Senate & 3 Others V Speaker Of The National Assembly & 10 Others (Petition 19 (E027) Of 2021)  KESC 7 (KLR) (Civ) (17 February 2023) (Ruling)
Case Number: Petition 19 (E027) of 2021
Date Delivered: 17 Feb 2023
Judge: Martha Karambu Koome, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Senate & 3 others v Speaker of the National Assembly & 10 others
Citation: Senate & 3 others v Speaker of the National Assembly & 10 others (Petition 19 (E027) of 2021)  KESC 7 (KLR) (Civ) (17 February 2023) (Ruling)
Appellate documents filed out of time and without leave at the Supreme Court were a nullity and of no legal consequence.
The 1st, 2nd and 4th respondents sought leave of the court to enlarge time for filing of a notice of cross-appeal; they also sought prayers that their notice of cross-appeal annexed to the application be deemed as duly filed, served and properly on record; and that upon grant of the foregoing prayers, the 1st and 2nd respondents be permitted to rely in support of their cross-appeal, on the record of appeal lodged by the appellants.
The appellants and the 3rd respondent were opposed to the application on the grounds that the right to appeal was not absolute; that under the Supreme Court Rules, 2020 a party was permitted to file a cross appeal either 30 days after the main appeal has been served on that party or 30 days before the hearing of the appeal.
Whether the public interest nature of a dispute could warrant the Supreme Court to exercise its inherent jurisdiction to allow a party who filed documents out of time and without leave and to seek the courts stamp of approval to deem the documents to be regularly on record.
Time was extended at the unfettered discretion of the court based on the unique circumstances of each case. The burden was upon the applicant to explain to the satisfaction of the court the reasons for delay; and whether there would be any prejudice suffered by the opposing parties if the extension was granted, among other considerations.
The delay involved did not qualify to be described as inordinate. The reasons given were plausible. The public interest nature of the instant dispute militated against shutting out or throwing out of the seat of justice any party in the resolution of the instant dispute, and being satisfied that no party would be prejudiced if the time was extended.
Rule 47(2)(b) of the Supreme Court Rules, 2020 required the 1st and 2nd respondents to lodge eight copies of the memorandum of appeal and record of appeal and not to rely on other parties pleadings. It was highly irregular and presumptive in the Supreme Court to file documents out of time without leave and thereafter to seek the courts stamp of approval to deem them to be regularly on record.
The submissions filed out of time without prior leave by 1st and 2nd respondent, as well as those of the 4th respondent were rejected. They were a nullity and of no legal consequence. The public interest nature of the instant dispute warranted the exercise of the inherent powers of the Supreme Court under section 3A of the Supreme Court Act and rule 3(5) of the Supreme Court Rules to excuse the infractions by the 1st 2nd and 4th respondents. They were instead granted leave to exchange and file afresh their written submissions.
Wamwere & 5 Others V Attorney General (Petition 26, 34 & 35 Of  (Consolidated))  KESC 3 (KLR) (Constitutional And Human Rights) (27 January 2023) (Judgment)
Case Number: Petition 26, 34 & 35 of 2019 (Consolidated)
Date Delivered: 27 Jan 2023
Judge: Martha Karambu Koome, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Wamwere & 5 others v Attorney General
Citation: Wamwere & 5 others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated))  KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) (Judgment)
Supreme Court awards damages of Kshs 2,500,000.00 each to some mothers of political prisoners whose rights and freedom from inhuman treatment were violated by the Government in 1992
On February 28, 1992 a group of women, most of whom were related to persons incarcerated for politically instigated offences (mothers of political prisoners) together with their supporters congregated and camped at a section of Uhuru Park (freedom corner). The mothers and their supporters participated in a demonstration by going on a hunger strike to urge for the release of the then political prisoners. The appellants contended that they were amongst the demonstrators. They further alleged that on March 3, 1992 while going on with their peaceful demonstration, they were brutally attacked and assaulted by over 100 police officers and General Service Unit (GSU) officers.
The appellants claimed that they continued with their demonstration at All Saints Cathedral Church where they were holed in a bunker, until January 19, 1993 when the last lot of the political prisoners were released. The appellants contended that from time to time between March 4, 1992 and January 19, 1993 police officers continued to brutally assault them. The 1st appellant averred that in June 1986, one of her houses was razed to the ground by police officers in the company of the then area councillor. She further claimed that in October 1987, another of her houses was demolished and the parcel re-allocated to a senior Government official. She further claimed that in August 1988 her other house was similarly demolished.
The appellants opted not to seek judicial redress at the material time because they lacked confidence in the Judiciary under the previous constitutional dispensation. Consequently, after the promulgation of the Constitution of Kenya, 2010 (Constitution) they filed constitutional petitions in the High Court and contended that their fundamental right to freedom from torture and cruel, inhuman or degrading treatment or punishment as well as their right not to be, deprived of freedom arbitrarily or without just cause were violated. They also contended that their right not to be subjected to any form of violence from either public or private sources, tortured in any manner whether physical or psychological, and treated or punished in a cruel, inhuman or degrading manner were infringed by police and GSU officers.
The High Court found that the appellants had not given any reasonable explanation or justification for the delay in filing their petitions and that they had not established their allegations of torture; and more so, since there were no medical records or treatment notes to substantiate their claim of being tortured over a long period of time. The court also held that the 1st appellant had not proved ownership of the properties she claimed had been demolished. Aggrieved, the appellants filed appeals in the Court of Appeal. The Court of Appeal dismissed the appeals and held that the appellants had not adduced any tangible evidence to support the allegations of torture or violation of the 1st appellants right to property. Further aggrieved the appellants filed the instant consolidated appeals.
Whether there was limitation of time in matters relating to violation of rights under the Constitution.
What was the nature and rationale of transitional justice?
What was the nature of inhuman or degrading punishment or treatment and whether it had to be inflicted for a specific purpose for it to be established.
Whether it was mandatory to exhibit any physical injuries or medical reports so as to establish existence of psychological/traumatic effect in a claim of violation of fundamental rights and freedoms.
Who bore the burden and what was the standard of proof in a claim of alleged threat or violation of rights and freedoms?
What were the factors to consider when determining the appellate jurisdiction of the Supreme Court as of right in a matter involving the interpretation or application of the Constitution?
Recognition, promotion and protection of human rights was an integral part of a democratic state. It was precisely for that reason that the Constitution not only proclaimed that human rights constituted a fundamental cog in Kenyas system of national values and principles of governance, but also expressly decreed and entrenched the Bill of Rights.
The mere invocation by a party that an appeal to that court was premised on article 163(4)(a) of the Constitution did not automatically clothe the court with jurisdiction to entertain the same. A litigant had to demonstrate how such an appeal involved interpretation and application of the Constitution; and that the issue(s) relating to the interpretation and application was subject of adjudication before the superior courts below.
At the very least, where specific constitutional provisions could not be identified as having formed the gist of the cause at the Court of Appeal, a litigant had to demonstrate that the Court of Appeals reasoning and the conclusion(s) which led to the determination of the issue in dispute took a trajectory of constitutional interpretation and application. The consolidated appeal involved matters of constitutional interpretation and application. In other words, the consolidated appeal revolved around the interpretation and application of the bill of rights.
The two superior courts below did not impose the limitation alluded to by the appellants. In point of fact, the two superior courts affirmed the position that the Limitation of Actions Act, cap 22 Laws of Kenya did not apply to causes founded on violation of rights and freedoms. There was no limitation of time in matters relating to violation of rights under the Constitution which were evaluated and decided on a case by case basis.
A court was entitled to consider whether there had been inordinate delay in lodging a claim of violation of rights. It was on that basis that the two superior courts below held that claims of violation of human rights had to be filed in court within reasonable time. Where there was delay, a petitioner ought to explain the reasons for the delay to the satisfaction of the court.
The idea of transitional justice connoted the broad range of mechanisms, means or mode through which a society confronted the wrongdoings from its past. Its objective being to obtain truth and justice regarding the past so as to ensure promotion and protection of the rule of law and durable peace going into the future.
The need to confront and silence the ghosts of past wrongs or historical injustices was relevant in the Kenyan context. That was in light of Kenyas history which was littered with incidences of gross violations of human rights and other atrocities that occurred during the colonial era and continued in the post-independence era. Further, victims of such abuses were never granted an opportunity to obtain redress and justice during that period.
The golden thread that connected the appellants claims of violation of their rights was that they were alleged to have taken place during a period which had been recognized as repressive. In that, during the period in question the State grossly abused the rights and freedoms of the critics of the Government of the day. By their nature, those claims were founded on alleged past wrongs that called upon the law and courts to provide a transformative response. The appellants claims qualified as falling within the category of transitional justice claims.
Transitional justice claims were context sensitive. Courts ought to be particularly sensitive to the reasons adduced for the delay. At the same time, courts should balance the reasons for delay with the likely prejudice a respondent could face in defending the claim in line with the right to fair trial. Such an approach emerged from the comparative lesson as could be gleaned from jurisprudence from Kenyas superior courts and other jurisdictions.
Transitional moments could be long-drawn and there were no clear-cut dates when a transition could be said to have run its full course. Especially, taking into account the tendency for re-irruptions in the form of renewed quests for justice. Late or recurring pursuit for justice were a distinctive motif of the quest for justice in transitional contexts. In other words, renewed or late quest for accountability and justice after the initial burst of efforts for justice was a phenomenon that was inherent in transitions. The persistence of the appellants and other litigants to get justice after other claimants had lodged similar claims was not something that was unique to the appellants as it was a universal phenomenon that was evident in the quest for transitional justice and accountability.
The appellants claims that they did not have faith in the pre-2010 Judiciary, ought to be interrogated from the overarching context of the transition from the repressive to the post-2010 era. Courts during the repressive era were generally notorious for their abject failure to provide protection to victims of human rights violations. Though the process of judicial reforms and making the Kenyan State human rights friendly began in 2003, that process was not concluded until the constitutional reforms in 2010. That included the process of vetting of judges and magistrates which was a transitional justice mechanism to make the Judiciary fit as a custodian of the rule of law, democracy and human rights. Indeed, that partly explained why the clamour for judicial reforms was part of the larger constitutional reform package.
The Constitution explicitly envisaged redress for historical injustices that occurred during the repressive era. In light of the dictate of article 27(1) of the Constitution on equal protection and equal benefit of the law, all victims of historical injustices had to be treated equally and afforded an equal opportunity for redress. That chimed with the demands for harmonious interpretation of the Constitution.
Based on the context of Kenyas democratic transition, the appellants explanation for the delay to the extent that it was attributed to lack of faith in the pre-2010 Judiciary was plausible. That was because the 2010 transition required the Kenyan State and society to undertake a great transformation, involving the creation of new institutions and anchoring them in a new set of values and principles, which were in total contrast to those that so far had prevailed.
The appellants contention that they had no faith in the pre-2010 Judiciary to render justice regarding alleged violation of rights attributed to the State could not be faulted in light of the history. As for the additional explanation of impecuniosity, the court was unable to entertain the same since it was raised for the first time before the instant court and the superior courts below did not have an opportunity to address their minds on the same.
There was a public interest element in allowing victims of alleged past gross human rights violations to access courts; that was, serving justice was the most effective insurance against future repression. A judicial trial served to send strong expression of formal disapproval of gross abuse of human rights. It also functioned to re-commit State institutions and persuade the general citizenry of the importance of human rights in a polity.
Failure to ensure access to justice could send the wrong signal that judicial imprimatur had been given to the historical wrongs. Such a stance would encourage not deter potential violators of rights. It would also send the signal to the public that they could be complicit in violation of rights without consequences attaching to the perpetration of such atrocities. That was informed by the reality that failure of enforcement of freedoms and rights vitiated their authority, sapping their power to deter proscribed conduct.
Whether a claim for violation of rights had been instituted within a reasonable time was to be determined based on the peculiar circumstances of each case. The delay in filing the appellants claims was understandable given the circumstances of the matter.
Constitutions, like other legal instruments, were generally prospective in application unless there was a clear textual marker indicating that retrospective application of a provision was contemplated. Consequently, since the events in issue were alleged to have taken place before the Constitution of Kenya, 2010 came into force, it was the repealed Constitution which was applicable. Moreover, the rights and freedoms alleged to have been infringed were protected in both the repealed Constitution and the Constitution of Kenya, 2010 albeit with some minor variations in formulation.
Section 75 of the repealed Constitution provided protection from deprivation of property except where stipulated conditions for compulsory acquisition were satisfied. That constitutional provision embodied the fundamental principle that a persons property could not be expropriated or taken away arbitrarily.
A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.
Aside from bare allegations, the 1st appellant did not adduce even an iota of evidence to back her claims. Even in situations where a respondent did not file or tender evidence to counter the petitioners case, the petitioner bore the burden of establishing his/her allegations on a balance of probabilities. As to whether such standard was met would depend on whether a court based on the evidence was satisfied that it was more probable that the allegation(s) in issue occurred. The 1st appellants evidence or lack of it, for that matter, could not be the basis of a finding that it was more probable than not that her right not to be deprived of property was infringed.
The incident at the freedom corner on March 3, 1992, drew widespread press coverage nationally and internationally as well as condemnation across the globe. It was a matter that the court could comfortably take judicial notice of as a matter of general notoriety. The provisions of sections 59 and 60 of the Evidence Act stipulated circumstances in which courts could take judicial notice of facts requiring no proof.
