Mawathe Julius Musili v Independent Electoral and Boundaries Commission & another
The bottom line
#Supreme Court upheld nullification of Embakasi South election due to missing original Form 35B.
What this practically means
#John Ndirangu Kariuki was initially declared winner for Embakasi South in the 2017 elections. The Supreme Court dismissed his appeal, agreeing with lower courts that the election was invalid. The original Form 35B (official declaration form) was missing, and multiple conflicting results existed. This violated constitutional requirements for verifiable and transparent elections. The Court ordered a fresh election.
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 this appeal
- 2.whether the appellate court acted in excess of its jurisdiction
- 3.whether that court erred by finding that the election results were not verifiable
- 4.whether the appellate court erred in shifting the burden of proof in electoral disputes, contrary to the applicable law and the governing precedent, as settled by the doctrine of stare decisis (article 163(7) of the Constitution)
- 5.whether the issue of non-joinder of the Returning Officer was res judicata
- 6.whether the appellate court erred by finding that there was bias on the part of an official of the 1st respondent
Key legal issues
#Whether the Supreme Court had jurisdiction to hear the appeal under Article 163(4)(a) of the Constitution.
The Supreme Court had jurisdiction because the appeal involved the interpretation and application of the Constitution, specifically Articles 81, 86, and 87(1), which had been considered by both superior courts.
The 2nd respondent contested jurisdiction, arguing the appeal raised constitutional breaches not canvassed below. The Court rejected this, noting that both the High Court and Court of Appeal had interpreted and applied Articles 81 and 86 of the Constitution. The appeal raised cardinal issues requiring interpretation of Article 87(1) in light of Section 85A of the Elections Act, and whether the Court of Appeal misconstrued Articles 81 and 86. The Court held that the reasoning and conclusions of both superior courts had taken a trajectory of constitutional interpretation or application, thus satisfying the jurisdictional threshold under Article 163(4)(a).
Whether the Court of Appeal acted in excess of its jurisdiction by entertaining an appeal with grounds of mixed law and fact, and by not striking out the memorandum of appeal.
The Court of Appeal did not exceed its jurisdiction; it properly isolated questions of law from the memorandum of appeal and did not create a new appeal.
The appellant argued that all but one of the 18 grounds in the memorandum of appeal raised mixed issues of law and fact, violating Section 85A of the Elections Act. The Supreme Court examined the Court of Appeal's approach, noting that it compressed the 18 grounds into six issues that involved questions of law. The Court found that the Court of Appeal evaluated the evidence only to ascertain whether the trial judge's conclusions were supported by the evidence, not to re-weigh it. The Court concluded that no 'new appeal' was created and all parties were heard on the six complaints.
Whether the election results were verifiable, given the existence of multiple sets of results and the absence of the original Form 35B.
The election results were not verifiable because the original Form 35B was missing and there were multiple conflicting sets of results, negating constitutional principles of verifiability, accuracy, and transparency.
The Court identified five different sets of results: the Returning Officer's declaration, a certified copy of Form 35B, the IEBC portal, the Gazette Notice, and the Returning Officer's affidavit. The original Form 35B was not produced despite a court order. The Returning Officer's affidavit admitted errors due to fatigue. The Court held that without the original Form 35B, it was impossible to determine compliance with Articles 81 and 86 of the Constitution and Section 39 of the Elections Act. The absence of the declaration form and divergent results made the ostensible result suspect and uncertain.
Whether the Court of Appeal erred in its application of the burden of proof in election disputes.
The Court of Appeal correctly applied the burden of proof; the 2nd respondent discharged the initial legal burden, and the evidential burden shifted to the 1st respondent, which failed to discharge it.
The Supreme Court cited its decision in Raila Odinga & Others v. IEBC & Others, holding that the legal burden rests on the petitioner, but the evidential burden may shift. The 2nd respondent placed sufficient evidence of differing results, proving it was impossible to know who won. The evidential burden then shifted to the 1st respondent (IEBC) to rebut this. The IEBC relied on the Returning Officer's affidavit, but the officer did not testify, and the affidavit was held to have no probative value. The Court agreed with the Court of Appeal that the 1st respondent failed to discharge its evidential burden.
Whether the issue of non-joinder of the Returning Officer was res judicata.
The issue of non-joinder was res judicata because the appellant's application to strike out the petition on that ground was heard and determined by the High Court, and no appeal was lodged against that ruling.
The appellant had filed a notice of motion in the High Court seeking to strike out the petition for non-joinder of the Returning Officer. The High Court delivered a ruling on November 8, 2017, holding that the petition was not incurably defective. No appeal was filed against this decision. The Supreme Court held that the matter was definitively settled by judicial decision and could not be re-litigated.
Whether the Court of Appeal erred in finding that there was bias on the part of an official of the 1st respondent (IEBC).
The Court of Appeal did not err; the fact that the Presiding Officer was a member of the Wiper party raised a reasonable apprehension of bias, and the Court of Appeal properly evaluated the trial judge's conclusions on this issue.
