Mutua & 2 others v Ndeti & another
The bottom line
#Supreme Court reinstates Machakos governor election win, ruling that form format errors don't void results.
What this practically means
#The Supreme Court overturned a Court of Appeal decision and confirmed Wavinya Ndeti as the validly elected Governor of Machakos County. The Court ruled that a regulation requiring polling station results on the final declaration form was illegal because it went beyond what the Elections Act requires. It also held that minor form errors do not invalidate election results if the information is correct and no one was misled. The Court found that allegations of election offences must be proven beyond reasonable doubt, not just claimed.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether or not this appeal is competent
- 2.whether or not, contrary to section 85A of the Elections Act, the appellate court considered matters of fact it had no jurisdiction to entertain
- 3.whether or not the Appellate Court misapprehended the issues of burden and standard of proof in electoral disputes
- 4.whether or not, contrary to article 159(2)(d) of the Constitution, the appellate court paid undue regard to procedural technicalities and nullified the election which had been conducted in substantial compliance with the Constitution and the law on elections on minor and immaterial irregularities which did not affect the election result
Key legal issues
#Whether regulation 87(2)(b)(iii) of the Elections (General) Regulations, 2012 is ultra vires section 39(1B) of the Elections Act.
Regulation 87(2)(b)(iii) is ultra vires section 39(1B) because it requires the County Returning Officer to transpose polling station results onto Form 37C, whereas the parent Act only requires tallying of final results from constituencies.
The court examined section 39(1B) of the Elections Act, which requires the County Returning Officer to tally, announce and declare 'final results from constituencies in the county' for county governor, senator and county women representative. The court contrasted this with subsection (1C) for presidential elections, which explicitly requires results from polling stations. Regulation 87(2)(b)(iii) and the prescribed form in the Schedule require a column for votes cast in each polling station, which is an additional requirement not found in the parent Act. Applying the principle that subsidiary legislation conflicting with the parent Act is ultra vires, the court declared the regulation null and void ab initio.
Whether the Court of Appeal erred in finding that the Machakos gubernatorial election failed the constitutional test of verifiability under article 86(a) due to the format of Form 37C.
The Court of Appeal erred; the election was verifiable because the data on Form 37C was undisputed, the form was signed by all agents including the respondent's agent, and all Forms 37A were deposited in court.
The court noted that verifiability under article 86(a) is not limited to the format of Form 37C. The counting and tallying process at polling stations and constituency centres involved agents who countersigned the forms, verifying the data. The impugned Form 37C was signed by all candidates' agents, including the 1st respondent's agent, indicating verification. The CRO testified that she attached all Forms 37A from 1332 polling stations to Form 37C and deposited them in court. The respondents abandoned their application for scrutiny, leaving the data unchallenged. Unlike the presidential election in Raila 2017 where forms were missing, here all primary documents were available. The deviation in format did not affect the substance or mislead.
Whether the Court of Appeal properly applied the burden and standard of proof regarding the allegation that a public officer was engaged as an election agent.
The Court of Appeal erred by shifting the burden of proof and applying an incorrect standard; the respondents failed to prove the allegation beyond reasonable doubt.
The allegation that Urbanus Wambua Musyoka was both a Chief Officer of Machakos County Government and an agent of the 1st appellant's party amounted to an election offence under section 15 of the Election Offences Act. The standard of proof for such an allegation is beyond reasonable doubt. The respondents only made the allegation in their petition and supporting affidavit but provided no corroborating evidence, such as employment records from the county. The Court of Appeal wrongly shifted the burden to the appellants to disprove the allegation. The trial judge correctly found that the respondents had not discharged their burden, and his suggestion that they could have invoked article 35 of the Constitution to obtain records was proper.
Whether the Court of Appeal exceeded its jurisdiction under section 85A of the Elections Act by considering matters of fact.
The Court of Appeal did not exceed its jurisdiction; its engagement with facts was limited to determining whether the trial judge's conclusions were based on evidence or were perverse.
