Weekly Newsletter 028/2018

Weekly Newsletter 028/2018



Kenya Law

Weekly Newsletter


Court of Appeal has no jurisdiction to determine electoral disputes involving nominated Members of County Assembly
Independent Electoral and Boundaries Commission v Jane Cheperenger and 2 others
  Petition No 5 of 2016
Supreme Court of Kenya
M K Ibrahim, J B Ojwang, S C Wanjala, N S Ndungu, I Lenaola; SCJJ
April 27, 2018
Reported by Ian Kiptoo
Download the Decision
 
Civil Practice and Procedure - appeals-appeals to the Supreme Court-pleadings-where an appellant filed submissions out of the prescribed time-whether the Petitioner’s failure to file its record of appeal and submissions within the prescribed timelines rendered the appeal fatally defective-Constitution of Kenya, 2010, article 159; Supreme Court Rules, 2012, rules 31, 33 and 53
Jurisdiction-jurisdiction in election petitions-jurisdiction of the Court of Appeal vis-à-vis the Resident Magistrate Court-where a nominated member of county assembly had been gazetted-whether the Court of Appeal had jurisdiction to revoke the nomination and election of a member of county assembly after gazettement-Election Act, section 75
Civil Practice and Procedure-reliefs-enforcement of reliefs-where a Judgement from a court with no jurisdiction initiated Constitutional processes-whether the Court could make an order for appropriate remedy where a court’s decision initiated Constitutional processes that made it difficult to revert to the original process
 
Brief facts:
The Petitioner filed her appeal to the Supreme Court stating that the Court of Appeal lacked jurisdiction to entertain and determine the 1st Respondent’s appeal in light of article 87(1) of the Constitution of Kenya, 2010 (Constitution), and section 75(1A) of the Elections Act; by directing the 2nd Respondent to conduct fresh nominations and that the Court of Appeal’s jurisdiction in relation to nomination of parties to special seats ceased to exist immediately after the gazettement of the nominees.
 
Issues:
  1. Whether the Petitioner’s failure to file its record of appeal and submissions within the prescribed timelines rendered the appeal fatally defective.
  2. Whether the Court of Appeal had jurisdiction to revoke the nomination and election of a member of county assembly after gazettement.
  3. Whether the Court could make an order for appropriate remedy where a court’s decision initiated Constitutional processes that made it difficult to revert to the original process.
 
Held:
  1. Ordinarily and in accordance with rules 31 and 33 of the Supreme Court Rules, 2012, where a party was aggrieved by a decision of the Court of Appeal and desired a further appeal to the Supreme Court, such a person ought to have filed a Notice of Appeal within 14 days after the delivery of the Court of Appeal decision. The Notice of Appeal signified an intention to appeal. Upon the filing of the Notice of Appeal, the intending Appellant would file his petition and record of appeal within 30 days. In the instant case, the Petitioner did not file the Notice of Appeal within time necessitating it to approach the Court seeking an extension of time to file the said Notice of Appeal.
  2. The concerned consent order did not specifically provide for the time within which service should have been effected. The Order read,
  3. The Court affirmed the general principle of law which was recognized in the Constitution of Kenya, 2010 (Constitution)that where a particular time is not prescribed for performing a required act, the act should be done without unreasonable delay. In the instant case, the 3rd Respondent did not indicate when service was effected and hence the Court could only speculate whether service was done within a reasonable time or not. Consequently, the 1st Respondent’s objection was unmerited and without any basis. Furthermore, the 3rd Respondent was not in any way prejudiced as to handicap him from responding to the Petitioner’s case within 10 days after service of the record.
  4. The Petitioner’s submissions were filed out of time. Whereas that would have given a basis, if at all, for objecting, it was not upon to decide on the punitive measure to befall upon a party who failed to comply with the directions of the Court, as every other party had a respective individual obligation to honour Court’s directions. Underscoring the importance of complying with Court orders and directions given especially with regard to filing and service of documents within the requisite time. Cognizance was taken of rule 53 of the Supreme Court Rules, 2012 which gave the Court power toTherefore, to that extent the late filing of submissions was not patently incurable.
  5. It had been more than a year since the Petitioner filed its submissions and effected service on the 1st Respondent on the same day. Since then, as could be deduced from the various mentions that had been before the Deputy Registrar, counsel for the 1st Respondent had repeatedly affirmed his position that he would not respond to the Petitioner’s case since the Petitioner had failed to comply with the Court Orders. One such mention was where counsel for the 3rd Respondent sought to vacate the Consent Orders and stated that the Petitioner needed to first make a formal application in Court seeking extension of time to file the documents out of time.
  6. Although the Petitioner’s conduct of filing submissions 30 days after the initial agreed period was inexcusable, the Court was at pains to understand why the 1st Respondent’s counsel would fail to respond at all to the Petitioner’s case which had been lying in the Court for more than a year.
  7. The 3rd Respondent’s objection was at the very least an epitome of infringement of article 159 of the Constitution which not only dissuaded the Court from being tied to the ropes of procedural technicalities but also reminded it that justice delayed was justice denied. Most unfortunate was the fact that Kenya was at another election cycle and matters such as were in the instant case which emanated from 2013 general elections were still pending in the Court. Whereas breach of timelines was not condoned by the Court, the 1st Respondent was not prejudiced by the late filing of submissions since she still had 10 days within which to respond. Accordingly, the 1st Respondent’s objection was dismissed.
  8. Counsel ultimate duty was to the Court first. They were officers of the Court and were meant to help the Court in its role of dispensation of justice. Hence, it was absurd when an advocate appeared before Court, especially the Supreme Court, not prepared to advance his client’s case. That unpreparedness flew on the face of an advocate’s role as an officer of the Court, and also bordered on breach of his duty to the client and the obligation to diligently represent his/her client. Consequently, before appearing in Court to represent a client, it was of paramount importance that advocates got all the necessary facts clear and appeared in Court prepared in order to properly advance their clients’ case. Counsel’s conduct in the instant case notwithstanding, the Court was not absolved from undertaking its duty which was to dispense justice and neither would the said conduct prejudice the Court in execution of its mandate as before the Court, were legal issues which had been clearly fleshed out.
  9. Upon gazettement of nominated members of County Assemblies, any aggrieved party would have to initiate the process of challenging the said nominations by filing an election petition at the Resident Magistrate Court designated as an Election Court under section 75 of the Election Act. Therefore in the instant case, it was only upon such filing and determination by an election court, and where such a matter rose through the ordinary appellate process, that other courts in the judicial hierarchy could rightly assume jurisdiction with powers to give any consequent orders. Therefore to that extent, the Court of Appeal had no jurisdiction to revoke the nomination and election of the 3rd Respondent or to issue any other consequent orders.
  10. Though the Court of Appeal had no jurisdiction to revoke the Gazette Notice and issue any consequent orders, as a result of the Court’s pronouncement, other constitutional processes were initiated which culminated in the nomination of the 1st Respondent as the URP member of Bungoma County Assembly. Therefore, the Court was constrained to make any order which would defeat the resultant electoral process.
Appeal allowed
Orders
  1. The Court affirmed that the Court of Appeal had no jurisdiction to revoke the nomination of the 3rd Respondent or to give any consequent orders.
  2. The resultant electoral process that culminated in the removal of the 3rd Respondent was sustained.
  3. For the avoidance of doubt, the status quo remained.
  4. Parties would bear their own respective costs.
 
