Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others
The bottom line
#Supreme Court restored Obado as Migori governor, ruling irregularities didn't affect election result.
What this practically means
#The Supreme Court reinstated Zackaria Obado as Migori County Governor after finding that the Court of Appeal wrongly focused on minor election irregularities. The court said an election should only be nullified if errors actually changed the outcome. A re-tally showed Obado still won by a larger margin, so the original result stood.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Court of Appeal acted in excess of its jurisdiction as conferred by section 85A of the Elections Act, as read with article 87(1) of the Constitution, by delving into issues of fact
- 2.whether the appellate Court disregarded the doctrine of stare decisis, by failing to apply a binding decision of the Supreme Court - thereby contravening article 163(7) of the Constitution
- 3.whether the Migori County gubernatorial elections were conducted in compliance with the principles in articles 81(e) and 86 of the Constitution, as read together with the provisions of section 83 of the Elections Act
- 4.whether the Court of Appeal properly applied the doctrine of supremacy of the Constitution, enshrined in article 2 of the Constitution
- 5.whether the Appellate Court misapplied article 180(4) of the Constitution, by considering the margin of error, as a basis for nullifying the election
- 6.whether the Court of Appeal considered unpleaded facts in arriving at its determination, hence denying the appellant his right to a fair hearing, enshrined in article 50(1) read together with article 25 of the Constitution
Key legal issues
#Whether the Court of Appeal exceeded its jurisdiction under section 85A of the Elections Act by delving into issues of fact.
The Court of Appeal exceeded its jurisdiction by making findings of fact on polling stations that were not pleaded as disputed, and by failing to defer to the High Court's findings on facts.
The Supreme Court applied the principles from Peter Gatirau Munya v IEBC, which define 'matters of law only' as involving interpretation or application of law, or conclusions based on no evidence or that are perverse. The Court found that the Court of Appeal made its own factual findings regarding irregularities in specific polling stations (Kosodo, Siala, Marera, Nyamaharaga) that had not been pleaded, and deduced a figure of 5,226 questioned votes from the Deputy Registrar's report, which constituted a determination of primary fact. The Court held that the Court of Appeal ought not to have overstepped the evidentiary bounds marked out by the trial Court.
Whether the Court of Appeal disregarded the doctrine of stare decisis by failing to apply the binding decision in Raila Odinga v IEBC.
The Court of Appeal misapplied article 163(7) by failing to follow the binding precedent that a court must consider the effect of irregularities on the election result before nullifying an election.
The Supreme Court held that the Court of Appeal, while citing the Raila Odinga case, did not apply its core principle: that a petitioner must prove not only non-compliance with the law, but that such non-compliance affected the validity of the election. Instead, the Court of Appeal asked itself the wrong question—whether the errors made it difficult to determine the winner—rather than whether the errors affected the result. The trial court had found that a re-tally confirmed the appellant as the winner with an enhanced margin, meaning the irregularities did not affect the outcome. The Court of Appeal's failure to apply this binding precedent contravened article 163(7).
Whether the Migori County gubernatorial elections were conducted in compliance with articles 81(e) and 86 of the Constitution as read with section 83 of the Elections Act.
The election was conducted substantially in accordance with the principles of the Constitution, and the irregularities did not affect the result, so the election should not have been nullified.
The Supreme Court applied the test from Peter Gatirau Munya v IEBC, derived from Morgan v Simpson and Opitz v Wrzesnewskyj: an election should be conducted substantially in accordance with constitutional principles, and irregularities only vitiate an election if they affect the result. The trial court had ordered a re-tally which showed the appellant's lead increased from 163 to 577 votes. The Court of Appeal erred by focusing on the irregularities themselves without considering their effect on the declared result. The Supreme Court found that the election, though tainted with irregularities, was essentially free and fair, and the re-tally confirmed the declared winner.
Whether the Court of Appeal misapplied article 180(4) of the Constitution by considering the margin of victory as a basis for nullifying the election.
The Court of Appeal misdirected itself by paying regard to the margin of votes between the winning candidate and the runner-up, as the margin is immaterial unless linked to a definite uncertainty as to who won.
The Supreme Court held that article 180(4) requires that a candidate who receives the greatest number of votes shall be declared elected, and it matters not how wide or small the margin of victory is. The Court of Appeal erred by stating that the trial court should have annulled the election in view of the small margin of votes between the two leading candidates. The Supreme Court reaffirmed that a narrow margin only becomes relevant where there is a definite uncertainty or unresolved doubt as to who won the election, which was not the case here since the re-tally confirmed the appellant's victory.
Whether the Court of Appeal considered unpleaded facts, thereby denying the appellant the right to a fair hearing.
The Court of Appeal erred by making findings on previously-undisputed matters that had not been pleaded, which violated the appellant's right to a fair hearing.
The Supreme Court noted that the trial court had properly refused to consider issues raised for the first time in final submissions, as the respondents would have no opportunity to respond. The Court of Appeal, however, relied on the Deputy Registrar's report to make observations on matters that had not been indicated as disputed in the trial court. The Supreme Court held that the process of scrutiny, recount or re-tally is not to be used as a fishing expedition to enable a petitioner to secure evidence in support of impromptu claims. The trial judge was not to be faulted for upholding the appellant's right to fair trial by disallowing surprise 'new pleadings' at the stage of final submissions.
Legal principles established
#- Election irregularities only invalidate an election if they actually affected the result.
- The Court of Appeal can only review election petitions on points of law, not facts.
- A candidate who gets the most votes wins, no matter how small the margin.
- Scrutiny of votes is meant to verify pleaded claims, not to find new evidence.
