Regulation 87(2)(b)(iii) of the Elections (General) Regulations which required transposition of results on Form 37C declared null and void for contradicting section 39 of the Elections Act

Alfred Nganga Mutua & 2 others V Wavinya Ndeti & another

Petition Appeal No. 11 of 2018

(as consolidated with Petition No. 14 of 2018)

Supreme Court of Kenya at Nairobi

D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S N Ndungu, I Lenaola, SCJJ

December 21, 2018

Reported by Chelimo Eunice

Jurisdiction- appellate jurisdiction-jurisdiction of the Court of Appeal- election petition appeals-appeals relating to matters of law-the meaning given to a matter of law in an election petition-claim that the Court of Appeal considered matters of fact contrary to section 85A of the Elections Act- where it was alleged that non conformity of the impugned Form 37C had not been pleaded before the Trial Court and was a factual issue-Elections Act, section 85A.

Statutes-interpretation of statutes-Elections Act-interpretation of section 39 of the Elections Act vis-a-vis regulation 87(2)(b)(iii) of the Elections (General) Regulations – whether the provisions of section 39 of the Elections Act with regard to the handling of the results in the presidential election apply mutatis mutandis to other elections- whether regulation 87(2)(b)(iii) of the Elections (General) Regulations which required the Constituency Returning Officer (CRO) to transpose results of each polling station on Form 37C in contradistinction  to section 39 of the Elections Act was ultra vires- whether the CRO was required to transpose the results for the election of the county governor, senator and county women representative under section 39(1B) of the Elections Act into the results on the A forms from polling stations- Elections Act, section 39; Elections (General) Regulations,  regulation 87(2)(b)(iii).

Electoral Law-election offences-participation in elections by public officers -County Government officer serving as an agent of a gubernatorial candidate-where it was alleged that a County Government Chief Officer acted as an agent of a gubernatorial candidate-nature of evidence necessary to prove the offence-what was the burden and standard of proof in such a case -Election Offences Act, section 15; Political Parties Act, section 45.

Electoral Law-statutory forms-forms used to declare the result of an election-the validity of Form 37C-legal requirements as to the form and content of Form 37C-effect of failure to state in Form 37C the results from all polling stations for each candidate in the election -Constitution of Kenya 2010, article 86; Elections Act, section 39(1)(B); Elections (General) Regulations, regulation 87(2); Interpretation and General Provisions Act (Cap 2), section 72; Statutory Instruments Act, section 26.

Brief facts:

The consolidated appeals by the appellants faulted the Court of Appeal for nullifying the 1^st appellant’s election and directing the 2^nd appellant (the Independent Electoral and Boundaries Commission (IEBC) to conduct a fresh election, arguing among others that the Court of Appeal paid undue regard to procedural technicalities contrary to article 159(2)(d) of the Constitution and that it misapprehended the burden and standard of proof in electoral disputes. The 1^st respondent opposed the appeal arguing that it was fatally defective and therefore incompetent for failure to specify the constitutional provisions that the Court of Appeal misinterpreted or misapplied and founding the appeal upon various issues outside the Court’s jurisdiction under article 163(4)(a) of the Constitution.

 Issues:

1. Whether an appeal on verifiability of the election results under article 86(a) of the Constitution was competent.
2. Whether the Court of Appeal considered matters of fact that it had no jurisdiction to entertain.
3. Whether the Court of Appeal misapprehended the issues of burden and standard of proof in electoral disputes.
4. Whether regulation 87(2)(b)(iii) of the Elections (General) Regulations which required the County Returning Officer to transpose results of each polling station on Form 37C in contradistinction to section 39 of the Elections Act was ultra vires, and therefore null and void.
5. What was the effect of failure by the County Returning Officer to state the results for each candidate in the election from all polling stations in Form 37C?
6. Whether the Court of Appeal paid undue regard to procedural technicalities and nullified the election which had been conducted in substantial compliance with the law on elections on minor and immaterial irregularities which did not affect the election result.

Relevant provisions of the Law

Elections Act;

Section 85A;

 An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only.

Section 39 (1B);

The commission shall appoint county returning officers to be responsible for tallying, announcement and declaration, in the prescribed form, of final results from constituencies in the county for purposes of the election of the county governor, senator and county women representative to the national assembly.

Elections (General) Regulations;

Regulation 87(2)(b)(iii);

       (2) The county returning officer shall upon receipt of the results from the      

           constituency returning officers as contemplated under regulation (1)—

 (a) tally and announce the results for the county governor, senator and county woman representative to the National assembly;

 (b)  complete Forms 37C, 38C and 39C set out in the Schedule in which the county returning officer shall declare, as the case may be, the—

 (i)  name of the respective electoral area;

 (ii) total number of registered voters;

 (iii) votes cast for each candidate … in each polling station;

 (iv) number of rejected votes for each constituency;

 (v)  aggregate number of votes cast in the respective electoral area; and aggregate number of rejected votes….”

Held:

1. Verifiability of the election results under article 86(a) of the Constitution was the fulcrum of the appeal. Hence, the appeal, brought as of right under article 163(4)(a) of the Constitution was competent.
2. On the format and the piecemeal filing of the record of appeal, the case of Yusuf Gitau Abdallah v. Building Centre (K) Ltd & 4 Others [2014] eKLR was distinguishable from the instant matter. In the Yusuf Gitau Abdallah case, the petitioner purported to appeal a High Court decision directly to the Supreme Court without any other proceedings, filed or anticipated. In the instant case, the 1^st appellant’s application for stay of execution of the Court of Appeal judgement was filed pending the filing of an appeal. Even though the Court frown at the irregularity in the form of the petition and the piecemeal filing of the record of appeal, nevertheless the same was filed within the prescribed time of thirty (30) days. That, as well as the 1^st appellant’s written submissions exceeding the length set out in the practice directions were irregularities curable by article 159(2)(b) of the Constitution. Hence the appeal was competently before the Court.
3. Section 85A of the Elections Act limited the Court of Appeal’s jurisdiction in electoral disputes to only matters of law. The phrase matters of law meant a question or an issue involving:-

1. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, subsidiary legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor;
2. the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;
3. the conclusions arrived at by the trial judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claimed that such conclusions were based on no evidence, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were so perverse, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the trial judge would probably have arrived at a different conclusion on the basis of the evidence.

4. Pursuant to section 85A of the Elections Act, in an election appeal, an appellate court should not be drawn into considerations of the credibility of witnesses. Its engagement with the facts should be limited to satisfying itself whether the conclusions of the trial court were based on the evidence on record or whether they were so perverse that no reasonable tribunal would have arrived on them.
5. Bearing in mind that the line between points of law and fact was opaque, an appellate court had to undertake a delicate examination to ensure that appeals were not out rightly and without proper investigation rejected on ground that they raised matters of fact if there were points of law also involved. Section 85A of the Elections Act should not be invoked to strike out appeals on account of inelegance in the drafting of the memorandum of appeal.
6. The Court of Appeal did not veer into the credibility of witnesses or the calibration of evidence and reached its own conclusions. It did not exceed its jurisdiction under section 85A of the Elections Act.
7. In the absence of any law prohibiting public officers from being engaged as election officials and more particularly in the absence of evidence of anything the employees of the Machakos County Government engaged in the election did or omitted to do that compromised their impartiality, IEBC’s conduct of the election was not compromised.
8. Under section 45 of the Political Parties Act and section 15(1)(a) of the Elections Offences Act, it was an offence for any public officer to engage in any partisan political activity. Under section 15(2) of the Election Offences Act, it was equally an offence for any candidate to engage such an officer as her or his party’s agent. The allegation that 1^st appellant’s party’s agent in the election was one and the same person as the Chief Officer of the Machakos County Government was therefore an allegation of commission of an election offence.
9. The burden of proof lay upon the party alleging a fact to prove it to the required standard. The standard of proof of any election offence or quasi criminal conduct was that of beyond reasonable doubt. The allegation that Maendeleo Chap Chap Party’s (MCCP) agent was one and the same person as the Chief Officer of the Machakos County Government amounted to commission of an election offence, proof of which the law required to be beyond reasonable doubt. Other than making that allegation in their petition and in the evidence of the 1^st respondent, the respondents never provided any proof of the allegation. A mere allegation could not be proof, leave alone proof to the required standard of beyond reasonable doubt. The respondents needed to do more than that. To discharge their burden of proof on that allegation, the respondents should have invoked article 35 of the Constitution and obtained records from the Machakos County Government to verify that allegation. Thus the Court of Appeal erred in basing its nullification of the 1^st appellant’s election partly on that ground.
10. The issue of non-compliance of the impugned Form 37C was pleaded in the petition before the Trial Court, since the respondents had pleaded that the votes garnered by each candidate had wrongly been captured on impugned Form 37C and that IEBC failed to use standardized statutory forms to declare the results of the elections. Consequently, the ground of appeal based on failure to plead the illegality of Form 37C was dismissed.
11. Electoral law was a special jurisdiction whose interpretation was strictly confined within the parameters of the Constitution and relevant electoral statutes. In electoral disputes, save where the contrary so demands, the words of a statutory provision should be given their ordinary meaning and strictly interpreted in defining the rights of the parties to the dispute.
12. The words of section 39(1B) of the Elections Act required the County Returning Officer to announce and declare the election of the county governor, county senator and county women representative in the prescribed form, of final results from constituencies in the county. Regulation 87(1)(b)(iii) of the Elections (General) Regulations, 2012, on the other hand went further to require Forms 37C, 38C and 39C used for the declaration of the election results of the county governor, senator and county women representative respectively to have a column for the votes cast for each candidate in each polling station. And the format of those forms, contained in the schedule to those Regulations, had such a column.
13. The impugned Form 37C that was used in the declaration of the Machakos gubernatorial election results omitted a column for votes cast for each candidate in each polling station and was therefore not in the prescribed form. It fouled regulation 87(2)(b)(iii) of the Regulations and was thus non-compliant.
14. The provisions of section 39 of the Elections Act could not be said to apply mutatis mutandis to other elections with regard to the handling of the results in the presidential election.  Read as a whole, that section made a clear distinction between the handling of results in the presidential election and other elections.
15. It was clear from section 39 (1) of the Elections Act that at the constituency level, the constituency returning officers (CROs) were required to tally and collate the final results from each polling station and announce the results for the election of a member of the national assembly and members of the county assembly and for the election of the President, county governor, senator and county women representative to the national assembly. The results from the polling stations were on the A forms which were the primary documents. CROs were required to submit, in the prescribed form, the collated results for the election of the President to the national tallying centre and the collated results for the election of the county governor, senator and county women representative to the respective county returning officer.
16. Section 39 (1C) of the Elections Act dealt with the tally, collation and announcement of the presidential results at the county level. There was a clear distinction between that subsection and subsection (1B). Unlike subsection (1B), subsection (1C) required under clause (a) the electronic transmission and physical delivery of the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre.
17. Section 39 (1B) of the Elections Act dealt with tallying, collation and announcement or declaration of election results at the county level. The section made no mention of results from polling stations. It only talked of final results from constituencies in the county. The section required the county returning officers, for purposes of the election of the county governor, senator and county women representative, to tally only final results from constituencies in the county. The final results from the constituencies were on the B forms. It followed that in the tallying and announcement of the results for the election of the county governor, senator and county women representative, although they would have been delivered to the CRO and they would therefore be in his possession at the time of declaring the results, the CRO did not go into the figures in the A forms. He would only tally and collate into the C forms the results on the B forms from the constituencies in the county.  The Court of Appeal erred in holding that the CRO was concerned and had to be concerned with the Forms 37A’s being the primary documents that capture the results at the polling stations.
18. The position of the President was different from those of other elective posts. Because of the importance of the office of the President, section 39 of the Elections Act demanded for a more rigorous process in the tally, collation and verification of the presidential election results than those of the other elections.  That was why clause (b) of subsection (1C) demanded not only for the tally but also for the verification of the results received at the constituency tallying centre and the national tallying centre. Hence, there was a clear distinction between the handling of the presidential election results and those of other elections.
19. The tallying and announcement of the results for the election of the county governor, senator and county women representative, under section 39(1B) of the Elections Act, the CRO was not required to go into the results on the A forms from polling stations. But in contradistinction, regulation 87(2)(b)(iii) of the Regulations which was supposed to give effect to that section, required the CRO to transpose results of each polling station on Form 37C. For that purpose, the prescribed template of that form contained in the schedule to the Regulations had a column for results cast for each candidate at each polling station. That was an additional requirement that was not in the section which incidentally formed the turning point of the Court of Appeal decision giving rise to the instant appeal.
20. A provision of any subsidiary legislation that conflicted with that of the parent Act was ultra vires. Thus regulation 87(2)(b)(iii) of the Elections (General) Regulations, 2012, was ultra vires section 39(1B) of the Elections Act and was null and void ab initio. The Court assumed it never existed and concluded that the 3^rd appellant was right in ignoring it and omitting from the impugned Form 37C used in the declaration of the Machakos County gubernatorial election results a column with results from the polling stations.
21. In the light of the provisions of section 72 of Interpretation and General Provisions Act and section 26 of the Statutory Instruments Act, and in the absence of any challenge to the results posited on it, even if regulation 87(2)(b)(iii) of the Regulations were not ultra vires, the variation on Form 37C was minor and inconsequential.
22. Section 72 of the Interpretation and General Provisions Act and section 26(2) of the Statutory Instruments Act, 2013, made it clear that an instrument or document should not be void by reason of a deviation from the prescribed form if the deviation did not affect the substance of the instrument or document or was not calculated to mislead. The most crucial item on the said form that required verifiability was the data of the election results. Even if regulation 87(2)(b)(iii) of the Regulations was not ultra vires, the transposition of the results on to Form 37C would not be the only way of verifying the results of the election. The deviation on the impugned Form 37C was immaterial.
23. The distinction between the handling of presidential election results and those of others did not in any way affect the verification demanded by article 86(a) of the Constitution. According to regulation 76 of the Regulations, after voting closes, the ballot papers were to be held up and openly displayed for all the candidates or their agents to verify that they were valid votes and ascertain for who they were cast. The counting was opened and any dissatisfied candidate was entitled to demand for a recount up to two times. The countersigning of the result forms by the candidates and/or their agents was a declaration that they had verified and were satisfied that the data was correct. The candidates and/or their agents were involved and they countersign the forms used in the declaration of results at the subsequent tallying and collations of the results at the constituency, county and the national tallying centres.
24. The impugned Form 37C was signed not only by the CRO but also by the candidates’ agents, including the 1^st respondent’s agent. The data on that Form left the 1^st appellant ahead of the 1^st respondent with a margin of over 40,000 votes. The deviation on the impugned Form 37C that the 3^rd appellant used to declare the results would not have affected the verifiability of those results. Unverifiability could not be pegged only on failure to transpose the polling station results on Form 37C.
25. The Court of Appeal erred in holding that the Machakos County gubernatorial election was not conducted in accordance with constitutional principles thus rendering it null and void. To the contrary, the 1^st appellant was duly elected governor of Machakos County in a fair and free election.