The freedom corner incident took place. Nonetheless, the burden of proof lay with the appellants to prove on a balance of probabilities that they were not only at freedom corner but were also subjected to torture, inhuman and degrading treatment during the demonstrations. Weighing the evidence adduced before the High Court, the appellants proved their participation in the subject protest/assembly at freedom corner to the requisite standard.
The court took the position that it should strive to interpret and develop constitutional concepts from an indigenous prism based on Kenyas historical experience. However, sight should not be lost of the fact that the court was interpreting prohibitions recognized in international human rights law and other comparable constitutions. Therefore, the court could draw valuable insight from their interpretation in the body of international human rights law and comparative jurisprudence.
The exact boundaries between torture and other forms of inhuman or degrading punishment or other treatment were often difficult to identify; and could depend on the particular circumstances of the case as well as the characteristics of the particular victim. Nonetheless, both terms covered mental and physical ill-treatment that had been intentionally inflicted by or with the consent or acquiescence of State authorities.
Inhuman or degrading punishment or treatment refers to ill-treatment which did not have to be inflicted for a specific purpose. However, an intention to expose individuals to conditions which amounted to or resulted in the ill- treatment had to exist. Exposing a person to conditions reasonably believed to constitute ill-treatment would entail responsibility for its infliction. Further, degrading treatment could involve less severe pain or suffering than torture; and would usually involve humiliation and debasement of the victim. The essential elements which constituted ill-treatment not amounting to torture would therefore be reduced to the intentional exposure to significant mental or physical pain or suffering.
There was an evidential gap which was not surmounted by the appellants regarding whether they were arrested and subjected to torture. However, taking into account the violent nature of the disruption of the subject protest/assembly, it was more likely than not that the whole episode had a psychological traumatic effect on the appellants, who were at the locus in quo.
Although the appellants did not exhibit any physical injuries or medical reports, the whole incident had a psychological/traumatic effect on them. That could be equated to inhuman treatment which was a violation of section 74(1) of the repealed Constitution. That was because the respondent did not give any justifiable reason(s) whatsoever why it was necessary to violently disrupt and disband the protests by the appellants who were harmless. To that extent, the appellants right to freedom of association and assembly was interfered with and due to the violent methods employed by the police, that amounted to a violation of their human rights which were duly protected under section 74(1).
Crafting of remedies in human rights adjudication went beyond the realm of compensating for loss as it was principally about vindicating rights. Though the appellants did not lead any evidence of the loss they could have suffered due to the violation of their right and freedom from inhuman treatment, it was important for the court to vindicate and affirm the importance of the violated rights.
In awarding damages, courts exercised a very broad, open-ended remedial discretion taking into account what was just, fair and reasonable in the circumstances of the case. In the instant case, the damages the court awarded should not only serve to enhance the dignity of the appellants but also be a public recognition of the wrong done to them given the historical context of the case.
The appellants counsel alluded to the fact that the High Court exhibited bias or prejudice against the appellants. That issue was neither raised at the Court of Appeal nor did it form the grounds of appeal to the instant court. It was raised for the first time in counsels oral submissions before the court. As such, the instant court was devoid of jurisdiction to entertain the same.
Sonko V County Assembly Of Nairobi City & 11 Others (Petition 11 (E008) Of 2022)  KESC 76 (KLR) (5 December 2022) (Reasons)
Case Number: Petition 11 (E008) of 2022
Date Delivered: 05 Dec 2022
Judge: Martha Karambu Koome, Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Sonko v County Assembly of Nairobi City & 11 others
Citation: Sonko v County Assembly of Nairobi City & 11 others (Petition 11 (E008) of 2022)  KESC 76 (KLR) (5 December 2022) (Reasons)
Due process was followed in the impeachment of the County Governor of Nairobi
The appellant, the former County Governor of Nairobi had filed a petition challenging his impeachment. His petition at the High Court was dismissed and so was his subsequent appeal. Aggrieved the appellant filed an appeal before the Supreme Court where he challenged the impeachment on grounds that it was unconstitutional as it violated the sovereignty of his constituents and undermine the vote at the ballot box, on grounds that the impeachment was done without due process and that he was not accorded a fair trial.
The respondents filed a preliminary objection on grounds that the Supreme Court did not have the jurisdiction to determine the appeal owing to failure to cite which provision the appeal was based on.
Whether the Supreme Court had the jurisdiction to determine an appeal which did not specify which of the two grounds of appeal under article 163(4) of the Constitution the appeal was brought under.
What was the duty of counsel in preparation and presentation of cases before the Supreme Court?
Whether due process was followed in the impeachment of the County Governor of Nairobi.
Whether the appellants constitutional right to due process was compromised.
Whether the appellant was accorded adequate time and facility to respond to the charges against him both at the County Assembly and in the Senate.
Whether it was mandatory to verify the impeachment Motion by affidavits or other statements on oath by members of the County Assembly who allegedly supported the motion.
Whether the impeachment charges were substantiated to the prescribed standard to warrant the appellants impeachment.
Whether public participation was undertaken in the impeachment of the governor of Nairobi County.
Under what circumstances could the Supreme Court disturb the concurrent findings of fact and evidence by the High Court and the Court of Appeal?
Whether the process of impeachment of the County Governor of Nairobi contravened the sovereignty of the constituents that elected him.
Without jurisdiction, a court had no power and had to down tools in respect of the matter under review. Appeals from the Court of Appeal lay to the Supreme Court pursuant to articles 163(4) or 163(4)(b) of the Constitution as a matter of right or upon certification that a matter of general public importance was involved; and that an appeal could not to lie to the Supreme Court, unless brought within the compass of either of the two jurisdictional limbs.
The appeal was filed pursuant to two repealed rules. Rules 9 and 33 of the Supreme Court Rules, 2012, (repealed) essentially dealt with contents of a petition and institution of appeals. Rules 9 and 33 of the 2020 Rules, on the other hand related to sealing of Court documents and application for certification, respectively. All those provisions could not be the basis for invoking the Supreme Courts jurisdiction. A party appealing to the Supreme Court from the Court of Appeal had to bear in mind the limits of its jurisdiction and had to decide, either to seek a certification as a matter of general public importance under article 163 (4)(b) of the Constitution or come as a matter of right under article 163 (4)(a) thereof. Even when a party invoked the latter, it was upon that party to identify and specify how the appeal concerned interpretation and application of the Constitution.
It could never be the role of the Supreme Court to wander around in the maze of pleadings and averments to ascertain by way of elimination which of the two limbs of article 163(4) of the Constitution a party intended to rely on. Such impetuous presentation of pleadings was discouraged. An appeal to the Supreme Court would not lie, unless convincingly preferred within the confines of either of the two jurisdictional limbs of article 163(4). It was paramount for any party moving it for any relief under that article 163(4) to identify which one of the two limbs was being invoked.
The applicable considerations and principles for each of the limbs were different. In Kenyas adversarial system, the rules of pleading also served to ensure that parties defined succinctly the issues for determination so as not to take the rest of the parties by surprise. On the other hand, courts adjudicated upon the specific matters in dispute, which the parties themselves had raised by their pleadings. Failure to align an appeal to the guidelines of article 163(4) of the Constitution would lead to dismissal of the petition.
Counsel intending to represent parties before the Supreme Court had to recognize that, like any appearance before any apex court in the world, practice of law before the Supreme Court as Kenyas court of last resort had to truly represent and reflect strict standards of professional responsibility. As an officer of the court upon whose shoulders rest, in part, the responsibility for the administration of justice, counsel had to, before bringing an action to the Supreme Court, identify the elementary legal foundation and ascertain as a minimum, whether the Supreme Court had jurisdiction, because as a general proposition, the relief available to a party depended not only on the pleadings but more significantly on the jurisdiction. As a matter of practice, the pleadings had to always carry, at the very top, reference to the relevant provisions of the Constitution, the law and rules relied upon and specify at the end, the relief claimed. Counsel was required to be fully abreast with the jurisprudence of the Supreme Court.
At the apex court, there was no room for indolent and lackadaisical approach to preparation and presentation of cases. The Supreme Court expected nothing but precision, diligence and above all, professionalism. The Supreme Court cautioned against sloppiness in the invocation of the Courts jurisdiction.
The appellant had failed to demonstrate how the appeal involved application or interpretation of the Constitution and the manner in which the Court of Appeal erred in determining those very questions.
The preliminary objection was sustained. It would have been sufficient to dispose of the instant appeal in its entirety, and the Supreme Court would have to down tools. However, in view of the public interest and nature of the dispute, the broad interests of the parties, the need for due guidance to the judicial process and to the courts below; for the sake of posterity and development of jurisprudence; the right course was for the Supreme Court to determine all the pertinent questions raised in the appeal.
By the very nature of its position in the hierarchy of courts, the Supreme Court had a constitutional obligation to develop jurisprudence and guide the courts below it on matters of general public interest, as well as on those involving the interpretation and application of the Constitution. That duty could not be curtailed by a decision of any court, just the way Justices of the Supreme Court could not be rendered superfluous, or their work made perfunctory and mechanical. The function of the Supreme Court in resolving questions of interpretation and application of the Constitution was to remove any doubts and ambiguities in the law; mitigating hardships and correcting wrongs and not avoiding them.
The generally accepted position and widely applied that jurisdiction was everything, and that a court lacking jurisdiction had to down its tools, held good and retained validity. As far as the Supreme Court was concerned, in appropriate cases and only the instant final court, would rise to the occasion and not down tools, to resolve disputes that related to its constitutional mandate. Even where it declined jurisdiction to entertain any particular questions, the court could wish to achieve quality jurisprudence and also to resolve specific issues raised in the particular matter, in order to draw the whole dispute to a meaningful conclusion and to settle the law. It was not in all situations.
The Supreme Court was fortified in its decision to consider the appeal because whether the court down tools at the instant stage or go to the end, the inevitable result was that the decision of the Court of Appeal stood upheld. There were exceptional circumstances and proper justification not to down tools but to consider and determine the main grounds before the Supreme Court.
Not all the six grounds of appeal involved the interpretation or application of the Constitution or were matters of general public importance, the two permanent and defined coordinates of the Courts jurisdiction in respect of appeals arising from the decisions of the Court of Appeal. Matters of fact that touched on evidence without any constitutional underpinning were not open for the Supreme Courts review on appeal. Some of the grounds of appeal though framed partly as matters of law, were not constitutional or matters of law but of fact.
The duty to re-evaluate evidence was the function of a first appellate court. A first appellate court should accord deference to the trial courts conclusions of fact and only interfere with those conclusions if it appeared to it, either that the trial court had failed to take into account any relevant facts or circumstances or based the conclusions on no evidence at all, or misapprehended the evidence, or acted on wrong principles in reaching the conclusions. Only cardinal issues of law or of jurisprudential moment, would deserve the further input of the Supreme Court.
The removal proceedings for a county Governor were textually committed by the County Assembly and the Senate. The constitutional mandate and the process to impeach a Governor commenced in the County Assembly and terminated in the Senate. The County Assembly and Senate were the only organs involved because of their special roles in devolved governments.
The Senate specifically represented the counties and served to protect the interests of the counties and their governments. The Assembly, on the other hand, was the legislative arm in the county governments. The respective roles of the two institutions were important because, one of the objects of devolution was to promote democratic and accountable exercise of power. The governor and all officials in the county governments were subject to oversight and scrutiny by both the County Assembly and the Senate
The Constitution committed to both institutions the exclusive power to remove the Governor subject only to procedural requirements set out in the County Governments Act and the respective Standing Orders of the County Assemblies and the Senate: and proof of the charges. Both institutions through their Standing Orders were at liberty to determine the procedures for receipt and consideration of evidence necessary to satisfy the duty to conduct an impeachment hearing.
In considering applications to review decisions of the other branches of Government, courts should strive to achieve a balance between their role as guardians of the Constitution and of the rule of law, including an obligation to respect what Parliament was constitutionally required to fulfill. In other words, where the Constitution required Parliament to determine a matter in the first place as part of its constitutional mandate, Parliament would have the discretion and power to regulate its own affairs and the courts would be slow to interfere with the exercise of that discretion.
The Supreme Court would be reluctant to question parliamentary procedures as long as they did not breach the Constitution; and that the mandate of the courts was restricted by the doctrine of separation of powers to deciding on matters of individual rights and fundamental freedoms and not to enquire into how the County Assembly and Senate perform duties in which they alone had discretion or to review the merit of the decision by the County Assembly and Senate to impeach a Governor.
Both the County Assembly and the Senate could not act outside the confines of the Constitution and the law. To do so would invariably invite the courts intervention. Courts were permitted to intervene where matters of constitutional violations arose.
The audi alteram partem rule required that those who were likely to be directly affected by the outcome of a decision should be given prior notification of the action proposed to be taken, of the time and place of any hearing that was to be conducted, and of the charge or case they would be called upon to meet. They had to be given an opportunity to be heard, to call witnesses, to be represented by counsel, to be availed adequate time and facilities to prepare, and if the accusations were proved, to be given the reasons for the decision. They were also entitled to challenge the decision, if against them, before a higher tribunal or court.
In the process of removal of a county Governor, the right to fair administrative action under article 47 and the right to fair hearing under article 50 of the Constitution all accrued to the Governor before a decision to remove him or her from office was reached. An unfair removal as one which went against the principles of natural justice; which implied that no adequate notice was given; that there was bias and where the hearing was not fair. Though a political process, impeachment was sanctioned by the Constitution and the law and was not a platform to settle political scores. The standing orders were designed to achieve accountability, political governance and personal responsibility and were not aimed necessarily to find criminal responsibility.
