Weekly Newsletter 014/2018

Weekly Newsletter 014/2018



Kenya Law

Weekly Newsletter



Constitutionality of the Election Laws Amendment Act, 2017 after the Annulment of the August 8, 2017 Elections
Katiba Institute and 3 Others V. Attorney General and 2 Others
Constitutional Petition No. 548 of 2017
High Court at Nairobi
E. C Mwita, J
April 6, 2018
Reported by Robai Nasike Sivikhe and Faith Jepchirchir
Download the Decision

Electoral Law- structure of the Independent Electoral and Boundaries Commission- the office of the Chairperson of the Commission- the functions and powers of the Chairperson of the Commission- what was the definition of a person qualified as chairperson of the Independent Electoral and Boundaries Commission- whether any other person in the commission, including the vice chairperson, could take over the position and function of the chairperson of the IEBC- whether IEBC Commissioners had the power to select a chairperson of the IEBC from amongst themselves- Independent Electoral and Boundaries Commission Act, 2011 sections 2, 7A (4), 7A (5), 7A (6) and paragraphs 5 and 7 of the Second Schedule

Electoral Law- transmission and declaration of results- the process of transmission of results- whether the amendment that made no requirement regarding a prescribed form in which results could be transmitted was unconstitutional- whether section 39 (1D) as read with section 39 (1C) of the IEBC Act created a potential tension between physically transmitted results and electronically transmitted results- whether live streaming of election results was crucial to the electoral process and section 39 (1G) that seemed to curtail live streaming of election results was unconstitutional- whether the Chairperson could declare a person as President Elect even though results from some constituencies were yet to be transmitted- Elections Act, 2011 sections 39(1C) (a), 39(1D), 39(1E), 39(1F), 39(1G), and 83

Jurisdiction- jurisdiction of the High Court- co-shared jurisdiction of the High Court and Supreme Court with regard to interpretation of the Constitution- whether the Supreme Court had determined the issue regarding amendments made to section 83 of the Elections Act- whether court had jurisdiction to determine the issue of the constitutionality of the amendment to section 83 of the election act although the issued had been raised before the Supreme Court.

Brief Facts:
The Petitioners challenged the Election Laws Amendment Act, 2017 which was enacted by the 3rd Respondent to amend various provisions of the Elections Act, 2011, the Independent Electoral and Boundaries Commission Act, and the Election Offences Act contending that the amendments were unconstitutional. The Petitioners contended that the amendments introduced after the annulled 2017 Presidential election violated national values and principles in articles 10, 81 and 86 of the Constitution in that they tended to inhibit rather than enhance transparency and accountability of the electoral process. They argued that those amendments were unconstitutional and violated not only articles 10, 81 and 86 of the Constitution, but also were intended to circumvent the majority Judgment of the Supreme Court in Raila Odinga and another v Independent Electoral and Boundaries Commission & 2 others.

Issues:

  1. What was the definition of a person qualified as chairperson of the Independent Electoral and Boundaries Commission?
  2. Whether any other person in the commission, including the vice chairperson, could take over the position and function of the chairperson of the IEBC
  3. Whether IEBC Commissioners had the power to select a chairperson of the IEBC from amongst themselves.
  4. Whether the amendment that made no requirement regarding a prescribed form in which results could be transmitted was unconstitutional
  5. Whether section 39(1D) as read with section 39(1C) of the IEBC Act created a potential tension between physically transmitted results and electronically transmitted results.
  6. Whether live streaming of election results was crucial to the electoral process andsection 39(1G) that seemed to curtail live streaming of election results was unconstitutional
  7. Whether the Chairperson could declare a person as President Elect even though results from some constituencies were yet to be transmitted.
  8. Whether court had jurisdiction to determine the issue of the constitutionality of the amendment to section 83 of the election act although the issued had been raised before the Supreme Court

Relevant provisions of the Law
Constitution of Kenya, 2010
Article 88 (5)
The Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation.

Article 137 (1)(C)
A person qualifies for nomination as a presidential candidate if the person -(c)… is nominated by a political party, or is an independent candidate..

Article 250(2)
The chairperson and each member of a commission, and the holder of an independent office, shall be—

(a) identified and recommended for appointment in a manner prescribed by national legislation;
(b) approved by the National Assembly; and
(c) appointed by the President.

Article 250(3)
… to be appointed, a person shall have the specific qualifications required by this Constitution or national legislation.

Article 259(1)
This Constitution shall be interpreted in a manner that –

(a) promotes its purposes, values and principles;
(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;(c) permits the development of the law; and (d) contributes to good governance

Article 259 (3)
Every Article of the Constitution should be construed according to the doctrine that the law is always speaking and that

(a) a function or power conferred by the Constitution on an office may be performed or exercised as occasion requires, by the person holding the office

The Independent Electoral and Boundaries Commission Act
Section 2
“Chairperson” means “the Chairperson of the Commission appointed in accordance with Article 250(2) of the Constitution or the Vice chairperson or a member of the Commission when discharging the functions of the chairperson”.


Section 7B
(l) Whenever the chairperson is absent, the vice-chairperson shall assume the duties of the chairperson and exercise the powers and responsibilities of the chairperson;
(2) Whenever the chairperson and the vice-chairperson are absent, members of the Commission shall elect from amongst themselves a member to act as the chairperson and exercise the powers and responsibilities of the chairperson;
(3) the provisions of section 6(1) shall not apply to the vice chairperson or a member acting as chairperson under this section”.

The Elections Act
Section 83
“(l) A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that-

(a) the election was conducted in accordance with the principles laid down in the Constitution and in that written law; and
(b) the non-compliance did not substantially affect the result of the election.

(2) Pursuant to section 12 of the Interpretation and General Provisions Act, a form prescribed by this Act or the regulations made thereunder shall not be void by reason of a deviation from the requirements of that form, as long as the deviation is not calculated to mislead.”

Section 39 (1C)
“For purposes of a presidential election, the Commission shall-

(a) electronically transmit and physically deliver the tabulated results of an election for the President from a polling station to the constituency tallying centre and to the national tallying centre;
(b) tally and verify the results received at the constituency tallying centre and the national tallying centre; and
(c) publish the polling result forms online public portal maintained by Commission.”


Held:

  1. The Constitution, in article 250(2), provided that there should be a chairperson identified and appointed in accordance with a national legislation.In the case of the Independent Electoral and Boundaries Commission (IEBC), the Chairperson had to be identified in accordance with the Independent Electoral and Boundaries Commission Act and appointed in accordance with the Constitution. Once appointed, the Chairperson performed constitutional functions that only the person appointed in accordance with the Constitution could perform. In that regard therefore, there could be only one chairperson who was appointed in the manner provided for by the Constitution and the IEBC Act. The Vice Chairperson or any other member, however appointed, could not be defined as Chairperson.
  2. The definition in the amended section 2 IEBC Act was too broad and overboard. It conferred a title and status on a person who was not intended by the Constitution. That was because section 6 (1) of the IEBC Act provided for qualifications one had to have to be appointed chairperson of the Commission. He had to be qualified to hold the office of Judge of Supreme Court.
  3. Only a person, who possessed the requisite qualifications, could qualify to be appointed chairperson of the Commission. And only a person appointed as required by the Constitution could fall in the definition of chairperson. Therefore, the definition of chairperson had to be limited to the person who met the qualifications and was appointed in accordance with the Constitution. Anyone else, whether in acting capacity, or not could not be defined as chairperson. There was no justification to have a different definition assigned to the chairperson of IEBC. The former definition was in line with the Constitution as opposed to the new one.
  4. The import of the amendment introduced by section 7A(4) of the IEBC Act was that the vice chairperson could act as chairperson and discharge the full constitutional responsibilities of the chairperson should a vacancy occur in that office. Although that could, on the face appear a simple issue, one had to bear in mind that the chairperson appointed in accordance with the Constitution, performed some critical constitutional functions only reserved for the chairperson. The role and authority of the chairperson emanated from the Constitution. In a nutshell, he was the head and spokesperson, provided leadership and direction to the Commission. On being appointed, he/she took the oath of office to execute his mandate as such.
  5. It was not possible for a person who had not met the qualifications required to assume and perform constitutional functions of the Chairperson. Ordinarily, the vice chairperson would perform certain minimal administrative functions in the absence of the chairperson. That would not however entitle him/her to assume the full duties and perform critical functions including constitutional mandate of the Chairperson when he does not meet the qualifications to be chairperson, and has not been appointed in accordance with the Constitution. When the Constitution provides that chairperson be appointed in a particular manner, there can be no shortcut but to stick to the constitutional dictates. An appointment done in any other manner would be unconstitutional.
  6. The qualifications for the chairperson set out in section 6(1) IEBC Act was anchored in the Constitution and were mandatory. A person without those qualifications could not by any means be chairperson whether in acting capacity or not, since the Constitution left no option. Some of the chairperson’s mandate were clearly spelt out in article 138(10) of the Constitution to declare presidential results. That was a responsibility that only the chairperson identified, recommended and appointed as required by the Constitution could perform.
  7. The purpose and effect of the sections 7A(4) and 7A(5) IEBC Act was to allow a person who was not the chairperson, had no qualifications required by section 6(1) andnot appointed in accordance with the Constitution to take over leadership of the Commission and perform constitutional functions of the chairperson. That was a clear violation of the Constitution and in particular articles 138(10) and 250(2) and (3).
  8. It was more intriguing that section 7A(6) of the IEBC Act suspended section 6(1) of the IEBC Act with regard to qualifications of the chairperson. At that time section 7A(4) and 7A(5) IEBC Act became applicable notwithstanding that the person could perform and exercise full responsibilities of the chairperson. In essence, section 7A(6) IEBC Act read purposively, had the singular effect of suspending article 250(3) of the Constitution regarding the qualifications of the Chairperson. When the framers of the Constitution included sub article 3 in article 250, they had no illusion that it would be followed.
  9. Where the Constitution provided the manner of appointment and went further to state in a plain and unambiguous language that the qualification contained in the national legislation that one had to meet to be appointed to a particular position had to be strictly followed. Parliament, as the legislative organ of state, had only one option; to obey and observe that constitutional decree. It could not, in the exercise of its legislative authority, enact a law whose effect was to circumvent that constitutional command. Short of that, such a law would fall to be declared unconstitutional as demanded by article 2(4) of the Constitution.
  10. Article 259(3) had to be read purposively and in harmony with article 250 of the Constitution. In the case of IEBC the person holding the office had to be placed in that position as required by the Constitution and the law. Article 259(3) could not be the motivation for enacting a legislation that overrode the Constitution. Moreover, the chairperson’s appointment had to be differentiated from that of the vice chairperson who was elected by Commissioners under article 250(10) and a vacancy in that office filled in accordance with article 250(11). If the Constitution provided how a vacancy in the vice chairperson’s position should be filled, that of the Chairperson had to, in the same vain, be filled in accordance with the Constitution as read with the section 6(1) of the IEBC Act to give the Constitution a harmonious reading. Therefore, section 7A(6) of the IEBC Act was unconstitutional.
  11. A reading of section 7B of the IEBC Act had a similar effect as section 7A(4), (5), and (6).Even though a dully appointed chairperson could be in office, the section empowered the vice chairperson to exercise the chairperson’s functions for reasons other than inability to discharge his functions under the Constitution and the law. The same applied to a situation where both the chairperson and vice chairperson were absent which would allow members of the Commission to elect an unqualified member of the Commissioner to act as chairperson and exercise responsibilities of the chairperson. The Act had not defined the word absent.However, taken in its ordinary meaning and context; that absent meant not being present in a place, at an occasion or as part of the meeting, the section created mischief. Section 7B(3) of the IEBC Act also suspended section 6(1) of the IEBC Act in such an eventuality.
  12. Section 7B of the IEBC Act not only flew in the face of article 250(2) and (3) of the Constitution just like section 7A(4), (5) and (6) but also generally made nonsense of the Constitution and the IEBC Act on the importance of the office of chairperson of the Commission.IEBC was an independent Commission that discharged critical mandate under article 88(4) of the Constitution. The framers of the Constitution were clear when they stated in article 88(5) that the Commission would exercise its powers and perform its functions in accordance with the Constitution and national legislation. They also tasked Parliament with the responsibility of enacting legislation to operationalize article 88. They said in plain language in article 250(3) that the qualifications for the chairperson had to be strictly followed. Therefore, Parliament was alive to that when it enacted section 6(1) of the IEBC Act providing the qualifications one would have to meet to be appointed to the position of chairperson.It was inconceivable that the same Parliament would suspend operations of the same provision at some convenient time.
  13. Weighing section 7B as read with section 6 of the IEBC Act against the articles of the Constitution, it emerged clearly that it was not only unconstitutional but it would also have unintended negative consequences. It would engineer divisions, fights, disharmony and cause disorientation within the Commission in the discharge of its constitutional mandate. The provision would also weaken the position of the Chairperson and cause unnecessary tension. Members of the Commission could take advantage of the chairperson’s absence to make fundamental decisions with serious ramifications to the Commission and the country, taking into account the divisive nature of politics in the country viz a viz the important role the Commission played in the management of elections.It could not be in the best interest of the Commission to allow commissioners to choose one of their own, albeit unconstitutionally, to exercise constitutional mandate of the chairperson who was lawfully in office.
  14. The law had to be certain and support the functioning of an Independent Constitutional Commission given that the tenure of the chairperson once appointed, was guaranteed by the Constitution.Allowing Commissioners to choose one of them to act as Chairperson, was to allow them to oust the Chairperson and or his Vice from office should an opportunity present itself despite the fact that Chairperson’s tenure and independence was constitutionally protected.A provision such as section 7B weakened the Commission. It would most certainly affect its institutional independence guaranteed by the Constitution and emphasized under section 26 of the IEBC Act. It also exposed the Commission to external pressure or direction in violation of the Constitution.
  15. The Commission was composed of 7 members including the Chairperson.The quorum for purposes of conducting business was half of the members but not less than three. Hence the Commission could comfortably conduct business with three out of seven members, a minority of the Commissioners. The new paragraph 7 of the second schedule to the IEBC Act which required that if there was no unanimous decision, a decision of the majority of the Commissioners present and voting would prevail had one fundamental flaw. With a quorum of three Commissioners, there was a strong possibility of three Commissioners meeting and two of them being the majority, making a decision that would bind the Commission despite being made by minority Commissioners. That would not auger well for an Independent Constitutional Commission that discharged very important constitutional mandate for the proper functioning of democracy in the country. Such a provision encouraged divisions within the Commission given that the Commission’s decisions had far reaching consequences on democratic elections as the foundation of democracy and the rule of law.
  16. Quorum being the minimum number of Commissioners that had to be present to make binding decisions, only majority commissioners’ decision could bind the Commission.Quorum was previously 5 members out of the 9 commissioners including the Chairman, a clear majority of members of the Commission. With membership of the Commission reduced to 7, including the Chairperson, half of the members of the Commission, or 3 commissioners formed the quorum. Instead of making the quorum higher, Parliament reduced it to 3 which was not good for the proper functioning of the Commission. In that regard therefore, in decision making process where decisions were made through voting, only decisions of majority of the Commissioners could be valid. Short of that anything else would be invalid. Paragraphs 5 and 7 of the Second Schedule were plainly skewed and unconstitutional.
  17. Looking at the amendments and reading the Act as a whole, from the definition of Chairperson, election of a member to exercise powers and functions of the Chairperson, to the quorum of the Commission for purposes of meetings, it was obvious that those amendments had a negative and unconstitutional effect to the functioning of the Commission.An unconstitutional purpose or an unconstitutional effect was enough to invalidate legislation. If the effect of implementing a statute or provision infringes a right, the impugned statute or section should be declared unconstitutional. The amendments to the IEBC Act were unconstitutional.
  18. Prior to the amendments, section 39(1c) of the Elections Act required the Commission to electronically transmit, in the prescribed form, the tabulated results of an election for the president from a polling station to the constituency tallying centre and to the national tallying centre; (b) tally and verify the results received at the national tallying centre; and (c) publish the polling result forms on an online public portal maintained by the Commission. The difference between the old subsection (1C) and the new subsection was that:
    1. whereas the results were to be transmitted only electronically, the new subsection required that election results be not only transmitted electronically but also delivered physically from the polling stations to the constituency tallying centres and the national tallying centre.
    2. Whereas the results were to be transmitted in the prescribed form, there was no requirement for any particular form for purposes of transmission of results.
  19. The problem was with regard to transmission of results from the polling stations to the constituency and national tallyingcentres as required by the new section 39(1C)(a) of the IEBC Act. There was no requirement for the results to be transmitted in any prescribed form which was an essential requirement in the deleted subsection. That was an essential safeguard that guaranteed verifiability, transparency and accountability of the election results transmitted from polling centres to the constituency and national tallying centres. That was made even more troubling by the fact that results would also be physically delivered to the constituency and national tallying centres but in no particular prescribed form. That not only opened the results to possible adulteration and manipulation but also mischief. The amendment obviously reversed the gains the country had made in electoral reforms including results transmitted in a particular form.
  20. The changes that had been introduced in the former section 39(1)(c) had been introduced in line with the dictates of the Constitution. For that reason, a law allowing election officials once again to troop to the Constituency and national tallying centres with hard copies of election results in no particular forms was to take several steps backward from the progress the country had made to guarantee free, fair and transparent elections in conformity with the Constitution.That amendment was clearly against the spirit of articles 10, 81 and 86 of the Constitution and could not pass the constitutionality test of validity.
  21. Section 39(1D) of the Elections Act, on the face of it, appeared to be in line with article 138(3)(c) of the Constitution. However, section 39(1D) presented a problem when read together with section 39(1E). A reading of the two sub-sections created a potential tension between physically transmitted results and those transmitted electronically. First, the results were supposed to be from the same process, they should have been counted, tallied and verified before being transmitted. They therefore ought to have been the same. The way those sub-sections were crafted was not only vague and ambiguous but also created a conflict between the two modes of transmission of results thus opened a window for tinkering with election results.
  22. Ambiguity or vagueness in a statutory provision made that provision void. A provision was said to be vague and or ambiguous when the average citizen was unable to know what was regulated and the manner of that regulation; or, where the provision was capable of eliciting different interpretations and different results. Such a provision would not meet constitutional quality.
  23. The Constitution was very clear on the accuracy, verifiability and reliability of elections. Accuracy guaranteed democratic elections as the foundation of a democratic state. Section 39(1D) as read with 39(1)(F) of the Elections Act were vague and ambiguous on which results were the accurate record of the election as tallied verified and announced by the presiding officers since there could be only one result from an election. Those subsections downgraded the significance of accuracy and transparency of an election thus opened room for speculation and manipulation of election results. The Commission had the enviable role of not only guaranteeing the accuracy of elections and results therefrom, but also ensuring that they were in conformity with constitutional principles in articles 10, 81 and 86. There should never be room again in the election laws for the possibility of manipulating elections or results as that would undermine free and fair elections which were the hallmark of a democratic society.
  24. Section 39(1F) of the Elections Act absolved presiding or returning Officers who, though without justification, failed to transmit or publish election results in an electronic format. The country’s experience over tinkered results was well known and would not like to go back there. It adopted electronic transmission of election results as a way of guaranteeing free, fair, accurate, transparent and accountable elections as required by the Constitution.The Election laws were enacted to ensure that counting was done at polling stations and presiding and returning officers electronically transmitted verified elections results in conformity with the spirit of the Constitution.
  25. The enactment of section 39(1F) of the Elections Act was clearly a drawback on the very principle of accuracy, transparency and accountability of election results enshrined in the Constitution.Free and fair election was the process towards electoral democracy and the highway to a democratic state. Rather than a move forward, section 39(1F) was a backward step in so far as the requirements for free and fair elections were concerned.Juxtaposed against articles 10, 81 and 86 of the Constitution, it was obvious that section 39(1F) struck at the heart of the principles of the electoral system in the Constitution, for saving results that had not been transmitted as required by law. That violated constitutional principles and was invalid.
  26. Live transmission of election results announced at the polling stations to the Constituency and national tallying centres was critical when it came to openness, transparency and accountability of the electoral process. Live transmission of election results was adopted after reforms were introduced in election laws as a means of avoiding situations where election results announced at the polling station would later significantly differ from those declared at the constituency and national tallying centres. The results announced at the polling stations formed the basis of any other results declared either at the constituency or national tallying centres.
  27. The import of section 39(1G) was to make live streaming of results from polling stations of no value when it came to the finality of the declared results. If the intention of the legislature was that results streamed live from the primary source should not matter when it came to the final tally, why should the country invest heavily in technology as provided for in section 44 of the Act, have results streamed live from polling stations for public information only?Live streaming of election results was one way of conforming to the constitutional principles of transparency and accountability. Citizens should be able to compare the live transmitted results with the final declared results to confirm the accuracy of the election results.
  28. When Parliament enacted a law that significantly eroded the element of transparency and accountability in the electoral process, such a law overrode the constitutional principles of the electoral systems contemplated in articles 10, 81 and 86 of the Constitution. You could not have results that were streamed live from polling stations but which were of no value when it came to declaration of final results. The results streamed live from polling stations were the primary source of those finally declared. Final results were a product of the same process. One process could not have two different results. Live streamed results played a significant role in determining the final results. Those results had to be as much correct as those finally declared.Section 39(1G) was a mockery of the requirements for free, fair and credible elections. It violated the principles of electoral systems in the Constitution. That amendment could not hold in the Kenya transformative constitutional dispensation.
  29. Amendments introduced by section 39(1C)(a), 39(1D), 39(1E), 39(1F) and 39(1G) of the Election Act, had the effect of weakening rather than strengthening the electoral process. Any amendments that would have the effect of circumventing constitutional principles were unconstitutional.
  30. The Constitution required that the Commission held elections in all the 290 Constituencies in the case of Presidential Elections. Therefore, it had to discharge its mandate by holding elections in each constituency and ensuring that voters in the constituency have had an opportunity to vote.In that regard, the reading of section 39(2) of the Elections Act was not that elections had not been held, but that the Commission had held elections, received election results and was satisfied that results from the Constituencies that were yet to transmit, would not change the election results. The Chairperson could in such circumstances declare a person elected president. The mandate of the IEBC was to declare the winner of the presidential contest after tallying the results received and determining that those remaining were such that they would change the position regarding the winner.
  31. A plain reading of section 39(2) and (3) of the Elections Act had not disclosed any unconstitutionality. Section 39(2) and (3) of the Elections Act had removed provisional results so that the Commission was only to announce final results and made it clear that the chairperson could declare a person elected president if results from the yet to transmit constituencies would not affect the final tally. There was really nothing unconstitutional if final results were announced when it was clear that those from the remaining constituencies would not change the election result as to who the winner was. There was no constitutional invalidity in those provisions. However, it was desirable that all results be received and tallied before a declaration of the winner was made.
  32. Section 44 of the Elections Act dealt with use of technology and established an integrated electronic electoral system that enabled biometric voter registration, electronic voter identification and electronic transmission of results.Section 44(5) only required the Commission, in consultation with stakeholders, to come up with regulations on the implementation of the Integrated Biometric Voter Registration, Electric Voter Identification and Electronic Transmission of results (KIEMS). The Petitioners had not demonstrated how, if at all, that provision violated the Constitution to require that it be declared unconstitutional. There was neither unconstitutional purpose nor effect in the implementation of that provision.
  33. The complimentary mechanism contemplated in the new section 44A was only complimentary. It had not replaced the electronic voter identification system. The word “complimentary”, in the context in which it was used in that section, could only mean to assist or aid. It could only be resorted to in the event the principle voter identification system had failed. It was to be used only when there was technology failure. It could not be seen how that provision violated articles 10, 38, 81 and 86 on the values and principles of transparency and accountability of the electoral system. Rather, it was intended to aid and or complement the main voter identification system in the event there was failure and ensure that the electoral process continued.
  34. Even though the Constitution values the quality of elections, the amendment to section 83 had the effect of disregarding those principles when it came to considering whether or not to annul an election. That could not have been the intention of the framers of the Constitution when they included those principles of electoral system in the Constitution. Those principles were part and parcel of the Constitution and were important in holding free, fair, open, transparent, impartial and accountable elections. Those were constitutional and not statutory requirements.Parliament could not enact a legislation that had the effect of whittling down constitutional principles that had been harmonized and embodied in section 83 prior to its amendment by demanding that failures in complying with the Constitution or the law had to be “substantial” as to affect the result for an election to be annulled.
  35. The existing amendment meant that for an election to be annulled there had not only to be failure to comply with the Constitutional principles and election laws but also the failures had to substantially affect the result of the election. The essence of that amendment was to allow violation of constitutional principles and election laws as long as they do not substantially affect the result. Any amendments had to be forward looking in order to make elections more free, transparent and accountable, than to shield mistakes that vitiated an electoral process.
  36. There was no constitutional compulsion or rationale in amending section 83 of the IEBC Act to remove the disjunctive word ‘or’ and introduce the conjunctive word ‘and’ so that only where there were failures in complying with the constitution and election lawsand they substantially affected the results should an election be annulled.Removing the twin test for annulling faulty election results negated the principles of electoral system in the Constitution. And allowing such an amendment would be to ignore constitutional principles in the transformative Constitution that there should be free, fair, transparent and accountable elections.
  37. Parliament had a duty to defend and protect the Constitution and enact laws that were in conformity with its values and principles. Section 83(2) could not invite the aid of the Statutory Interpretations Act to shield violations of the Elections Act and Regulations enacted to enforce the Constitutional principles.
  38. Lady Justice Njoki Ndungu’s opinion on the amendment to section 83 in John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 3 others [2017], was obiter dictum.The Supreme Court having decided to leave the issue for the High Court’s determination, it was not an issue falling for determination by the Supreme Court and therefore, there was no decision by the Supreme Court on the matter that was binding on the High Court. That was one of those situations where the Supreme Court was faced with the question of co-shared jurisdiction on the interpretation of the Constitution. It declined jurisdiction and left the matter for the High court’s decision.
  39. The introduction of section 86A was in response to the challenges the Commission faced after annulment of the 2017 presidential election and the subsequent disputes that followed, more so on the person who was eligible to participate in the fresh election. Section 86A cleared a lacuna that made the holding of the 2017 fresh presidential election a challenge to the Commission. The section clarified what would happen and the timelines. It also made it clear what would happen when only one candidate remained after withdrawal of the other candidates which was in tandem with article 138(1) of the Constitution. The section was necessary for clarity and efficiency. There was no constitutional invalidity.
  40. Certain amendments introduced through the Election Laws (Amendment) Act No. 34 of 2017 failed the constitutional test of validity. All the amendments made to the Independent Electoral and Boundaries Commission Act, namely;section 2, on definition of the word chairperson, section 7A(4),7A(5), and7A(6),the entire section 7B andparagraphs 5 and 7 of the Second Schedule to the Act on the quorum for purposes of meetings of the Commission were unconstitutional. With regard to the Elections Act, 2011, the amendments introduced to section 39(1) (C) (a), 39(1D), 39(1E), 39(1F), 39(1G) and the entire section 83 failed the constitutionality test. There was no fault in the amended sections, 39(2), 39(3), 44(5), and 44A of the Elections Act, 2011.
Petition partly allowed.
Orders
  1. Declaration issued to the effect that sections 2, 7A (4), 7A (5), 7A (6) of the IEBC ACT, 2011, and Paragraphs 5 and 7 of the Second Schedule to the Act were constitutionally invalid.
  2. Declaration issued to the effect that sections 39(1C) (a), 39(1D), 39(1E), 39(1F), 39(1G), and the entire 83 of the Elections Act, 2011 were constitutionally invalid.
Kenya Law
Case Updates Issue 014/2018
Case Summaries