Kenya Law
Case Updates Issue 028/2018
Case Summaries

ELECTORAL LAW Court of Appeal upholds the results of the elections for member of the National Assembly for Embakasi East Constituency held on August 8, 2017

Owino Paul Ongili Babu v Francis Wambugu Mureithi & 2 others
Election Petition Appeal No 18 of 2018
Court of Appeal at Nairobi
M Warsame, D K Musinga & K M'Inoti, JJ A
June 8, 2018
Reported by Beryl A Ikamari

Download the Decision

Electoral Law-appeals-filing of an appeal-notice of appeal-form and content of a notice of appeal-effect of failure to conform with rule 6 of Court of Appeal (Election Petition) Rules, 2017 when drafting and filing a notice of appeal at the Court of Appeal-whether a memorandum of appeal could be used to set out the grounds of appeal at the Court of Appeal in an election petition originating from the High Court-Constitution of Kenya 2010, article 159 (2)(d); Interpretation and General Provisions Act (Cap 2), section 72; Appellate Jurisdiction Act (Cap 9), section 3A & 3B; Court of Appeal (Election Petition) Rules, 2017, rules 6 & 7.
Electoral Law-conduct of an election-electoral malpractices and irregularities-effect of electoral malpractices and irregularities-effect of discrepancies between the results in Forms 35B as compared to Forms 35A, failure to affix the IEBC stamp in 44 Forms 35A, failure to countersign alterations made to statutory forms, allegations that the Constituency Returning Officer was coerced and intimidated to declare and announce the results of the election-whether such electoral malpractices and irregularities affected the outcome of an election-Elections Act, No 24 of 2011, sections 83 & 85A; Elections (General) Regulations, 2017, regulations 79 & 83(1).
Evidence Law-documentary evidence-electronic and digital evidence-where the production of video evidence was sought for purposes of proving the occurrence of violence-whether the person who issued certification of production of a video for purposes of tendering a video as evidence would have to swear an affidavit-Evidence Act (Cap 80), sections 78A & 106B.
Jurisdiction-appellate jurisdiction-jurisdiction of the Court of Appeal in election petitions-election petition appeals originating from the High Court-questions of fact-whether the Court of Appeal had jurisdiction over questions concerning whether there was violence at certain polling stations and whether certain alterations made to statutory forms were countersigned-Elections Act, No 24 of 2011, section 85A.