The Standing Orders of the two Houses of Parliament and of the County Assemblies played a critical role in guiding the orderly proceedings in those houses because of their constitutional underpinning in article 124 of the Constitution. The Nairobi City County Assembly Standing Orders provided for the steps for the removal of a Governor.
The process was sequential based on two-stages. In the first stage, a Member of the County Assembly initiated the process by filing a notice of the Motion for removal with the Speaker. The notice had to be supported by at least a third of all the members. It was only if the Motion was supported and passed by at least two-thirds of all the MCAs that the Speaker of the County Assembly informed the Speaker of the Senate of that resolution within two days. Up to that point, the Governor continued to perform the functions of the office pending the outcome of the proceedings in the Senate, because that was where the impeachment proceedings were conducted.
The court had not been shown any form of misdirection on material issues or instances where conclusions were based on no evidence, or where the conclusions were not supported by the established facts or evidence on record, so as to qualify those matters of fact as matters of law. There was no reason to depart from the concurrent conclusions of fact by the High Court and Court of Appeal. Due process was followed to remove the appellant from office.
The Senates role in impeachment did not include re-assessing the procedure before the County Assembly. It was not an appellate process. Once a resolution had been passed by the County Assembly to confirm the charges for the removal of a Governor, the Speaker of the County Assemblys role was to notify the Speaker of the Senate, who in turn was required to summon the Senate to consider the Motion.
There was no fault in the manner the Speaker of the Senate treated the objection. He could not be accused of having failed and/or ignored altogether to consider the appellants preliminary objection when he in fact allowed the appellants counsel to submit on the objection at length, adjourned the sitting to consider the arguments before rendering the ruling. He properly directed his mind to the relevant procedural laws and judiciously exercised his discretion. Despite the voluminous documents containing the charges and proceedings before the County Assembly, the appellant had sufficient time and did prepare well to defend himself.
There was no basis to depart from the findings of the Court of Appeal, especially considering that the proceedings took place during Covid-19 season and in view of tight timelines set by Orders 75 and 76 of the Senate Standing Orders. The procedure under these Standing Orders appeared to have been meticulously followed by the Senate. The Motion was properly moved; adequate notice was given to the appellant; he was aware of the allegations facing him; he was given an opportunity to defend himself; to adduce and challenge evidence; the hearing was in public; and the proceedings began and concluded without unreasonable delay.
No step was taken outside the timelines set out in order 72 and 75 of the Senate Standing Orders. Both the Court of Appeal and the High Court were convinced that the appellant had sufficient time within which to prepare and present his response.
The multi-stage nature of the process of removal from office, and the attendant litigation that followed had produced in the recent past a worrying trend that amounted to abuse of court process by parties. Parties employed all delay tactics in the book in order to avoid the consequences of the lustration provisions in Chapter Six of the Constitution that disqualified an individual from holding a State or public office since such disqualification was dependent on all possibilities of appeal or review of the relevant sentence or decision being exhausted.
If the phenomenon of parking appeals were to be allowed as the norm, the result would be to forget the constitutional aspirations of good governance and integrity in public service. In such a context, courts were not helpless. To begin with, the mandate of interpretation and application of the Constitution was vested in the courts.
The courts could not sit back and helplessly watch as the constitutional and national values and principles were being subverted by deliberate acts of the parties. Parties who were appealing or applying for review of decisions that made them ineligible for public or state office pursuant to chapter six of the Constitution, had a singular obligation to diligently prosecute such cases. Justice had to be done and was also to be seen to be done. That had to be the overriding objective of every party, counsel and the court.
The appellant was accorded a fair hearing within the meaning of article 50 and fair administrative action in terms of article 47 of the Constitution, and under the standing orders.
The Motion for the removal from office of Governor Nairobi County was duly verified in accordance with Order 67(1) of the Nairobi City County Assembly Standing Orders; and that the verification was not in the form of an affidavit or any other forms of deposition.
Whereas public participation was a major pillar and bedrock of the Kenyan democracy and good governance, proving public participation was not depended upon proof by evidence. On account of the restrictions placed on physical and personal public interactions due to the Covid- 19 pandemic, all the foregoing avenues satisfied the requirements of public participation.
Impeachment or removal proceedings, though quasi-judicial were not in the nature of criminal proceedings. They did not necessarily require or depend on criminal culpability to succeed. All that was required was that the allegations be substantiated. But as a constitutional remedy, impeachment served as an important check on the exercise of executive power. The purpose of impeachment was generally to protect public interest and to preserve constitutional norms, while at the same time observing the rules of natural justice throughout the process. Both interests had to be balanced.
The High Court received and evaluated the evidence presented to it in support and in rebuttal of the four charges. The Court of Appeal re-evaluated that evidence before coming to its own independent determination. The two courts came to a common conclusion that articles 47 and 50 of the Constitution were adhered to by both the County Assembly and the Senate; that the process was, in the circumstances, expeditious, lawful and procedurally fair.
The Supreme Court could not substitute itself into the High Court and Court of Appeal and take up their roles by re-analyzing the evidence afresh for the third time. The Supreme Court could only disturb the concurrent factual conclusions. If those conclusions were based on no evidence or not supported by the established facts or evidence on record, or that the conclusions were so perverse, or so illegal, that no reasonable court would have arrived at the same. The four charges against the appellant were, no doubt weighty, but they were not vague. They contained detailed particulars of the alleged violations of the Constitution and the law, specifying with precision the provisions of the Constitution and the law that were alleged to have been contravened.
Before the question of impeachment was escalated to the two courts, both the County Assembly and the Senate had equally and independently found merit in the charges. Though there was no obligation in impeachment charges to prove each and every charge, in that instance all the organs involved, from the County Assembly to the Court of Appeal, found proof of all the charges. Nothing had been placed before the Supreme Court to warrant interference with those conclusions by the two superior courts.
Under article 1 of the Constitution all sovereign power belonged to the people of Kenya. That power could only be exercised in accordance with the Constitution itself. Further, the people may exercise that power either directly or through their democratically elected representatives. Specifically, in the instant case, sovereign power of the people was delegated to State organs such as Parliament at the national level and the County Assemblies in the devolved governments. Delegated power was to be exercised solely for the benefit of the people.
To completely lock out the electorate from being heard in a matter as important as the removal of their Governor, would be against the spirit of article 1(2) of the Constitution. There having been meaningful public participation, the people participated directly and also exercised their power through their elected representatives, at both national and county levels to uphold and defend chapter six of the Constitution.
The removal from office of the appellant was in compliance with the Constitution and the law.
Per P.M Mwilu, DCJ and VP; and SC Wanjala, SCJJ (Concurring)
The appeal had been rightly dismissed for lack of merit. However, the concurring court would have struck out the appeal at the instant stage without more.
A party had to properly and specifically invoke the Supreme Courts appellate jurisdiction under article 163(4)(a) or 163 (4)(b) of the Constitution. Failure to do so would lead to the intended appeal being struck out. The concurring court would have downed its tools.
Per MK Ibrahim, SCJ (Concurring)
The Supreme Court as the Court of final judicial authority in Kenya, was bestowed with jurisdiction and mandate pursuant to section 3 of the Supreme Court Act, No. 7 of 2011, to settle constitutional questions with finality. The Supreme Court should be ready to pronounce itself on the interpretation of constitutional issues.
The authority assigned to a State officer was a public trust that vested the responsibility to serve the people, rather than the power to rule them. To take up a State Office, whether it be by election or appointment, required commitment to good governance, transparency and accountability. That commitment had to be espoused in both the words and deeds of the office holder in both public and official lives as well as their private lives. In every association, that commitment had to, at all times, be consistent with the purposes and objects of the Constitution, demonstrate honour for the people of Kenya, bring honour to the nation and dignity to the office as well as promote public confidence in the integrity of the office. Chapter Six codifies the guardrails against autocratic exercise of power by the leaders.
The context of the instant case presented an opportunity for the Supreme Court to settle fundamental questions of law surrounding impeachment proceedings in the framework of the Constitution of Kenya, 2010. Impeachment being a remedy for breaching the public trust entrusted to State Officers. The instant case was an opportunity to provide high yielding interpretive guidance on the Constitution that the court had an obligation and duty to seize.
The concurring court fully supported the principles and the final orders of the majority court.
Muthuuri & 4 Others V Attorney General & 2 Others (Petition (Application) 15 (E022) Of 2021)  KESC 74 (KLR) (4 November 2022) (Ruling)
Case Number: Petition (Application) 15 (E022) of 2021
Date Delivered: 04 Nov 2022
Judge: Martha Karambu Koome, Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu
Court: Supreme Court of Kenya
Parties: Muthuuri & 4 others v Attorney General & 2 others
Citation: Muthuuri & 4 others v Attorney General & 2 others (Petition (Application) 15 (E022) of 2021)  KESC 74 (KLR) (4 November 2022) (Ruling)
Delays caused by a courts administrative process cannot be visited upon a party seeking to file a supplementary record of appeal
The applicant filed the instant application seeking among others the enlargement time within which they should file a supplementary record of appeal. It was their argument that the record of appeal arising from the judgment and order of the Court of Appeal in Nairobi Civil Appeal No. 352 of 2019 dated September 23, 2021 was incomplete as the duly sealed notice of appeal and order appealed from had not been filed. It was further their contention that on September 28, 2021 an application was made for the certified copy of the order arising from that judgment, however, they were directed to comply with the requirements of rule 34 of the Court of Appeal Rules, 2010, which they did by forwarding the draft order to the respondents on September 29, 2021 for approval.
In the absence of approval or response from the respondents, the applicants applied for settlement of the order culminating to the issuance of the notice of appeal by the Court of Appeal on January 26, 2022. The applicants further contended that the certified order dated September 23, 2021 was issued following further follow up efforts resulting in the filing of the instant application. The respondents argued that the delay was evidently inordinate and offended the principle that there should be an end to litigation and that they would suffer irreparable loss if the orders sought were granted.
Whether delays caused by courts administrative processes to the detriment of a party seeking to file a supplementary record of appeal could be visited upon such a party.
What were the principles for grant of an order of extension of time to file a supplementary record of appeal?
Under rule 15(2) of the Supreme Court Rules, 2020, the court had unfettered discretionary powers to extend the time limited by the Rules or by any of its decisions and any person intending to appeal to the court was required by rule 31(1) of the Rules to file the notice of appeal within fourteen days from the date of the decision intended to be challenged.
From the record, after judgment of the Court of Appeal was rendered on September 23, 2021, the applicants applied for a certified copy of the same on September 28, 2021. The applicants follow up efforts preceding the issuance of the order were not disputed by the respondents. Delays caused by courts administrative processes to the detriment of a party could not be visited upon such a party because such a delay was beyond a partys reach.
The principles for grant of an order of extension of time were that an applicant had to give sufficient reasons for any delay and that the period of delay was nonetheless an important consideration in the courts exercise of discretion to grant or deny the extension.
In spite of the respondents argument that the applicants ought to have followed up physically at the registry, the application met the threshold of extension of time as the delay of two months in the instant matter was not inordinate as it was sufficiently explained, and it was not occasioned by the applicant but by the court. That explanation was reasonable and there was no prejudice to be occasioned to the respondents.
County Assemblies Forum V Attorney General & 3 Others; Parliamentary Service Commission (Interested Party) (Petition 22 Of 2017)  KESC 66 (KLR) (28 October 2022) (Judgment)
Case Number: Petition 22 of 2017
Date Delivered: 28 Oct 2022
Judge: Martha Karambu Koome, Mohammed Khadhar Ibrahim, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party)
Citation: County Assemblies Forum v Attorney General & 3 others; Parliamentary Service Commission (Interested Party) (Petition 22 of 2017)  KESC 66 (KLR) (28 October 2022) (Judgment)
No conflict between articles 177(1) and 177(4) of the Constitution on election to the county assembly
The appellant filed a petition at the High Court challenging the date of the second general elections under the Constitution of Kenya, 2010 (Constitution) which was scheduled by the 2nd respondent, the Independent Electoral and Boundaries Commission (IEBC) on August 8, 2017. The first general elections after the promulgation of Constitution was held on March 4, 2013. As such, they claimed that holding the general elections on the aforementioned date would unconstitutionally reduce the Members of the County Assemblies (MCAs) term in office by a period of eight (8) months, taking into account that their term, as fixed by article 177(4) of the Constitution, was five (5) years. In essence, they contended that there was an apparent conflict between articles 177(1)(a) and article 177(4) of the Constitution.
The appellant sought among other reliefs a declaration that the term of office of the then existing MCAs was to end on March 5, 2018, being five (5) years from the date of the general elections held on March 4, 2013. The High Court partly allowed the petitions and found that the tenure of office for Members of Parliament (MPs) and MCAs was different. The High Court found that for MCAs, their position was muddied by article 177(4) of the Constitution. The court found that that was in conflict with article 177(1)(a) and that it was not possible to give effect to both provisions at the same time. The court thus found that the term of office for MCAs was plainly set out in articles 177(4) and 194(f) so that a county assembly was elected for a term of five years expiring at the end of the term of the assembly. The court upheld the election date of August 8, 2017.
Aggrieved by the decision, the 1st and 2nd respondents filed an appeal at the Court of Appeal while the 3rd respondent filed a cross appeal whose main contention was that it would be impossible to hold the following general elections on August 8, 2017 without limiting the term of county assemblies. The Court of Appeal found that the validity or legality of any the Constitutions provisions could not be questioned by any court. The Court of Appeal further found that articles 177(1)(a) and 177(4) could not be construed to be in conflict or to contradict each other. The Court of Appeal allowed the appeal and set aside the judgment of the High Court. The appellant aggrieved by the decision of the Court of Appeal filed the instant appeal.