ELECTORAL LAW High Court Orders Fresh Elections for the Wajir County Gubernatorial Seat.

Ahmed Abdullahi Mohamad & another v Mohamed Abdi Mohamed & 2 others
Election Petition No 14 of 2017
High Court at Nairobi
A Mabeya, J
January 12, 2018
Reported by Beryl A Ikamari

Download the Decision

Electoral Law-conduct of an election-irregularities and malpractices in the conduct of an election-determination as to whether an election was conducted substantially in accordance with the Constitution and the law-whether irregularities and malpractices in the conduct of an election affected the result of the election-effect of allegations of malpractices and irregularities-Constitution of Kenya 2010, articles 81 & 86; Election Offences Act, No 37 of 2016, section 6(j); Elections Act, No 24 of 2011, section 39(1)(C); Elections (General) Regulations, 2012, regulations 5(1A), 72, 79, 81, 82, 83, 86, & 93.
Jurisdiction-jurisdiction of the High Court- educational qualifications necessary to vie for the seat of Governor-whether the IEBC had the exclusive jurisdiction to determine such disputes which were related to the nomination of candidates for purposes of elections-Constitution of Kenya 2010, articles 88(4)(e); Elections Act, No 24 of 2011, section 74(1) & 75.
Elections Law-gubernatorial elections-qualifications necessary for gubernatorial candidates-educational qualifications-effect of allegations of not possessing a bachelor's degree certificate and having a forged degree certificate-Elections Act, No 24 of 2011, section 22(2); Elections (General) Regulations, 2012, regulation 47.
Evidence Law-standard of proof-standard of proof in election petitions-intermediate standard of proof-the requirement that a party that made allegations had the burden to prove the allegations and the standard of proof applicable to such a party in election disputes-the nature of the intermediate standard of proof in election disputes-Evidence Act (Cap 80), section 107.
Evidence Law-affidavit evidence-probative value of affidavit evidence-failure to call a witness who was a deponent to an affidavit to testify and to be cross-examined-adverse inference that the testimony of a witness who was not called was not favourable to the party that was expected to call the witness-Elections (Parliamentary and County elections) Petition Rules, 2017, rule 12.

Brief facts:
The 1st Respondent was declared the Governor of Wajir County after garnering more votes than his closest rival. However, the declaration was challenged by the Petitioners who had contested in the gubernatorial elections for that County.
On various grounds the Petitioners contended that the 1st Respondent was not validly elected as Governor and that the elections were not conducted in accordance with the law and the Constitution. They contended that the 1st Respondent was not qualified to contest as Governor, as one of his educational qualifications, a degree certificate was forged. They also claimed irregularities such as assisted voting where voters faced loud inquiries as to whom they were voting for contrary to articles 38 and 81 of the Constitution. The Petitioners also said that the declaration forms, some Forms 37A were unsigned, undated, unstamped, had alterations that were not countersigned. They also claimed that their agents were ejected from polling stations.
Further allegations were made by the Petitioners. They stated that in some polling stations, the votes cast exceeded the number of registered voters. They stated that false entries were made and some of the Kenya Integrated Electronic Management Systems (KIEMS) equipment was lost. They claimed that contrary to sections 44 and 44A of the Elections Act, there was a failure of electronic transmission of results from polling stations to constituency tallying centres. The Petitioners also alleged that there was a failure to secure ballot papers and boxes. They said that ballot boxes and unmarked ballot papers were found in possession of unauthorized persons.

Issue:

  1. What was the standard of proof in election petitions?
  2. What was the probative value of affidavit evidence whose deponents were not called to be cross-examined?
  3. Whether there were electoral malpractices and irregularities which affected the outcome of the Wajir County gubernatorial election.
  4. Whether the incumbent Governor had the requisite educational qualifications to vie for the Wajir gubernatorial seat.
  5. Whether the incumbent Governor was validly elected in accordance with the Constitution and the law.
  6. What order as concerned costs was appropriate? Read More...

Held:

  1. An election petition was not an ordinary civil dispute. It was a dispute which required the election Court to determine whether the political rights of citizens under article 38 of the Constitution were upheld. That right entailed participation in free, fair and regular elections and was exercised when a citizen registered as a voter and cast a vote for his preferred candidate.
  2. The standard of proof in an election petition is different from the standard of proof in normal civil disputes. In ordinary civil disputes a balance of probability is the applicable standard of proof while in an election petition, the standard of proof is beyond the balance of probability but lower than beyond reasonable doubt. That standard of proof is referred to as the intermediate standard of proof. However, with respect to allegations of a criminal or quasi-criminal nature in an election petition, the standard of proof applicable is proof beyond reasonable doubt.
  3. Under section 107 of the Evidence Act, it was the party that made allegations that was required to prove them. It was the Petitioner's burden, in an election petition, to prove to the satisfaction of the Court that there was not only non-compliance with the Constitution and the electoral law but that the non-compliance affected the outcome of the election.
  4. Articles 38, 81, 83 and 86 of the Constitution of Kenya 2010, provided for the principles applicable to election petitions. The principles are that;
    1. the elections should be free and fair and reflect the will of the electors;
    2. elections that are by secret ballot;
    3. elections that are free from violence, intimidation, improper influence or corruption and transparent;
    4. elections that are administered impartially, efficiently, accurately and in an accountable manner;
    5. that the voting method used is simple, accurate, verifiable, secure, accountable and transparent;
    6. that the votes are counted, tabulated and results announced promptly and,
    7. that mechanisms are put in place to eliminate electoral malpractice including the safekeeping of electoral materials.
  5. There were affidavits concerning which the deponents did not appear for cross-examination and the parties consented to have them admitted without cross-examination. However, that was not the case with respect to the affidavits of Dr. Noah Akala Oduwo and Hon. Mohamed Abdi Mohamed.
  6. Rule 12 of the Elections (Parliamentary and County elections) Petition Rules, 2017 provided for trial in gubernatorial electoral disputes by way of affidavit evidence.
  7. Under rule 12 of the Election (Parliamentary and County Elections) Petition Rules, 2017, an affidavit formed part of the evidence of the party in support of which case it was sworn. It was a mandatory requirement under sub-13 of that rule, stemming from the use of the word "shall", for the deponent of such an affidavit to be examined in chief and cross-examined.
  8. Since the veracity of a witness' testimony was confirmed through cross-examination, failure to conduct such cross-examination would water down the probative value of affidavits, whose deponents were not cross-examined. Failure to give a party an opportunity to cross-examine a witness who made allegations in an affidavit against such a party, was a breach of that party's right to a fair trial.
  9. The traditional view is that if a witness is available to offer oral testimony and a party fails to produce that witness without an explanation, the Court is permitted to infer that the testimony would have been unfavourable to the party which failed to call with witness. The inferences may have the effect of strengthening the evidence offered on that issue by the opposite party or weaken the evidence, if any, adduced by the party who was reasonably expected to call the witness. However, there must be evidence, however weak, adduced by the opposite party on that issue before the Court can draw the desired inference.
  10. If the reason given for the absence of a witness was satisfactory, the Court would not draw an adverse inference. On the other hand, if there was some credible explanation given, even though not wholly satisfactory, the potential detrimental effect of that witness' evidence would be reduced.
  11. It was alleged that Presiding Officers inquired loudly from voters, asking them who they wanted to cast their vote for. The allegations pointed towards unlawful assisted voting. The making of such loud inquiries, if proven, had the effect of interfering with the principle of secrecy of the ballot.
  12. The law took cognizance of illiteracy among voters and made provision for illiterate voters to exercise their political rights. In order to confirm that a voter was assisted to vote in accordance with the law, under regulation 72 of the Elections (General) Regulations, 2012, the voter was required to fill Form 32 and execute it before the Presiding Officer. The fact that a voter was assisted and the reason for assistance were to be recorded in the polling station register.
  13. When the Court ordered for scrutiny in 53 polling stations, despite overwhelming evidence of high levels of illiteracy in Wajir County, only four Forms 32 were found from all of the 53 polling stations. The scrutiny report revealed that out of a total of 22,089 registered voters, 16, 170 voters cast their vote. It was not verifiable how many of the 16,170 voters in the polling stations were assisted in light of admissions by witnesses of a huge number of assisted voters. The failure to account for assisted voters by inter alia marking the register, was an offence committed by Presiding Officers under section 6(j) of the Election Offences Act, 2016.
  14. The Petitioners alleged that in certain polling stations, the number of votes cast exceeded the number of registered voters. The affected polling stations were identified by the Petitioners who also stated that in assessing the number of votes cast and the number of registered voters, reliance was placed on the 3rd Respondent's public portal. They also admitted that in most of the identified polling stations, the results for the post of Governor were unaffected.
  15. The allegations concerning an excess in the number of votes cast as compared to the number of registered voters was explained by the Respondents as an error in the 3rd Respondent's public portal. The explanation offered was credible and satisfactory.
  16. There were allegations that some Forms 37A used to declare the results were not dated signed or stamped by Presiding Officers and that some of the Forms 37A had alterations which were not countersigned. The failure to sign a statutory form by an agent or candidate was excusable but it was not so in the case of a Presiding Officer. It was a criminal offence for Presiding Officers or Returning Officers to fail to sign statutory forms under section 6(j) of the Election Offences Act.
  17. Under regulation 79 of the Elections (General) Regulations, 2012, in the case where it was an agent or candidate the failed to sign the form, the Presiding Officer would have to note and record that fact in the form. The failure to note that fact would raise questions of credibility.
  18. The statutory forms which were not signed by Presiding Officers were worthless pieces of paper whose contents would not count in the final tally of results. It was the signing of the forms by the stated officers that gave the forms credence and made the results accountable and verifiable. Failure to sign a form was not a mere error, it was a grave irregularity which would destroy the credibility and authenticity of the results contained therein.
  19. It was shown that the Form 37A for Hodhan Dispensary, Ahmed Liban Secondary, Katote Primary, Hadado Waberi and Aqar-Ar-Centre polling stations were not signed by either the Presiding Officer or his deputy. 
  20. In some Forms 37A, the forms used were generic and not the prescibed forms. Those Forms 37A included the forms for Aqal-Ar-Centre, Mathow Primary and Watiti B polling stations.  Form 37A for Macheza Dam polling station had blanks.  There were Forms 37A with cancellations that were not countersigned.  Some Forms 37A had not been signed by agents and there were no remarks or reasons given by the Presiding Officers in terms of Regulation 79 (4) of the Elections (General) Regulations, 2012. Those forms included forms for Mathan Baqay, Meri Primary, Lahaley Primary, Dambas Primary, Tarbaj Library amongst many other polling stations.
  21. There were six Forms 37B applicable to the gubernatorial election. It was also shown that the Forms 37B for Wajir East, Wajir West and Eldas Constituencies were original, had serial numbers and the security water mark. However, it was shown that the Form 37B for Wajir North and Wajir South had no water, mark, no serial number and were print outs. The Form 37B for Tarbaj also had no water mark but had a serial number and was a scanned copy. It was explained that the inability to print the correct Al-Ghurair Forms was due to defective printers and that the defects were curable under section 26 of the Statutory Instruments Act. An explanation was not offered as to why the Form 37B for Tarbaj Constituency was only a scanned copy. The whereabouts of the original was not explained.
  22. The results disclosed in Form 37B for Wajir South Constituency were not verifiable as the Returning Officer failed to produce 29 Forms 37A from the 119 polling stations in the Constituency. For the results, Forms 37A were produced from only 80 polling stations.
  23. Form 37B for Wajir North did not have a serial number nor the security bar code. Additionally, it had features of a Form 34A instead of a Form 37B. It was a print-out that did not have the 3rd Respondent's logo. The results were not verifiable as the Returning Officer failed to provide all the Forms 37A for the Constituency.
  24. The Form 37C was not without challenges. It was an original standard form with a serial number and security bar code. There were 17 polling stations from Wajir South Constituency whose results were entered but the names of the polling stations were left blank. There was no explanation offered for the anomaly and it was mandatory under regulation 87(2)(b)(i) of the Election (General) Regulations, 2012, for each polling station to be named and the results entered.
  25. Due to of lack of proper and adequate training, the actions of some Presiding Officers in the elections exhibited sheer incompetence. Some failed to sign statutory forms contrary to law, others failed to countersign alterations while others decided to seal all the results from the polling stations in ballot boxes. The faulty and ineffective printers affected the accuracy and efficiency of the election. The supply of such printers was the least that was the expected of the 3rd Respondent as large amounts of funding had been used for the elections.
  26. It was alleged that it was impossible for figures for votes received by all candidates to remain consistently similar in multiple polling stations in four Constituencies namely, Tarbaj, Wajir East, Wajir West and Eldas. Therefore, it was complained, that there was a case of vote padding and manipulation. It was that complaint that made the Court issue order for a recount of votes in all 51 polling stations complained of in order to ascertain whether the announced results reflected the actual ballot cast.
  27. In the scrutiny report, the inaccuracy in posting the results was about 45% in the polling stations that were subjected to a recount.  However, the inaccuracy did not reveal a systematic scheme or pattern.
  28. The Petitioners alleged that violence or intimidation was used against the Petitioners' agents. They also alleged that on August 10, 2017 after the winner of the Wajir East Member of Parliament was declared, violence broke out along the Nairobi-Wajir Road.  Neither the nature of intimidation nor the names or identities of the persons who intimidated the Petitioners' agents nor the names of the intimidated agents were disclosed in the petition or in the testimony of the witnesses. The allegation was therefore not proved.
  29. It was not shown that the violence that broke out along the Nairobi-Wajir road related to the impugned election. It was not directed at or intended to nor did in any way whatsoever affect either the election or the counting or tallying of the gubernatorial election.
  30. The County Returning Officer took over the tallying process for Wajir East tallying Centre and thereby acted ultra vires as that was a role reserved for the Constituency Returning Officer. However, the Form 37B contained results for the constituency which were signed by the Returning Officer gazetted for the area.
  31. The allegations of failure to secure ballot boxes and possession of ballot boxes and papers were not proven. The election materials found in the hands of an unauthorized person did not relate to the gubernatorial election. Additionally, the allegations on the wrongful opening of ballot boxes, from Basineja Centre and Batalu Primary School polling stations, were explained by the Returning Officers. He stated that the boxes were delivered with the results sealed in them. However, under regulations 81, 83, 86, and 93 of the Elections (General) Regulations, 2012, there was no authority for the opening of such ballot boxes, after the voting and counting was done, without an order of the Court. In attempting to break open ballot boxes the Returning Officers acted ultra vires.
  32. The evidence tendered in support of allegations that the results for the elections were not transmitted electronically, was affidavit evidence. It entailed the affidavit of Dr. Noah Akala Oduwo who swore an Affidavit but failed to turn up for cross-examination. Due to his failure to show up for cross-examination, Dr. Noah Akala Oduwo's affidavit was of no probative value.
  33. The evidence showed that the majority of voters were identified electronically after having been registered biometrically. The only complaint was on the transmission of results from polling stations to Constituency and County Tallying Centres. Technology was to be used but it was not the only mode of transmission of results.
  34. The results for which mandatory electronic transmission was required were presidential election results. In order to meet the constitutional standards of accountability, credibility, transparency and verifiability in articles 81 and 86 of the Constitution 2010, the 3rd Respondent ought to embrace technology in all elections in the same way that it did in presidential elections under section 39(1)(C) of the Elections Act. That would call for amendments to regulations 5 (1A) and 82 of the Regulations.
  35. There was no evidence to show that failure to properly transmit the results electronically to both the Constituency and County Tallying Centres affected the results of the elections. The allegation on failure to transmit results electronically was therefore not proven to the required standard.
  36. There were allegations of voter bribery by agents of the 1st Respondent. The allegations were not support by evidence and they were not pleaded in the petition.
  37. The Petitioners complained that their agents were ejected from polling stations and were not given Forms 37A. The presence of such agents at polling stations was crucial and was meant to assure the transparency, accuracy, accountability and credibility of an election. The allegation if proven would have an impact on the integrity of the elections. However, not a single agent was called to prove the allegations and it therefore remained unproven.
  38. The allegation concerning the 1st Respondent's educational qualifications was that he neither sat for “O” nor “A” level examinations to have been able to be enrolled in any university for a degree course and that his degree certificate was forged. Under section 22(2) of the Elections Act and regulation 47 of the Regulations, for a person to be validly nominated and cleared to vie for the position of Governor such a person had to be the holder of a degree recognized in Kenya.
  39. There were two documents produced in Court as evidence. One was a copy of a Bachelor’s degree in Business Administration dated March 1, 2012 from Kampala University. The second was a copy of a Master’s degree in Diplomacy and International Relations dated March 12, 2015 from the same University. There was also a letter of recognition dated January 11, 2013 stating that Kampala University was recognized in Kenya.
  40. Article 88 (4) (e) of the Constitution of Kenya 2010 and section 74 (1) of the Elections Act, provided that the IEBC was responsible for the settlement of electoral disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.  The issue concerning the 1st Respondent's educational qualifications was before the IEBC's Dispute Resolution Committee but it was not prosecuted and a decision had not been made on it. It was not before the Court as an appeal.
  41. Section 75 of the Elections Act provided that the High Court had jurisdiction to determine a question as to the validity of an election of a County Governor. The term election in section 75 of the Elections Act meant the entire electoral process commencing with the registration of voters up to the declaration of results. Therefore an election Court had the jurisdiction to determine a question as to the validity of an electoral process leading the return of a person as Governor.
  42. The fact that the IEBC had jurisdiction over disputes arising from nominations, did not in itself, preclude an Election Court from satisfying itself that a candidate was eligible to stand for election.
  43. The 1st Respondent did not deny that he did not meet the educational criteria to vie for the gubernatorial post; he only stated that the matter was litigated at the Ugandan High Court and dismissed. In the documents tendered by the Petitioners, there was a list of graduates for Bachelor of Business Administration for March 1, 2012 and the 1st Respondent's name was missing.
  44. Given that there was no denial on the issue of educational qualifications from the 1st Respondent, the Petitioners' evidence on that question was not controverted. The moment the Petitioners produced the list of graduates and the alleged admission before the Committee of the House of not having a degree by 2014, the burden shifted to the 1st Respondent. He had to prove that the Bachelor's Degree dated March 1, 2012 was genuinely issued to him by Kampala University. The 1st Respondent failed to discharge that burden of proof.
  45. There was evidence that the matter on qualifications at the Ugandan High Court was not determined on its merits. It was dismissed on grounds that the advocate lodged the claim had no authority to do so.  The issue on the authenticity of the degree dated March 1, 2012 remained unresolved.
  46. As at August 8, 2017, the 1st Respondent did not have academic qualifications to vie for the post of Governor. He was not legally cleared to vie for that post as he did not satisfy the provisions of section 22(2) of the Elections Act on educational qualifications.
  47. An election Court ought to strive to secure and retain the will of the people. Mere irregularities in the conduct of elections that did not affect the results were incapable of invalidating an election. Elections were not perfect and not all malpractices would lead to the invalidation of an election.
  48. The principle of secrecy of the ballot was breached. The prescribed Forms 37A, 37B and 37C were neither accountable nor credible because of irregularities committed by the 2nd and 3rd Respondents. The irregularities meant that the elections were not conducted competently and efficiently. Accordingly, the election of Wajir County for the Governor's seat was not conducted in accordance with the Constitution and the law. Therefore, the 1st Respondent was not validly elected as Governor of Wajir County.
  49. The parties did not address the Court on the issue of costs. Since the claim and award of costs in election petitions was erratic, instruction fees were capped at Kshs. 2, 000, 000/=. Costs would be borne by all the Respondents.