Court orders
#- 1.The Judgment of the Court of Appeal sitting at Kisumu, dated 28th March, 2014 annulling the election of Zackaria Okoth Obado as Governor of Migori County, is hereby set aside.
- 2.The Petition of Appeal dated 3rd April, 2014, is allowed.
- 3.For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the seat of Governor of Migori County, is hereby restored.
- 4.The 1st Respondent shall bear the Appellant’s costs of the suit at the High Court, the Court of Appeal and before this Court.
- 5.The 2nd and 3rd Respondents shall bear their own costs at the High Court, the Court of Appeal and the Supreme Court.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Kisumu
- Civil Appeal No 39 of 2013
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
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 Judgment of the Court of Appeal sitting at Kisumu, dated 28th March, 2014 annulling the election of Zackaria Okoth Obado as Governor of Migori County, is hereby set aside.
For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the seat of Governor of Migori County, is hereby restored.
Where, however, it is shown that the irregularities were of such magnitude that they affected the election result, then such an election stands to be invalidated. Otherwise, procedural or administrative irregularities and other errors occasioned by human imperfection, are not enough, by and of themselves, to vitiate an election.
It matters not how wide or small the margin of victory is. Indeed, this is the requirement in all the elections other than a Presidential election, where specific percentages are prescribed by the Constitution.
In making these observations, as we find, the Appellate Court exceeded its mandate, by its conclusions of fact, thus contravening section 85A of the Elections Act.
Key timeline
#Practical implications
#Limit appeal to pure law
When handling election appeals to the Court of Appeal, ensure arguments are strictly on legal interpretation or application—not on factual disputes. The Supreme Court will strike down any factual findings the appellate court makes that were not pleaded or that contradict the trial court's factual conclusions.
Election stability is key
Businesses operating in counties should note that a narrow election margin does not automatically mean the result will be overturned. Courts will only nullify an election if irregularities clearly changed the winner. This reduces uncertainty after close elections, allowing businesses to plan without fear of sudden leadership changes.
Your vote counts—but not on technicalities
As a voter, you can challenge an election, but you must prove that errors actually changed who won. Minor mistakes like missing signatures or small vote-count discrepancies won't cancel an election. The court will not overturn a result just because there were problems—it must show those problems affected the outcome.
Frequently asked questions
#What does it mean for an election to be annulled in Kenya?+
An annulled election is declared invalid by a court, meaning the winner is removed and a new election must be held. But the Supreme Court in this case said annulment only happens if irregularities actually affected the result, not just because errors occurred.
Can a governor be removed by court in Kenya?+
Yes, a governor can be removed by a court if an election petition proves the election was not free and fair. However, the court must show that irregularities changed the outcome. A narrow margin of victory alone is not enough to remove a governor.
What is the standard for invalidating an election in Kenya?+
The standard is that the election must have been conducted substantially in accordance with the law. Minor irregularities that don't affect the result are not enough to invalidate. The person challenging the election must prove that the errors made the winner uncertain.
What is the role of the Supreme Court in election petitions in Kenya?+
The Supreme Court hears appeals from the Court of Appeal in election petitions. It ensures lower courts followed the law and did not exceed their jurisdiction. In this case, it corrected the Court of Appeal by clarifying that only legal issues, not facts, can be appealed.
Later judgments citing this (15)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Musyoki v Mulei (Environment and Land Case 20 of 2020) [2025] KEMC 260 (KLR)[2025] KEMC 260 (KLR)13 Oct 2025
- Wandi v Muchira[2025] KESC 40 (KLR)9 Jun 2025
- ARM v NWS (Civil Application E053 of 2023) [2024] KECA 632 (KLR)[2024] KECA 632 (KLR)7 Jun 2024followed
- Nyota v Kuria & 20 others (Civil Application E059 of 2023) [2024] KECA 389 (KLR)[2024] KECA 389 (KLR)12 Apr 2024
- Siaji v Craft Silicon Limited (Cause 157 of 2019) [2023] KEELRC 1861 (KLR)[2023] KEELRC 1861 (KLR)3 Jul 2023
- Eunice Mugure Muchori, Ibrahim Baiya Muchori & Jim B Muchori v Peter Macharia (Environment & Land Case 34 of 1998) [2020] KEELC 1827 (KLR)[2020] KEELC 1827 (KLR)30 Jun 2020applied
- Awiti & another v Independent Electoral and Boundaries Commission & 3 others[2019] KESC 68 (KLR)7 Feb 2019followed
- Mureithi v Babu & 2 others[2019] KESC 63 (KLR)18 Jan 2019
- Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others[2018] KESC 62 (KLR)28 Sept 2018
- Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 others [2018] KECA 365 (KLR)[2018] KECA 365 (KLR)17 Aug 2018followed
- Maxwell Ochieng’ v Orange Democratic Movement & George Omondi (Civil Appeal 170 of 2017) (Civ) [2017] KECA 294 (KLR)[2017] KECA 294 (KLR)29 Sept 2017followed
- Kenneth K. Mwangi v City County of Nairobi & 2 others [2017] KECA 434 (KLR)[2017] KECA 434 (KLR)14 Jul 2017
- Sam Kiplagat & Nation Newspapers v Charles Wanjohi Wathuku (Civil Application 45 of 2016) [2017] KECA 572 (KLR)[2017] KECA 572 (KLR)5 Apr 2017followed
- Ambetsa v Director of Public Prosecutions[2017] KESC 49 (KLR)2 Mar 2017
- Wachiuri Wahome v Festus Gatheru Wahome & 6 others [2016] KECA 425 (KLR)[2016] KECA 425 (KLR)6 Jul 2016applied
Cite this brief
#Cite this brief
Caselaw, "Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 others", Case Analysis (2014). Petition 4 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/22/eng@2014-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.