Whether there was conflict between article 177(1) of the Constitution which provided for election to the county assembly to be on the same day as a general election of members of Parliament, being the second Tuesday in August, in every fifth year and article 177(4) of the Constitution which provided for that a county assembly was elected for term of five years.
Whether the holding of the second general elections under the Constitution of Kenya, 2010 in August 8, 2017 was unconstitutional for reducing the terms of office for holders of elective posts below the five-year mark.
What were the requirements to be met for one to appeal to the Supreme Court under article 163(4)(a) of the Constitution as of right in a matter involving the interpretation or application of the Constitution?
Whether the High Court had the jurisdiction to determine matters on the enforcement of rights and fundamental freedoms touching on employment and labour.
What was the nature of transitional and consequential provisions in the Constitution?
What were the principles of application of the doctrine of legitimate expectation?
Relevant provisions of the law
Constitution of Kenya, 2010
Article 163 - Supreme Court
(4) Appeals shall lie from the Court of Appeal to the Supreme Court
(a) as of right in any case involving the interpretation or application of this Constitution; and
Article 177 - Membership of county assembly
(1) A county assembly consists of
(a) members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;
(4) A county assembly is elected for a term of five years.
1. The courts appellate jurisdiction was set out in article 163(4) of the Constitution. So as to bring the appeal as of right pursuant to article 163(4)(a) of the Constitution, it had to be demonstrated that the issues of contestation revolved around the interpretation or application of the Constitution. It was the interpretation or application of the Constitution by the Court of Appeal that formed the basis of a challenge to the court. So that, where the dispute had nothing or little to do with the interpretation or application of the Constitution, the court under article 163(4)(a) would have no jurisdiction to entertain an appeal brought under that provision.
2. The instant matter was not a mere electoral dispute arising from or touching on an election. Joinder of the Salaries and Remuneration Commission was unnecessary as the issues before court were not on the amount of compensation to be paid to the MCAs for services rendered. Rather, they included questions of interpretation of articles 177(1) and 177(4) of the Constitution as well as whether MCAs were entitled to damages for the reduced term in office as a consequence of the election date in 2017.
3. The question of enforcement of rights and fundamental freedoms even touching on the employment and labour was within the competence of the High Court pursuant to article 22 of the Constitution. Articles 23 and 165 of the Constitution fortified that position as they were the provisions that gave the High Court jurisdiction to hear and determine applications for redress of denial, violation or infringement of rights or fundamental freedoms in the Bill of Rights. Consequently, the appeal fell squarely within the ambit of article 163(4)(a) and the court had jurisdiction to entertain the appeal.
4. Article 2(3) of the Constitution stipulated that the validity or legality of the Constitution was not subject to challenge by or before any court or other State organ. The Court of Appeal was not determining the constitutionality or otherwise of articles 177(1) and (4) of the Constitution, only on the interpretation and application as regards the context of the instant case. To purport to question the validity of a constitutional provision was to question the very foundation of authority of the courts and was not only contra article 2(3) but also against the will of the people of Kenya.
5. Article 259 of the Constitution gave the approach to be adopted in construing the Constitution. By that provision therefore, the Constitution called for its holistic interpretation. No constitutional provision was more superior to the other. They all ranked equally and had to be all be interpreted and applied together to give them their full tenor and meaning. The court was guided by article 2(1) and (3) of the Constitution which provided for the supremacy of the Constitution over other laws and thereby its validity and legality were not subject to challenge by or before any court or other State organ.
6. The Constitution was consistent about the date of the general elections in various articles other than article 177(1). The election date was predicated on the election of MPs which was provided for under article 101(1). The designated date for general elections was not a set date but rather the second Tuesday in August, in every fifth year. Further, the Constitution provided that all elections for the positions of President, governor, senator, MPs and MCA had to be held on the day.
7. Kenya held its third general elections in 2022 since promulgation of the Constitution in August 27, 2010. The 2017 general elections were held in August 8, 2017. While the 2022 general elections were held in August 9, 2022, thereby fulfilling the requirement of holding general elections every five years. There did not exist a conflict between articles 177(4) and 177(1) of the Constitution, apparent or otherwise. If the two were to be put side by side, they could both be given effect at the same time as demonstrated by the continued election cycle.
8. The first general elections following promulgation of the Constitution were held on March 4 2013. That date was arrived at following the decision by the Court of Appeal in Center for Rights Education and Awareness & another v John Harun Mwau & 6 others  eKLR. That case was distinguishable from the instant dispute as the main issue in contention therein was the first general election and not subsequent elections. The courts were not called upon to make a determination on harmonizing the terms of office of MCAs pursuant to article 177(1) and (4) contrasted with other elective posts.
9. The date of the first elections, March 4, 2013, was informed by the transition clauses of the Constitution. More specifically, section 9(1) of the Sixth Schedule to the Constitution which provided that the first elections under the Constitution were to be held within sixty days after the dissolution of the National Assembly. Vide Legal Notice No. 1 of 2008, the term of the National Assembly commenced in January 15, 2008 and ended on January 14, 2013. Hence, sixty days later, was March 4, 2013, achieving the first hurdle in transitioning the elections of Kenya from the old constitutional dispensation to the Constitution of Kenya, 2010.
10. The transitional provisions of the Sixth Schedule to the Constitution were only for a limited period of time and once they served their purpose, the nation reverted to the permanent provisions of the Constitution. On general elections, the date stipulated in articles 101(1), 102(1), 136(2)(a), 177(1)(a) and 180(1) was reverted to. That was such that, after the first general elections was held, IEBC then had a constitutional duty to apply those provisions of the Constitution with regard to the future elections. That was not a simple duty, as IEBC had to decide between holding the elections in August of 2018, five years after 2013 or alternatively in August of 2017. IEBC elected to hold the second general elections in August 8, 2017. that date fell short of the five-year mark by eight (8) months. That was not just for the MCAs but for all elective positions.
11. Perhaps what informed IEBCs decision regarding the election date in 2017, was to ensure the terms in office for all elected officials would not fall outside the constitutionally stipulated five years. Holding the election in August 2018 would have meant that the term in elective office for all officials would have been over and above the five-year timeline by approximately five months. The court could infer that IEBC was trying to avoid generating a gap whereby the holders of the various elective offices would either not be legally in office, or if they elected to go home, then the elective offices would be vacant for eight months. The ramifications of such scenarios were far greater than that the office of the MCAs, as it cut across all elective positions. One such office being that of the President. That would have had the resultant effect of placing Kenya in constitutional crisis. Such an effect would not have been the intention of the framers of the Constitution and would not have been a reflection of the will of the people.
12. Transitional and consequential provisions in the Constitution were supposed to be a bridge between two constitutional dispensations. Those provisions provided for the orderly implementation of law helping to avoid the shock that could result from an abrupt change in the law. However, transitions were not always smooth and often times called for compromise. The effects of the transition in the Kenyan context did not end with the holding of the first general elections pursuant to the Sixth Schedule to the Constitution. One compromise that had to be made was the date of the second general elections.
13. By choosing to hold the elections on August 8, 2017, IEBC were selecting the more rational and judicious option of having the terms in office for holders of elective posts, end a few months short of the five-year mark. Rather than ending five months over and above their term limits. A secondary consequence of that choice was ensuring a smooth transition from one Government to another. The eight-month gap was a compromise that the Kenyan people and by extension, their elected leaders had to make in order to complete the transition from the old constitutional order to the Constitution of Kenya, 2010. The third general elections, falling on the fifth year being August 9, 2022 from August 8, 2017, meant that the transition was complete.
14. The decision by IEBC to hold the second general elections under the Constitution of Kenya, 2010 on August 8, 2017 was not unconstitutional. IEBC was seeking to give effect to the will of the people as expressed in the provisions of the Constitution in a manner that resonated with a purposive interpretation of articles 177(1) and as read with article 259 the Constitution.
15. There was a reduction of the term of office of MCAs elected in the first general elections under the Constitution by virtue of the second general elections being held in August 8, 2017.
16. Pursuant to article 38(3) of the Constitution, the MCAs had a right to hold office. However, they held elective office subject to application and interpretation of the Constitution. The Constitution required a holistic and purposive interpretation, which included considering the provision of article 24 of the Constitution on limitations of rights and freedoms. The implication of that was that, outside the non-derogable rights enshrined in article 25 of the Constitution, the rest were not absolute hence subject to some forms of limitations provided that the limitation did not go against article 24.
17. Legitimate expectation was a doctrine well recognized within the realm of administrative law and well reflected in judicial practice in Kenya. The principles of application of legitimate expectation were as follows;
there had to be an express, clear and unambiguous promise given by a public authority;
the expectation itself had to be reasonable;
the representation had to be one which it was competent and lawful for the decision-maker to make; and
there could not be a legitimate expectation against clear provisions of the law or the Constitution.
18. The Constitution provided under article 1 that all sovereign power belonged to the people of Kenya and should be exercised only in accordance with the Constitution. It further provided that the people of Kenya could exercise their sovereign will either directly or indirectly through their democratically elected representatives. Sovereign power under the Constitution was delegated to Parliament and the legislative assemblies in the county governments, the national executive and the judiciary and independent tribunals. That was reiterated in Chapter Six of the Constitution, more specifically article 73.
19. It was due to public trust that elections were considered to be sui generis affecting not just the contestants for public office but the people on whose behalf they vied. Public office to which a portion of the sovereignty of the people, either legislative, executive or judicial, attached for the time being and which was exercised for the benefit of the public, did not vest in the holder of the office the right to property of the office.
20. The holders of elective office vied and held office, not for their private benefit but for the benefit of their constituents on whose behalf they acted. The holders of such office retained their rights to fair administrative actions, access to justice and fair hearing as enshrined in articles 47, 48 and 50 of the Constitution. They could not be removed from office, other than by operation of the law. In the instant suit, it was the interpretation and application of the constitutional requirement to hold elections on the second Tuesday in August, in every fifth year, that imposed the need to hold the second general elections on August 8, 2017 thereby occasioning the gap of eight (8) months.
21. The MCAs term in office ended by operation of the Constitution, thereby running afoul the principles of legitimate expectation. Further, election into public office was not anchored on a promise. The appellants claim for legitimate expectation lacked merit. The claim that the MCAs had proprietary rights to the unexpired eight-month period also failed.
Kenya Hotel Properties Limited V Attorney General & 5 Others (Petition 16 Of 2020)  KESC 62 (KLR) (Civ) (7 October 2022) (Judgment)
Case Number: Petition 16 of 2020
Date Delivered: 07 Oct 2022
Judge: Martha Karambu Koome, Isaac Lenaola, William Ouko, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Kenya Hotel Properties Limited v Attorney General & 5 others
Citation: Kenya Hotel Properties Limited v Attorney General & 5 others (Petition 16 of 2020)  KESC 62 (KLR) (Civ) (7 October 2022) (Judgment)
The High Court did not have the jurisdiction to overturn or order the Court of Appeal to try an appeal de novo a final decision of the Court of Appeal which was determined by a Judge who was removed by the vetting board.
The instant petition of appeal sought to set aside the judgment of the Court of Appeal in Civil Appeal No. 404 of 2018 delivered on which affirmed the High Court. The appellants claim was predicated on the outcome and report by the Judges and Magistrates Vetting Board, (vetting board).
At the High Court the appellant sought to have the decision of the Court of Appeal that was the apex time at the time of the appeal to be overturned on account that one of the judges that determined the appeal was unsuitable to continue holding the position of Judge of the Court of Appeal. The petition was dismissed on grounds that the High Court lacked the jurisdiction to order the Court of Appeal to try an appeal de novo or to overturn a decision of the Court of Appeal. The Court of Appeal affirmed the decision of the High Court. Aggrieved the appellant approached the Supreme Court for orders that the High Court erred in law in finding that it had no jurisdiction to entertain the matter.
Whether the High Court had the jurisdiction to overturn or to order the Court of Appeal to try an appeal de novo a final decision of the Court of Appealwhich was determined by a Judge who was removed by the vetting board.
Whether decisions by the Judges and Magistrates Vetting Board were supra-judicial pronouncements that had the effect of setting aside every decision made by a judge who was removed for impropriety.
The issue faced by the High Court was not on whether the High Court had jurisdiction to entertain a constitutional petition and its dispensation, but on whether the High Court had the jurisdiction to set aside a judgment issued by the Court of Appeal as well as to order the Court of Appeal to try an appeal de novo.
Jurisdiction was everything as it denoted the authority or power to hear and determine judicial disputes. Civil Appeal No. 149 of 2007 was conclusively determined on April 2, 2009 and that judgment stood save for the review judgment issued on November 20, 2009 that altered the dates of interest. Similarly, the High Court judgment in HCCC No. 367 of 2000 stood and the appellant had not sought any orders to have that judgment impugned. The appellant was asking the Supreme Court to make its determination based on proceedings brought under the Constitution where the decision of the Judges and Magistrates Vetting Board (vetting board) was the basis for its main argument that the judgment by the Court of Appeal in Civil Appeal No. 149 of 2007 was obtained through alleged bias or impropriety on the part of OKubasu JA despite the appellant not having any complaints against the other two Judges of the Court of Appeal who determined Civil Appeal No. 149 of 2007.
The High Court could not overturn a final decision of the Court of Appeal. The Constitution could not itself to issue the reliefs sought by the appellant.