Petition allowed.
Orders: -

  1. The 1st Respondent was not validly cleared to vie for the seat of Governor for Wajir County as he did not possess the educational qualifications;
  2. The 1st Respondent was not validly elected to the position of Governor and his election was declared null and void;
  3. The 3rd Respondent was to hold a fresh election in conformity with the Constitution and the Elections Act, 2011.
  4. The Respondents were to pay costs to the Petitioner, jointly and severally, to be taxed by the Deputy Registrar provided however that the instructions fee would be capped at Kshs. 2 million.
CONSTITUTIONAL LAW In Order for An Accused Person to be Denied Bail or Bond, the Prosecution Must Prove the Existence of Compelling Reasons For The Denial.

Republic v David Muchiri Mwangi
Criminal Case No 46 of 2017
High Court at Nairobi
Milimani Law Courts
J Wakiaga, J
February 21, 2018
Reported by Beryl A Ikamari

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Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-rights of an arrested person-right to bail-compelling reasons which would support the denial of the right to bail-allegations that the Accused was a person of means and could influence on-going investigations-whether in light of the allegations the right to bail would be denied-Constitution of Kenya 2010, article 49(1)(h).
Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms-rights of an arrested person-right to bail-conditions attached to the grant of bail or bond-considerations of the Court in setting the terms on which bail or bond would be granted-nature of conditions that would be reasonable with respect to the grant of bail or bond where there were concerns that on-going investigations would be influenced by an Accused person.

Brief facts:
The Applicant was facing murder charges. He applied for bail/bond pending the hearing and determination of the case. He said that he had been co-operative with the police and had provided all information within his knowledge. He said that his family, including a housewife, young children, his single mother and his wife's parents depended on him. He also said that he was not a flight risk.
In opposition, the Law Society of Kenya (LSK) stated that bail should not be granted as the Applicant had the means to influence the incomplete investigations. The deceased's family was also opposed to the grant on bail on grounds that if released the Applicant could collude with other potential witnesses for purposes of defeating the trial. The prosecution did not file a response to the application.
The Applicant's objection to the participation of the LSK and the victim's family at that stage of the proceedings was dismissed by the Court.

Issues:

  1. What would constitute compelling reasons which would allow the Court to deny an Accused person bail or bond?
  2. What were the considerations of the Court in setting bail or bond terms? Read More..

Held:

  1. Bail was an Accused person's constitutional right recognized in article 49(1)(h) of the Constitution. The right could only be limited where there were compelling reasons that were proven by the prosecution on a balance of probabilities. Compelling reasons would include:-
    1. The nature of the charge.
    2. The strength of the evidence which supported the charge.
    3. The gravity of the punishment in the event of conviction.
    4. The previous criminal record of the Accused if any.
    5. The probability that the Accused would not surrender himself for trial.
    6. The likelihood of the Accused interfering with witnesses or suppressing any evidence including incriminating evidence.
    7. Likelihood of further charges being brought against the Accused.
    8. The probability of a finding of guilt.
    9. Detention for the protection of the Accused.
    10. The necessity of procuring a medical or social report pending the disposal of the case.
    11. The Accused person's safety, security and protection.
    12. If the Accused person was likely to pose public danger by being released on bail.
    13. If by releasing the Accused on bail, public confidence in the administration of justice would be diminished.
    14. The character, antecedents, associations and community ties of the Accused person.
  2. While it was stated that the investigations were incomplete and that the Accused was a man of means capable of interfering with investigations, no details were given to the Court by the LSK in order to assist the Court to make a finding.
  3. The right to bail could not be denied without the existence of adequate compelling reasons. A person would not be denied freedom until a finding of guilty was made in respect of the charges preferred against the person. Good reasons had to exist for the denial of bail.  
  4. On-going or pending investigations were not a compelling reason which warranted the denial of the right to bail. Similarly, the fact that the Accused person was a man of means would not be a ground for denial of bail unless it was proven that those means were being used to defeat the course of justice.
  5. In considering the nature of bail or bond terms that were reasonable for an Accused person, the Court would take into account the nature of the offence, the character and status of the Accused and the bail amount that would make it attractive for the Accused to attend his trial. Under the circumstances a bond of 2 million Kenya shillings with two sureties of a similar amount would be reasonable. The terms of the bond included the requirement that the Accused would make no contact with potential prosecution witnesses and in particular, the deceased's wife and report to the officer commanding Ngara Police Station every 60 days until the conclusion of the case.

Application allowed.

EMPLOYMENT LAW When and How is an Employment Contract Created?

Fedelix Mwendwa Muli v Bamburi Cement Limited
Cause Number 136 of 2015
Employment and Labour Relations Court at Mombasa
J Rika, J
March 9, 2018
Reported by Beryl A Ikamari

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Employment Law-employer and employee relationship-creation of an employment contract-probationary employment contract-legal requirements relating to the formation of an employment contract-whether an employment contract was created between a Claimant and a Respondent-Employment Act 2007, section 9(2) & 9(3).
Employment Law-employer and employee relationship-termination of an employment contract-termination of a probationary employment contract-requirements relating to notice or payment in lieu of notice-the manner in which a probationary employment contract could be terminated and the remedies available for wrongful termination of a probationary employment contract-whether a probationary employment contract could be terminated by revoking the letter of offer of employment-Employment Act 2007, section 42.

Brief facts:
The Claimant was employed as a Field Patroller. The letter offering him employment was dated October 14, 2014 and it stated that the date of his appointment to the job was November 1, 2014. The Claimant accepted the job offer by signing the acceptance of offer on October 22, 2014. One of the conditions of the letter of offer was that the Respondent had to receive satisfactory references from the Claimant's referees. On October 31, 2014, the offer of employment was revoked on grounds that one of the reference checks on the Claimant was unsatisfactory. Against that revocation, the Claimant sought various reliefs from the Court, including compensation for unfair termination and reinstatement of the offer of employment.
The Respondent stated that it had received information, through a reference, to the effect that the Claimant was blacklisted by his former employer for sabotaging a machine. That employer advised the Claimant that his employment contract would not be renewed after the expiry date of October 31, 2014. The Respondent stated that the reference touched on the Claimant's suitability for employment.

Issues:

  1. At what point would an employment contract be created?
  2. What were the terms applicable to the termination of a probationary employment contract?
  3. Whether a letter of offer of employment could be revoked after the employee had signed a letter of acceptance of offer.
  4. What were the remedies available to an employee whose probationary employment contract was terminated? Read More...

Held:

  1. Section 42(4) of the Employment Act allowed parties to a probationary employment contract to terminate the contract by giving not less than 7 days' notice of termination or the payment of 7 days' wages by the employer to the employee *in lieu* of notice. Clause 2.1 of the employment contract which provided for a notice period of 28 days or pay in lieu of notice was an improvement on the statutory requirements. Instead of revoking the offer the Respondent ought to have terminated the contract under clause 2.1 of the contract.
  2. The Respondent could not withdraw from the contract, without regard to the terms of the contract and the law governing the contract. Once the Claimant accepted the offer, he was deemed to be on a probationary contract. The issue that the Claimant sabotaged his previous employer's machine ought to have been handled within the probationary contract. The probation clause allowed the Respondent to monitor the Claimant's suitability to continue in employment.
  3. The date of appointment, November 1, 2014, was not the date when the employer-employee relationship was created. That relationship was created when the Claimant signed the acceptance on October 22, 2014.
  4. Section 42(4) of the Employment Act allowed parties to a probationary employment contract to terminate the contract by giving not less than 7 days' notice of termination or the payment of 7 days' wages by the employer to the employee in lieu of notice. Clause 2.1 of the employment contract which provided for a notice period of 28 days or pay in lieu of notice was an improvement on the statutory requirements. Instead of revoking the offer the Respondent ought to have terminated the contract under clause 2.1 of the contract.
  5. The Respondent was not obligated to give reasons for terminating a probationary employment contract under section 42 of the Employment Act. The claim for unfair termination was unsustainable as the termination was not done pursuant to sections 41, 43 & 45 of the Employment Act.
  6. The Claimant had not convinced the Court that he had suffered a breach of contract of such a nature as to warrant the grant of general damages. He had also not established a case for exemplary damages or shown that he was subjected to unfair labour practices.
  7. The Respondent was entitled to seek information from the Claimant's former employers and to assess the Claimant's suitability without seeking the Claimant's views. The Respondent acted within the law but it ought to have treated the Claimant as a probationary employee and not a total stranger without contractual rights and obligations. The Claimant had an adequate remedy under the probationary contract and that remedy was notice pay.
  8. The Claimant had not shown the merits of immediate reinstatement of the offer of employment. Whether to terminate the employment contract or to continue with the contract was a prerogative of the Respondent.