As per S.N. Ndungu, SCJ, concurring.

26.  The finding on the anomalies in Form 37C not being in the prescribed form, metamorphosised into the central issue in the appeal leading to the conclusion by the Court of Appeal that the results as declared were not done with reference to Form 37As and were therefore not verifiable and were unconstitutional.
27. Forms 37C were in fact un-pleaded. There was no specific mention of the format of Form 37 C (that it was in excel) other than what was mentioned at paragraph 76 of the petition at the High Court. Further, the evidence did not allude to non-use of standardized forms but at paragraph 46, the petitioner mentioned anomalies in the form which were stated to be; 3 different Form 37C’s; non signing of the Forms by agents and or different orders of the purported agents in the different forms and missing security features on Forms.
28. The pleadings as to Form 37C were vague, without a reasonable degree of precision as it was not immediately clear that they were alluding to the improper format of the said Form. Parties were bound by their pleadings. Pleadings were the bedrock upon which all the proceedings derive from and it followed that any evidence adduced in a matter had to be in consonance with the pleadings.
29.  Issues to be considered had to be pleaded, and those pleadings had to be set out in a clear and precise manner. Un-pleaded issues were not an anomaly that could be cured by article 159 of the Constitution since that article was not a panacea for all procedural shortfalls. Moreover, with the stringent nature of election petitions, courts act only within the terms of the statute, as guided by the Constitution.
30. The pleadings were binding not just on the parties to the suit, but on the Court as well. A court could not delve into matters not specifically pleaded and a vague claim could not sustain a cause of action. The matter was not properly before the Court of Appeal and it ought not to have been considered.

  Appeal allowed.

Orders:

1. The judgment of the Court of Appeal dated June 8, 2018 was set aside and that of the High Court was reinstated.
2. The declaration of the election results by the Independent Electoral and Boundaries Commission in respect of the Governor of Machakos County was affirmed.
3. The appellants were to have the costs of the appeal as well as those of the courts below.

Regulation 87(2)(b)(iii) of the Elections (General) Regulations which required transposition of results on Form 37C declared null and void for contradicting section 39 of the Elections Act

Alfred Nganga Mutua & 2 others V Wavinya Ndeti & another

Petition Appeal No. 11 of 2018

(as consolidated with Petition No. 14 of 2018)

Supreme Court of Kenya at Nairobi

D K Maraga, CJ & P, M K Ibrahim, J B Ojwang, S N Ndungu, I Lenaola, SCJJ

December 21, 2018

Reported by Chelimo Eunice

Jurisdiction- appellate jurisdiction-jurisdiction of the Court of Appeal- election petition appeals-appeals relating to matters of law-the meaning given to a matter of law in an election petition-claim that the Court of Appeal considered matters of fact contrary to section 85A of the Elections Act- where it was alleged that non conformity of the impugned Form 37C had not been pleaded before the Trial Court and was a factual issue-Elections Act, section 85A.

Statutes-interpretation of statutes-Elections Act-interpretation of section 39 of the Elections Act vis-a-vis regulation 87(2)(b)(iii) of the Elections (General) Regulations – whether the provisions of section 39 of the Elections Act with regard to the handling of the results in the presidential election apply mutatis mutandis to other elections- whether regulation 87(2)(b)(iii) of the Elections (General) Regulations which required the Constituency Returning Officer (CRO) to transpose results of each polling station on Form 37C in contradistinction  to section 39 of the Elections Act was ultra vires- whether the CRO was required to transpose the results for the election of the county governor, senator and county women representative under section 39(1B) of the Elections Act into the results on the A forms from polling stations- Elections Act, section 39; Elections (General) Regulations,  regulation 87(2)(b)(iii).

Electoral Law-election offences-participation in elections by public officers -County Government officer serving as an agent of a gubernatorial candidate-where it was alleged that a County Government Chief Officer acted as an agent of a gubernatorial candidate-nature of evidence necessary to prove the offence-what was the burden and standard of proof in such a case -Election Offences Act, section 15; Political Parties Act, section 45.

Electoral Law-statutory forms-forms used to declare the result of an election-the validity of Form 37C-legal requirements as to the form and content of Form 37C-effect of failure to state in Form 37C the results from all polling stations for each candidate in the election -Constitution of Kenya 2010, article 86; Elections Act, section 39(1)(B); Elections (General) Regulations, regulation 87(2); Interpretation and General Provisions Act (Cap 2), section 72; Statutory Instruments Act, section 26.

Brief facts:

The consolidated appeals by the appellants faulted the Court of Appeal for nullifying the 1^st appellant’s election and directing the 2^nd appellant (the Independent Electoral and Boundaries Commission (IEBC) to conduct a fresh election, arguing among others that the Court of Appeal paid undue regard to procedural technicalities contrary to article 159(2)(d) of the Constitution and that it misapprehended the burden and standard of proof in electoral disputes. The 1^st respondent opposed the appeal arguing that it was fatally defective and therefore incompetent for failure to specify the constitutional provisions that the Court of Appeal misinterpreted or misapplied and founding the appeal upon various issues outside the Court’s jurisdiction under article 163(4)(a) of the Constitution.

 Issues:

1. Whether an appeal on verifiability of the election results under article 86(a) of the Constitution was competent.
2. Whether the Court of Appeal considered matters of fact that it had no jurisdiction to entertain.
3. Whether the Court of Appeal misapprehended the issues of burden and standard of proof in electoral disputes.
4. Whether regulation 87(2)(b)(iii) of the Elections (General) Regulations which required the County Returning Officer to transpose results of each polling station on Form 37C in contradistinction to section 39 of the Elections Act was ultra vires, and therefore null and void.
5. What was the effect of failure by the County Returning Officer to state the results for each candidate in the election from all polling stations in Form 37C?
6. Whether the Court of Appeal paid undue regard to procedural technicalities and nullified the election which had been conducted in substantial compliance with the law on elections on minor and immaterial irregularities which did not affect the election result.

Relevant provisions of the Law

Elections Act;

Section 85A;

 An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only.

Section 39 (1B);

The commission shall appoint county returning officers to be responsible for tallying, announcement and declaration, in the prescribed form, of final results from constituencies in the county for purposes of the election of the county governor, senator and county women representative to the national assembly.

Elections (General) Regulations;

Regulation 87(2)(b)(iii);

       (2) The county returning officer shall upon receipt of the results from the      

           constituency returning officers as contemplated under regulation (1)—

 (a) tally and announce the results for the county governor, senator and county woman representative to the National assembly;

 (b)  complete Forms 37C, 38C and 39C set out in the Schedule in which the county returning officer shall declare, as the case may be, the—

 (i)  name of the respective electoral area;

 (ii) total number of registered voters;

 (iii) votes cast for each candidate … in each polling station;

 (iv) number of rejected votes for each constituency;

 (v)  aggregate number of votes cast in the respective electoral area; and aggregate number of rejected votes….”