Article 163(4)(b) of the Constitution did not confer the Supreme Court with the jurisdiction to entertain appeals from the Court of Appeal before the coming into force of the 2010 Constitution, the same principle applied in that the High Court could not and did not have any jurisdiction to reopen cases finalized by the Court of Appeal, which was the apex court at the time.
The Constitution could address any injustice with the High Court having jurisdiction under article 165 to hear and determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights. However the High Court could not overturn or order final decisions issued by higher courts than itself to start de novo, especially on appeals that had been finally concluded by the highest court at the time.
Superior courts could not grant orders to re-open or review decisions of their peers of equal and competent jurisdiction much less those courts higher than themselves.
A courts jurisdiction flowed from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the constitution or other written law. The decisions by the vetting board could not be elevated to supra-judicial pronouncements that would have the effect of setting aside every decision made by a judge who was removed for impropriety.
The appellant, having exercised his right of appeal (albeit unsuccessfully) to a higher court, in the instant case, the Court of Appeal, could not proceed to launch an attack upon a judgment of the Court of Appeal, by making an application for redress under article 23 of the Constitution to the High Court, another superior court nonetheless, but one inferior to the court that delivered such judgment. To allow such an action would be subversive to the principle of rule of law.
Though the courts found bias to amount to a breach of constitutional rights, the inferior courts were not asked to set aside the judgments made by superior courts, the vetting bard proceedings notwithstanding. The principle of finality in litigation was relevant. There had be an end to litigation and it was intolerable that litigants could be allowed to approach courts to reconsider final orders made in judgments by a superior court in the hierarchy of courts and to have such final judgments re-opened. There was no justifiable fault in the decision of the appellate court affirming the trial courts decision.
Senate V Council Of County Governors & 6 Others (Petition 24 & 27 Of  (Consolidated))  KESC 57 (KLR) (7 October 2022) (Judgment)
Case Number: Petition 24 & 27 of 2019 (Consolidated)
Date Delivered: 07 Oct 2022
Judge: Martha Karambu Koome, Mohammed Khadhar Ibrahim, William Ouko, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Senate v Council of County Governors & 6 others
Citation: Senate v Council of County Governors & 6 others (Petition 24 & 27 of 2019 (Consolidated))  KESC 57 (KLR) (7 October 2022) (Judgment)
The Senate had powers to summon county governors in the performance of its oversight role over county revenue
On February 8, 2014, the Senate Committee on County Public Accounts and Investments summoned fifteen county governors to appear before it to answer questions on county financial management. Several county governors appeared before the Committee save for four who expressly declined to honor the summons. The four governors instead filed a petition before the High Court challenging the summons. On April 16, 2014, the High Court found that the Senate was well within its constitutional mandate to issue the summons.
Consequently, the Senate issued fresh summons to the governors, requiring them to appear before the Committee on August 26, 2014. However, the governors of Bomet, Kiambu, Muranga and Kisumu Counties declined to honor the summons despite the court orders. That prompted the Senate to pass a resolution, in accordance with section 96 of the Public Finance Management Act (PFMA), recommending that the Cabinet Secretary, Treasury halts the transfer of funds to the concerned county governments and the Controller of Budgets withholds the approval of withdrawal of public funds by those county governments.
Aggrieved, the governors filed a second petition on among other grounds that under articles 96 and 226(2) of the Constitution of Kenya, 2010 (the Constitution)and section 148 of the PFMA, the Senate could not summon governors to personally appear before it to answer questions of county government finances.
The High Court held among others that the Senate could summon governors to answer questions on county public finance management and that the resolution passed by the Senate directing the National Treasury and Controller of Budget not to release funds to counties was unconstitutional. Aggrieved, the respondents filed an appeal at the Court of Appeal while the appellant filed a cross-appeal at the same court. The Court of appeal dismissed both the appeal and cross-appeal for lack of merit and upheld the High Court judgment. Aggrieved by the Court of Appeal decision, the appellants filed the instant consolidated appeals.
Whether the Senate was constitutionally empowered to summon governors to appear before it or any of its committees for purposes of answering questions and providing requisite information.
Whether the Senates oversight function was limited to nationally allocated revenue.
Whether County Assemblies had the power of first tier oversight over county governments revenue whether nationally allocated or locally generated.
Relevant provisions of the law
Constitution of Kenya, 2010
Article 96 - Role of the Senate
(1) The Senate represents the counties, and serves to protect the interests of the counties and their governments.
(2) The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.
(3) The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.
Article 96 of the Constitution as read together with articles 110 to 112 of the Constitution, left no doubt that the Senate was established to perform fundamental roles of governance concerning counties; they were legislative, budgetary and oversight. It had been granted considerable latitude in ensuring that county governments operated at optimal and within accountability standards, if the objectives of devolution were to be realized. There was no way by which the Senate could perform such an important role without having the powers to summon a governor and to require him/her to provide answers and offer explanations regarding the management of the county finances and related affairs. Without such power, the Senate would not be able to protect the interests of the counties, nor would it be able to exercise effective oversight over national revenue allocated to counties.
Article 96(3) of the Constitution was buttressed by section 8 of the PFMA which provided for the responsibilities of the Senate Budget Committee in public finance matters. For the Senate to perform its functions as stipulated in section 8, it had to incorporate the input of the respective chief finance officers of the counties, who were in turn appointed by the governor. The office that was ultimately answerable to the Senate was that of the governor.
The Senate was constitutionally empowered, to summon governors to appear before it or any of its committees for purposes of answering questions and providing requisite information. In appearing before Senate, there was nothing to stop a governor from going on with his/her technical team from the county executive. By the same token, if the Senate was of the view that the questions to be answered or information to be provided did not need the personal input of the governor, it could restrict its summons to the relevant county official or executive committee.
Article 185(3) of the Constitution provided that a County Assembly, while respecting the principle of separation of powers, could exercise oversight over the county executive committee and any other county executive organs. Article 185(3), although permissively framed, conferred powers upon county assemblies to oversight the county executive. That therefore meant that among other things, county assemblies could question the county executives management of county affairs, including the use of revenue. What the County Assemblies could not do was to usurp the role of the county executive under the guise of oversight, for that would offend the principle of separation of powers. The County Assemblies could not for example, take over the role of implementing Government policies and projects. Their role was to provide checks and balances to the county executives so as to promote transparency and accountability in the manner county affairs were run.
Article 96(2) of the Constitution, which conferred legislative powers upon the Senate regarding Bills concerning county governments, had to be read together with articles 109 to 113 of the Constitution. Those provisions entrusted the Senate with the mandate of legislating for county governments in fields that spanned the entire spectrum of governance. With regard to county finances, the foregoing provisions did not limit Senates legislative power to the nationally allocated revenue.
A holistic reading of all the relevant provisions of the Constitution and the law, put in context, led to the conclusion that both the Senate and County Assemblies had the power to oversight county revenue whether nationally allocated or locally generated. The fact that county revenue was locally generated did not remove it from the purview of Senate oversight. Such revenue fell within the rubric of public finance whose use had to remain under the radar of scrutiny and oversight by the State organs established for that purpose. Similarly, the fact that county revenue was nationally allocated did not place it beyond the oversight of county assemblies.
The purpose of the Constitution was to entrench good governance, the rule of law, accountability, transparency, and prudent management of public finances at both levels of Government. Such grand purpose could not be served if either the Senate or county assemblies began to develop centres of oversight/influence. In that regard, the county assemblies provided the first tier of oversight while the Senate provided the second and final tier of oversight.
By exercising its oversight role in the manner determined, the Senate could not be said to be violating the principle of separation of powers. There was no potential danger of encroachment upon the mandate of the independent offices of the Controller of Budget or the Auditor General. What the Senate could not do under the guise of oversight, was to usurp the county executives mandates or to purport to supervise County Assemblies.
Odinga & 16 Others V Ruto & 10 Others; Law Society Of Kenya & 4 Others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 Of  (Consolidated))  KESC 56 (KLR) (Election Petitions) (26 September 2022) (Judgment)
Case Number: Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated)
Date Delivered: 26 Sep 2022
Judge: Martha Karambu Koome, Isaac Lenaola, Mohammed Khadhar Ibrahim, William Ouko, Philomena Mbete Mwilu, Smokin Charles Wanjala, Njoki Susanna Ndungu
Court: Supreme Court of Kenya
Parties: Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae)
Citation: Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Amicus Curiae) (Presidential Election Petition E005, E001, E002, E003, E004, E007 & E008 of 2022 (Consolidated))  KESC 56 (KLR) (Election Petitions) (26 September 2022) (Judgment)
Supreme Court upholds the election of William Samoei Ruto as the Fifth President of the Republic of Kenya.
On August 9, 2022 Kenya held the third general election under the Constitution of Kenya, 2010 (Constitution). Transmission of the results of the general election was done via the Kenya Integrated Electoral Management System (KIEMS); a technology used in the biometric voter registration, and, on the election day, for voter identification as well as the transmission of election results from polling stations to the National Tallying Centre.
On August 15, 2022, the chairperson of the Independent Electoral and Boundaries Commission (IEBC) (4th respondent) declared the 1st respondent, William Samoei Ruto, the Presidential Candidate for the United Democratic Alliance Party, (1st respondent) the president elect with 7,176,141 votes (50.49% of presidential votes cast) and the 1st petitioner, Raila Amollo Odinga as the runners up with 6,942,930 votes (48.85% of presidential votes cast).
Aggrieved by the results and the process by which the results were obtained and declared, the 1st petitioners, Raila Odinga and Martha Karua, who were the presidential and deputy presidential candidates respectively of the Azimio La Umoja Coalition of parties filed the instant petition challenging the declared result of that presidential election (the election). Alongside the 1st petitioners were a bundle of 6 other petitioners that also challenged the result of the presidential election; in total they filed 9 presidential election petitions.
The 1st, 3rd and 4th petitioners in the consolidated petition, challenged the technology used by IEBC during the 2022 General Election. They pleaded that the manner in which technology was deployed and utilized fell short of the prescribed constitutional and statutory standards. As regards the audit of the Register of Voters, they urged that IEBC, pursuant to its Elections Operations Plan, committed itself to conducting an audit of the Register of Voters by March 31, 2022. To the contrary, they alleged, it only publicly availed the audit report on its website on August 2, 2022, 7 days to the election.
In response, IEBC submitted that the electoral system met the constitutional threshold; that all necessary information was accessed only by authorized persons; the information was accurate, complete and protected from malicious modification either by authorized or unauthorized persons; it maintained an audit trail on activities related to information and the information was available and could be authenticated through the use of various security features.
The 1st petitioners further alleged that the results of the presidential election were staged. They contended that a person who had access to the Result Transition System (RTS), intercepted, detained or stored Forms 34A temporarily to convert or manipulate them before uploading them on IEBCs public portal.
To rebut the allegation, IEBC and its chairperson denied staging and unauthorized intrusion of the RTS. In that regard, they urged that every image of Forms 34A was uploaded immediately after the transmitted result form was received as evinced by the time stamp.
The petitioners also challenged the authority and the decision of the IEBC or its chairperson to postpone the gubernatorial elections in Kakamega and Mombasa counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency. They contended that the IEBC had no jurisdiction to postpone elections in those areas. They further contended that section 55B of the Elections Act was inconsistent with the Constitution and void to the extent that it purported to donate to IEBC power to postpone elections in the constituency, county or ward contrary to the Constitution. They contended that the postponement undermined the conduct of free, fair and credible elections by depriving the voters an opportunity to vote for all the candidates on the date stipulated by the Constitution. The 1st and 3rd petitioners also believed that elections were deliberately postponed in Kakamega and Mombasa counties. It was alleged that those areas were considered to be 1st petitioners strongholds, and as such, the postponement of elections worked to his disadvantage and handed a benefit to the 1st respondent.
Those assertions were denied by IEBC and its chairperson. They however, admitted that they experienced confusion with the printed ballot papers and explained that they only discovered the mix-up on the eve of the election when the ballot papers were being distributed to the polling stations; that as a practice, ballot papers could only be opened on the eve of the election day to avoid any mischief; and that by the time the mix-up was discovered, it was logistically impossible to print and replace the ballots papers in time for the election.
The petitioners also contested the formula used by the IEBC or its chairperson to declare that the 1st respondent had obtained the threshold of 50% + 1 of the votes cast in the presidential election. In particular, they challenged the rounding off. They contended that the rounding off of votes cast in a presidential election as a means of assessing the threshold under article 138(4) of the Constitution killed and birthed voters, which was illegal and unconstitutional.
Lastly the petitioners challenged the results of the presidential election on account of the opaque nature of the verification exercise at the National Tallying Center. On August 15, 2022 as the public waited for the chairperson of the IEBC to declare the final result, Kenyans found themselves watching a split screen scenario on their television sets. On one part of the screen was the chairperson, readying himself to declare the result of the presidential election; on the other part of the screen were the 5th to 8th respondents (the 4 commissioners) on the lawns of the Serena Hotel-Nairobi, from where they announced that they would not own the results that were soon to be declared by their chairperson. The 4 commissioners termed the results opaque due to the manner in which the chairperson had been conducting the verification and tallying exercise. They contend that by rejecting IEBCs results on grounds of opaqueness of the verification and tallying process, they called into question, the credibility of the entire election. They further submitted that being in the majority out of the seven-member Commission, their view should prevail and the election should be nullified. It was the petitioners argument, therefore, that a dysfunctional Commission could not deliver a credible election.
Which party bore the burden of proof in an election petition?