Claim partly allowed.
Orders:-

  1. The Respondent shall pay to the Claimant notice pay at Kshs. 81,144/=.
  2. No order as to costs.
  3. Interest granted at the rate of 14% per annum, from the date of judgment till full payment.
ELECTORAL LAW High Court Nullifies the Election Results for the Member of The National Assembly For Wajir West Constituency

Abdirahman Ibrahim Mohamud v Mohamed Ahmed Kolosh & 2 others
Election Petition No 4 of 2017
High Court at Nairobi
Milimani Law Courts
F Tuiyott, J
March 2, 2018
Reported by Beryl A Ikamari

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Electoral Law-election petition-particulars pleaded in an election petition-imprecise pleadings-matters incidental to what was pleaded in an election petition-considerations of the Court with respect to imprecise pleadings and matters which were not expressly pleaded but were incidental to what was pleaded-whether the Court would hear and determine issues raised through imprecise pleadings.
Electoral Law-election materials-safekeeping of election materials -safekeeping of the Polling Station Diary (PSD)-whether a PSD which was mutilated and had pages missing had probative value-Constitution of Kenya 2010, article 86(d); Elections (General) Regulations, 2012, regulations 2, 86(2) & 93.
Electoral Law-conduct of an election-electoral malpractices and irregularities-effect of electoral malpractices and irregularities on the outcome of an election-allegations of votes cast which exceeded the voter turnout and a declaration of results at the Constituency Tallying Centre which were different from those transmitted from the polling station by the Presiding Officer-whether electoral malpractices and irregularities affected the outcome of an election and would lead to the nullification of the election result-Elections Act,  No 24 of 2011, section 82; Elections (General) Regulations, 2012, regulations 83 & 68(4)
Electoral Law-election petition-powers of an election court-issuance of a certificate of election as a member of the National Assembly-considerations of the Court in exercising powers to direct the Independent Electoral and Boundaries Commission to issue a certificate of election as a member of the National Assembly-whether the Court would grant such a remedy to a Petitioner where election results were nullified because it was not possible to ascertain the will of the electorate-Elections Act, No 24 of 2011, section 80(4).
Electoral Law-election petition-award of costs-considerations of the Court in awarding costs-complexity and time spent on the matter-whether the Court would award costs which exceeded the minimum prescribed fees under the Advocates Remuneration Order.

Brief facts:
The Petitioner challenged the validity of the outcome of the elections for Member of National Assembly for Wajir West Constituency. The 1st Respondent was declared the winner of the elections in which the Petitioner was a candidate and he came in second place with a small margin of 477 votes. His complaints mainly related to two polling stations- Qara Polling Station and Korich Polling Station. The Petitioner alleged that for those polling stations there was a difference between the results announced at the polling stations and the constituency tallying centre. He therefore asked for a recount of the ballot papers cast.
The Petitioner alleged that voting, counting and declaration of results was not administered in an impartial, neutral, efficient, accurate and accountable manner at Qara and Griftu Pastoralist Training Centre Polling Stations. The Petitioner also alleged that there were various election offences committed during the conduct of the elections.

Issues:

  1. Whether the Petitioner was advancing a case before the Court which went beyond what he had pleaded.
  2. What was the probative value of a Polling Station Diary (PSD) which had missing pages and whose safekeeping was not undertaken in a manner contemplated by the Constitution and statute?
  3. What was the effect of having imprecise pleadings?
  4. Whether there were any electoral malpractices and irregularities which affected the outcome of the election.
  5. When would the Court direct the Independent Electoral and Boundaries Commission to issue a Certificate of election as a member of Parliament (National Assembly) as a remedy to a Petitioner?
  6. What considerations would guide the Court in making an award of costs in an election petition? Read More...

Held:

  1. The Respondents' protest that the Petitioner's case went beyond what was pleaded and mutated from a compliant about alteration or falsification of results by the 3rd Respondent to a complaint about the results announced at polling stations by the Presiding Officer and a complaint, with respect to Qara polling station, about voter turnout as compared to the results announced, needed further assessment. A petition would not be speculative or a fishing expedition or premised on conjecture. Within the period of 28 days, from the date of the declaration of results of the election allowed for the filing of an election petition, the Petitioner would have to have garnered enough evidence to form the basis of his petition.
  2. Voter turnout was not an issue that required scrutiny. It could be assessed by a candidate's or political party's agent at the polling station. Agents were to observe voters as they came in to the polling station to cast their votes and thereby reduce the opportunity for ballot stuffing and multiple voting. Therefore, an election candidate ought to have information on voter turnout.
  3. The Petition raised issues about the alteration of results at the tallying centre and also the proper counting of votes at Qara and Korich Polling Stations. The two causes of action were not contradictory but were pleaded as alternatives. Paragraphs 7, 8, and 9 of the Petition were about the falsification or alteration of results while paragraphs 15 and 16 were about anomalies in the entries made in Form 35A for Qara Polling Station, Korich Polling Station, Shandarwa Polling Station and Barmish Centre. Additionally, paragraph 19 of the Petition raised an issue about counting, announcing, transmitting, tallying and declaration of votes cast in all the 13 Polling stations named in the Petition.
  4. The Petitioner's pleadings could have been more elegant and specific. Where pleadings appeared to have details that were contradictory and were not pleaded in the alternative, the Court would take a holistic approach to interpretation and find that they were pleaded in the alternative. In doing so the Court would not allow imprecise pleadings to prejudice the party that was to answer to the case. The Court would assess whether the Respondents understood the nature and extent of the case that they were to answer and whether the Respondents were otherwise prejudiced.
  5. The Respondent's pleadings disclosed that they understood that the Petitioner's case went beyond the question as to whether the Constituency Returning Officer altered results from Qara and Korich Polling Stations to the question as to whether the results were an accurate and true reflection of the outcome of the election at the polling stations.
  6. The Court made orders for scrutiny in respect of four polling stations including Qara. The scope of the scrutiny included an assessment on voter turnout. What was pleaded related to the accuracy of the count of the votes cast at the Qara Polling Station. The pleadings required an assessment as to the will or intent of the voters at Qara. The issue of voter turnout would help in an examination of the difference between the results declared at the polling station and those declared at the Constituency Tallying Centre. While the petition did not expressly plead the issue of voter turnout, the issue was incidental to what was pleaded and arose at the hearing.
  7. The law did not require a Petitioner who sought orders of scrutiny that went beyond a vote recount to expressly plead for it. The Supreme Court in Nathif Jama Adam v Abdikhaim Osman Mohamed & 3 others held that a finding that an order for scrutiny could not be granted where it was not pleaded was an error. However, it was crucial to show that the polling stations for which scrutiny was sought, had been said to have contested results in the pleadings.
  8. A Polling Station Diary (PSD) as defined in regulation 2 of the Elections (General) Regulations, 2012 is a record of all activities at a polling station on the polling day. After the completion of a count or recount the PSD was an election material that was to be delivered to the Returning Officer.
  9. The PSD presented for scrutiny was incomplete, with some missing pages. That incompleteness led to questions as to whether the remainder of the PSD was genuine with missing pages.
  10. The efficacy of scrutiny of an election material could be lost if it had been tempered with. On occasion, the interference could be so extensive that any meaningful scrutiny would not be possible and it would be needless for an election court to order a scrutiny.
  11. Under regulations 86(2) and 93 of the Elections (General) Regulations, 2012 the Constituency Returning Officer had the duty of retention and safekeeping of the PSD. Contrary to article 86(d) of the Constitution which required the IEBC to ensure safekeeping of election materials, the PSD was not released to the police in a manner compatible with maintaining the integrity and safekeeping of an election material. The document released to the police was mutilated. It would therefore have little probative value in evaluating scrutiny with respect to Qara Polling Station.
  12. The evidence tendered and the SD Card revealed that Qara Polling Station had 628 registered voters and 458 of the voters turned out to vote on August 8, 2017. The voters were identified biometrically. The Form 35A used to declare the results for Qara Polling Station showed that the valid votes cast was 590. It showed that the total number of votes cast exceeded the voter turnout.
  13. Under regulation 83 of the Elections (General) Regulations, 2012 the Constituency Returning Officer was to receive election results from the Presiding Officer and announce the results from each polling station. He would then tally the results from each polling station and complete Form 35B and declare the result of the member of the National Assembly for the constituency. A declaration of results for polling stations at the Constituency Tallying Centre that was different from what was transmitted by a Presiding Officer was not contemplated.
  14. With respect to Korich Polling Station, the serial number (113682) of the ballot box which contained the votes after polling differed from that used at the end of counting (117682) and which was presented for scrutiny. The election laws and regulations did not contemplate such a change in the ballot box. After counting, the Presiding Officer at the polling station would seal each ballot box. That sealing would safeguard the integrity of the contents of the ballot box. It would prevent the insertion of other votes or things to the ballot box. The ballot paper counterfoil would make the ballots in a box verifiable.
  15. A seal placed on a Ballot box could only be broken in the presence of observers and candidates or their agents and any new seal would be placed in a similar way and recorded in the Polling Station Diary. That would minimize suspicion and enhance confidence in the electoral process.
  16. With respect of four polling stations including Korich Polling Station, the packets of counterfoils of used ballots papers were not availed for scrutiny. Under regulation 68(4) of the Elections (General) Regulations, 2012, each ballot paper for use at an election would, inter alia, have attached a counterfoil with the same number of combination printed. By comparing the serial number on counterfoils with the ballot papers found in a ballot box, it would be possible to ascertain whether the ballot papers found in the ballot box were those issued to voters who cast their vote in the disputed election.
  17. Regulation 83(1) of the Elections (General) Regulations, 2012, empowered the Constituency Returning Officer to disregard the count of a polling station where the total valid votes exceeded the number of registered voters or where the total votes cast exceeded the voter turnout. However, that power ought to be exercised by an election court and not the Constituency Returning Officer.
  18. There was no conflict between the Court's powers to disregard the results of a count of a polling station and the restructured power of the Court to strike off votes in section 82 of the Elections Act. The Court was empowered to strike off an illegal vote falling within the categories identified in section 82 of the Elections Act. That would not be possible where the legal and illegal votes could not be differentiated. Votes that exceeded the voter turnout or the number of registered votes would fall under the list of illegal votes.
  19. If through scrutiny it was possible to distinguish between a legal and an illegal vote, the Court would only strike out the illegal votes, even where the votes cast were more than the voter turnout. Before nullifying the entire result, in a situation where the votes cast exceeded the voter turnout, the Court ought to consider whether it was possible to distinguish between the legal and illegal votes. For example, the requirement under regulation 68 of the Elections (General) Regulations, 2012 that a counterfoil would be attached to a ballot paper with the same serial number as the ballot paper on it, could help track the illegal votes. The process of distinguishing between legal and illegal votes would be painstaking and it would require the opening of ballot boxes and that was why it ought to be the preserve of an election court.
  20. It was not possible to distinguish between the legal and illegal votes in Qara and Korich Polling Stations as the counterfoils for the ballots cast were not provided for scrutiny. Therefore, it was impossible to ascertain the will of the voters for those polling stations.
  21. The Court would disregard the entire vote for Qara Polling Station on grounds that the votes cast exceeded the voter turnout and it was not possible to distinguish the legal votes from the illegal votes. The effect would be that the victory margin of 477 votes was wiped out.
  22. It was not verifiable that the results declared for Korich represented the will of the electorate. There was doubt involving 252 extra votes allegedly recorded in favour of the 1st Respondent and it was not verifiable that he deserved those votes.
  23. There was substantial non-compliance with the Constitution and other electoral laws and it affected the result of the election. The results for Korich polling station could not be verified and those for Qara amounted to a false return which did not reflect the will of the electorate.
  24. Under section 80(4) of the Elections Act, the Court had powers to direct the IEBC to issue a Certificate of Election to a President, a member of Parliament or a member of a County Assembly if a recount disclosed an apparent winner and that winner had not committed an election offence. The reason why the results for Qara Polling Station and Korich Polling Station were disregarded was that it was not possible to ascertain the will of the voters. Similarly, it was not possible to ascertain whether the will of the voters was that the Petitioner ought to be elected as the member of the National Assembly.
  25. The return declared at Qara Polling Station was the work of a criminal hand. The declared result in Form 35A was false, dishonest and illegal. Sections 87(1) & 87(2) of the Elections Act allowed an election court to make a determination as to whether an election offence had been committed. Where a determination to the effect that an election offence had been committed was made, the Court would issue directions for the transmission of the order to the Director of Public Prosecutions. As charges had already been preferred with respect to making a false return contrary to section 6(a) of the Elections Act, such orders were not necessary.
  26. An award of costs ought to enable the Petitioner to recoup reasonable costs incurred in prosecuting the petition. However, such an award ought not to be punitive as there was a public interest element in defending the outcome of an election.
  27. The Court was in a good position to cap costs on instruction fees because it studied the pleadings, heard the witnesses, listened to and read arguments in submission. The Court was aware about the complexity, if any, of the matter and the time and effort expended on the hearing. Counsel spent 9 days of about 5 hours a day on the petition.
  28. Under the Advocates Remuneration Order, the minimum fee for presenting or opposing an election petition was Kshs. 500, 000/=. Due to the issues involved, the time spent and the intensity of the trial, the Petitioner deserved more than the minimum prescribed fee.

