Kombe v Karisa & 3 others
The bottom line
#Supreme Court upholds nullification of Magarini MP election over illegal ballot box opening.
What this practically means
#The Supreme Court dismissed an appeal by the declared winner of the Magarini constituency election, confirming the election was invalid. The court found that ballot boxes were opened without a court order, forms were altered without countersigning, and a recount occurred without all agents present. These irregularities meant the election was not conducted according to the law. The narrow margin of 21 votes made these flaws critical.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to entertain the appeal
- 2.Whether the Court of Appeal misapplied and misinterpreted Section 83 of the Elections Act
- 3.Whether the Court of Appeal misconstrued the standard and burden of proof applicable in an election petition
- 4.Who should bear the costs
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal from an election petition that involves the interpretation and application of Articles 81 and 86 of the Constitution.
The Supreme Court has jurisdiction because the appeal raises questions of constitutional interpretation and application of Articles 81 and 86, which were central to the decisions of the lower courts.
The court noted that the petition in the High Court was premised on Articles 81, 86, 87, and 88 of the Constitution, and both the High Court and Court of Appeal applied these provisions in determining whether the election was conducted in accordance with the Constitution. The court distinguished between mere reference to constitutional provisions and their actual application, finding that the lower courts applied Articles 81 and 86. The court also relied on its precedent in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others, which held that the Elections Act and regulations are normative derivatives of Articles 81 and 86, and interpreting them cannot be disengaged from the Constitution.
Whether the Court of Appeal misapplied and misinterpreted Section 83 of the Elections Act by applying a disjunctive rather than a conjunctive test.
The Court of Appeal correctly applied a disjunctive test; the amendment that introduced a conjunctive test was declared unconstitutional, restoring the original disjunctive construction.
The court traced the legislative history of Section 83, noting that the original word 'or' was replaced with 'and' by the Election Laws Amendment Act No. 34 of 2017. However, the High Court in Katiba Institute & 3 others v. Attorney General & 2 others declared that amendment unconstitutional, thereby restoring the disjunctive construction. The Supreme Court in Raila 2017 had interpreted the original section disjunctively, and this interpretation was reaffirmed in Raila 2022. Therefore, a petitioner need only prove either that the election was not conducted in accordance with constitutional principles or that non-compliance affected the result.
Whether the Court of Appeal misconstrued the standard and burden of proof applicable in an election petition.
The Court of Appeal correctly applied the settled principles on burden and standard of proof; the legal burden remained on the 1st respondent, and the evidential burden shifted to the 2nd and 3rd respondents only after the 1st respondent adduced sufficient evidence.
The court reiterated that the legal burden rests on the petitioner to prove allegations of non-compliance or irregularities. The standard of proof is higher than a balance of probabilities but lower than beyond reasonable doubt, except for quasi-criminal conduct which requires proof beyond reasonable doubt. The court found that the 1st respondent adduced sufficient evidence, particularly regarding the unlawful reopening of the ballot box at Mapimo Youth Polytechnic, the alteration of forms without countersigning, and the recount in the absence of all agents. This evidence shifted the evidential burden to the 2nd and 3rd respondents, who failed to prove that all agents were present or that the irregularities did not affect the result.
Whether the narrow margin of victory (21 votes) was a relevant factor in nullifying the election.
A narrow margin is relevant as a 'red flag' where there are proven irregularities, but it cannot alone justify nullification; it must be considered together with other factors.
The court cited its decision in Munya 2, stating that a narrow margin between the declared winner and the runner-up 'beckons as a red flag where the results are contested on allegations of counting and tallying errors at specified polling stations.' However, the court also emphasized that 'a win is a win even if by only one ballot' and that a court will not nullify an election simply because of a small margin. In this case, the narrow margin was considered alongside the major irregularity of unlawfully reopening the ballot box and conducting a recount without all agents present.
Legal principles established
#- A petitioner need only prove either that the election violated constitutional principles or that non-compliance affected the result, not both.
- The legal burden of proof stays with the petitioner, but the evidential burden can shift to the electoral body once sufficient evidence is produced.