What was the standard of proof in proving:
election irregularities and illegalities;
data specific claims; and
Whether the technology deployed by IEBC met the standards of integrity, verifiability, security, and transparency that guaranteed accurate and verifiable results.
Whether IEBC had the capacity to develop the Kenya Integrated Electoral Management System (KIEMS) on its own without procuring it from third parties.
Whether the procurement of the KIEMS by IEBC was within the law.
Whether IEBC at the time of the elections of August 9, 2022 had visibility and control at all times of its election technology.
Whether IEBC failed to carry out an annual systems audit of the election technology to evaluate the confidentiality, integrity and availability of the election technology pursuant to regulations 11 and 12 of the Elections (Technology) Regulations, 2017.
Whether there was interference with the uploading and transmission of Forms 34A from the polling station to IEBC public portal.
Whether there was a difference between Forms 34A uploaded on IEBCs public portal, the Forms 34A received at the National Tallying Centre, and Forms 34A issued to the agents at the polling stations.
Whether counsel were not permitted to swear affidavits on behalf of their clients in contentious matters.
What duty did an advocate owe the court?
Whether a court of law could examine affidavit evidence that had been withdrawn by the deponent.
Whether IEBC had the requisite constitutional and legal authority to postpone gubernatorial, parliamentary and ward elections.
What threshold had to be met for the IEBC to take the drastic step of postponing elections?
What did the court consider in determining a claim of voter suppression?
Whether the postponement of gubernatorial elections in Kakamega and Mombasa Counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South Constituencies and electoral wards in Nyaki West in North Imenti Constituency and Kwa Njenga in Embakasi South Constituency resulted in voter suppression.
Whether there were unexplainable discrepancies between the votes cast for presidential candidates and other elective positions.
Whether IEBC carried out the verification, tallying, and declaration of results in accordance with article 138(3)(c) and 138(10) of the Constitution.
Whether regulation 87(3) of the Elections (General) Regulations, 2012 was unconstitutional to the extent that it vested the power of verifying and tallying presidential election results, as received at the NTC, solely on the chairperson of the IEBC to the exclusion of other members of the Commission.
Whether the petitioners proved to the requisite standard that the chairperson of the Commission excluded the four Commissioners from the tallying and verification process.
Whether the results from twenty-seven disputed constituencies were tallied and verified.
Whether there were irregularities and illegalities of such magnitude as to affect the final result of the presidential election.
What constituted electoral irregularities and illegalities?
Whether there was a special mechanism in place, to allow for special voting for election officials and observers, patients admitted in hospitals, older members of society, members of the defence and security forces on duty and other persons by reason of a special need, as contemplated under regulation 19 of the Elections (General) Regulations 2012.
(3) Upon receipt of Form 34A from the constituency returning officers under sub regulation (1), the Chairperson of the Commission shall
(a) verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre;
(b) tally and complete Form 34C;
(c) announce the results for each of the presidential candidates for each County;
(d) sign and date the forms and make available a copy to any candidate or the national chief agent present;
(e) publicly declare the results of the election of the president in accordance with Articles 138(4) and 138(10) of the Constitution;
(f) issue a certificate to the person elected president in Form 34D set out in the Schedule; and
(g) deliver a written notification of the results to the Chief Justice and the incumbent President within seven days of the declaration; Provided that the Chairperson of the Commission may declare a candidate elected as the President before all the Constituencies have delivered their results if in the opinion of the Commission the results that have not been received will not make a difference with regards to the winner on the basis of Article 138(4)(a) and (b) of the Constitution; and Kenya Subsidiary Legislation, 201 7 379 (h) in the case of the other elections, whether or not forming part of a multiple elect ion, publish a notice in the Gazette, which may form part of a composite notice, showing the name or names of the person or persons elected.
Lack of trust in the electoral system led to the introduction of election technology via section 44 of the Elections Act. Section 44 enjoined the Independent Electoral and Boundaries Commission (IEBC) to adopt an integrated electronic electoral system that enabled biometric voter registration, electronic voter identification and electronic transmission of results. However, electronic transmission was limited to a presidential election. IEBC developed technology known as Kenya Integrated Electoral Management System (KIEMS) making Kenyas election process a hybrid one, embracing both technology and manual processes.
IEBC was the body constitutionally mandated to conduct elections in Kenya. Elections were considered free and fair when they were held in consonance with the general principles for the electoral system as articulated in article 81(e) of the Constitution as read with section 25 of the Independent Electoral and Boundaries Commission Act (IEBC Act) that was, if they were, conducted by secret ballot, free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in an impartial, neutral, efficient, accurate and accountable manner.
The outcome of a case depended on the strength, accuracy and reliability of evidence. In an adversarial court system, the courts were blind in the sense that they did not carry out any investigative roles or gather evidence on behalf of the parties before them. They depended on and determined disputes from what parties presented. Cases were won or lost on the evidence placed before the court.
A petitioner who sought the nullification of elections for alleged non-conformity with the Constitution or the law or on the basis of irregularities and illegalities, had the duty to proffer cogent and credible evidence to prove those grounds to the satisfaction of the court. Once the court was convinced that the petitioner had discharged that burden, then the evidentiary burden shifted to the respondent (who in most election-related cases was IEBC), to present evidence by way of rebuttal of the assertion.
The intermediate standard of proof in election petitions lay in a middle ground between the threshold of proof on a balance of probability in civil cases and beyond reasonable doubt in criminal trials, save for two instances; where allegations of criminal or quasi-criminal nature were made; and where there was data-specific electoral pre-condition and requirement for an outright win in the presidential election, such as those specified in article 138(4) of the Constitution. In those instances, the standard of proof was beyond reasonable doubt. Despite there being different standards of proof in other jurisdictions across the globe, there was no justification to depart from the test applied in the Kenyan jurisdiction. There were therefore only two categories of proof in relation to election-related petitions in Kenya: the application of the criminal standard of proof of beyond reasonable doubt and the intermediate standard of proof.
The electoral system was designed to handle voter registration of over 22 million voters with unique biometric details. Further, in all the 46,231 polling stations KIEMS kits were mapped to the specific geographical area of the polling stations and to specific presiding officers. It was also designed to be as secure as possible to prevent infiltration. The public portal, on the other hand, was designed to handle numerous visits to the website to access the transmitted Forms 34A without causing it to crash. Such a system by design could not be expected to be a simple one in the ordinary sense. Its features were not configured for ordinary everyday use by everyone without suitable training. There had been no specific complaint by any voter, agent or member of the public over their inability to use or frustrations in the use of the technology.
IEBC had rolled out an elaborate training program aimed at building capacity and competence of its staff members and candidates agents on the KIEMS system. It also conducted voter education and sensitization activities across the country targeting stakeholders including political parties, civil society and Government agencies through print and electronic media, in fulfilment of the provisions of article 88(4)(g) of the Constitution as read with section 40 of the Elections Act.
The KIEMS system was initially created as four different systems operated separately during the 2013 General Election, but since 2017 the said system had been fully integrated. There had been a gradual but sustained advancement in election technology from pre-2007 and 2013 elections.
Technology no matter how advanced, was bound to fail at one point or another, leading to a bad user experience. Hardware breaks, software bugs and connectivity loss, among many challenges in automation. Imperfections in the process were inevitable. Some imperfections could have far-reaching ramifications, which in turn could lead to nullification of an election while others may not reach that level or degree of significance. The nullification of the Presidential Election of 2017 was partly based on that reality.
Whereas KIEMS kits failed in 235 polling stations in Kibwezi West Constituency and parts of Kakamega County, 86,889 voters were granted the right to vote manually and the requisite Forms 32A duly filled. The failure of the KIEMS kits in the identified polling stations could not be taken as a yardstick of the performance of KIEMS kits in the whole country. All affected voters who could have complained were not disenfranchised as they were able to exercise their democratic right to vote manually.
By dint of section 44(4) of the Elections Act, IEBC was to, in an open and transparent manner, procure and put in place the technology necessary for the conduct of a general election at least one hundred and twenty days before such elections. The two limbs to the provision were the open and transparent procurement of the technology and the timelines within which to put it in place. The IEBC advertised an open international tender for the supply, delivery, installation, testing, commissioning, support and maintenance of the KIEMS, hardware equipment and accessories. At the close of the tender period, it received bids from five firms and upon evaluation, Smartmatic was successful and was awarded the tender thereto. A contract between IEBC and the firm was concluded on November 25, 2021. The award of contract was contested before the Public Procurement Administrative Review Board, the High Court and eventually the Court of Appeal with the ultimate result that the award was upheld. It was not open for any party or even the Supreme Court to revisit that tender in the circumstances.
IEBC did not have the capacity to develop such a system and therefore it procured such a system. Although computer hardware, software, and other related services were essential for election operations, an elections body would not have the capacity to avail for itself most of those complex services that underpinned electionsfrom voter registration and election management systems to results transmission devices. Those were procured from private vendors. Once procured, installed and operationalized, the systems could be managed by staff of the election body. IEBC did not abdicate its role in the procurement of the technology used in the last General Election or in the conduct of the presidential election. It complied with section 44 of the Elections Act and with the procurement procedures under regulation 4 (1) of the Elections (Technology) Regulations, 2017.
IEBC granted a team comprising of agents of all the petitioners supervised access to the server for interrogation for the entire duration of the exercise. IEBC in compliance with the orders of the court provided its password policy, password matrix, system users and levels of access, workflow chats of the system, architecture, diagram, tallying, transmission and posing of the portals as well as the system architecture. It only declined to provide the owners of system administrations passwords as they considered doing so would expose the names and identities of the system administrator posing a threat to their security. That position was understandable. The petitioners, through their agents, were not handicapped in any way during the scrutiny exercise and they had access to all material relevant to the scrutiny and the petitions before the court. Any other access would not have been of use to the court or the petitioners.
IEBC had visibility of the system and its technical members of staff, who conducted the scrutiny had control of the electoral system at all times. The petitioners did not present any evidence that met the requisite standard of proof to show that there was access to the system by unauthorized persons. Similarly, the report of the Registrar of the Supreme Court (Registrars report) did not reveal any security breaches of the Result Transmission System (RTS) by any unauthorized person(s).
IEBC engaged the firm of Serianu Limited in July 2022 to conduct the annual audit of its election technology systems. There was public testing of the kits on June 9, 2022, being sixty days before the election and a similar simulation carried out on July 15, 2022. The petitioners made allegations that they had been unable to prove and to which IEBC had been able to respond by demonstrating that it followed the law as regards auditing of the electoral system pursuant to regulations 11 and 12 of the Elections (Technology) Regulations, 2017. The court was not satisfied that the technology deployed by IEBC failed the standard of article 86(a) of the Constitution on integrity, verifiability, security and transparency.
From the Registrars report, parties reviewed the transmission of Forms 34A from the KIEMS kit to the online public portal and were satisfied that once the presiding officer took a picture of Form 34A, the KIEMS kits would, at that point, scan the Form into PDF which would then be transmitted to a storage server. At the storage server, the Form was processed by an application to ascertain compliance with security features. Once that was confirmed, Form 34A was then published on the online public portal. But if it lacked the security features, it was dropped and information of the anomaly was duly recorded.
Forms 34A as transmitted from the polling stations were handwritten by the presiding officers. The KIEMS kit had an inbuilt scan application that enabled the scanning of forms into PDF before transmission to the receiving server. That categorical finding settled the issue of alleged image conversion. The system in terms of its configuration, design and disposition would not allow the intrusion and interference in the manner as alleged by the petitioners side. The 1st, 2nd, 3rd and 4th petitioners' illustration of how a document which was handwritten and with signatures, was scanned and uploaded through the KIEMS then uploaded on an external platform where it was converted into another format, amended, then converted back into PDF format to finally be re-uploaded onto IEBCs portal, was not believable. The scrutiny exercise put that postulation beyond argument.
Any alteration of the Forms 34A as transmitted would have required the person to have information on the voter turnout. One could not purport to alter the votes of a polling station by increasing the number of votes in favour of one candidate without, first establishing the exact number of voters that turned out to vote. To alter votes in the manner alleged by the petitioners would require the man or machine in the middle to have had agents in all the 11,000 polling stations, where it was alleged that Forms 34A were held in abeyance for manipulation, before being uploaded with finality to IEBCs online public portal within 8 minutes. That was almost a technological impossibility. The claims of access to the RTS to interfere with Forms 34A, and that 11,000 Forms 34A were affected by staging were not proved and remained just but mere allegations.
According to the Registrars report, there were no records of file deletion or removals that were discovered. There was no suspicious activity involved. Scrutiny of the original Forms 34A revealed that the forms were exactly the same as those on the public portal and the certified copies presented to the Supreme Court under Section 12 of the Supreme Court Act. There was no evidence of interception; no sign of interference was detected.
The allegation that the integrity of the public portal was compromised was disproved by evidence of consistent attributes securing the system such as unique time stamps, uniform PDF conversions at the polling stations, correct polling station mapping and consistent KIEMS reporting from verification to transmission of results. The KIEMS kits were configured to transmit the results into the IEBC server, with all the tablets being used for specific polling stations. It was easy, with that configuration to trace where the Forms 34A were transmitted from. Equally, the network was secured with external and internal perimeter firewalls only authorising transmission of the Forms 34A through the network and no other information. The results of the Forms 34A were also encrypted before transmission over a VPN provided by the three mobile network operators. The RTS was configured on a VPN and the SIM cards locked to a specific polling station. The server was also configured to accept results only from authorized and properly mapped KIEMS kits. The petitioners failed to produce evidence to the contrary.