Petition allowed.
Orders:-

  1. The results for Qara Polling station declared in Form 35A dated August 9, 2017 were nullified.
  2. The declaration made on August 10, 2017 by the 2nd and 3rd Respondents that the 1st Respondent was the winner of the Wajir West National Assembly Election held on August 8, 2017 was invalid, null and void.
  3. A certificate of the determination shall be made under and in accordance with section 86(1) of the Elections Act, and shall issue upon the Independent Electoral and Boundaries Commission and the Speaker of the National Assembly.
  4. Costs to the Petitioner shall be borne by the 2nd Respondent and were capped at Kshs.1,500,000/= as instruction fees.
  5. The 1st Respondent shall bear his own costs.
ELECTORAL LAW Standard of Proof in Nullifying an Election Petition

David Ouma Ochieng v Independent Electoral & Boundaries Commission, Isaiah Nabwayo, (The Returning Officer Ugenya Constituency) & Christopher Odhiambo Karani [2018] eKLR
Siaya Election Petition No. 1 of 2017
High Court at Kisumu
T. W. Cherere,J
March 1, 2018
Reported by Kakai Toili

Download the Decision

Electoral Law – election – election disputes – general principles - what were the general principles governing elections and elections disputes – Constitution of Kenya, 2010, articles 1, 2, 3, 38, 81& 86
Jurisdiction – jurisdiction of the Independent Electoral and boundaries Commission on election disputes– election disputes relating to campaigns - whether the Independent Electoral and Boundaries Commission had jurisdiction to handle an election dispute relating to campaigns – Elections Act, 2011, section  74 (1), 109 (cc) & (dd); Electoral Code of Conduct, section 5 (x)
Electoral Law – election petitions – standard of proof- what was the requisite standard of proof in nullifying an election petition – Evidence Act, section 107;
Electoral Law – election petitions – parties to an election petition –– election malpractices- inclusion of parties involved in election malpractices - persons alleged to have committed election malpractices - what was the effect of failure to include all persons alleged to have participated in a dirty campaign against a Petitioner in an election petition- Elections (Parliamentary and County Elections) Petitions Rules, 2017, section 2
Electoral Law – electoral malpractices – reporting of electoral malpractices – failure to report electoral malpractices - what was the effect of failure to report electoral malpractices to the Independent Electoral and Boundaries Commission or the Police in an election petition
Electoral law – elections – voting process – assisted voting – where one was accompanied by a person who was not qualified to assist in voting - procedure to be followed - what was the procedure to be followed where a person who applied to be assisted to vote was not accompanied by a person qualified to assist him or her - Elections General Regulations, 2012, Regulation 72
Electoral law – elections – invalidation of an election – grounds for invalidation of an election – non-compliance with electoral laws - whether any noncompliance with electoral laws invalidated an election - Elections Act, 2011, section 83

Brief facts:
Following the general elections held on August 8, 2017, the 2nd Respondent declared the 3rd Respondent as duly elected Member of the National Assembly for Ugenya Constituency and was subsequently gazetted as such. Aggrieved by the conduct of the election and the declaration of the results, the Petitioner filed the instant Petition on various grounds including that; the election was not conducted in a free and fair manner, the 3rd Respondent and his campaigners engaged in smear and dirty campaign linking the Petitioner to the Jubilee Party, its presidential candidate and to the murder of the 1st Respondent’s Acting Director for Information and Technology, the 1st and 2nd Respondents denied the Petitioner’s agents the right to participate in the elections and to witness the assisted voters voting, the 3rd Respondent harassed and intimidated the Presiding Officers in the polling stations to allow six piece voting and to mark all six piece votes in favor of the 3rd Respondent without reading out the names of the candidates to assisted voters among others.

Issues:

  1. What were the general principles governing elections and elections disputes?
  2. Whether the Independent Electoral and Boundaries Commission had jurisdiction to handle an election dispute relating to campaigns.
  3. What was the requisite standard of proof in nullifying an election petition?
  4. What was the effect of failure to include all persons alleged to have participated in a dirty campaign against a Petitioner in an election petition?
  5. What was the effect of failure to report electoral malpractices to the Independent Electoral and Boundaries Commission or the Police to an election petition?
  6. What was the procedure to be followed where a person who applied to be assisted to vote was not accompanied by a person qualified to assist him or her.
  7. Whether any non-compliance with electoral laws invalidated an election. Read More..

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 38 – Political rights
(1) Every citizen is free to make political choices, which includes the right—

(a) to form, or participate in forming, a political party;
(b) to participate in the activities of, or recruit members for, a political party; or
(c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections based on universal suffrage and the free expression of the will of the electors for—

(a) any elective public body or office established under this Constitution; or
(b) any office of any political party of which the citizen is a member.

(3) Every adult citizen has the right, without unreasonable restrictions—

(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and
(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Article 81 - General principles for the electoral system
The electoral system shall comply with the following principles—
(a) freedom of citizens to exercise their political rights under Article 38;
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) fair representation of persons with disabilities;
(d) universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) free and fair elections, which are—

(i) by secret ballot;
(ii) free from violence, intimidation, improper influence or corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, efficient, accurate and accountable manner.

Article 84 – Costs
An election court shall award the costs of and incidental to a petition and such costs shall follow the cause.

Article 86 - Voting
At every election, the Independent Electoral and Boundaries Commission shall ensure that—

(a) whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent;
(b) the votes cast are counted, tabulated and the results announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and accurately collated and promptly announced by the returning officer; and
(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place, including the safekeeping of election materials.

Elections Act, 2011
Section 72 - Election offence by candidate or political party(Repealed)
(1) A candidate who, during a nomination or an election campaign engages in or knowingly aids or abets an agent or any person who supports the candidate to engage in bribery violence or intimidation against the opponents of the candidate or any other person, under this Part, shall be disqualified by the Commission and shall not be eligible to participate in the elections.
(2) Where a political party knowingly nominates a candidate who does not meet the requirements of the Constitution, the political party commits an offence and shall be disqualified from nominating a candidate to contest in that election or in the next election in that electoral area.
(3) Where the offence under subsection (2) is discovered—

(a) after the candidate has been nominated to contest in an election, that candidate shall be disqualified by the Commission and shall not be eligible to contest in that election; or
(b) after the candidate has been elected, that candidate shall be disqualified by the Commission and shall not be eligible to contest in the next election.

(4) Where a political party under subsection (2) commits an election offence which the Commission considers to be of a grave nature or continuously repeats the offence, the presidential candidate of the political party shall not be eligible to contest in a presidential election during the elections or subsequent election as a result of any vacancy in the office of the President where the presidential candidate knowingly abets or aids in the election offence.

Section 74 – Settlement of certain disputes
(1) Pursuant to Article 88(4)(e) of the Constitution, the Commission shall be responsible for the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results.

Section 83 - Non-compliance with the law
No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election

Section 109 – Regulations
(cc) prescribe the manner of enforcing the Electoral Code of Conduct; or
(dd) provide for the conduct of campaigns during a referendum or an election;

Evidence Act
Section 107 - Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Elections (General) Regulations, 2012
Regulation 72 - Assisted voters
(5) On the application of a voter who is, by reason of a disability or being unable to read or write, and therefore unable to vote in the manner prescribed in these Regulations, the presiding officer shall permit the voter to be assisted or supported by a person of the voter’s own free choice, and who shall not be a candidate or an agent.
(6) Where the person who applies to be assisted is not accompanied by a person who is qualified to assist him or her, the presiding officer shall assist such voter, in the presence of the agents.
(7) The presiding officer may make such necessary and respectful inquiry in order to establish that the voter and the person the voter has chosen to assist him or her satisfies the provisions of this regulation.

(8) The person chosen by the voter is not required to be qualified to vote but is required to have attained the age of eighteen years.

(9) The following shall apply with respect to a person who assists a voter under this regulation—

(a) the person shall, before assisting or supporting the voter, make a declaration of secrecy before the presiding officer in Form 32 set out in the Schedule;
(b) a person who breaches his or her declaration commits an offence under the Act;
(c) the person shall assist or support only one voter at that election and have a mark as proof of assisting or supporting a voter.

(10) Where a presiding officer grants the request of a voter under this regulation, the presiding officer shall record in the polling station register against the name of the voter the fact that the voter was assisted and the reason for the assistance.
(11) No person other than a person acting under this regulation shall be present in a compartment of a polling station while a voter is in the compartment for the purpose of marking his or her ballot paper and any person who contravenes this subregulation commits an offence.

Elections (Parliamentary and County Elections) Petitions Rules, 2017
Section 2 – Interpretation
“respondent” in relation to a petition, means—

(c) the person whose election is complained of;
(d) the returning officer;
(e) the Commission; and
(f) any other person whose conduct is complained of in relation to an election.

Rule 30 - Costs
(1) The election court may, at the conclusion of a petition, make an order specifying—

(a) the total amount of costs payable;
(b) the maximum amount of costs payable;
(c) the person who shall pay the costs under paragraph (a) or (b); and
(d) the person to whom the costs payable under paragraphs (a) and (b) shall be paid.

(2) When making an order under sub-rule (1), the election court may—

(a) disallow any prayer for costs which may, in the opinion of the election court, have been caused by vexatious conduct, unfounded allegations or unfounded objections, on the part of either the petitioner or the respondent; and
(b) impose the burden of payment on the party who may have caused an unnecessary expense, whether that party is successful or not, in order to discourage any such expense.

(3) The abatement of a petition shall not affect the liability of the petitioner or of any other person to the payment of previously incurred costs.