Brief Facts:
In the elections of August 8, 2017 for member of the National Assembly for Embakasi East Constituency, the Appellant was declared the winner. There were ten candidates in the election, the Appellant garnered 46,587 votes, while the 1st Respondent got 42,501 votes. None of the other candidates got more than 1,486 votes.
The 1st Respondent was dissatisfied with that outcome and he filed a petition at the High Court. He alleged that the outcome was not a true reflection of the will of the electorate; that the elections were marred by various electoral offences and irregularities, were not transparent or verifiable and did not comply with the Constitution or electoral laws. The 1st Respondent sought various reliefs from the Court including declarations and orders for scrutiny and recount. The declarations sought included a declaration that the Appellant was not validly elected as the member of the National Assembly for the constituency.
The High Court nullified the result of the election. It found that there were defects in some Form 35A such as missing IEBC stamps, failure to bear the signature of presiding officers in the case forms from four polling stations, in the case of one polling station the forms had alterations that were not countersigned by Presiding Officers and use of forms meant for different polling stations to fill in results. The High Court also found that the results in Forms 35B were different from those declared at the tallying centre while some results in Forms 35A were different from those recorded in Form 35B yet results in Form 35A were used to generate results in Form 35B.
While stating that there was some violence during the elections, the High Court made the finding that there was insufficient evidence that the Appellant instigated the violence. However, the High Court made the finding that the Appellant intimidated and coerced the Constituency Returning Officer and that affected the conduct of the election and the declaration of the results. Against the High Court judgment, the Appellant filed an appeal at the Court of Appeal.

Issues:

  1. What was the effect of a failure to comply with rule 6 of Court of Appeal (Election Petition) Rules, 2017 with the respect to the form and content of a notice of appeal.
  2. Whether electoral malpractices and irregularities affected the outcome of the election.
  3. Whether the person who issued certification of production of a video for purposes of tendering a video as evidence would have to swear an affidavit. Read More...

Held:

  1. Election petitions were sui generis in nature and were governed by specific rules. Appeals arising from High Court election petition judgments were governed by the Court of Appeal (Election Petition) Rules, 2017.
  2. Where the Election Petition Rules expressly provided for the mode of moving the Court, a party was duty bound to comply with those provisions. Where there was non-compliance, rule 5 of the Election Petition Rules was applicable. That rule provided that the effect of any failure to comply with the Rules shall be a matter for determination at the Court’s discretion subject to the provisions of article 159 (2)(d) of the Constitution and the need to observe the timeliness set by the Constitution and any other electoral law.
  3. The Appellant did not comply with rule 6 of the Court of Appeal (Election Petition) Rules, 2017. The notice of appeal was filed at the High Court instead of being lodged at the Court of Appeal registry. The form of the notice did not conform with Form EPA2 as set out in schedule to the Rules. The notice of appeal was subsequently transmitted to the Court of Appeal Registry and it was served within the stipulated 7 days.
  4. Under the Court of Appeal (Election Petition) Rules, 2017, an appeal was an appeal from the decision of the High Court acting in its original jurisdiction in an election petition while a notice of appeal was a notice lodged in accordance with rule 6. The notice of appeal could not be said to be the appeal; it was used to initiate the appeal.
  5. The Court of Appeal (Election Petition) Rules, 2017 did not provide for the filing of a memorandum of appeal, as was the case in ordinary appeals from the High Court. Under rule 6 of the Court of Appeal (Election Petition) Rules, 2017 the Appellant was required to set out the grounds of appeal in the notice of appeal. The Appellant prepared a memorandum of appeal and a notice of appeal and included them as part of the record of appeal and served it upon the Respondent. That was not the prescribed mode of instituting such an appeal.
  6. In dealing with the non-compliant record of appeal, under rule 5 of the Court of Appeal (Election Petition) Rules, 2017, the Court would exercise its discretion in a manner that would not prejudice the parties and would permit a determination of the appeal on its merits. Article 159(2)(d) of the Constitution, whose applicability was stated in rule 5, ensured the determination of disputes on merit. The stated rule 5 gave the Court discretion which would not be exercised whimsically, capriciously or unreasonably. Additionally, section 72 of the Interpretation and General Provisions Act provided that whenever a form was prescribed by written law, an instrument or document that purported to be in the prescribed form would not be void by reason only of deviation, if the deviation did not affect the substance of the instrument or document, or if it was not calculated to mislead.
  7. The 1st Respondent was duly served with the record of appeal within the stipulated 5 days from the date of its filing and he did not suffer prejudice as a result of the manner in which the record of appeal was compiled and presented before the Court. In light of the provisions of article 159(2) (d) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act and rule 5 of the Court of Appeal (Election Petition) Rules 2017, the appeal was deemed to have been filed properly.
  8. The High Court rightly observed that the results recorded in Form 35A ought not to differ from those recorded in Form 35B since the results in Form 35A lead to the generation of the results in Form 35B. The High Court, therefore reached at the conclusion that the declared results were not verifiable. However, the effect of the discrepancy between the results in Form 35A and Form 35B depended on the question as to whether that discrepancy affected the result of the election.
  9. For an election to be invalidated for reason of non-compliance with provisions of the Constitution, the Elections Act and or any other electoral law, a party must demonstrate that the election was not conducted in accordance with constitutional principles and the relevant electoral law, or that the non-compliance affected the result of the election. That position was recognized in section 83 of the Elections Act. The Court ought not to nullify results at the slightest pretext; there had to be sufficient reasons supported by evidence.
  10. At the High Court, the 1st Respondent complained that 44 Forms 35A used to announce the results did not have the IEBC stamp. Failure to affix the IEBC stamp on the Forms 35A was not fatal so long as the aforesaid forms were signed by the Presiding Officers and the agents. The non-stamping was adequately explained and cured by the signature of all agents and Presiding Officers. That confirmed the authenticity, legitimacy and correctness of the results contained in the said forms. The Court was not shown how the stamping issue affected the result of the election.
  11. Under regulation 79 of the Elections (General) Regulations, 2017 and there was no requirement for stamping of the forms. It was, however, administratively wise to do so.
  12. Alterations made on statutory forms had to be countersigned by the Presiding Officer. Without countersigning those alterations, the results as declared on the forms were not capable of verification.
  13. The 1st Respondent raised questions concerning the countersigning of Forms 35A in Embakasi Social Hall Polling Station No. 6, Edelvale Primary School Polling Station No. 3 and Embakasi Primary School Polling Station No. 16. The finding of the High Court was that the forms were countersigned except for the form for Embakasi Primary School polling station no. 6 which had alterations which were not countersigned as shown in an annexure to an affidavit. The High Court also relied on a scrutiny and recount report dated February, 21, 2018 which showed that the form was altered but countersigned. The High Court recognized that the issue on countersigning remained in doubt but chose to rely on the scrutiny and recount report which showed that the alterations had been verified by countersigning by the Presiding Officer.
  14. A finding as to whether or not an alteration on a statutory form was countersigned was a finding of fact. Under section 85A of the Elections Act, the jurisdiction of the Court of Appeal in election matters was on matters of law only unless the conclusion which was reached at was so perverse or unreasonable that a reasonable tribunal would not reach at such a conclusion. In the appeal, that was not the case. The Court of Appeal, therefore, lacked jurisdiction to interrogate the alleged failure to countersign alteration on the said electoral forms.
  15. With respect to the question as to whether the discrepancy in the results contained in Forms 35A and those in Form 35B affected the result of the election, the High Court's finding was that it did not matter that the irregularities affected the results of other candidates and not the parties to the petition. The High Court further stated that it was concerned with the validity of the entire electoral process in the constituency. The High Court posed the wrong question and reached at an incorrect or vague answer.
  16. Neither the Appellant nor the 1st Respondent was affected by the errors noted. The errors which caused discrepancies in the results in Forms 35B and Forms 35A affected four other candidates and had no bearing on the margin of 4000 votes between the two leading candidates. Ultimately, the errors did not affect the result of the election.
  17. In nullifying the results on the basis of arithmetical irregularities, the High Court gave little consideration to the results of the scrutiny and recount exercise wherein the winning margin was 4,316 votes. The 1st Respondent did not dispute the result of the scrutiny exercise during and after completion of the scrutiny exercise. The will of the people of Embakasi East Constituency was clear beyond peradventure.
  18. The High Court, which heard the witnesses and perused the polling station diaries found that, as a matter of fact, violence occurred at Soweto Social Hall Polling Centre only. The Court would be exceeding its jurisdiction under section 85A of the Elections Act if it were to start re-evaluating the evidence tendered at the High Court in order to verify the factual finding.
  19. The High Court found that there was some violence at Soweto Social Hall Polling Centre on the basis of the polling station diary. A finding that there was violence was not enough to support the nullification of an election. There was need for evidence that the violence did not just affect voting but it affected the final result of the election. For example, it was necessary to show that the violence disenfranchised some voters and or gave an undue advantage to one of the parties.
  20. No voter tendered evidence to show that due to the violence, they were disenfranchised and failed to exercise their constitutional right to vote. On the contrary, evidence was tendered to the effect that voting hours were extended to compensate for any time lost due to the unrest that occurred at Soweto Social Hall Polling Centre.
  21. There was a High Court finding to the effect that the Appellant intimidated and coerced the Constituency Returning Officer and made him announce the results of the election. That finding was not supported by the evidence tendered. The evidence showed that pressure from the Appellant did not affect the nature of the results that were announced.
  22. The Appellant's agitation for the results to be announced was honest and legitimate. Regulation 83 (1) of the Elections (General) Regulations, 2012, required the Returning Officer, immediately after the results of the poll from all polling stations were received, to tally the final results and promptly declare them, and in the case of election of a member of the National Assembly, issue the winner with Form 35C. The Constituency Returning Officer was under pressure to announce the results, rather than under intimidation from the Appellant.
  23. The 1st Respondent wanted the High Court to admit video evidence for purposes of showing that there was violence at some polling stations. The production of that evidence was declined by the High Court because the High Court found that it did not comply with sections 78A and 106B of the Evidence Act.
  24. It was shown that the certification of production of the video was made by the person who took the video and produced in court, that the video was produced from the primary source and that the video was taken in the ordinary course of business. There was no legal requirement for the person producing the certificate to swear an affidavit under section 106B of the Evidence Act. Therefore, contrary to the findings of the High Court, there was compliance with sections 78A and 106B of the Evidence Act, as related to the video evidence.
  25. Although rule 29(b) of the Court of Appeal Rules empowered the Court to take additional evidence or to direct that additional evidence be taken by the Trial Court, or by a commissioner, the Court was not moved appropriately. What the Court could do was to make a finding the 1st Respondent's video evidence was admissible and ought to have been taken into account.
  26. The criminal charges preferred against Jackline Waithira Muigai and Monica Kasaya Wambua, who were Presiding Officers at Soweto Social Hall Polling Station No. 5 and Embakasi Social Hall Polling Station No. 18 respectively, were not conclusive evidence of electoral malpractice and/or fraud. At the time the petition was heard, the criminal proceedings were still pending at the Subordinate Court. The High Court therefore refrained from making comments or findings about the criminal cases.
  27. The Court could not take judicial notice of the recent convictions of the two ladies. There was nothing on record to prove those convictions as alleged. Even if the material had come into existence, the High Court could not pronounce itself on it as the matters were still pending at a criminal court.
  28. The irregularities and the non-compliance with the electoral law did not affect the result of the election of the Appellant as member of the National Assembly for Embakasi East Constituency.