Held:

1. Verifiability of the election results under article 86(a) of the Constitution was the fulcrum of the appeal. Hence, the appeal, brought as of right under article 163(4)(a) of the Constitution was competent.
2. On the format and the piecemeal filing of the record of appeal, the case of Yusuf Gitau Abdallah v. Building Centre (K) Ltd & 4 Others [2014] eKLR was distinguishable from the instant matter. In the Yusuf Gitau Abdallah case, the petitioner purported to appeal a High Court decision directly to the Supreme Court without any other proceedings, filed or anticipated. In the instant case, the 1^st appellant’s application for stay of execution of the Court of Appeal judgement was filed pending the filing of an appeal. Even though the Court frown at the irregularity in the form of the petition and the piecemeal filing of the record of appeal, nevertheless the same was filed within the prescribed time of thirty (30) days. That, as well as the 1^st appellant’s written submissions exceeding the length set out in the practice directions were irregularities curable by article 159(2)(b) of the Constitution. Hence the appeal was competently before the Court.
3. Section 85A of the Elections Act limited the Court of Appeal’s jurisdiction in electoral disputes to only matters of law. The phrase matters of law meant a question or an issue involving:-

1. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, subsidiary legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor;
2. the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;
3. the conclusions arrived at by the trial judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claimed that such conclusions were based on no evidence, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were so perverse, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the trial judge would probably have arrived at a different conclusion on the basis of the evidence.

4. Pursuant to section 85A of the Elections Act, in an election appeal, an appellate court should not be drawn into considerations of the credibility of witnesses. Its engagement with the facts should be limited to satisfying itself whether the conclusions of the trial court were based on the evidence on record or whether they were so perverse that no reasonable tribunal would have arrived on them.
5. Bearing in mind that the line between points of law and fact was opaque, an appellate court had to undertake a delicate examination to ensure that appeals were not out rightly and without proper investigation rejected on ground that they raised matters of fact if there were points of law also involved. Section 85A of the Elections Act should not be invoked to strike out appeals on account of inelegance in the drafting of the memorandum of appeal.
6. The Court of Appeal did not veer into the credibility of witnesses or the calibration of evidence and reached its own conclusions. It did not exceed its jurisdiction under section 85A of the Elections Act.
7. In the absence of any law prohibiting public officers from being engaged as election officials and more particularly in the absence of evidence of anything the employees of the Machakos County Government engaged in the election did or omitted to do that compromised their impartiality, IEBC’s conduct of the election was not compromised.
8. Under section 45 of the Political Parties Act and section 15(1)(a) of the Elections Offences Act, it was an offence for any public officer to engage in any partisan political activity. Under section 15(2) of the Election Offences Act, it was equally an offence for any candidate to engage such an officer as her or his party’s agent. The allegation that 1^st appellant’s party’s agent in the election was one and the same person as the Chief Officer of the Machakos County Government was therefore an allegation of commission of an election offence.
9. The burden of proof lay upon the party alleging a fact to prove it to the required standard. The standard of proof of any election offence or quasi criminal conduct was that of beyond reasonable doubt. The allegation that Maendeleo Chap Chap Party’s (MCCP) agent was one and the same person as the Chief Officer of the Machakos County Government amounted to commission of an election offence, proof of which the law required to be beyond reasonable doubt. Other than making that allegation in their petition and in the evidence of the 1^st respondent, the respondents never provided any proof of the allegation. A mere allegation could not be proof, leave alone proof to the required standard of beyond reasonable doubt. The respondents needed to do more than that. To discharge their burden of proof on that allegation, the respondents should have invoked article 35 of the Constitution and obtained records from the Machakos County Government to verify that allegation. Thus the Court of Appeal erred in basing its nullification of the 1^st appellant’s election partly on that ground.
10. The issue of non-compliance of the impugned Form 37C was pleaded in the petition before the Trial Court, since the respondents had pleaded that the votes garnered by each candidate had wrongly been captured on impugned Form 37C and that IEBC failed to use standardized statutory forms to declare the results of the elections. Consequently, the ground of appeal based on failure to plead the illegality of Form 37C was dismissed.
11. Electoral law was a special jurisdiction whose interpretation was strictly confined within the parameters of the Constitution and relevant electoral statutes. In electoral disputes, save where the contrary so demands, the words of a statutory provision should be given their ordinary meaning and strictly interpreted in defining the rights of the parties to the dispute.
12. The words of section 39(1B) of the Elections Act required the County Returning Officer to announce and declare the election of the county governor, county senator and county women representative in the prescribed form, of final results from constituencies in the county. Regulation 87(1)(b)(iii) of the Elections (General) Regulations, 2012, on the other hand went further to require Forms 37C, 38C and 39C used for the declaration of the election results of the county governor, senator and county women representative respectively to have a column for the votes cast for each candidate in each polling station. And the format of those forms, contained in the schedule to those Regulations, had such a column.
13. The impugned Form 37C that was used in the declaration of the Machakos gubernatorial election results omitted a column for votes cast for each candidate in each polling station and was therefore not in the prescribed form. It fouled regulation 87(2)(b)(iii) of the Regulations and was thus non-compliant.
14. The provisions of section 39 of the Elections Act could not be said to apply mutatis mutandis to other elections with regard to the handling of the results in the presidential election.  Read as a whole, that section made a clear distinction between the handling of results in the presidential election and other elections.
15. It was clear from section 39 (1) of the Elections Act that at the constituency level, the constituency returning officers (CROs) were required to tally and collate the final results from each polling station and announce the results for the election of a member of the national assembly and members of the county assembly and for the election of the President, county governor, senator and county women representative to the national assembly. The results from the polling stations were on the A forms which were the primary documents. CROs were required to submit, in the prescribed form, the collated results for the election of the President to the national tallying centre and the collated results for the election of the county governor, senator and county women representative to the respective county returning officer.
16. Section 39 (1C) of the Elections Act dealt with the tally, collation and announcement of the presidential results at the county level. There was a clear distinction between that subsection and subsection (1B). Unlike subsection (1B), subsection (1C) required under clause (a) the electronic transmission and physical delivery of the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre.
17. Section 39 (1B) of the Elections Act dealt with tallying, collation and announcement or declaration of election results at the county level. The section made no mention of results from polling stations. It only talked of final results from constituencies in the county. The section required the county returning officers, for purposes of the election of the county governor, senator and county women representative, to tally only final results from constituencies in the county. The final results from the constituencies were on the B forms. It followed that in the tallying and announcement of the results for the election of the county governor, senator and county women representative, although they would have been delivered to the CRO and they would therefore be in his possession at the time of declaring the results, the CRO did not go into the figures in the A forms. He would only tally and collate into the C forms the results on the B forms from the constituencies in the county.  The Court of Appeal erred in holding that the CRO was concerned and had to be concerned with the Forms 37A’s being the primary documents that capture the results at the polling stations.
18. The position of the President was different from those of other elective posts. Because of the importance of the office of the President, section 39 of the Elections Act demanded for a more rigorous process in the tally, collation and verification of the presidential election results than those of the other elections.  That was why clause (b) of subsection (1C) demanded not only for the tally but also for the verification of the results received at the constituency tallying centre and the national tallying centre. Hence, there was a clear distinction between the handling of the presidential election results and those of other elections.
19. The tallying and announcement of the results for the election of the county governor, senator and county women representative, under section 39(1B) of the Elections Act, the CRO was not required to go into the results on the A forms from polling stations. But in contradistinction, regulation 87(2)(b)(iii) of the Regulations which was supposed to give effect to that section, required the CRO to transpose results of each polling station on Form 37C. For that purpose, the prescribed template of that form contained in the schedule to the Regulations had a column for results cast for each candidate at each polling station. That was an additional requirement that was not in the section which incidentally formed the turning point of the Court of Appeal decision giving rise to the instant appeal.
20. A provision of any subsidiary legislation that conflicted with that of the parent Act was ultra vires. Thus regulation 87(2)(b)(iii) of the Elections (General) Regulations, 2012, was ultra vires section 39(1B) of the Elections Act and was null and void ab initio. The Court assumed it never existed and concluded that the 3^rd appellant was right in ignoring it and omitting from the impugned Form 37C used in the declaration of the Machakos County gubernatorial election results a column with results from the polling stations.
21. In the light of the provisions of section 72 of Interpretation and General Provisions Act and section 26 of the Statutory Instruments Act, and in the absence of any challenge to the results posited on it, even if regulation 87(2)(b)(iii) of the Regulations were not ultra vires, the variation on Form 37C was minor and inconsequential.
22. Section 72 of the Interpretation and General Provisions Act and section 26(2) of the Statutory Instruments Act, 2013, made it clear that an instrument or document should not be void by reason of a deviation from the prescribed form if the deviation did not affect the substance of the instrument or document or was not calculated to mislead. The most crucial item on the said form that required verifiability was the data of the election results. Even if regulation 87(2)(b)(iii) of the Regulations was not ultra vires, the transposition of the results on to Form 37C would not be the only way of verifying the results of the election. The deviation on the impugned Form 37C was immaterial.
23. The distinction between the handling of presidential election results and those of others did not in any way affect the verification demanded by article 86(a) of the Constitution. According to regulation 76 of the Regulations, after voting closes, the ballot papers were to be held up and openly displayed for all the candidates or their agents to verify that they were valid votes and ascertain for who they were cast. The counting was opened and any dissatisfied candidate was entitled to demand for a recount up to two times. The countersigning of the result forms by the candidates and/or their agents was a declaration that they had verified and were satisfied that the data was correct. The candidates and/or their agents were involved and they countersign the forms used in the declaration of results at the subsequent tallying and collations of the results at the constituency, county and the national tallying centres.
24. The impugned Form 37C was signed not only by the CRO but also by the candidates’ agents, including the 1^st respondent’s agent. The data on that Form left the 1^st appellant ahead of the 1^st respondent with a margin of over 40,000 votes. The deviation on the impugned Form 37C that the 3^rd appellant used to declare the results would not have affected the verifiability of those results. Unverifiability could not be pegged only on failure to transpose the polling station results on Form 37C.
25. The Court of Appeal erred in holding that the Machakos County gubernatorial election was not conducted in accordance with constitutional principles thus rendering it null and void. To the contrary, the 1^st appellant was duly elected governor of Machakos County in a fair and free election.

As per S.N. Ndungu, SCJ, concurring.

26.  The finding on the anomalies in Form 37C not being in the prescribed form, metamorphosised into the central issue in the appeal leading to the conclusion by the Court of Appeal that the results as declared were not done with reference to Form 37As and were therefore not verifiable and were unconstitutional.
27. Forms 37C were in fact un-pleaded. There was no specific mention of the format of Form 37 C (that it was in excel) other than what was mentioned at paragraph 76 of the petition at the High Court. Further, the evidence did not allude to non-use of standardized forms but at paragraph 46, the petitioner mentioned anomalies in the form which were stated to be; 3 different Form 37C’s; non signing of the Forms by agents and or different orders of the purported agents in the different forms and missing security features on Forms.
28. The pleadings as to Form 37C were vague, without a reasonable degree of precision as it was not immediately clear that they were alluding to the improper format of the said Form. Parties were bound by their pleadings. Pleadings were the bedrock upon which all the proceedings derive from and it followed that any evidence adduced in a matter had to be in consonance with the pleadings.
29.  Issues to be considered had to be pleaded, and those pleadings had to be set out in a clear and precise manner. Un-pleaded issues were not an anomaly that could be cured by article 159 of the Constitution since that article was not a panacea for all procedural shortfalls. Moreover, with the stringent nature of election petitions, courts act only within the terms of the statute, as guided by the Constitution.
30. The pleadings were binding not just on the parties to the suit, but on the Court as well. A court could not delve into matters not specifically pleaded and a vague claim could not sustain a cause of action. The matter was not properly before the Court of Appeal and it ought not to have been considered.

  Appeal allowed.