The trial judge had accepted that the Presiding Officer was a member of the Wiper party but held it was impossible to ascertain the impact on results. The Court of Appeal concluded the trial judge did not properly address the evidence. The Supreme Court agreed, noting that Article 86(b) requires IEBC to ensure impartiality. The fact that a key election official was a member of a political party raised an apprehension of bias. The Court of Appeal limited itself to evaluating the trial judge's conclusions on the evidence, not re-weighing facts.
Legal principles established
#- Legal burden of proof in election petitions rests on the petitioner, but evidential burden may shift to the respondent.
- Absence of original Form 35B and divergent results negate constitutional principles of verifiability, accuracy, accountability, and transparency.
- A court may draw an adverse inference if a party who made depositions fails to testify, reducing the value of their affidavit evidence.
- A partisan Presiding Officer who is an official of a political party raises an apprehension of bias, compromising electoral impartiality.
- The Court of Appeal may isolate questions of law from mixed grounds of appeal without exceeding its jurisdiction.
- The Supreme Court has jurisdiction under Article 163(4)(a) when an appeal involves interpretation or application of the Constitution.
Court orders
#- 1.The petition of appeal dated July 19, 2018 is disallowed.
- 2.The judgment of the Court of Appeal in Election Petition of Appeal No. 22 of 2018 is hereby upheld.
- 3.The certificate issued by the trial court pursuant to section 86 of the Elections Act, is hereby set aside and substituted with a certificate that the appellant was not validly declared as having been elected as Member of the National Assembly for Embakasi South Constituency during the elections held on the August 8, 2017.
- 4.The 1st respondent is hereby directed to organize and conduct a fresh election for the position of Member of the National Assembly for Embakasi South Constituency, in conformity with the Constitution and the Elections Act.
- 5.The parties shall bear their own respective costs in this appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Election Petition of Appeal No. 22 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution of Kenya 2010
Relief refused
#Appellant's prayer to set aside the Court of Appeal judgment
The Court found the Court of Appeal's decision wholly meritorious and upheld it.
Costs
The parties shall bear their own respective costs in this appeal.
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 petition of appeal dated July 19, 2018 is disallowed.
The 1st respondent is hereby directed to organize and conduct a fresh election for the position of Member of the National Assembly for Embakasi South Constituency, in conformity with the Constitution and the Elections Act.
The parties shall bear their own respective costs in this appeal.
The absence of the original Form 35B, and the presence of the divergent results, negate the constitutionally-prescribed principles of verifiability, accuracy, accountability and transparency.
the legal burden rests on the petitioner, who is under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden.
the fact of the Presiding Officer being an official of Wiper party, raises the apprehension of bias.
Key timeline
#Practical implications
#Burden of proof in election petitions
When representing a petitioner, ensure you present sufficient credible evidence to shift the evidential burden to the respondent. The court will draw adverse inferences if key witnesses, especially returning officers, fail to testify. Always secure original statutory forms like Form 35B to avoid challenges on verifiability.
Verifiability of official records
Businesses that rely on official records for compliance or contracts should note that missing or conflicting documents can void outcomes. Ensure original documents are preserved and discrepancies resolved promptly. This case underscores that courts will not accept unverified or multiple conflicting versions of official records.
Your vote must be verifiable
If you suspect election irregularities, know that courts require original forms like Form 35B to confirm results. Missing forms or conflicting numbers can lead to an election being nullified. You can challenge results if transparency and accountability are compromised, as happened in Embakasi South.
Frequently asked questions
#Why was the Embakasi South election nullified in Kenya?+
The election was nullified because the original Form 35B (official declaration form) was missing, and there were multiple conflicting sets of results. This violated constitutional principles of verifiability and transparency, making it impossible to determine the true winner.
What is Form 35B and why is it important in Kenyan elections?+
Form 35B is the official declaration form for constituency-level election results in Kenya. It must be signed by the returning officer and is critical for verifying the accuracy and transparency of results. Its absence can lead to an election being invalidated.
Can a presiding officer be a political party official in Kenya?+
No. The Supreme Court held that a presiding officer who is an official of a political party raises an apprehension of bias, compromising the constitutional requirement of impartiality in the electoral process. Such appointments should be avoided.
What happens if a witness does not testify in an election petition in Kenya?+
If a party who made sworn statements (affidavits) fails to appear for cross-examination, the court can draw an adverse inference. This reduces the probative value of their evidence, as seen in the Embakasi South case where the returning officer did not testify.
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.
- Sea Angel Service Station Limited v Abdul (Civil Appeal E126 of 2022) [2025] KECA 172 (KLR)[2025] KECA 172 (KLR)7 Feb 2025
- Attorney General v W.O.1 Samuel Chege Gitau & 283 others (Civil Appeal E093 of 2021) [2023] KECA 1386 (KLR)[2023] KECA 1386 (KLR)24 Nov 2023followed
- Mulima & 2 others (Suing as Representatives of Ex-East African Airways Stafi Welfare Association) v Attorney General & 8 others[2019] KESC 2 (KLR)25 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "Mawathe Julius Musili v Independent Electoral and Boundaries Commission & another", Case Analysis (2018). Petition 16 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/72/eng@2018-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.