Appeal allowed.
Orders

  1. It was declared that the Appellant was validly elected as member of the National Assembly for Embakasi East Constituency and the order nullifying his election and ordering fresh elections was quashed and set aside.
  2. A certificate confirming that the Appellant was duly elected as member of the National Assembly for Embakasi East Constituency during the elections held on August 8, 2017 shall issue in accordance with section 86(1) of the Elections Act, 2011; and shall be forwarded to the Independent Electoral and Boundaries Commission and the Speaker of the National Assembly.
  3. The 1st Respondent’s cross-appeal was dismissed on all the grounds thereof save for the one that challenged the non-admission of the 1st Respondent’s video, which ought to have been admitted into evidence.
  4. The Appellant was awarded the costs of the petition in the High Court as against the 1st Respondent, which were capped at Kshs.3,000,000/=. The Appellant was also awarded the costs of the appeal as against the 1st Respondent which were capped at Kshs.1,000,000/=.
CONSTITUTIONAL LAW Effect of non-registration with National Council for Persons with Disabilities for a person seeking nomination in the County Assembly as representative of Persons living with Disabilities.

Marthlida Auma Oloo v Independent Electoral and Boundaries Commission & 3 Others (2018) eKLR
Election Petition Appeal No. 5 of 2018
High Court at Migori
Mrima A.C, J
June 7, 2018
Reported by Ribia John and Dorcas Wambui

Download the Decision

Constitutional Law – bill of rights – rights of disabled persons –registration with the National Council for Persons with Disability –whether a person could be considered as a person living with disability despite not being registered with the National Council for Persons with Disabilities –Constitution of Kenya, 2010, article 260
Electoral Law-election petition-nominations to the County Assembly-nominations of persons living with disabilities-requirements for one to be nominated – certification by the National Council for Persons with Disabilities - whether failure to obtain certification with NCPWD at the time of her application for nomination was fatal- Elections (Party primaries and Party Lists) Regulations 15(2)

Brief facts:
The Appeal was against the dismissal of an election petition challenging the election of the 3rd Respondent, by way of nomination into the County Assembly of Migori under the special category representing persons living with disabilities by the Orange Democratic Movement(ODM) party.
One of the grounds for appeal was that the Magistrate misdirected himself in finding that the 3rd Respondent was qualified to be nominated as a person living with disability (PWD), even though at the time she submitted her application for nomination, she was not registered and certified as a PWD by the National Council for Persons with Disabilities (NCPWD)as required under Regulation 15 (2) of the Elections (Party primaries and Party Lists) Regulations 2017(the Regulations).

Issues:

Whether a person could be considered for nomination as a person living with disability despite not being registered with the National Council for Persons with Disabilities.

Whether failure to seek and obtain certification of Declaration as a PWD with NCPWD at the time of her application was fatal to her application.

Whether one is required to produce evidence to be certified as a PWD for nomination in the County Assembly.

What is the definition of disability under the Constitution,2010 and Disability Act? Read More..

Relevant provisions
Constitution of Kenya, 2010
Article 177
(1) A county assembly consists of-

members elected by the registered voters of the wards, each ward constituting a single member constituency, on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year;
the number of special seat members necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender;
the number of members of marginalized groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; and
the Speaker, who is an ex officio member.

(2) The members contemplated in clause (1) (b) and (c) shall, in each case, be nominated by political parties in proportion to the seats received in that election in that county by each political party under paragraph (a) in accordance with Article 90.
(3) The filling of special seats under clause (1) (b) shall be determined after declaration of elected members from each ward.
(4) A county assembly is elected for a term of five years.