- A second appellate court must defer to concurrent findings of fact unless they are based on no evidence or are perverse.
- Ballot boxes sealed at the polling station cannot be opened without a court order, regardless of internal guidelines.
- A narrow margin of victory is a red flag that can amplify the impact of proven irregularities, but cannot alone nullify an election.
Court orders
#- 1.The petition of Appeal dated August 1, 2023 is hereby dismissed.
- 2.The 2nd respondent shall forthwith declare the seat of the Member of the National Assembly for Magarini Constituency vacant and proceed to conduct a by-election in accordance with the law.
- 3.Costs capped at Kshs. 2,000,000 are awarded to the 1st respondent to be paid by the appellant.
- 4.We hereby direct that the sum of Kshs. 6,000 deposited as security for costs upon lodging of this appeal be refunded to the appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Election Petition Appeal No. 1 of 2023
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Setting aside the judgment and order of the Court of Appeal
The appeal was dismissed on the merits.
Declaration that the election was conducted in a free, fair and credible manner
The court found the election was not conducted in accordance with the Constitution and the law.
Declaration that the appellant was validly elected
The court upheld the nullification of the election.
Costs
Costs capped at Kshs. 2,000,000 are awarded to the 1st respondent to be paid by the appellant.
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.
the two limbs of section 83 of the Election Act should be applied disjunctively. So that, a petitioner who is able to satisfactorily prove either of the two limbs of the section can void an election.
once the court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election.
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 petition of Appeal dated August 1, 2023 is hereby dismissed.
The 2nd respondent shall forthwith declare the seat of the Member of the National Assembly for Magarini Constituency vacant and proceed to conduct a by-election in accordance with the law.
Costs capped at Kshs. 2,000,000 are awarded to the 1st respondent to be paid by the appellant.
Key timeline
#Practical implications
#Disjunctive test and burden shifting
When drafting election petitions, focus on proving either non-compliance with constitutional principles or that irregularities affected the result. You don't need both. Also, ensure you adduce sufficient initial evidence to shift the evidential burden to IEBC; a narrow margin of victory can strengthen your argument.
Election integrity affects stability
Businesses operating in Magarini or similar constituencies should note that election outcomes can be overturned if procedural flaws exist. This creates uncertainty, so factor in the possibility of by-elections and delayed representation when planning investments or engagement with local government.
Voters' rights and election petitions
If you suspect irregularities in your constituency, you can support a petition. The law requires only one of two grounds: that the election didn't follow the law, or that the result was affected. But the petitioner must provide solid evidence - mere suspicion won't win. A narrow margin makes procedural violations more significant.
Frequently asked questions
#Can an election in Kenya be nullified for procedural irregularities like opening ballot boxes without a court order?+
Yes. The Supreme Court confirmed that opening sealed ballot boxes without a court order is illegal and can justify nullifying an election, especially when combined with other irregularities like altered forms and recounts without agents.
What is the burden of proof in an election petition in Kenya?+
The petitioner has the legal burden to prove irregularities. The standard is higher than a balance of probabilities but lower than beyond reasonable doubt. Once the petitioner provides enough evidence, the evidential burden shifts to IEBC to show compliance or that irregularities didn't affect the result.
What is the disjunctive test under Section 83 of the Elections Act in Kenya?+
The disjunctive test means a petitioner can win an election petition by proving either that the election was not conducted in accordance with constitutional principles, or that non-compliance affected the result. They do not need to prove both.
Does a narrow margin of victory affect an election petition outcome in Kenya?+
Yes, a narrow margin acts as a 'red flag' that makes proven irregularities more significant. The Supreme Court said it cannot alone nullify an election, but combined with other flaws, it can tip the scale against the declared winner.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Standard Chartered Bank Kenya Limited & 10 others v Retirement Benefits Appeal Tribunal & 3 others[2025] KESC 55 (KLR)5 Sept 2025
- Independent Electoral and Boundaries Commission v Attorney General[2025] KESC 57 (KLR)5 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Kombe v Karisa & 3 others", Case Analysis (2024). Petition E020 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/25/eng@2024-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.