The KIEMS kits were capable of detecting the legitimacy of the forms as they would take images using the specific markings identifying the Forms 34A and ensuring that only legitimate forms were transmitted. There was integrity of the process by adding a third layer of firewalls that filtered all incoming and outgoing data while restricting any third party or unauthorized access. The allegation that IEBC, its officials and strangers used a tool to tamper with the Forms 34A before converting them to the PDF format that eventually appeared on the public portal was sufficiently explained as an impossibility. The allegation was dismissed. The petitioners had failed to discharge the legal burden of proof so as to shift it to IEBC.
There was no credible evidence to support the 1st petitioners claim that Forms 34A presented to agents differed from those uploaded to the public portal. The Registrars report confirmed the authenticity of the original forms in the sampled polling stations. There were no significant differences between the Forms 34A uploaded on the public portal and the physical Forms 34A delivered to the NTC that would have affected the overall outcome of the presidential election.
The affidavits of Celestine Anyango Opiyo and Arnold Ochieng Oginga, while containing sensational information, were not credible as the Registrars report confirmed evidence to the contrary. All the Forms 34A attached to those affidavits and purportedly given to them by agents at select polling stations were significantly different from the originals, certified copies and those on the public portal. The purported evidence sworn in the affidavits was not only inadmissible, but was also unacceptable. It had been established that none of the agents on whose behalf the forms were being presented swore any affidavit; that there was nothing to show that they had instructed both Celestine Opiyo and Arnold Oginga to act for them. Yet the two had gone ahead to depone on matters that were not within their knowledge. The two were advocates of the High Court and were on record as representing the 1st petitioner in the petition.
The court could not countenance that type of conduct on the part of counsel who were officers of the court. Affidavits filed in court had to deal only with facts which a deponent can prove of his own knowledge and as a general rule, counsel were not permitted to swear affidavits on behalf of their clients in contentious matters, as was the case in the presidential election petition, because they ran the risk of unknowingly swearing to falsehoods and may also be liable to cross-examination to prove the matters deponed to.
Sections 113 and 114 of the Penal Code made swearing falsehoods a criminal offence. It was an offence to present misleading or fabricated evidence in any judicial proceedings. One of the most serious losses an advocate may ever suffer was the loss of trust of judges for a long time. Such conduct amounted to interference with the proper administration of justice. Further, it put counsel in jeopardy of being found in contempt of court.
An advocate, consequently, bears an obligation to promote the cause of justice, and the due functioning of the constitutionally-established judicial process ensuring that the judicial system functions efficiently, effectively and in a respectable manner. In that context, advocates bore the ethical duty of telling the truth in court, while desisting from any negative conduct, such as dishonesty or discourtesy. The overriding duty of the advocate before the court was to promote the interests of justice, and of motions established for the delivery and sustenance of the cause of justice.
The court dismissed the contents of the affidavit of John Mark Githongo, which could contain forgeries, for not meeting the evidential threshold. It contained no more than hearsay evidence. No admissible evidence was presented to prove the allegation that Forms 34A were fraudulently altered by a group situated in Karen under the direction of persons named in the affidavit and video clip attached to it. His two affidavits amount to double hearsay which was incapable of being proved at each layer.
Paragraph 13 of the affidavit of Githongo of August 21, 2022 claimed that the young self-confessed hacker confirmed that his team was also able to manipulate the gubernatorial results in some key counties, as well as those for the presidential election. Governors results were not transmitted electronically, in the same manner as those of presidential candidates. That statement alone should have been sufficient to cast serious doubts on the credibility of that witness. It was improper for Githongo to accept such evidence and to present it to the Supreme Court as the linchpin for the nullification of the results of the presidential election, and even worse, go ahead to swear that those facts were, to his knowledge, true.
Although John Githongo withdrew his earlier averments, that did not prevent the court from examining the same. His affidavit together with those of Celestine Anyango, Arnold Oginga and Benson Wesonga were the anchors upon which the 1st petitioners case was predicated.
The original Forms 34A were authenticated by their unique security features, including UV sensitive security features; micro-text with the words Independent Electoral and Boundaries Commission, tapered serialization, anti-copy features and water mark that enhanced the security of the information management environment therefore eliminating and protecting the system against the possibility of interference by any unauthorized third party. The physical and original Forms 34A were the same as those on the online public portal. The Forms 34A were carbonated to ensure that only one form was filled by the presiding officers and acted as a measure to help authenticate the results at the polling stations before transmission.
Expert opinion, as a general rule was not binding on the court. It was only an opinion. In reaching its determination, the court was entitled to consider other relevant facts and the evidence as a whole. The forensic reports could not be used as evidence and basis that the Forms 34A were tampered with.
The explanation by the IEBC that the presiding officer of Gacharaigu Primary School took the picture of the Form 34A above the QR register which had the name Jose Camargo. The name was not on the Form 34A or any election material was credible. However the two KIEMS kits had the same serial number as alleged but that they had different IP addresses from the two different polling stations, and therefore, had distinct identifiers. Similarity in serial numbers could only be attributed to a manufacturers fault. The reasons for the irregularity were plausible. It had not been established that those minor infractions and errors were of a magnitude that would lead to a different result from that declared by IEBC. There was no difference between Forms 34A uploaded on IEBCs public portal, those received at the NTC, and those issued to the candidates agents at the polling stations.
The postponement of the gubernatorial Elections in Kakamega and Mombasa Counties, parliamentary elections in Kitui Rural, Kacheliba, Rongai and Pokot South constituencies and electoral Wards in Nyaki West in North Imenti constituency and Kwa Njenga in Embakasi South constituency (the postponement) was occasioned by the wrong pictures and details of the candidates on the ballot papers. The postponement did not affect the presidential or other elections which went on as scheduled. The postponement did not go without protestation from some of the candidates and parties.
Article 38(3)(b) of the Constitution guaranteed every adult citizen the right, without unreasonable restrictions, to vote by secret ballot in any election. Voting in periodic genuine elections was a well-established right according to international human rights law. The decision to postpone an election and prevent citizens, albeit temporarily, from exercising their regular right to vote was a weighty choice which should be made only in a very limited and exceptional set of circumstances.
The circumstances would include major crises such as civil wars, natural or humanitarian disasters, the prevalence of a deadly pandemic and technical delays related to logistical issues. There could also be certain inevitable constraints such as fire incidents, bad weather, insecurity or violence.
Election postponement could have far-reaching ramifications in a countrys democratic process and economic activities. It disrupted voters plans, schedules and activities, which in turn affected the voter and the candidates financially, emotionally and psychologically. It could lead to electoral apathy as citizens tended to lose interest in voting when they felt that it may be a waste of their time. That would then impact on the turnout among registered voters. There was also economic loss associated with postponement of election, in addition to loss of reputation of a nation in the international community. The citizens, political parties and candidates were the main victims of election postponement. The latter two categories invested heavily in elections by campaigning, deployment of agents in the polling stations and generally spent huge sums of money to monitor the elections.
Many voters travelled long distances to ensure that they were present at their polling units to participate in the voting process. Many others closed their businesses in order to make the journeys. The postponement of the election would also have an impact on foreign observers, media outlets, security agencies, employers and employees, as well as students. Although in the instant case it was IEBC that postponed the election, it would have been bound to incur extra costs to deploy personnel and materials for the election but the printers offered to print fresh ballot papers at no extra expense. In addition, its credibility would be damaged by the postponement.
For this claim that the postponement led to voter suppression to succeed, the petitioners had to demonstrate, first, that IEBC had no authority under the Constitution or in law to postpone the elections under any circumstance and secondly, that the postponement was deliberately calculated to suppress voter turnout so as to affect the result by reducing the 1st petitioners overall votes in order to benefit the 1st respondent.
IEBC under the Constitution had a wide mandate in so far as the conduct and supervision of elections to any elective body or office was concerned. In the discharge of its general functions and exercise of its powers pursuant to articles 88 and 252 of the Constitution, IEBC could perform any functions and exercise any powers prescribed by legislation, in addition to those conferred by the Constitution itself. On the basis of section 55B(1) of the Elections Act that gave the IEBC the power to postpone elections, IEBC had the requisite constitutional and legal authority to postpone elections in the counties, constituencies and wards in question.
Voter suppression was generally recognized as a political strategy which took many forms but whose practical effect is ultimately to reduce voting by deliberately discouraging or preventing targeted groups of people from exercising their right to vote. The ultimate aim of that scheme was to influence the outcome of an election in favour of a preferred candidate. Suppression of votes could range from the seemingly harmless requirements, like strict voter identification rules. If, for instance a registered voter could not be identified by the KIEMS kit it could amount to suppression if the election officials were to turn away the voter, instead of resorting to the voters manual register and if that was on a scale that was likely to lead to systemic disenfranchisement.
Though the very purpose of voter registration was to ensure that every adult person who qualified to vote in an election was registered as a voter, voter registration could be used as a tool for suppressing votes of some communities by not availing registration facilities in time or at all to those communities.
Under article 88(4) of the Constitution, IEBC was not only responsible for the continuous registration of voters but also for the regular revision of the voters roll. This latter role was critical in cleaning up the voters roll by removing from the roll voters who had died or become ineligible to vote for other reasons or updating it with newly registered voters or those who had transferred their votes to other stations. Yet that process could be turned into a tool of mass disenfranchisement, purging eligible voters from rolls for illegitimate reasons or by design retaining deceased voters. A single purge could stop many people from voting. Often, voters would only learn they have been erroneously purged when they show up at the polls on election day and when it was too late to correct the error, considering that not every voter utilized the window before election to verify their details in the roll. The very essence of voter suppression, to disenfranchise voters, therefore went against the letter and spirit of article 38 of the Constitution which guaranteed every citizen the right to make political choices based on universal suffrage.
The Constitution enjoined IEBC in article 86 of the Constitution to ensure that, whatever voting method was used in an election, the system had to be simple, accurate, verifiable, secure, accountable and transparent; that the votes cast were counted, tabulated and the results announced promptly. Voting had to be as easy and accessible as possible and Kenyas nascent democracy would work best when all eligible voters could participate and have their voices heard in the ballot.
It was the petitioners' burden to demonstrate that as a result of the postponement of elections a particular number of voters or a specific group of people were unable to cast their ballots. That required presentation of empirical evidence. The petitioners had not only failed to present any such evidence, but have also not shown that the postponement was actuated by malice or bad faith or that it was influenced by irrelevant factors and considerations.
However, from the explanation tendered by IEBC, the postponement was occasioned by a genuine mistake, attributed to the printers, who were based abroad, in Athens, Greece. That fact and the discovery having been made only on the eve of the election, placed the situation out of hand. Though the mix-up could have been avoided had the members and staff of IEBC been more diligent when they went to inspect the templates in Athens. In that delegation too, were representatives of political parties and other groups. A mistake of that nature could have been avoided if IEBC exercised due diligence by counter checking and verifying the correctness of every detail in all the templates before approval of the printing. That was a basic standard operating procedure in printing especially of such a magnitude.
However, despite that infraction or lack of due diligence on the part of IEBC, there was absence of any empirical data, to persuade the court that the postponement of elections was meant to suppress voter turnout. The data presented by the petitioners which was countered by IEBC with data from neighbouring counties could not form a basis upon which the court could conclude, as a matter of fact or evidence, that the postponement affected voter turnout as a consequence of which the 1st petitioner, alone, as a presidential candidate suffered a disadvantage. At any rate, the nature of the ballot being an individual decision and secret, there may be other variables to which the turnout in the named units could be attributed. The general election recorded one of the lowest turnouts since the reintroduction of multi-party political system, some 30 years ago. If there was a low voter turnout, it affected all the six categories of candidates and its explanation, lay elsewhere but certainly not a calculated suppression.
There was no nexus between the postponement of elections and voter turnout in the affected units. Voter turnout in the neighbouring counties was no different from the two counties in question. For instance, the voter turnout for Kakamega, Vihiga and Bungoma Counties was 60.29%, 60.13% and 63.51% respectively. Similarly, the voter turnout in Mombasa County compared to Kilifi County was shown to be 43.76% against 49.03%. The claim of voter suppression was a red herring; it had nothing to do with the question under review, and was rejected. There was no proof that the postponement resulted in voter suppression to the detriment of the 1st petitioner.
Ballot stuffing, which included illegal addition of extra ballots, was a type of electoral fraud aimed at swinging the results of an election towards a particular direction. Not a single document had been presented by the 1st or 3rd petitioner to prove systematic ballot stuffing. A figure of 33,208 votes relied on in this claim was based on unproven hypothesis, that since the number of votes cast for President was higher than those for the other positions then, without more, it had to follow that there was fraud committed in the form of ballot stuffing.
Under the complementary mechanism, the presiding officers could only use the printed register in case the KIEMS kits completely failed. There was no requirement for recourse to the printed register, whether for purposes of voter identification or for crossing out the name after identification.
The mere crossing out of the name from the voters register did not in itself address the issue of votes cast as the voter turnout was sufficient to determine the number of votes cast for whatever position. From the functionality of the KIEMS kit, it was possible to tell how many people were identified at any given polling station.
Fraud being a serious criminal offence its proof required a higher standard; beyond reasonable doubt. Under Section 5(n) of the Election Offences Act, it was an offence for a person to vote more than once in any election. There were categories of voters who only voted for the President and no other candidate in an election. Those were prisoners and Kenyans in the diaspora. There were also an insignificant number of stray votes, whose combined effect did not meet the threshold in section 83 of the Elections Act to demonstrate that there was systematic stuffing of ballots in favour of the 1st respondent so as to justify nullification of the election.