Article 90
(1) Elections for the seats in Parliament provided for under Articles 97 (1) (c) and 98 (1) (b), (c) and (d), and for the members of county assemblies under 177 (1) (b) and (c), shall be on the basis of proportional representation by use of party lists.
(2) The Independent Electoral and Boundaries Commission shall be responsible for the conduct and supervision of elections for seats provided for under clause (1) and shall ensure that-

each political party participating in a general election nominates and submits a list of all the persons who would stand elected if the party were to be entitled to all the seats provided for under clause (1), within the time prescribed by national legislation.
except in the case of the seats provided for under Article 98(1)(b), each party list comprises the appropriate number of qualified candidates and alternates between male and female candidates in the priority in which they are listed; and
except in the case of county assembly seats, each party list reflects the regional and ethnic diversity of the people of Kenya.

(3) The seats mentioned in clause (1) shall be allocated to political parties in proportion to the total number of seats won by candidates of the political party at the general election.

Elections Act
Section 34
(6) The party lists submitted to the Commission under this section shall be in accordance with the Constitution or nomination rules of the political party concerned.
(6A) Upon receipt of the party list from a political party under subsection (1), the Commission shall review the list to ensure compliance with the prescribed regulations and -

issue the political party with a certificate of compliance; or
require the political party to amend the party list to ensure such compliance failing which the Commission shall reject the list.

(6B) For purposes of subsection (6A), the Commission may, be notice in the gazette, issues regulations prescribing guidelines to be complied with in preparation of party lists.
(7) The party lists submitted to the Commission shall be valid for the term of Parliament.
(8) A person who is nominated by a political party under subsection (2), (3) and (4) shall be a person who is a member of the political party on the date of submission of the party list by the political party.
(9) The party list shall not contain a name of a candidate nominated for an election.
(10) A party list submitted for purposes of subsections (2), (3), (4) and (5) shall not be amended during the term of Parliament or the County Assembly, as the case may be, for which the candidates are elected.

Section 35
A political party shall submit its party list to the Commission at least forty-five days before the date of the general election.

Section 36
(1) A party list submitted by a political party under-

(e) Article 177 (1) (b) of the Constitution shall include a list of the number of candidates reflecting the number of wards in the county;
(f)Article 177 (1) (c) of the Constitution shall include eight candidates, at least two of whom shall be persons with disability, two of whom shall be the youth and two of whom shall be person representing a marginalized group

(2) A party list submitted under subsection (1) (a), (c), (d), (e) and (f) shall contain alternates between male and female candidates in the priority in which they are listed.
(3) The party list referred to under subsection (1) (f) shall priorities a person with disability, the youth and any other candidate representing a marginalized group.
(4) Within thirty days after the declaration of the election results, the Commission shall designate, from each qualifying list, the party representatives on the basis of proportional representation.
(7) For purposes of Article 177 (1) (b) of the Constitution, the Commission shall draw from the list under subsection (1) (e), such number of special seat members in the order given by the party, necessary to ensure that no more than two-thirds of the membership of the assembly are of the same gender.
(8) For purposes of Article 177 (1) (c) of the Constitution, the Commission shall draw from the list under subsection (1) (f) four special seat members in the order given by the party.
(9) The allocation of seats by the Commission under Article 177(1) (b) and (c) of the Constitution shall be proportional to the number of seats won by the party under Article 177 (1) (a) of the Constitution.

Section 37
(1) If a representative from a political party list dies, withdraws from the party list, changes parties, resigns or is expelled from his or her party during the term of the representative, the seat of the representative shall be allocated to the next candidate of the same gender on the respective political party list.
(2) Notwithstanding the provision of Section 34 (10), if there are no more candidates on the same party's list, the Commission shall require the concerned political party to nominate another candidate within twenty -one days.
(3) A vacancy in any seat in a political party list shall not be filled three months immediately before a general election.
(4) Where a political party fails to comply with the provisions of subsection (2) the Commission shall not allocate the seat for the remainder of the term of Parliament or the County Assembly.

Election (General) Regulations, 2012
Regulation 54
“(1) Each political party shall submit to the Commission a party list of all persons who would stand elected if the party were entitled to seats in the National Assembly, Senate or the County Assembly, as the case may be on the basis of proportional representation in accordance with Article 90 of the Constitution and sections 34, 35, 36 and 37 of the Act.
(2) The party list referred to in sub-regulation (1) shall contain the name, address, age, sex, disability and category of disability, phone number, occupation, identity card number or passport number and colored passport size photograph image, elective post sought and such other qualifications as are provided under the Constitution and the Act in the prescribed Form 24B.
(3) A party list submitted under Sub regulation (1) shall be in accordance with section 36 of the Act, and shall be –

signed by the authorized official of the political party submitting the party list; and
be submitted in hard copy, in electronic form and such other form that the Commission may specify.