Orders:

1. The judgment of the Court of Appeal dated June 8, 2018 was set aside and that of the High Court was reinstated.
2. The declaration of the election results by the Independent Electoral and Boundaries Commission in respect of the Governor of Machakos County was affirmed.
3. The appellants were to have the costs of the appeal as well as those of the courts below.

The effect of failure to produce form 35B in an election petition challenging the results of an election of a Member of National Assembly.

Mawathe Julius Musili v Independent Electoral & Boundaries Commission & another [2018] eKLR

Petition No. 16 of 2018

Supreme Court of Kenya at Nairobi

D K Maraga, CJ & P; J B Ojwang, S C Wanjala, N Njoki & I Lenaola, SCJJ)

December 21, 2018.

Reported by Kakai Toili

Electoral law-election petitions-statutory forms-form 35B-failure to produce form 35B in an election petition-effect of-what was the effect of failure to produce form 35B, which contained the results declared in each polling station in a constituency, in an election petition challenging the results of an election of a Member of National Assembly

Electoral Law-appeals- record of appeal-supplementary record of appeal-circumstances in which a supplementary record of appeal was prepared-time for filing supplementary record of appeal- what were the circumstances in which a supplementary record could be prepared and when was it required to be filed- Court of Appeal (Election Petition) Rules, 2017,rule 8(5)

Electoral Law-elections-election officials-returning officers-mandate of returning officers- what was the mandate of a returning officer at the constituency level during elections for the position of Member of National Assembly-Constitution of Kenya, 2010, article 81(e); Elections (General) Regulations, 2012, regulation 83

Evidence Law – witnesses – witnesses in election petitions- witnesses who made depositions on a crucial subject-failure to call witnesses who made depositions on a crucial subject-effect of-whether a court was entitled to draw adverse inference from the absence of a witness who made depositions on a crucial subject of testimony in an election petition- Elections (Parliamentary and County Elections) Petition Rules, 2013, rule 15 (3)

Electoral Law–election petitions–burden and standard of proof-who bore the burden of proof in election petitions and when did that burden shift

Brief Facts

The appellant was declared duly-elected as the Member of the National Assembly for Embakasi South constituency following the August 8, 2017 general elections. Aggrieved by the said declaration, the 2^nd respondent filed a petition at the High Court, contesting the election of the appellant. The High Court dismissed the petition and confirmed the appellant as the Member of the National Assembly for Embakasi South Constituency. Aggrieved by that decision, the 2^nd respondent appealed to the Court of Appeal. The Court of Appeal allowed the appeal and directed the 1^st respondent to 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. Aggrieved by the Court of Appeal’s decision the appellant filed the instant appeal.

Issues

1. What was the effect of failure to produce form 35B, which contained the results declared in each polling station in a constituency, in an election petition challenging the results of an election of a Member of National Assembly?
2. What were the circumstances in which a supplementary record could be prepared and when was it required to be filed?
3. What was the mandate of a returning officer at the constituency level during elections for the position of Member of National Assembly?
4. Whether a court was entitled to draw adverse inference from the absence of a witness who made depositions on a crucial subject of testimony in an election petition.
5. Who bore the evidential burden of proof in an election petition and when did that burden shift?

Relevant Provisions of the Law

Evidence Act

Section 107

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”; and

(3) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Elections (General) Regulations, 2012

Regulation 5 (1A)

The functions of a presiding officer shall be—

1. presiding over elections at an assigned polling station;
2. tallying, counting and announcement of results at the Polling station;
3. submitting polling station results to the Constituency returning officer; and
4. electronically transmitting presidential results to the constituency, counties and national tallying centers.

Held

1. The reasoning and the conclusions of both the High Court and the Court of Appeal took a trajectory of constitutional interpretation or application. The instant case raised cardinal issues requiring the interpretation of article 87 (1) of the Constitution, in light of section 85A of the Elections Act which limited the Court of Appeal’s jurisdiction to matters of law only. Further, it fell to the Court to determine whether the Court of Appeal misconstrued the terms of articles 81 and 86 of the Constitution. In that regard the Court had jurisdiction.
2. The impugned supplementary record of appeal was filed on May 2, 2018. The High Court judgment was delivered on March 2, 2018. In compliance with section 85A of the Elections Act and rule 9 (1) of the Court of Appeal (Election Petition) Rules 2017(the Rules), the appellant was required to file a memorandum and record of appeal within 30 days of the date of judgment of the High Court.
3. A supplementary record of appeal was usually prepared when a party was of the view that the record of appeal was defective or insufficient. The Rules did not expressly provide for the time-frame for filing a supplementary record of appeal.   The supplementary record of appeal was, however, mentioned in rule 8(5), in those circumstances in which the High Court did not avail relevant documents. In such a case, the appellant was allowed to file the record of appeal, followed within seven days by a supplementary record of appeal.
4. The supplementary record of appeal, just like the record of appeal, was to be filed within 30 days of the date of judgment of the High Court. The   supplementary record of appeal was filed out of time and without leave of the Court. The contents of that record were copies of polling station diaries which were produced by the appellant before the High Court and were relied upon by the parties and their witnesses during the hearing of the election petition.
5.  The court hearing the appeal was an ideal forum for ascertaining whether the supplementary records introduced new evidence; whether they raised legal issues; and whether they were relevant to the matters in controversy in the appeal. The Court of Appeal determined that, as the first nine volumes had been filed in time, the belated filing of the rest of the documents contained in the supplementary record appeal did not affect its jurisdiction.
6. The Court of Appeal Rules, 2010, in rule 92 (3) allowed an appellant at any stage to lodge in the appropriate registry four copies of a supplementary record of appeal, and as soon as practicable thereafter, to serve copies of it upon every respondent who had complied with the requirements of rule 79. Rule 79 obligated respondents to furnish an address for service. However, in the Rules there was no express statutory timeline for filing a supplementary record of appeal.
7. In the circumstances, the Court of Appeal did not contravene article 163 (7) of the Constitution. The Court of Appeal did not err by not dismissing the supplementary record of appeal.
8. A perusal of the record revealed that all 18 grounds in the memorandum of appeal save for one, raised issues of law and fact, in compromise to the jurisdictional bar set in section 85A of the Elections Act. Section 85A stipulated that appeals to the Court of Appeal should be on matters of law only. The question of law dimension of the appeal mandate was not compromised even though the memorandum of appeal avowed that the respondent erred in law and fact.
9. The Court was guided in its consideration of the Court of Appeal decision through a set of questions:
   1. was the court cautious enough to limit itself to issues regarding the interpretation and application of the law by the High Court, in relation to the petition at the High Court?
   2. did the Court of Appeal limit itself to evaluating the conclusions of the High Court on the basis of the evidence on record; and
   3. whether such conclusions were not supported by the evidence; or
   4. whether the conclusions were not so perverse that no reasonable tribunal could arrive at the same?
10. The Court of Appeal did not descend into the arena of examining the probative value of the evidence presented in the petition, or engage in the calibration of evidence, with a view to determining the veracity or otherwise of evidence tendered by witnesses.
11.  Only upon a proper statement of claim, would the Court of Appeal be expected to respond most effectively. Short of such propriety in the conduct of litigation, all the Court of Appeal could do was employ its best judgment and discretion, in the context of the governing law on jurisdiction. That principle was quite clearly reflected in the position taken by the Court of Appeal.
12. The original form 35B was not availed to the High Court, despite its direction to the 1^st respondent to produce the same, for scrutiny. The High Court could not in the circumstances, verify the entries. The returning officer was an integral factor in the verification process. Under regulation 83 of the Elections (General) Regulations, 2012,(the Regulations) the returning officer at the constituency level was mandated to collate and declare the results from each polling station, in the presence of candidates, agents and observers and then to complete the relevant form 35B.  The tallying and collation of ballots was required to be administered in an impartial, neutral, efficient, accurate and accountable manner, as prescribed by article 81 (e) of the Constitution.
13.  Form 35B bore the formal declaration of election results. In the instant case, it was impossible to state with certainty and clarity what the contents of the original form 35B showed and whether the certified copy was a true copy of the original. As a consequence, it became impossible to conclude that the appellant was the declared winner of the election. The declaration form was missing and the ostensible result was both suspect and uncertain.
14. The absence of the original form 35B and the presence of the divergent results negated the constitutionally prescribed principles of verifiability, accuracy, accountability and transparency. In the circumstances, the election process was unverifiable. The declared results were indeed unverifiable.
15.  An election represents the will of the people. Whenever the paper trail enabled the Court to understand the intention of the voters, then the Court should not interfere. In the instant case, however, the primary declaration form 35B was unavailable and moreover, the conflicting totals negated the constitutional requirements of verifiability, accuracy, exactness and fairness.
16. The 1^st respondent was not bothered to produce the original form 35B despite being; the custodian of the document and the constitutionally-mandated body, pursuant to article 86 (c)  of the Constitution, to ensure that the results from the polling stations were openly and accurately collated and promptly announced by the returning officer. The respondent, moreover, disobeyed the High Court’s order to produce a vital document. Besides, the 1^st respondent, after intimating that the returning officer would adduce evidence in Court, on which premise the 2^nd respondent prosecuted his case, left that assurance unfulfilled.
17. The 1^st respondent did not ensure that the results from the polling stations were openly and accurately collated and promptly announced as prescribed in articles 86(c) and 81 (e) of the Constitution and regulation 83 of the Regulations. The results declared were unsustainable as they were unsupported by any evidence.
18. Rule 15 (3) of the Elections (Parliamentary and County Elections) Petition Rules, 2013 provided that a respondent’s replying affidavit formed part of the record of the trial, and a deponent could be cross-examined by the petitioners and re-examined by the respondent. In view of the weighty factors moving a deponent to make averments on oath, a court was entitled to draw adverse inference from the absence of a witness who had made depositions on a crucial subject of testimony.  For the court, in its quest for justice, expected that the anticipated testimony would shed light on the subject in question.
19. The High court’s proven mechanism of fact-ascertainment, in the well-established common-law tradition, was the cross-examination of witnesses.  It was through that device that the High Court could gauge the truth or otherwise of an allegation which could have appeared in depositions by way of affidavit. Consequently, the failure of a party to avail himself or herself, to affirm the content of depositions in affidavit, was destined to minimize the probative value of the affidavit evidence.
20. When a party failed to produce the witness, the court could infer that the testimony would have been unfavourable to the party calling the witness. The absence of the returning officer inevitably weakened the 1^st respondent’s response and evidence. A court could look the other way if the reason given for the absence of the returning officer was satisfactory and credible. Such, however, was not the case in the instant matter. The replying affidavit was inadmissible
21. In electoral matters, the legal burden rested on the appellant, who was under obligation to discharge the initial burden of proof, before the respondents were invited to bear the evidential burden. The 2^nd respondent placed sufficient, credible and compelling evidence before the High Court, to prove that there existed different sets of results, such that it was not possible to know who won the election. The evidential burden therefore shifted to the 1^st respondent, to show that that was not so.
22. The evidence relied on by the 1^st respondent was its replying affidavit sworn by the returning officer. That evidence was of no probative value. It could not possibly be concluded that the 1^st respondent discharged its evidential burden. The appellant’s application for the striking out of the petition, for non-joinder of the returning officer as respondent was heard, and a ruling delivered. No appeal was lodged against that decision and therefore that issue was definitively settled by judicial decision. The issue of joinder of the returning officer was res judicata.
23.  The Court of Appeal duly limited itself to evaluating the conclusions of the High Court, on the basis of the evidence on the record and ascertained that the conclusions were inapposite, by the standards of a reasonable tribunal. The Court of Appeal did not delve into factual issues with regard to the conduct of the presiding officer. The fact of the presiding officer being an official of Wiper party, raised the apprehension of bias. That was particularly so because of the key roles ascribed to election presiding officers. Article 86(b) of the Constitution required the 1^st respondent to ensure that the votes cast were counted, tabulated and the results announced promptly by the presiding officer at each polling station. The election in question was not conducted substantially in accordance with the constitutional charter, and the organic statute law incorporated within its ambit. 