The court applied the test from Gatirau Peter Munya v Dickson Mwenda Kithinji & others, which defines 'matters of law' under section 85A to include whether conclusions were based on no evidence, were not supported by established facts, or were so perverse that no reasonable tribunal would arrive at them. Upon reviewing the record, the Supreme Court found that the Court of Appeal's analysis was confined to whether the trial judge properly evaluated the evidence on the issues raised, such as the conduct of the election, irregularities, and the constitutionality of the declaration. The Court of Appeal did not re-evaluate witness credibility or substitute its own findings of fact.
Legal principles established
#- Subsidiary legislation that conflicts with its parent Act is void from the start.
- For county governor elections, the returning officer only needs to tally final constituency results, not polling station results.
- Election offences must be proven beyond reasonable doubt, not just alleged.
- A deviation from a prescribed form does not void the document if it does not mislead or change the substance.
- Election results are verifiable if agents signed the forms and primary documents are available in court.
Court orders
#- 1.We allow this appeal with the result that the judgment of the Court of Appeal dated June 8, 2018 is hereby set aside and that of the High Court is hereby reinstated.
- 2.The declaration of the election results by the Independent Electoral and Boundaries Commission in respect of the Governor of Machakos County is hereby affirmed.
- 3.The appellants shall have the costs of this appeal as well as those of the courts below.
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
I concur with the conclusion of the majority but write separately as I have applied a different path of reasoning on the issue of un-pleaded matters, more specifically, whether that issue which became integral to the determination of the cause - was properly before the court.
I concur with the conclusion of the majority but write separately as I have applied a different path of reasoning on the issue of un-pleaded matters, more specifically, whether that issue which became integral to the determination of the cause - was properly before the court.p. 24
- On appeal from
- Court of Appeal at Nairobi
- Election Petition Appeal No 8 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Supreme Court Petition Appeal No 14 of 2018
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.
We allow this appeal with the result that the judgment of the Court of Appeal dated June 8, 2018 is hereby set aside and that of the High Court is hereby reinstated.
We therefore find and declare that regulation 87(2)(b)(iii) of the Elections (General) Regulations 2012, is ultra vires section 39(1B) of the Elections Act and is null and void ab initio.
With respect, we are therefore unable to appreciate how the deviation on the impugned Form 37C that the 3rd appellant used to declare the results affected the verifiability of those results.
It is also settled law, (see Raila 2017 ) that the standard of proof of any election offence or quasi criminal conduct is that of beyond reasonable doubt.
The appellants shall have the costs of this appeal as well as those of the courts below.
Key timeline
#Practical implications
#Challenge ultra vires regulations
When litigating election petitions, immediately flag any regulation that imposes requirements beyond the parent Act. The Supreme Court will strike down such regulations as void. Also, ensure you prove election offences with concrete evidence—mere allegations won't meet the beyond-reasonable-doubt standard.
Form errors don't invalidate deals
If your business documents or contracts deviate slightly from a prescribed format, they remain valid as long as the substance is correct and no one is misled. This principle applies broadly under Kenyan law, so don't panic over minor formatting issues in official submissions or agreements.
Your vote counts despite form issues
If you're a voter or candidate, know that election results won't be overturned just because the final declaration form had a different format. The Court focuses on whether the results are verifiable and accurate. Always sign forms as an agent to help verify the process.
Frequently asked questions
#Can election results in Kenya be overturned due to form format errors?+
No, not if the error doesn't affect the substance or mislead anyone. The Supreme Court ruled that a deviation from the prescribed form does not void election results, as long as the data is correct and verifiable.
What is the standard of proof for election offences in Kenya?+
Election offences must be proven beyond reasonable doubt, the same as criminal cases. A mere allegation in a petition is not enough—you need solid evidence like employment records or witness testimony.
Can a regulation in Kenya override an Act of Parliament?+
No. If a regulation (subsidiary legislation) conflicts with the parent Act, it is ultra vires and void from the start. The Supreme Court struck down Regulation 87(2)(b)(iii) for this reason.
What does the County Returning Officer need to tally for governor elections in Kenya?+
Only the final results from each constituency, not results from individual polling stations. The Supreme Court clarified this under section 39(1B) of the Elections Act.
Cite this brief
#Cite this brief
Caselaw, "Mutua & 2 others v Ndeti & another", Case Analysis (2018). Petition 11 & 14 of 2018 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/1/eng@2018-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.