(4) Each political party list nominee shall after nomination, submit to the Commission a letter stating his or her intention to serve if nominated.
(4A) Each political party list nominee representing persons with disabilities shall submit, to the Commission, a certification from the National Council for Persons with Disabilities.
(5) The Commission may reject a nominee submitted by a political party for any elective post if that nominee is not qualified to be elected to the office for which the nomination is sought as specified under the Constitution or the Act.
(6) The rejection by the Commission of a nominee under this regulation shall not invalidate the entire party list submitted by the political party.
(7) The Commission, after making the decision to reject a nominee, inform the political party concerned of that decision and request that political party to submit another name within such time as the Commission shall determine.
(8) The Commission shall publish the final part list in at least two newspapers with nationwide circulation.”

Regulation 55
(1) The part list contemplated under regulation 54 shall be prepared in accordance with the nomination rules of the political party.
(2) The Commission shall within fourteen days of receipt reject any party list that does not comply with the requirements of the Constitution, the Act or these Regulations.
(3) The political party whose party list or nominee has been rejected by the Commission under sub-regulation (2) shall resubmit the party list or nominee within seven days from the date that the party list was rejected under sub regulation (2).
(3A) Where a political party fails to amend the party list or resubmit the list as directed by the Commission, the Commission shall reject the party list.
(4) A political party submitting a party list under regulation 54 shall submit a declaration to the effect that the political party has complied with its rules relating to the nomination of the names contained in the list.

Elections (Party primaries and Party Lists) Regulations
Regulation 15(2)
Where an aspiring candidate intends to be nominated on the ground that the candidate is a person with disability, the candidate shall, in addition to the requirements specified under sub regulation (1), submit an application in Form 4 set out in the Schedule which shall be certified by the National Council for persons with Disabilities.

Held:

  1. A petition which required the appellate Court to re-examine the probative value of the evidence tendered at the trial Court, or invited the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. Those principles stroke a balance between the need for an appellate Court to proceed from a position of deference to the trial Court and the trial record, on the one hand, and the trial Court’s commitment to the highest standards of knowledge, technical competence, and probity in electoral – dispute adjudication, on the other hand. The instant Court ought to resist the temptation of venturing into the realm of evidence, evaluating that evidence and reaching its own conclusions on factual matters. However, the instant Court reserved the jurisdiction to venture into the said realm of evidence with a clear purpose of determining the applicability or interpretation and/or construction of a provision of the Constitution of Kenya, 2010, an Act of Parliament, subsidiary legislation or any legal doctrine.
  2. Article 177 of the Constitution was the source of the political parties’ mandate to nominate members to the County Assembly. The purpose of article 177 was to guarantee that no more than two-thirds of the memberships of any County Assembly was comprised of the same gender and further safeguarded and ensured the representation from the marginalized groups including PWDs and the youth. The members contemplated under article 177(1)(b) and (c) were nominated by political parties proportionate to the number of seats garnered in article 177 (1) (a). Those members could only be drawn from a list which was prepared by a political party and presented to the Independent Electoral and Boundary Commission (IEBC), which list was eventually published in the Kenya Gazette by IEBC. That list was what was referred to as a Party List.
  3. Regulation 15 of the Elections (Party primaries and Party Lists) Regulations, 2012 dealt with the requirements to be complied with by aspiring candidates in their applications to their party’s Election Board. Regulation 15(2) required that such a candidate was to avail to its Party’s Election Board a Declaration Certifying Disability in the format provided in Form 4 of the Party List Regulation Schedule which was to be certified by NCPWD. The Regulations however did not provide for the nature of certification to be undertaken by NCPWD. It was not certain whether a certification that the declaration was as provided for in the Party Lists Regulations Schedule, or a certification that the candidate was a person living with disability or a certification that the candidate was registered with NCPWD as a person living with a disability, or any other form of certification.
  4. The process of electing the 3rd Respondent began with the calling of applications by ODM from suitable members for nomination. That was later reinforced by the issuance of the Guidelines on the Preparation of Party Lists by IEBC. On completion of the internal process ODM forwarded its Party List to IEBC, guided by the law, IEBC reviewed the Party List and required ODM to instead resubmit a Final Party List. There was no reason for the review of the initial Party List.
  5. The Regulations did not provide for the nature of certification to be undertaken by NCPWD. It was not clear whether the certification could be a certification that the declaration was as provided for in the Regulations Schedule or a certification that the candidate was a PWD or a certification that the candidate was registered with NCPWD as a PWD or any other form of certification. The only requirement was that the Declaration had to be certified by NCPWD. The nature of the certification remained in limbo. The law did not require a candidate seeking nomination under the category of PWD to avail any evidence, be it a certificate or otherwise, that he/she was registered with NCPWD as a person living with disability. It was not the registration with NCPWD which qualified one to be a PWD. Such a person had to in the first instance be living with a disability well before the registration. That was not however to say that it was not important for persons living with disabilities to register with NCPWD.
  6. The Constitution of Kenya,2010 used the word ‘include’ in the definition of disability. That meant disability could be in any other form or nature further to what was stated in the Constitution as long that form or nature had or was perceived by significant sectors of the community to have had a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities. The definition was therefore objective. The Disabilities Act also adopted an objective approach to the definition of disability to include any visual, hearing, learning or physical incapability which impacts adversely on social, economic or environmental participation. Disability therefore rested on perception. It was the perception by significant sectors of the community that a certain condition had a substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities.
  7. The fact that ODM was a party with a national presence and following could not be rivaled. It was a party comprised of members from various sectors of the Kenyan community. The nomination of the 3rd Respondent was hence not a decision made by a small clique of individuals but by ODM as the party. It was ODM which was satisfied that the 3rd Respondent’s physical condition had a permanent effect on her ability to carry out her daily activities hence its proposition to IEBC.
  8. ODM and the medical fraternity were both of the considered perception that the 3rd Respondent was physically disabled, they constituted significant sectors of the Kenyan community and as such the 3rd Respondent was constitutionally and legally qualified to be considered as a PWD regardless of the fact that she was not registered with NCPWD as at the time of her application or did not render a certification of the Declaration whose nature remained unsettled.
  9. Since the rest of the election process was not impugned in the Appeal, the 3rd Respondent was properly elected to represent PWDs in the County Assembly of Migori. The election of the 3rd Respondent was conducted in accordance with the principles and provisions laid out in the Constitution, the Election Act and all other Rules and Regulations made thereunder and there were no irregularities that affected the result of the election.