Appeal dismissed

1. The petition of appeal dated July 19, 2018  disallowed.
2. The Judgment of the Court of Appeal in Election Petition of Appeal No. 22 of 2018 upheld.
3. The Certificate issued by the High Court pursuant to section 86 of the Elections Act 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 1^st respondent 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. Parties to bear their own respective costs in the appeal.

Guiding principles for application for review of a decision of the Supreme Court

Parliamentary Service Commission v Martin Nyaga Wambora & 5 others

Application No 8 of 2017

Supreme Court of Kenya at Nairobi

D K Maraga, CJ & P, P M Mwilu, DCJ & VP, M K Ibrahim, J B Ojwang, S N Ndungu, SCJJ

December 21, 2018

Reported by Chelimo Eunice

Jurisdiction – review-jurisdiction of the Supreme Court to review its decisions – scope of the Supreme Court’s power to review its decisions – circumstances in which the Supreme Court may review its decisions - claim seeking orders for the Supreme Court to review its two judge bench decision which dismissed the applicant’s plea for extension of time to file an appeal out of time-Supreme Court Act, sections 21(2) and 24(2); Supreme Court Rules, rules 4(4) and 4(3)

Jurisdiction – review-jurisdiction of the Supreme Court to review its decisions- review of a two judge bench decision- whether Supreme Court, constituted as a five judge bench could interfere with the exercise of discretion by a two judge bench- Supreme Court Rules, rules 4(4) and 4(3)

Statutes- interpretation of statutes-interpretation of section 24(2) of the Supreme Court Act as read together with rule 4(4) of the Supreme Court Rules- whether the powers donated to a single judge by section 24(2) of the Supreme Court Act and rule 4(4) of the Supreme Court Rules was to be solely exercised by a single judge-Supreme Court Act, section 24(2); Supreme Court Rules, rules 4(4)

Civil Practice and Procedure-reviews- applications for review to Supreme Court-guiding principles for application for review of a decision of the Supreme Court-scope of the Supreme Court’s discretionary powers of review- Whether under circumstances, the Supreme Court could review its decision

Brief facts:

The applicant sought to review a two judge bench decision of the Court which dismissed it’s plea for extension of time to file an appeal out of time. The applicant averred, among others, that the Court failed to consider the public interest element in the interpretation of article 181 of the Constitution and that the issue concerning removal of a governor from office was one of great public interest. The 1^st respondent opposed the application arguing that the law under which the application was brought was limited to review of the decision of a single judge of the Court, hence, the Court had no jurisdiction to review a two judge bench decision.

Issues:

1. Whether powers donated to a single judge by section 24(2) of the Supreme Court Act and Rule 4(4) of the Supreme Court Rules was to be solely exercised by a single judge.
2. Whether the Supreme Court had jurisdiction to review a two judge bench decision as envisioned by rule 4(4) of the Supreme Court Rules, 2012.
3. Whether Supreme Court, constituted as a five judge bench could interfere with the exercise of discretion by a two judge bench?
4. Whether Supreme Court had the jurisdiction to review its own decisions, and if so, what was the scope of that jurisdiction?
5. What were the guiding principles for application for review of a decision of the Supreme Court?

Relevant Provisions of the Law

Supreme Court Act, 2011;

Section 24;

1. In any proceeding before the Supreme Court, any judge of the Court may make any interlocutory orders and give any interlocutory directions as the judge thinks fit, other than an order or direction that determines the proceeding or disposes of a question or issue before the Court in the proceeding.
2. Any person dissatisfied with the decision of one judge in the exercise of a power under subsection (1) is entitled to have the matter determined by a bench of five judges.

 Supreme Court Rules, 2012;

Rule 4;

 (3) Without prejudice to the provisions of sub-rule (1) or sub-rule (2), a single Judge of the Court may hear applications and make orders with regard to-

 (a) change of representation;

 (b) admission of consent;

 (c) consolidation of matters;

 (d) dismissal of a matter for want of prosecution;

 (e) correction of errors on the face of the record;

 (f) withdrawal of documents;

 (g) review of the decision of the Registrar;

 (h) leave to file additional documents;

 (i) admission of documents for filing in the Registry; or

 (j) substitution of service.

 (4) A party aggrieved by the decision of a single Judge of the Court may file an application for review of the decision to the Court.

Held:

1. Rule 4(4) of the Supreme Court Rules, 2012 (the Rules) did not apply to the instant application since it was not filed under rule 4(3) of the Rules, which sub-rule provided for matters which could be determined by a single judge. Those matters listed, an application for extension of time was not one of matters reserved for a single judge. Further, the application was filed pursuant to sections 21(2) and 24(1) of the Supreme Court Act, 2011 (the Act) and rules 24 and 53 of the Rules. Hence it was not an application determined within the pretext of rule 4(3) and (4) of the Rules.
2. Under rule 4(4) of the Rules, as regards the matters reserved for a single judge, it was not cast in stone that those matters would only be heard by a single judge. The words without prejudice to the provisions of sub-rule 1 or sub-rule (2), demonstrated that the mandate of a single judge would be varied or was subject to what the Chief Justice or the Deputy Chief Justice could direct.
3. One of the functions of the Chief Justice, which would be delegated to the Deputy Chief Justice under rule 4(1) of the Rules was constituting a bench to hear and determine any matter filed before the Court. Hence the matters listed under rule 4(3) of the Rules as being reserved for a single judge of the Court, would legitimately be heard and determined by any other bench as constituted by the Chief Justice or the Deputy Chief Justice.
4. The two judge bench had the requisite jurisdiction to hear the matter, being an application for extension of time. Such an application, being a preliminary motion which sought the exercise of the Court’s discretion was well reserved for determination by a limited bench of the Court.
5. The power(s) bestowed to a single judge of the Court by the Act and the Rules would be ably exercised by a collegial bench of more than one judge. The two judges had the jurisdiction competence to hear and determine it. Having determined the application pursuant to Rule 24(1) of the Rules, it was well in order that an aggrieved person had a right of review under sub-rule 24(2). A decision made by a limited bench of the Court under section 24(1) of the Act was made in exercise of discretion. It followed that a person aggrieved by the exercise of discretion by a court would file an application seeking for its review and setting aside.
6. The two judges exercised their discretion in making their decision. The Court, constituted as a five judge bench could interfere with the exercise of discretion by a two judge bench. The Court had the power to rise above a decision of one or a limited bench, where compelling reasons were given that the decision given was erroneous. However, as such a review would entail an interference with the exercise of a judge’s discretion, it was guided by stringent legal principles.
7. A Court of Appeal could not interfere with the exercise of the discretion of a judge unless it was satisfied that the judge in exercising his discretion had misdirected himself in some matter and as a result had arrived at a wrong decision, or unless it was manifest from the case as a whole that the judge had been clearly wrong in the exercise of his discretion and that as a result there had been mis-justice.
8. An application for review of a decision of a single or limited bench of the Court by a bench of five or more, was not as a matter of course to be undertaken in a casual way. The provisions in the Act and the Rules allowing review of such a decision before a bench of five or more were not part of the normal appellate jurisdiction mandates of the Court so that any decision made by a limited bench of the Court would automatically be reviewed by a bench of five judges or more. That would be tantamount to abuse of court. The review window was to be exercised sparing and only deserving cases were to be allowed.
9. If caution was not taken, then in the ultimate, the abuse of section 24(2) of the Act and Rule 4(4) of the Rules by filing of frivolous applications seeking review would defeat the whole essence and spirit of the legislation and the jurisprudence that procedural matters be handled by a limited bench. While those provisions were meant to speed up access to justice, their abuse would in turn inhibit access to justice by allowing all and sundry review applications to clog the system and take up judicial time.
10. The review window so envisaged was not meant to grant an applicant a second bite at the cherry. It was not an opportunity for an applicant to re-litigate his/her case. At the core of an application for review was the Court’s exercise of discretion. It was the Court or judge’s decision that was impugned and not the substantive application being re-argued. Hence an applicant was under a legal burden to lay a basis, to the satisfactory of the Court, that in exercise of its discretion, the limited bench acted whimsically or misdirected itself in reaching the decision it made.
11. The guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as:-

1. a review of exercise of discretion was not as a matter of course to be undertaken in all decisions taken by a limited bench of the Court;
2. review of exercise of discretion was not a right; but an equitable remedy which called for a basis to be laid by the applicant to the satisfaction of the Court;
3. an application for review of exercise of discretion was not an appeal or a chance for the applicant to re-argue his/her application;
4. in an application for review of exercise of discretion, the applicant had to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically;
5. during a review application, in focus was the decision of the Court and not the merit of the substantive motion subject of the decision under review; and
6. the applicant had to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise of discretion and:

1. as a result a wrong decision was arrived at; or
2. it was manifest from the decision as a whole that the judge had been clearly wrong and as a result, there had been an apparent injustice.

The applicant had failed to meet the laid down threshold. It had made no attempt at showing how the judges abused their discretion. The application, while clothed and titled review, was a re-litigation of the application for extension of time. Where the applicant impugned the judges’ conduct, it emerged that it was a clear case of appeal rather than review.

12. Article 159(2)(d) of the Constitution was not applicable in the instant case. Article 159(2) (d) was not a panacea for all procedural shortfalls.  All that the courts were obliged to do, was to be guided by the principle that justice ought to be administered without undue regard to technicalities. It was applicable on a case-by-case basis.

Application dismissed with costs to the 1^st respondent.

East Africa;

Cases

1.    Erad Suppliers & General Contractors Limited v National Cereals and Produce Board  [2012] 1 KLR 454 - (Explained)

2.    Law Society of Kenya v Centre for Human Rights & Democracy & 12 others Petition No 14 of 2013; [2014] eKLR –(Explained)

3.      Macharia & another v Kenya Commercial Bank & 2 others [2012] 3  KLR 199 - (Cited)

4.      Mbogo & another v Shah [1968] EA 93 at 96 – (Followed)

5.      Outa, Fredrick Otieno v Jared Odoyo Okell & 3 others Petition No 6 of [2017] eKLR 2014 – (Explained)

6.      Salat, Nicholas Kiptoo Arap Korir v Independent Electoral and Boundaries Commission & 7 others Application No 16 of 2014; [2014] eKLR – (Followed)

7.      Shah v Mbogo & another [1967] EA 116 – (Followed)

East Africa;

Statutes

1.    Constitution of Kenya, 2010 articles159 (2) (d); 181-(Interpreted)

2.      Supreme Court Act, 2011, (Act No 7 of 2011) sections 21(2); 24(2) – (Interpreted)

3.      Supreme Court Rules, 2012 (Act No 7 of 2011 Sub Leg) rule 4 (1) (3) (4) – (Interpreted)

Advocates

None Mentione

When would an election petition be said to involve issues of constitutional interpretation and application?