A general election in Kenya comprised six different and separate elections held concurrently on the same day with voting being by secret ballot. It was impossible to predetermine the voter turnout or voters candidate preferences in each election. None of the parties had flagged anything so significant that would have affected the outcome of the presidential election vis vis the other five elections held on that day.
The starting point of constitutional interpretation was the text itself. As long as the text was clear and unambiguous, courts of law had to remain faithful to the natural and literal meaning of the words used in the Constitution. Care should always be taken to avoid textual absurdity. The Constitution was a living document that was always speaking.
The broad powers vested in the IEBC and typified in section 11A(a) of IEBC Act as ought to be understood as being vested in the collective of the chairperson and members of the Commission. The commission had to meet, act and make decisions collectively in discharging those mandates. It would be wrong to interpret the Constitution and statutory scheme regulating the operations of IEBC, as having vested sole authority on the chairperson, to the exclusion of the commissioners. Each of the members of the commission was a constitutional office holder in their own right. It was not constitutionally sound to expect that the chairperson of the Commission could override, veto or ignore the other commissioners when discharging mandates vested in the Commission. In case a responsibility was exclusively vested in the chairperson, article 138(10) of the Constitution expressly and unambiguously provided so.
The responsibility of tallying and verifying the results of a presidential election at the NTC, vested in the Commission as a collective entity (article 138(3)(c) of the Constitution); while that of declaring the result, vests exclusively in the chairperson, (article 138(10)). The collective of the Commission had to be viewed in the context of its extant roles during the preparation for, and actual conduct of a general election. The Commission may at one time, be the chairperson and the requisite number of other commissioners. At another time, it may be the foregoing, and staff of the Commission. Yet at other times, the Commission may comprise of the chairperson, the requisite number of other commissioners, staff of the Commission and agents of the Commission, including but not limited to, presiding officers, and returning officers.
The chairperson, the members of the Commission and the secretariat (employees) were envisaged to undertake the mandate to tally and verify election results. Pursuant to the terms of section 11A(b) of the IEBC Act, the Commission had a full-fledged secretariat headed by the Chief Executive Officer which was responsible for performing the day-to-day administrative functions of the Commission and implement the policies and strategies formulated by the Commission. That acknowledged the reality that the commissioners on their own could not undertake the huge enterprise of elections administration and management and other mandates vested in the Commission.
While the staff of the Commission, undertook the day-to-day administrative functions, they remained under the oversight of the Commission (chairperson and other commissioners). Given that the oversight mandate with respect to the tallying and verification was vested in the Commission, the chairperson could not exclude any member or members of the Commission from the execution of those twin constitutional and statutory mandates as they were vested in the Commission as a collective.
Nowhere in the Constitution, was the chairperson of IEBC granted special or extraordinary powers with regards to the tallying or verification of results to be exercised by him or her alone without regard to the rest of the commissioners. Nor did the law give the chairperson of IEBC a veto over the rest of the commissioners. IEBC chairperson's status in relation to the other commissioners was as a first among equals, a primus inter pares.
The argument that the IEBC had an executive chairperson went against the constitutional scheme that sought to build a strong collegiate institution. Consequently, to the extent that regulation 87(3) of the Elections (General) Regulations, 2012 purported to vest the power of verifying and tallying presidential election results, as received at the NTC, solely on the chairperson to the exclusion of other members of the Commission, the same was contrary to and inconsistent with the provisions of the Constitution.
All the four commissioners were involved in activities relating to the processing of results. In particular, they did not controvert the evidence that they announced results from several Constituencies upon the conclusion of the tallying and verification of the results. The four commissioners actively participated in the verification and tallying exercise, from the beginning, up-to and until just before the declaration of the result by the chairperson. They took turns announcing the results as verified and tallied and were present and active during the actual verification and tallying at the NTC. An example was Justus Nyangaya, who on one occasion stood on the podium to announce to the public, an adjustment that had been occasioned by errors of tabulation.
Apart from the eleventh-hour denunciation of the verification and tallying process by the four commissioners, and their averments regarding the conduct of the chairperson, the four commissioners did not place before the Supreme Court, any information or document showing that the elections were either compromised or that the result would have substantially differed from that declared by the chairperson of IEBC. Critically, they did not explain why they had participated in a verification process when they knew that it was opaque up until the last minute. Indeed, at the Serena Hotel press briefing, the four commissioners acknowledged that thus far, the entire election had been managed efficiently and credibly. The chairperson on his part, did not make matters any better, by maintaining a stoic silence even as things appeared to be falling apart. There was a serious malaise in the governance of an institution entrusted with one of the monumental tasks of midwifing our democracy.
The Supreme Court could not nullify an election on the basis of a last-minute boardroom rupture (the details of which remained scanty and contradictory) between the chairperson of the Commission and some of its members. In the absence of any evidence of violation of the Constitution and electoral laws, the Supreme Court could not upset an election in which the people had participated without hindrance, as they made their political choices pursuant to article 38 of the Constitution. To do so, would be tantamount to subjecting the sovereign will of the Kenyan people to the quorum antics of IEBC. It would set a dangerous precedent on the basis of which, the fate of a presidential election, would precariously depend on a majority vote of IEBC Commissioners. The dysfunction at the Commission impugned the state of its corporate governance but did not affect the conduct of the election itself.
The results from the twenty contested constituencies were tallied and verified. The only process that was not undertaken was the announcement of the results for those constituencies. It was not disputed that the results from those constituencies were included in the final tally declared by the chairperson.
The case made by the petitioners contesting the whether the declared President-elect attained 50%+1 of all the votes cast concerned a data-specific threshold enunciated under article 138(4) of the Constitution without the attainment of which, there could be no declaration.
Votes cast for the purpose of ascertaining the constitutional threshold under article 138(4) of the Constitution, 50% +1, referred only to valid votes cast, and did not include ballot papers or votes, cast but were later rejected for non-compliance with the terms of the governing law and regulations. Rejected votes could not be taken into account when calculating whether a presidential candidate attained 50% +1 of votes cast in accordance with article 138 (4) of the Constitution.
In the case of data-specific electoral requirements the party bearing the legal burden of proof had to discharge it beyond any reasonable doubt. The assertion by the petitioners that the percentage of voter turnout was predicated on the uncorrected percentage given by the chairperson of IEBC, was negated by the evidence adduced to prove the correction. The petitioners based their percentage of voter turnout on the total number of registered voters while the chairperson of IEBC made reference, in the press briefing, to the number of registered voters who were identified through the KIEMS kits, progressively.
The petitioners did not provide a watertight case to warrant the setting aside of the results of the presidential election on the basis of not having met the threshold provided under article 138(4)(a) of the Constitution.
The formula predicated on the number of voters identified through the KIEMS kits progressively and used by IEBC and its chairperson to generate a percentage of 64.76% was correct.
The chairperson of IEBC applied the formula in article 138(4) of the Constitution which was:
Total votes cast (less rejected votes)
= 50% +1 vote
Given the numbers that were presented to us by IEBC and its chairperson, that would translate to:
14, 213, 137
+ 1 = 7,106,569
70. 7,106, 569 was less than 7,176,141 which represented the number of votes received by the IEBC. The declared President-elect attained 50%+1 of all the valid votes cast in accordance with article 138(4) of the Constitution.
71. For the petitioners to succeed and overturn the results declared by the chairperson of IEBC, it was their burden to satisfy the court, first, that there were irregularities and illegalities; and secondly that the proven irregularities and illegalities were of such overwhelming nature that it was likely to affect the actual result, or the integrity of the presidential election.
72. The term illegalities referred to breaches of the substance of specific law and irregularities as the violation of specific regulations and administrative arrangements.
73. The irregularity on the parallel use of Forms 34A had not been proved and failed. There were instances of failure of the KIEMS kits in certain polling stations. In those instances, the regulations required voting time to be extended to compensate the lost time. The petitioners had not attached any material evidence or at all in support of their claims, which in any case were rebutted by IEBCs explanation that there were mechanisms in place to deal with the failed kits. Where technology failed, IEBC was empowered to employ complementary mechanism. IEBCs assertion that it did so was not controverted. As for time lost, IEBCs returning officers presented uncontroverted evidence to the effect that time lost was recovered and compensated by proportionate time extensions.
74. The claims of interference in the supply and delivery of ballot papers, register of voters, statutory election result declaration forms were merely, general statements not backed by cogent and credible evidence.
75. Though certain agents of Azimio La Umoja One Kenya Coalition Party swore affidavits stating specific stations and incidences of harassment, no further evidence such as a report to the police and the exact nature and manner of harassment were disclosed.
76. The petitioners did not show with specificity which election officials out of the 500,000 were not allowed to vote and in what circumstances. Likewise, no specifics of patients in hospitals, older members of society, members of the defence and security forces on duty, who did not vote on account of their situation were supplied. That ground had not met the requisite standard of proof and failed.
77. No mechanism had been put in place to allow for special voting as contemplated under regulation 90 of the Elections (General) Regulations 2012. IEBC did not indicate whether it had published notices on the manner and procedure of the conduct of special voting as required by the Regulations. There was specific and a deserving reason to make provision for special voting by the categories of people named in the regulations who by reason of any special need, including disability, were unable to access a polling station. There was specific and a deserving reason to make provision for special voting by the categories of people named in regulation 90, who by reason of any special need, including disability, were unable to access a polling station. IEBC was expected to actualize the intentions expressed in regulation 90.
78. Once an election offence had been alleged, the evidence in support thereof had to be specific, satisfactory, definitive, cogent and certain. It was only when the election court was satisfied that the burden and standard of proof had been satisfied that it could proceed under the above provision. General allegations did not meet the threshold to warrant the invocation section 87 of the Elections Act. By the same token, there was no evidence of violation or breach of any electoral law or regulations by the chairperson in the management of the August 9, 2022 presidential election.
79. The Supreme Court could only make the following orders when determining the validity of a presidential election petition under article 140 Constitution:
a. in the event the court determined that the election of the President-elect was invalid, it had to make an order nullifying the election. Consequently, it had also to make an order directing IEBC to hold a fresh election within sixty days after the determination.
b. Should the court determine that the election of the president-elect was valid, it was to issue a declaration to that effect. The court would then as a matter of course, make an order dismissing the petition, with or without costs as the case may be.
c. The court could however make recommendations or observations, or structural interdicts besides giving advisory opinion under article 163(6) of the Constitution.
80. There was institutional dysfunction undermining the optimal functioning of IEBC. There were legal, policy and institutional reforms that were urgently required to address the glaring shortcomings within IEBC. The court made the following recommendations on the IEBC:
On corporate governance issues
Parliament should consider enhancing the statutory and regulatory framework on the separate policy and administrative remit of IEBC.
IEBC ought to effect formal internal guidelines that clearly delineate the policy, strategy and oversight responsibility of the chairperson and the commissioners; and develop institutionalized guidelines on how to manage the separation of administrative and policy domains.
The roles of the chairperson, commissioners, and the chief executive officer, other staff and third parties should be clearly set out in both the legislative and administrative edicts as stipulated above.
On election technology.
To avoid suspicion from stakeholders, unless where and when it was absolutely necessary, access to the servers supporting the transmission and storage of Forms 34A, 34B and 34C should be restricted to IEBC staff during the election period.
IEBC should ensure that the servers supporting the elections and those serving their internal administrative work were distinct and separate. That would then allow the court, should the need arise, to carry out forensic imaging of the same without compromising and/or infringing any third-party agreements.
On statutory forms.
IEBC may consider simplifying and restructuring the Form 34A and include a column that accounts for stray ballots. In addition, it may consider having only one section for total valid votes. The independent body may also find it prudent to thoroughly train its returning officers as to what constituted valid votes per the Supreme Courts decision.
IEBC ought to put in place specific mechanisms to allow for special voting as contemplated under regulation 90 of the Elections (General) Regulations 2012.
On Constitutional reforms, the court noted the need to extend the constitutional timeline, within which to hear and determine a presidential election petition. The court underscored the need to extend the fourteen-day limit, for purposes of efficient case management by the court, and also, to afford the parties sufficient time to ventilate their cases.
On conduct of the proceedings before the Supreme Court, the court was constrained to advert to some of the guidelines of conduct that the court set out at the commencement of the hearing. Ground rule 3 required parties to conduct themselves with decorum to preserve the dignity of the court and the proceedings while bearing in mind the provisions of section 28 of the Supreme Court Act. In that regard, discussing the merits of the case by the parties outside the court was not permitted. Unfortunately, the courts caution went unheeded. Some counsel and parties had used inappropriate and insulting language against the court even before the issuance of the detailed judgment. It ought to be appreciated by all, that given the adversarial nature of Kenya's legal system, a determination of any matter by a court of law could never be in favour of both sides of the contending parties. While a party or its counsel could understandably be aggrieved by a decision of the court, it did not help or take away such grief by resorting to insults or vitriolic attacks on courts.
While freedom of speech was one of the fundamental principles upon which every democratic society was built, the exercise of those freedoms carried with it duties and responsibilities. Within the same norms which proclaimed those freedoms, were also restrictions on the extent of their enjoyment. The court shall remain faithful to the oath of office and shall defend the Constitution with a view to upholding the dignity and the respect for the Judiciary and the judicial system of Kenya. The court shall dispense justice without any fear. The Supreme Court did so to protect the institution not only for the present but also for the future: judges served their term and leave but the institution of the judiciary was there to serve today and for posterity.