition No E001 of 2022
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals from High Court election petitions to the Court of Appeal on matters of law only)
Relief refused
#Setting aside of the High Court judgment nullifying the Magarini Constituency MNA election and dismissal of the petition
The Court agreed with the Learned Judge that the election was not conducted in accordance with the Constitution and the law and that the irregularities, considered holistically and coupled with the unlawful reopening of ballot boxes, affected the result given the 21-vote margin
Cross-appeal including challenge to the order that the 3rd Respondent personally pay costs
The Court found no basis to interfere with the trial judge's exercise of discretion on costs
Costs
Appeal and cross-appeal dismissed with costs to the 1st Respondent, to be borne by the Appellant, capped at Kshs 1,500,000.00
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.
An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the ofice of county governor shall lie to the Court of Appeal on matters of law only
once ballot boxes are sealed at the polling station, there is no authority whatsoever to break open those ballot boxes without an order of the court
the report of scrutiny cannot be the basis for impugning election results when the revelations of the report did not form part of the pleadings in the petition
in determining whether the irregularities committed did or did not afiect the result, the court ought to adopt a holistic approach since it is not merely the numbers that count
A win is a win even if by only one ballot and absence any irregularities and illegalities in the conduct of the election, a court will not nullify the results of an election simply because the petitioner lost by a small margin
The right to representation being a process by which the electorate delegate their sovereign right to govern to their elected representatives cannot be sacrificed at the altar of costs
we find no merit in both the appeal as well as the cross appeal which we hereby dismiss with costs to the 1st Respondent to be borne by the Appellant. We cap the same at Kshs 1,500,000.00.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Garama v Karisa & 3 others (Election Petition Appeal 1 of 2023) [2023] KECA 974 (KLR)", Case Analysis (2023). Court of Appeal Election Petition Appeal (from Malindi Election Petition No E001 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/974/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.