Zebedeo John Opore v Independent Electoral and Boundaries Commission & 2 others

Petition No 32 of 2018

Supreme Court of Kenya at Nairobi

M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ

December 21, 2018

Reported by Beryl A Ikamari

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-jurisdiction relating to issues of constitutional interpretation and application-election petition disputes-considerations of the Supreme Court in determining whether an election petition raised issues of constitutional interpretation and application-Constitution of Kenya 2010, article 163 (4)(a).

Brief facts

Pursuant to the August 8, 2017 general elections, the 3^rd respondent was declared the duly elected Member of the National Assembly for Bonchari Constituency. There were 11 contestants in the election and the petitioner came in second. The petitioner challenged the outcome of the election while citing various electoral malpractices and irregularities.

The alleged electoral irregularities and malpractices included violence and intimidation in the course of voting, bribery, improper sorting of votes, campaigning at polling stations, denial of voters’ right to vote, agents being turned away from polling stations, compromised process of aid to the elderly, by the presiding officer, insecurity of ballot boxes after vote-counting, voter-record discrepancy, undue influence, stuffing of votes in ballot boxes and conspiratorial acts against the petitioner.

The petitioner sought orders to nullify the results and to either declare him as duly elected or to order for fresh elections. The High Court dismissed the petition and found that the election was conducted in accordance with the Constitution and electoral laws. An appeal at the Court of Appeal was dismissed and the High Court's decision was affirmed. On a further appeal at the Supreme Court, the respondents contended that the Supreme Court had no jurisdiction to hear and determine the matter as it did not raise issues of constitutional interpretation and application and certification that it raised issues of general public importance was not sought. The 3^rd respondent raised a preliminary objection on the question of jurisdiction.

Issue

1. Whether the petition raised issues of constitutional interpretation and application which the Supreme Court had jurisdiction to hear and determine.

Held

1. In concluding that the elections were conducted in accordance with the Constitution and the electoral laws, the High Court noted that the petition was not complex and the issues raised were straightforward. That was an indication that the petition did not raise issues of interpretation or application of the Constitution.
2. At the Court of Appeal one of arguments raised by the petitioner was that the High Court erred in failing to properly interpret and apply electoral principles set out in the Constitution and in particular, articles 81 and 86 of the Constitution. However, that argument was not part of the grounds of appeal listed in the memorandum of appeal.
3. The Court of Appeal distilled the issues raised by the petitioner into two issues. One was on whether the appeal was properly before the Court in light of the provisions of section 85A of the Elections Act, which limited the appellate court's jurisdiction to matters of law only and the second was whether the Trial Court erred in upholding the 3^rd respondent's election. Therefore, there was no issue on the application or interpretation of the Constitution at the Court of Appeal.
4. The High Court and the Court of Appeal did not interpret or apply the Constitution. Therefore an appeal on questions of constitutional interpretation and application could not lie at the Supreme Court.
5. The cause did not raise any cardinal issues inviting the interpretation of any provision of the Constitution. The electoral process drew legitimacy from the broad lines of the Constitution and from electoral laws. It was necessary for a litigant to indicate the issues requiring interpretation or application of the Constitution before the Supreme Court could assume jurisdiction over a matter. Generally, the following principles were applicable:-

1. In election petitions before the Court, a party could not invoke the Court’s jurisdiction under article 163 (4) (a), where the Trial Court had found that alleged irregularities and malpractices were not proved.
2. The articles of the Constitution cited by a party as requiring interpretation or application by the Court, had to have required interpretation or application at the Trial Court, and to have been a subject of appeal at the Court of Appeal; in other words, the article in question had to have remained a central theme of constitutional controversy, in the life of the cause.
3. A party seeking the Court’s intervention had to indicate how the Court of Appeal misinterpreted or misapplied the constitutional provision in question. Thus, the said constitutional provision had to have been a subject of determination at the Trial Court.
4. As a logical consequence of the foregoing, a party had to indicate to the Court in specific terms, the issue requiring the interpretation or application of the Constitution, and to signal the perceived difficulty or impropriety with the Appellate Court’s decision.

Petition of appeal dismissed.

Orders:-

1. The preliminary objection dated September 14, 2018 was upheld.
2. The petition of appeal dated September 5, 2018 was struck out.
3. Parties had to bear their own respective costs.

Supreme Court affirms Court of Appeal decision to nullify results for the election for Member of the National Assembly for Ugenya Constituency held on August 8, 2017. 

Christopher Odhiambo Karan v David Ouma Ochieng & 2 others

Petition 36 of 2018

Supreme Court of Kenya at Nairobi

M K Ibrahim, J B Ojwang, S C Wanjala, Njoki Ndungu & I Lenaola, SCJJ

December 21, 2018

Reported by Beryl A Ikamari

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-matters involving issues of constitutional interpretation and application-whether an appeal at the Supreme Court raised issues of constitutional interpretation and application-Constitution of Kenya 2010, article 163(4)(a).

Constitutional Law-fundamental rights and freedoms-right to a fair trial-failure to observe procedural stipulations within which to file a response to an election petition-dismissal of an application for extension of time within which to file a response to an election petition and denial of an opportunity to participate in proceedings-whether under the circumstances, the right to a fair trial was violated-Constitution of Kenya 2010, articles 25(c), 50 & 159(2)(d); Elections (Parliamentary and County Elections) Petitions Rules 2017, rules 11 & 19.

Jurisdiction-jurisdiction of the Court of Appeal-jurisdiction of the Court of Appeal in election petitions-appeal limited to matters of law only-whether the Court of Appeal wrongfully delved into matters of fact when making its determinations in an election petition appeal-Elections Act, No 24 of 2011, section 85A.

Electoral Law-conduct of an election-electoral malpractices and irregularities-remedies related to an election which did not substantially comply with the law or had irregularities that affected the outcome of the election-nullification of the election result-when would the Court order for the nullification of the result of an election- Elections Act, No 24 of 2011, section 83.

Brief facts

The Court of Appeal upheld a High Court decision to invalidate the appellant's election as the Member of the National Assembly for Ugenya Constituency.

The grounds of the High Court petition were electoral malpractices during the campaign period, the voting process and polling process. Other grounds included campaigning in polling stations during the polling day and harassment and intimidation of presiding officers and returning officers. The 2^nd and 3^rd respondent applied for enlargement of time within which to file a response to the petition after a delay in filing the response within the stipulated 7 days. The application was allowed by consent of the respective counsels.

The appellant also sought an extension of time within which to file a response to the petition. The appellant explained that he was not served with the petition (service was effected by way of newspaper advertisement) and that he fell sick and was admitted in hospital. The 1^st respondent opposed the application and sought orders for the appellant's response to be struck out on the ground that it was filed out of time. The appellant's application for enlargement of time was dismissed and the 1^st respondent's application was allowed. When the day for settlement of issues came, the 1^st respondent objected to the appellant's participation in the proceedings pursuant to rule 11(8) of the Election Petition Rules, 2017, and the High Court upheld that objection. In spite of an application by the appellant for stay of proceedings pending an appeal on the rulings, related to enlargement of time for the filing of a response to the petition by the appellant, the High Court heard the matter and a judgment was delivered in March 1, 2018.

The appellant's appeal at the Court of Appeal was based on an alleged denial of the right to a fair hearing as concerned the dismissal of the appellant's application for enlargement of time within which to respond to the petition. The 2^nd and 3^rd respondents cross-appealed on two issues relating to whether discretion to disallow the appellant's application for enlargement of time was exercised properly and whether the Court of Appeal should interfere with that exercise of discretion.  The Court of Appeal found that the High Court properly exercised its discretion to dismiss the application to extend time and to strike out the appellant's response and affidavits judicially. The Court also stated that it could not grant orders to admit the appellant's response at the High Court and incorporate it to its determination because section 85A of the Elections Act limited the Court of Appeal's jurisdiction to matters of law only. The cross-appeal was also dismissed. The appellant filed an appeal at the Supreme Court.

Issues

1. Whether the Supreme Court had jurisdiction to hear and determine the matter under article 163(4)(a) as a matter involving issues of constitutional interpretation and application.
2. Whether in dismissing an appellant's application for extension of time in which to file a response to an election petition and denying the appellant an opportunity to participate in proceedings, the High Court violated that appellant's right to a fair trial.
3. Whether, in making its determinations, the Court of Appeal delved into matters of fact contrary to section 85A of the Elections Act.
4. What reliefs were the parties entitled to?

Held

1. Under article 163(4)(a) of the Constitution an appeal from the Court of Appeal to the Supreme Court would lie as of right in matters involving constitutional interpretation and application. In such matters it would be necessary for the appellant to challenge the interpretation or application of the Constitution which the Court of Appeal used in determining a matter. The matter of constitutional interpretation and application would have to have been canvassed at the Superior Courts and to have progressed through the normal appellate mechanism and reach the Supreme Court via an appeal.
2. The issues raised at the Superior Court included an issue at the Court of Appeal as to whether the High Court had denied the appellant the right to a fair hearing by declining to extend time within which the appellant could file a response to the petition and denying him an opportunity to participate in the proceedings. Considering the context in which the appeal arose, the appeal was within the ambit of article 163(4)(a) of the Constitution.
3. Article 50(1) of the Constitution provided for the right to a fair and public hearing and article 25 of the Constitution stipulated that the right to a fair trial could not be limited. Pursuant to article 87(1) of the Constitution, there were timelines within which election disputes were to be heard and determined. Article 87(2) of the Constitution provided that election petitions, other than presidential election petitions, would be filed within 28 days after the declaration of results by the IEBC. Under article 105 of the Constitution, a dispute relating the validity of the election of a Member of Parliament would have to be heard and determined within 6 months of the date of lodging the petition. Compliance with timelines was a constitutional principle and it enhanced constitutional values. It was important to the operation of a democratic system.
4. It was not generally the intention of the legislature to lock out a litigant from the right to be heard merely on the basis of inability to file a response on time due to inadvertent reasons. The Elections Act and the Rules made thereunder signified an intention by the legislature to facilitate the right to be heard by giving the Court the discretion to enlarge timelines within which to file a response.
5. Under article 159(2)(d) of the Constitution, when courts exercised judicial authority, they had to be guided by the principle that justice was to be administered without undue regard to procedural technicalities. That did not mean that all procedural requirements were to be disregarded in the administration of justice. The courts had a duty to determine objectively, where a question of an undue procedural technicality arose, whether the procedural stipulation fell within the class of undue procedural technicality and if so, whether it should be disregarded in favour of substantive justice.
6. Rule 11 of Election Petition Rules 2017 gave a respondent who wished to oppose a petition 7 days to file a response. The response would have to be supported by an affidavit and accompanied by the affidavits of any witnesses that the respondent wished to call. Rule 19(1) of Election Petition Rules 2017, provided that for purposes of ensuring that injustice was not done to any party, time could be extended or limited where the Rules or an order of the Court required an act or omission to be done within a certain timeframe.
7. Extension of time was a creature of equity and one could only enjoy it if he acted equitably. Extension of time was not a litigant's right but a discretionary power of the Court. To enjoy it, a litigant had to demonstrate that he had a bona fide cause of action but that time had lapsed and that there were compelling reasons for the delay. Courts could only indulge such a litigant if it was established that the litigant was not at fault. The underlying principles that the Court should consider in exercising discretion to extend time were the following:-

1. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the Court;
2. a party who sought extension of time had the burden of laying a basis to the satisfaction of the Court;
3. whether the Court should exercise the discretion to extend time, was a consideration to be made on a case to case basis;
4. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. whether there would be any prejudice suffered by the respondents if the extension was granted;
6. whether the application had been brought without undue delay; and
7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.