Electoral Code of Conduct
5. Registered political parties, referendum committees, officials of political parties and referendum committees and candidates do, by subscribing to this Code, further commit themselves to—
x. promote free electoral campaigns by all lawful means; and

Held:

  1. The general principles governing elections and election disputes were contained in the Constitution, the Elections Act, 2016 (the Act) and the Subsidiary Regulations thereto. Article 1 of the Constitution pledged the sovereignty of the will of the people which could be exercised through their democratically elected representatives. Article 2 declared the Constitution to be the supreme law of Kenya while article 3 obligated every person to respect, uphold and defend the Constitution.
  2. Political rights protected by article 38 of the Constitution were realized through the electoral system set out in chapter seven of the Constitution. Under article 81(e), elections were free and fair when they were by secret ballot, free from violence and intimidation, improper influence or corruption, conducted by an independent body, transparent and administered in an impartial, neutral, efficient, accurate and accountable manner.
  3. The Electoral Code of Conduct whose object was to promote conditions conducive to the conduct of free and fair elections and a climate of tolerance in which political activity could take place without fear, coercion, intimidation or reprisals provided under section 5(x) that free electoral campaigns be promoted by all means. On the other hand section 109 (cc) and (dd) of the Act, empowered the 1st Respondent to provide for the manner of enforcing the electoral code of conduct and provide for the conduct of campaigns during referendum and elections. From the marginal note of section 74(1) the Act, the 1st Respondent could only settle certain disputes. A dispute relating to campaigns was an electoral dispute that could only be handled by the Election Court.
  4. What happened during campaign was legitimate business of a court hearing a petition concerning that election. The burden was on the Petitioner to prove to the satisfaction of the Court that there was not only non-compliance with the Constitution and other electoral laws but also that the said non-compliance affected the outcome of the election.
  5. An Election Court would not easily have upset an election by substituting its decision, conviction or will to that of the electorate. An Election Court had to be satisfied that the alleged electoral malpractices, irregularities and illegalities affected the will of the electorate. Where a party alleged non-conformity with the electoral law, the Petitioner had to not only prove that there had been non-compliance with the law but that such failure of compliance did affect the validity of the elections. It was on that basis that the Respondent bore the burden of proving the contrary. That emerged from a long standing Common Law approach in respect of alleged irregularity in the acts of public bodies, omnia praesumuntur rite et solemniter esse ecta (all acts are presumed to have been done rightly and regularly). The Petitioner had to set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.
  6. There was no doubt that elections emphatically demonstrated the sovereign will of the people which merits safeguarding by the process of the law. An Election Petition was a special dispute which called upon an election court to determine whether the political rights of citizens under article 38 of the Constitution had been upheld. The standard of proof in an election petition was beyond the balance of probability but lower than beyond reasonable doubt that was applicable in criminal cases. In many other jurisdictions including Kenya, where no allegations of criminal or quasi-criminal nature were made in an election petition, an intermediate standard of proof, one beyond the ordinary civil litigation standard of proof on a balance of probabilities but below the criminal standard of beyond reasonable doubt was applied. Section 107 of the Evidence Act placed the burden of proof on the person who alleged.
  7. Elections were not only about numbers , even in numbers, to arrive at a mathematical solution, there was always a computational path one had to take as proof that the process indeed gave rise to the stated solution.
  8. The Court was guided by the principle under section 83 of the Act. Section 83 of the Act created a rebuttable presumption that elections were generally conducted in accordance with the provisions laid down in the Constitution and other electoral laws. A petitioner seeking to nullify an election had to clearly and decisively discharge the burden of proof by demonstrating that the conduct of the election was so devoid of merits and so distorted as not to reflect the expression of the people’s electoral intent and the evidence should disclose profound irregularities in the management of the electoral process.
  9. The wheels upon which the allegations of electoral malpractices, irregularities and illegalities turned was whether in the conduct of elections, breaches, if any, had been such that it could not be said that the elections had been conducted as to be substantially in accordance with the law and whether the electoral malpractices, irregularities and illegalities, if any, affected the results.
  10. A perusal of the Petition showed that it provided the Respondents with adequate notice that evidence was to be called against the people alleged to have participated in dirty campaigns against him. In accordance with section 12 of the Act, they had an opportunity to file affidavits in response, which they failed to do. Under section 12 (9) they could have sought leave of the Court to file affidavits, which they failed to do. The burden of proof shifted to the named personalities to defend themselves against allegations made by the Petitioner and his witnesses. Having failed to file responses in accordance with the law, those personalities could not be said to have been denied an opportunity to be heard.
  11. Section 2 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017(the Rules) defined who a respondent in an election petition was. Failure to include as respondents, all persons alleged to have participated in the dirty campaign against the petitioner was fatal to the Petition.
  12. In a case where there was a clear breach of the law by contravention of the Code of Conduct or by failure to disqualify a candidate under section 72 (repealed) of the Elections Act as a result of which the election was compromised, then the Court had to consider the proceedings in determining the validity of election of the candidate.
  13. Where concrete evidence to prove electoral malpractices had been tendered, failure to report the said malpractices would not be fatal to the Petition. It would not be expected that the Petitioner would abandon his campaign and pitch camp at IEBC offices or the police station to continually report any offensive conduct committed against him. Evidence as tendered by the Petitioner and his witnesses regarding the smear and dirty campaign perpetrated against the Petitioner was not controverted. The witnesses did not identify the persons that linked the Petitioner to the death of the 1st Respondent’s Acting Director for Information and Technology and therefore that claim was not proven.
  14. There was no doubt that six piece, six oranges and Raila gi lange were campaign slogans for ODM Party. ODM had every right to identify its candidates in ODM rallies and to ask that only ODM candidates be elected. However, to intimidate a presiding officer to allow voters that asked to vote six piece to vote for 6 ODM candidates only without letting the voters pick a candidate of their choice as happened at Sigweny Karuoth Polling Station 01 among other polling stations was an irregularity that the Court could not disregard since it went to the reliability of the election.
  15. There were two registers in the August 8, 2017 elections, electronic and a hard copy. The requirement in regulation 72 that form 32 be filled and that the Presiding Officer mark the register in respect of an assisted voter whom he assists was for good reason. It was meant to comply with the constitutional requirement that an election had to be transparent, accountable, verifiable and credible. In the absence of forms 32 and marked register, the 1st and 2nd respondents had failed to account for the assisted voters and the reasons for which they were assisted and that created doubt as to whether the election was free and fair.
  16. Regulation 72 of the General Regulations, 2012 provided that where the person who applied to be assisted was not accompanied by a person who was qualified to assist him or her, the Presiding Officer had to assist such voter, in the presence of the agents. By randomly rotating agents to witness voting by assisted voters, the 1st and 2nd Respondent breached regulation 72 of the General Regulations, 2012. The rotation of the agents as a management tool was unacceptable since it denied the Petitioner’s agents an equal chance with the ODM agents
  17. There was evidence that there was coercion, intimidation and bullying of presiding officers by the 3rd Respondent and ODM agents. The legal sufficiency that an election was conducted in a free, fair and credible manner did not necessarily mean that the election was devoid of errors, mistakes or irregularities.
  18. It was clear that an election had to be conducted substantially in accordance with the principles of the Constitution as set out in article 81(e). Voting was to be conducted in accordance with the principles set out in article 86. The Elections Act and the Regulations thereunder constituted the substantive and procedural law for the conduct of elections. If it was shown that an election was conducted substantially in accordance with the principles of the Constitution and the Election Act, then such election was not to be invalidated only on ground of irregularities.
  19. It was not every non-compliance or every act or omission in breach of the election regulations or procedure that invalidated an election for being non-compliant with the law. The expression non-compliance affected the result of the election in a substantial manner could only mean that the votes candidates obtained would have been different in a substantial manner if it were not for the non-compliance substantially. That meant that to succeed, the Petitioner did not have to prove that the declared candidate would have lost. It was sufficient to prove that the winning majority would have been reduced. Such reduction however would have to be such as would have put the victory in doubt.
  20. To ensure that elections were free and fair there had to be sufficient time given for all stages of the elections, nominations, campaigns, voting and counting of votes. Candidates could not be deprived of their right to stand for elections and citizens to vote for candidates of their choice through unfair manipulation of the process by electoral officials. The entire election process had to have an atmosphere free of intimidation, bribery, violence, coercion or anything intended to subvert the will of the people.
  21. The margin of votes between the Petitioner and the 3rd Respondent was 347 votes only. To be portrayed as supporting Jubilee Party in Siaya County was something that no doubt affected the Petitioner's candidature. The Petitioner was contesting on an MDG ticket and not on a Jubilee ticket. By representing that the Petitioner and MDG party was part of Jubilee Party the 3rd Respondent and the other persons named knew and intended to alienate the Petitioner from voters in the constituency where both Jubilee Party and its presidential candidate were not viewed favourably.
  22. The ODM campaign machine ran a dirty campaign during the election for Member of Parliament for Ugenya Constituency in Siaya County. Everything was done to depict the Petitioner as a murderer and a candidate who was running against the grain. The election campaigns were repeatedly bombarded with malicious propaganda against the Petitioner. The propaganda was beyond what was ordinarily expected from opponents in an election campaign. From the evidence, the County was basically an ODM zone. The propaganda that the Petitioner was supporting the Jubilee Presidential Candidate was not only offensive but a blow below the belt. One could not say that a fair chance was given to the Petitioner to campaign or that the electors were given a fair chance to pick a candidate of their choice. The campaign was not free and fair. The campaign was perverted to the extent that it fundamentally subverted the will of the people and compromised the integrity of the election.
  23. The 1st and 2nd Respondent failed to account for the assisted voters and the reasons for which they were assisted and that created doubt as to whether the election was free and fair.
  24. Campaigns were conducted by and on behalf of the 3rd Respondent outside the campaign period that ended 48 hours before the Election Day. The Presiding Officers were coerced, intimidated and bullied by the 3rd Respondent and ODM agents who demanded that he allows voters that asked to vote six piece to vote for 6 ODM candidates only without giving the electors a chance to select a candidate of their choice.
  25. The electoral malpractices, irregularities and illegalities witnessed in the impugned election were such that it could not be said that the elections had been conducted substantially in accordance with the Constitution and the relevant electoral laws and the results therefrom did not pass the test of being transparent, accountable, verifiable and credible.
  26. An election Court had power under section 84 of the Act and rule 30 of the Rules to award the costs of and incidental to a petition to the successful party. Costs awarded had to be fairly adequate to compensate for work done but at the same time not exorbitant as to unjustly enrich the parties or cause unwarranted dent on the public purse or injure the body politic by undermining the principle of access to justice enshrined in article 38 of the Constitution.
  27. The parties were in agreement that the Petition was complex as manifested by the Pleadings and Submissions tendered in court and the number of witnesses and the nature of their evidence on record. There was no doubt that fairness and transparency had to be adhered to in all stages of the electoral process. Those who committed electoral offences or otherwise subverted the electoral process had to be subjected to severe sanction.

Petition allowed

  1. A declaration that the 3rd Respondent was not validly elected as Member of National Assembly for Ugenya Constituency in Siaya County issued.
  2. The 1st Respondent directed to conduct fresh election for Ugenya Constituency National Assembly Seat.
  3. Total costs to the Petitioner capped at Kshs. 7 million; half of which to be borne by the 1st and 2nd Respondents jointly and severally and the other half by the 3rd Respondent.
  4. The Certificate of the Court as to the validity of the election pursuant to section 86 of the Elections Act to be issued to the Independent Electoral and Boundaries Commission and the Speaker of the National Assembly.

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