8. The appellant did not comply with the principles set by the Supreme Court so as to deserve extension of time to file his response. Electoral laws and regulations were not made in vain, they were meant to advance the provisions of the Constitution on settlement of electoral disputes which were disputes filed in the interest of the general public.
9. Rule 11(8) of the Election Petition Rules 2017 provided that a respondent who had not filed a response to a petition as required under the rule would not be allowed to appear or act as a party in the proceedings. On the basis of that provision, the High Court disallowed the appellant from participating in the hearing of the petition. Article 159 of the Constitution was not meant to aid in overthrow or destruction of rules of procedure and could not help the appellant.
10. Article 50(2) of the Constitution provided for the right to challenge evidence through cross-examination. It did not operate in a vacuum and it operated together with other laws to give the greatest effect. The Superior Courts were aware of the provisions of articles 20(3), 25(c) and 50 when making their determinations. There was no reason for faulting their interpretation and application of the Constitution.
11. Section 85A of the Elections Act provided that the Court of Appeal's jurisdiction in election petitions was restricted to matters of law only. Under the provision a matter of law was an issue or question involving:-

1. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of county governor;
2. the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial Judge in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of county governor;
3. the conclusions arrived at by the Court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of county governor, where the appellant claimed that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the Court would probably have arrived at a different conclusion on the basis of the evidence.

12. The record did not disclose that the Court of Appeal delved into evidence. The Court of Appeal only analysed the High Court's conclusions so as to address the grounds of appeal and the cross-appeal.
13. In determining the question as to whether to nullify an election, the Court should be alive to the fact that an election was a direct expression of the sovereign will of the people and should not be interfered with whimsically or arbitrarily. Under article 1(1) of the Constitution, all sovereign power belonged to the people.
14. An election could be nullified where it fell short of the principles stipulated in articles 81 and 86 of the Constitution. Additionally, section 83 of the Elections Act provided that an election could be nullified where it did not substantially comply with written law applicable to the election and where there were electoral irregularities which affected the result of the election.
15. The right to a fair trial was a right that could not be limited under article 25(c) of the Constitution. However, it was an individual right that was held in personam and the remedy for the violation of such a right could not be the nullification of an election. An election reflected the people's views as expressed through the vote, not just rights of individuals and therefore, courts had to be careful not to exercise power in a manner that interfered with the people's expression in instances where proven irregularities did not affect the election results.
16. The nullification of the appellant's election was based on the finding that electoral malpractices, irregularities and illegalities were such that the elections were not conducted substantially in accordance with the Constitution and relevant electoral laws and the results did not pass the test of being transparent, accountable, verifiable and credible. That finding was upheld by the Court of Appeal. The appellant did not demonstrate that the Court of Appeal erred in its interpretation and application of the Constitution in that regard.
17. Had the appellant proved his claim of violation of the right to a fair trial, the remedies set out in article 23(3) of the Constitution would have been available to him. The remedies were such that the Court could grant appropriate relief including a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of a law that denied, violated, infringed or threatened a right or fundamental freedom in the Bill of Rights and was not justified under article 24 of the Constitution, an order for compensation and an order for judicial review.
18. Costs followed the event and the Court had discretion in awarding costs. The party that instituted a suit would bear costs if the suit failed and where that party was successful, the defendant or respondent would bear the costs.

Petition of appeal dismissed.

A party appealing to Supreme Court from the Court of Appeal was under a constitutional duty to clearly set out the particulars of the constitutional transgressions committed by the Court of Appeal.

Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR

Petition No. 19 of 2018

Supreme Court of Kenya at Nairobi

M K Ibrahim, J B Ojwang, S C Wanjala, N Njoki & I Lenaola, SCJJ

December 21, 2018

Reported by Kakai Toili

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction-requirements to be met before appealing to the Supreme Court-statement of the particular appellate jurisdiction of the Supreme Court-whether it was mandatory for a party appealing to the Supreme Court to out rightly state the particular appellate jurisdiction of the Supreme Court in which he was appealing and what was the effect of failure to do so-whether it was sufficient for a party appealing to the Supreme Court as of right in any case involving interpretation or application of the to state that the Court of Appeal in its reasoning and conclusions took a constitutional trajectory-Constitution of Kenya, 2010, article 163(4)

Brief Facts

The appellant and 3^rd respondent were among the candidates for the position of Women Representative to the National Assembly for Marsabit County during the August 8, 2017 general elections. Upon conclusion of counting and tallying of the votes, the 2^nd respondent declared the 3^rd Respondent winner, hence the duly elected Woman Representative to the National Assembly for Marsabit County.

Aggrieved by the declaration, the appellant challenged the election of the 3^rd respondent and sought its nullification at the High Court on the grounds of illegalities and irregularities allegedly committed in all the four constituencies of Marsabit County. The High Court dismissed the petition for lack of merit. Aggrieved by the High Court’s decision, the appellant filed an appeal at the Court of Appeal, the Court of Appeal dismissed the appeal. Aggrieved by the decision of the Court of Appeal, the appellant filed the instant appeal.

Issues

1. Whether it was sufficient for a party appealing to the Supreme Court, as of right in any case involving interpretation or application of the Constitution, to state that the Court of Appeal in its reasoning and conclusions took a constitutional trajectory.
2. Whether it was mandatory for a party appealing to the Supreme Court to out rightly state the particular appellate jurisdiction of the Supreme Court in which he was appealing and what was the effect of failure to do so?

Held

1. A jurisdictional issue was fundamental and could even be raised by the court suo moto. A court had to be moved under the correct provisions of the law. In the instant Court, that was not an idle requirement but had its rationale anchored in the specialized nature of the jurisdiction of the Court as provided in article 163(3) of the Constitution. Appeals to the Court from the Court of Appeal were therefore not as a matter of course as the Court was not established as another tier of court in the judicial hierarchy. Not every appeal from the Court of Appeal was appealable to the Court.
2. Article 163(4) of the Constitution demarcated a two prong appellate jurisdiction of the court from decisions of the Court of Appeal. Those two jurisdictional avenues were not mutually inclusive but were independent of each other and there was need for a party that came before the Court to clearly state which one she/he invoked.
3. Parties seeking to appeal to the Court had a duty to outrightly state the particular jurisdiction of the Court that they invoked. Jurisdiction was thus so fundamental that it should not be left to conjecture. The Court and other parties in a matter should not be left agonizing under what appellate jurisdiction a matter was filed. The Court faulted the appellant for not having outrightly disclosed under which appellate jurisdiction she moved the Court. She left that fundamental indicator far late in the day during her submissions when she mentioned that the Court had jurisdiction to hear the appeal under article 163(4)(a) of the Constitution.
4. A matter that directly involved an interpretation and/or application of a particular provision of the Constitution constituted an appeal as of right under article 163(4)(a) of the Constitution.
5. Where a party in an election petition invoked the Court’s jurisdiction under article 163(4)(a) of the Constitution, it was not enough for one to generally allege that the Court of Appeal erred in its decision(s) and that its reasoning and conclusions took a constitutional trajectory. The constitutional trajectory was not illusionary. It was tangible and should be discernable from a party’s pleadings. A party was under a constitutional forensic duty to clearly set out the particulars of the constitutional transgressions that in his/her opinion the Court of Appeal committed in their interpretation and/or application. Those grounds had to be pleaded with precision and the constitutional principle and/or provision alleged to have been violated clearly set out.
6. The Court retained the constitutional discretion to filter and determine whether a matter before it satisfied the constitutional muster in article 163(4)(a) of the Constitution. The phrase appeal as of right as provided under article 163(4)(a) of the Constitution did not in any way absolve a party from fulfilling that constitutional forensic requirement.
7. Upon perusal of the petition, there was no mention of any provision of the Constitution that was alleged to have been violated and/or misapplied or misinterpreted by the Court of Appeal. Being an appeal from the Court of Appeal, the appellant was under an obligation, with clarity and precision, to point out the errors of law in the judgment of the Court of Appeal. The appellant was supposed to satisfy the Court that the Court of Appeal erred in reaching at the decision it made. Hence, the focal point of the appellant’s grievances should be directed at specific portions of the Court of Appeal judgment with the aim of demonstrating how the Court of Appeal erred and/or misinterpreted and/or misapplied the Constitution. The Appellant had to state with precision the particular constitutional principle and/or provision violated. All the eight grounds upon which the petition was grounded fell short of that requirement.
8. The Court was at pain to discern which constitutional issue(s) the appellant wanted the Court to settle. The appellant was generally aggrieved by the High Court decision and the fact that the Court of Appeal did not reverse that decision on her appeal. Her grievances were anchored on the factual findings by the High Court which issues could not invoke the Court’s jurisdiction under article 163(4)(a) of the Constitution. Further, none of the issues framed by the appellant in her petition or submissions was framed as a constitutional issue.
9. The appellant had not rightfully invoked the Court’s jurisdiction under article 163(4)(a) of the Constitution. There was no issue of constitutional interpretation and/or application that beckoned the Court’s further input. The Court could not delve into determination of the other issues framed for determination since it did not have jurisdiction to admit the appeal for consideration.

Appeal dismissed with costs to the respondents.

It is mandatory for a party appealing to the Supreme Court to unequivocally state the particular appellate jurisdiction of the Supreme Court in which he was appealing.

Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others [2018] eKLR

Petition No. 12 of 2018

Supreme Court of Kenya at Nairobi

D K Maraga,CJ & P; M K Ibrahim,J B Ojwang,S C Wanjala,N Njoki & I Lenaola, SCJJ

December 21, 2018.

Reported by Kakai Toili

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction-requirements to be met before appealing to the Supreme Court-statement of the particular appellate jurisdiction of the Supreme Court-whether it was mandatory for a party appealing to the Supreme Court to unequivocally state the particular appellate jurisdiction of the Supreme Court in which he was appealing and what was the effect of failure to do so-Constitution of Kenya, 2010, article 163(4); Supreme Court Rules, rule 9

Brief Facts

The 1^st respondent filed an election petition in the Trial Court challenging the election of the 6^th respondent as the Governor of Kwale County.  The Trial Court struck out the petition. Aggrieved by the Trial Court’s decision, the 1^st respondent lodged an appeal at the Appellate Court. However, before the appeal could be heard on merit, the 1^st respondent wrote to the Appellate Court indicating his intention to withdraw the appeal. Subsequently, a formal consent to withdraw the appeal was executed by all the respondents who then filed it before the Appellate Court.

It was alleged that the 1^st respondent advertised the notice of withdrawal in the Star Newspaper and called upon any person desirous of being substituted in his place to make the necessary application before the Appellate Court. Consequently, the appellants filed an application to the Appellate Court seeking to be substituted as the appellants in the Appellate Court. The Appellate Court dismissed the application. Aggrieved by that decision the appellants filed the instant appeal.

Issue

1. Whether it was mandatory for a party appealing to the Supreme Court to unequivocally state the particular appellate jurisdiction of the Supreme Court in which he was appealing and what was the effect of failure to do so?

Held

1. Appeals from the Appellate Court lay to the Court pursuant to articles 163 (4) (a) or 163 (4) (b) of the Constitution. An appeal would not lie to the Court, unless convincingly preferred within the confines of either of the two jurisdictional limbs.
2. A party could not seek to invoke the Court’s appellate jurisdiction without unequivocally indicating under which constitutional provision he/she sought to move the Court. One could not seek refuge in rule 9 and the template in form B of the Supreme Court Rules to justify such a fundamental omission.
3. The appellate jurisdiction of the Court was donated by the Constitution. It was neither original nor unlimited. The limits of its jurisdiction were set out by the Constitution. In the circumstances, an intending appellant had to either seek certification under article 163 (4)(b) of the Constitution or bring him/herself within the ambit of article 163 (4) (a) thereof, that second option was by no means automatic.
4. The Court could not assume jurisdiction by way of elimination that since certification was not sought by the intending appellant, then it had follow that the said appellant was invoking the Court’s jurisdiction as of right under article 163 (4) (a) of the Constitution, even without demonstrating that such right obtained in the first place. A litigant should invoke the correct constitutional or statutory provision and an omission in that regard was not a mere procedural technicality to be cured under article 159 of the Constitution.

Appeal dismissed, each party to bear its own costs.

Supreme Court upholds the election of the Member of the National Assembly of Kilgoris Constituency

Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR

Petition No. 21 of 2018

Supreme Court of Kenya at Nairobi

M K Ibrahim, J B Ojwang, Wanjala, S N Ndungu, Lenaola, SCJJ

December 21, 2018

Reported by Chelimo Eunice

Jurisdiction-jurisdiction of the Supreme Court to hear appeals from the Court of Appeal- appeal involving interpretation or application of the Constitution- guiding principles before hearing appeals brought before Supreme Court pursuant to article 163(4)(a) of the Constitution-a claim that the case appealed from had nothing or little to do with the interpretation or application of the Constitution- whether in the circumstances, the Supreme Court would hear the appeal-Constitution of Kenya, 2010, articles 163 (4), 81 & 86; Supreme Court Act, section 15.

Electoral Law-electoral irregularities-considerations governing determinations on whether an election was conducted substantially in accordance with the law-allegations of non-compliance with the Constitution and electoral laws- whether the election was conducted in accordance with the laid down principles-whether there were irregularities and illegalities committed in the conduct of the election and if in the affirmative, what was their impact, if any, on the integrity of the election-Constitution of Kenya 2010, articles 38, 81(a), 81(d), 81(e), 86 & 87.

Electoral Law - election petition-nullification of election-relevance of vote margin in nullifying or upholding elections – the question of marginal victory and the protection of the voter’s enfranchisement under article 38(1)-whether the appellate court erred in its appreciation of the legal effect of errors and irregularities upon an election-Constitution of Kenya,2010, articles 86 & 38(1); Elections Act, section 83.

Jurisdiction- appellate jurisdiction-jurisdiction of the Court of Appeal- election petition appeals-appeals relating to matters of law-the meaning given to a matter of law in an election petition-claim that the Court of Appeal considered matters of fact contrary to section 85 of the Elections Act-Elections Act, section 85.

Brief facts:

The appellant appealed against the Court of Appeal decision setting aside the Trial Court’s decision and annulling his election. The Trial Court had confirmed the appellant’s election. The appellant blamed the Court of Appeal, for among others, nullifying his election in the absence of substantive non-compliance with the Constitution or irregularities of such magnitude as to affect the outcome of the election.

Issues:

1. Whether the appeal met the constitutional threshold under article 163(4)(a) of the Constitution.
2. Whether the Court of Appeal delved into matters of fact and exceeded its appellate jurisdiction which enabled it to consider matters of law, as provided for in section 85A of the Elections Act.
3. Whether the election was conducted substantially in accordance with the law and whether the alleged irregularities affected the result of the election.
4. What were the guiding principles which the Supreme Court would consider before hearing appeals brought before it pursuant to article 163(4)(a) of the Constitution?

Held:

1. The appellate jurisdiction of the Court was aptly captured in article 163(4) of the Constitution. Section 15 of the Supreme Court Act also made provisions to the effect that appeals to the Supreme Court would be heard only with the leave of the Court, but that did not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution.
2. The appeal ought to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. An appellant ought to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party ought to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of article 163 (4) (a).
3. Right from the Trial Court, the primary issue revolving around the petition against the appellant’s election was whether the election was conducted in accordance with the principles of the Constitution. The operative principles in question were the provisions of articles 81 (e) and 86 of the Constitution. Although the issues, as later formulated by the Court of Appeal, narrowed down to the specifics of whether the violation was substantial to nullify the election and whether the Trial Court failed to make vital findings of fact and abdicated its judicial duty and responsibility, the main issue of the application of articles 81 and 86 of the Constitution to the dispute was never lost. Throughout its analysis and assessment of the evidence on record, in determining the integrity of the impugned election, the Court of Appeal was applying the provisions of article 86(a) of the Constitution. Thus the appeal fell within the ambit of article 163(4) (a) of the Constitution.
4. The general principles to guide the electoral system in Kenya was captured in article 81 of the Constitution. On political rights, article 38(2) of the Constitution made it clear that every citizen had the right to free, fair and regular elections. Article 86 of the Constitution on the other hand imposed an obligation on the Independent Electoral and Boundaries Commission to ensure that the stipulated conditions were met, in any election process conducted in the country. Section 83 of Elections Act was also applicable.
5. The practical realities of election administration were such that imperfections in the electoral process were inevitable and on that account, elections should not be lightly overturned, especially where neither a candidate nor the voters had engaged in any wrongdoing.
6. On the effect of proven irregularities in an election petition, judicial practice ought not make it burdensome to enforce the principles of properly conducted elections which gave fulfilment to the right of franchise. Where a party alleged non-conformity with the electoral law, the petitioner ought not to only prove that there was non-compliance with the law, but that such failure of compliance did affect the validity of elections.
7. There was an error apparent in the Court of Appeal’s judgment. The Court of Appeal did not apply the principles established by the Court on nullification of an election based on constitutional violations, including, the substantial effect of the irregularity on the conduct of the contested results. That principle held that irregularities in the conduct of an election should not lead to annulment, where the election substantially complied with the applicable law, or that the results of the election were unaffected.
8. The Court of Appeal ought to have considered the fact that the election for the Member of National Assembly in the whole of Kilgoris Constituency in all polling stations, save for Endoinyo Nkopit Polling station, was conducted in compliance with the laid down constitutional principles and applicable laws; and the fact that even in Endoinyo Nkopit Polling station, all the electoral processes preceding the diversion were in compliance with the constitutional principles and applicable electoral laws. Had the Court of Appeal properly applied that test, it would have reached a different conclusion than it did.
9. The Court of Appeal arrived at an inconsistent determination of the law. The election, despite the isolated cases of irregularities which did not affect the result of the election, was essentially free and fair. The fact that the election went on smoothly in all 165 polling stations, save for one, the alleged violation of article 86(a) of the Constitution did not substantially affect the outcome of the election. The Court of Appeal also contravened article 163(7) the Constitution by not applying the binding precedent set by the Court.
10. On the question of marginal victory, as a principle of electoral law, an election was not to be annulled except on cogent and ascertained factual premises. It was by that principle, that the Constitution protected the voter’s enfranchisement under article 38(1). Section 83 of the Elections Act was the definitive statement of the standard that an election court ought to apply, in verifying the election results. As to the effect of irregularities, and the point at which a court should overturn an election, courts had to only act on ascertained facts, not conjecture, and had to demonstrate how the final statistical outcome had been compromised.
11. The Constitution in articles 259(1) and 20(3) set out the framework of applicable principles while interpreting the Constitution and for applying a provision of the Bill of Rights respectively.
12. While weighing the 1^st respondent’s claim that the impugned election did not comply with article 86 of the Constitution, the Court took note to the right of voters from 164 other polling stations where the elections were conducted in compliance with the Constitution, and whose political rights were similarly guaranteed under article 38(2) of the Constitution. Thus, where a voter had made his choice known, having been registered in accordance with articles 82 and 83, 138(3) (a) of the Constitution, having voted in accordance with articles 81 and 83 of the Constitution and his vote counted at the polling station and the result announced at the polling station in accordance with the law and the outcome was known and uncontested (the results in 164/165 polling stations in Kilgoris Constituency were not contested), his rights should not be ignored especially where the alleged violations did not affect the outcome of the election.
13. The Court of Appeal erred in failing to apply the quantitative test in its interpretation and application of article 86(a) of the Constitution against the political right of the citizens of Kilgoris Constituency to free, fair elections based on universal suffrage and the free expression of the will of the people. The stated irregularities did not affect the outcome of the election, all other factors taken into account.
14. Section 85A of the Elections Act limited the Court of Appeal’s jurisdiction on election appeals to matters of law only. Matters of law were:-

1. the technical element; involving the interpretation of a constitutional or statutory provision;
2. the practical element; involving the application of the Constitution and the law to a set of facts or evidence on record;
3. the evidentiary element; involving the evaluation of the conclusions of a trial court on the basis of the evidence on record.

15. With reference to section 85A of the Elections Act, the phrase matters of law only meant a question or an issue involving:

1. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor;
2. the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;
3. the conclusions arrived at by the trial court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claimed that such conclusions were based on no evidence, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were so perverse, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the trial court would probably have arrived at a different conclusion on the basis of the evidence.

16. A petition which required the appellate court to re-examine the probative value of the evidence tendered at the trial court, or invited the appellate court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. Those principles stroke a balance between the need for an appellate court to proceed from a position of deference to the trial court and the trial record, on the one hand, and the trial court’s commitment to the highest standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on the other hand.
17. The Trial Court addressed all issues but failed to make an ultimate finding on discrepancies on the scrutiny report. However, the Court could not address the issues on discrepancies without delving into matters of fact yet its hands were tied by article 163(4)(a) of the Constitution. The Court of Appeal, when examining matters of law would thus not completely ignore the evidence on record. As a result, it erred in finding that the Trial Court failed to address issues raised before it, thereby exceeding its mandate provided for under section 85 of the Elections Act.
18. Costs followed the event and a court had the discretion in awarding costs. The appellant did not submit on the issue before the other courts and had raised the question of the ultra vires nature of rule 30 of the Elections Petitions Rules, 2017 for the first time at the Court. There was no explanation by the appellant as to why the same was not addressed at the Court of Appeal or why it did not form part of the appellant’s grounds of appeal. Respecting the hierarchy of the judicial system was paramount, and thus the issue of costs was rejected.
19. The alleged and proven irregularities did not have the effect of nullifying the outcome of the election of Member of the National Assembly for Kilgoris Constituency.

 Orders:

1. The Judgment of the Court of Appeal sitting at Nakuru, dated July 31, 2018 annulling the election of Gideon Sitelu Konchellah as Member of National Assembly for Kilgoris Constituency, was quashed and set aside.
2. The petition of appeal dated August 8, 2018 was 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 Member of National Assembly Kilgoris Constituency, was restored.
4. The 3^rd Respondent ordered to bear the costs of the appellant, 1^st respondent’s costs at the High Court, Court of Appeal and Supreme Court.