Appeal dismissed with costs.
Orders

IEBC to clarify on the nature of the certification of the Declaration under Regulation 15(2) of the Party List Regulations.

ELECTION LAW The Election of the Member of the National Assembly for Lamu West Constituency Held on August 8, 2017 Contravened the Constitutional and Statutory Provisions Governing Elections

Rishad Hamid Ahmed v. Independent Electoral & Boundaries Commission & 2 Others [2018] eKLR
Election Petition No. 1 of 2017
High Court at Malindi
W. Korir, J
February 21, 2018.
Reported By Felix Okiri
Download the Decision

Election Law - election petition – scrutiny and or recount of votes – meaning and significance of the terms ‘scrutiny’ and ‘recount’ - what were the guiding principles with respect to scrutiny and recount of votes - conditions that had to be met before orders for scrutiny could issue - whether a Petitioner could ask for both a recount and scrutiny of votes - Elections (Parliamentary and County Elections) Petition Rules, 2017, rules 28 and 29; Elections Act section 82(1)
Evidence Law - burden of proof – standard/threshold of proof in electoral matters – what was the threshold of proof in an election petition - where the burden and standard of proof lay – circumstances when the burden of proof shifted in an election petition
Election Law – election petition – nullifying election petitions – grounds for nullifying election petitions – what was the degree and standard of proof in nullifying election petitions

Brief facts:
The Petitioner sought to invalidate the declaration made on August 10, 2017 by the 2nd Respondent, that the 3rd Respondent was elected the Member of the National Assembly for Lamu West Constituency in the general election held on August 8, 2017.
The Petitioner averred that the 1st and 2nd Respondents abdicated their duty to administer the election in a neutral, efficient, accurate, accountable and impartial manner as required by article 81 of the Constitution of Kenya, 2010 (the Constitution) as read together with sections 39, 44 and 44A of the Elections Act, 2011, the regulations made thereunder and section 25 of the Independent Electoral and Boundaries Commission Act, 2011, thus rendering the electoral process open to manipulation, malpractice and inaccuracies resulting in an invalid outcome.

Issues:

  1. Whether the election of the Member of the National Assembly for Lamu West Constituency held on August 8, 2017 was conducted in accordance with the Constitution and electoral laws;
  2. Whether there were any illegalities or irregularities and if so, whether they affected the results and or the validity of the said election.
  3. What was the difference in the terms ‘scrutiny’ and ‘recount’?
  4. What were the guiding principles with respect to scrutiny and recount of votes in an election petition?
  5. What conditions had to be met before orders for scrutiny could issue?
  6. What was the degree and standard of proof in nullifying election petitions Read More...

Relevant provisions of the law
The Elections (General) Regulations, 2012 as amended by the Elections (General) (Amendment) Regulations, 2017 (the Regulations)
Regulation 77(2)
“(2) A ballot paper on which a vote is marked –

a) elsewhere than in the proper place;
b) by more than one mark; or
c) which bears marks or writing which may identify the voter, shall not by that reason only be void if an intention that the vote shall be for one or other of the candidates, as the case may be, clearly appears, and the manner in which the paper is marked does not itself identify the voter and it is not shown that the voter can be identified thereby.”

The Elections Act
Section 82(1)

“An election court may, on its own motion or on application by any party to the petition, during the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner as the election court may determine.”

Held:

  1. The foundation of the law governing scrutiny in electoral disputes was traced to the Constitution, which at article 86(a) required IEBC to ensure that whatever voting method was used, the system was simple, accurate, verifiable, secure, accountable and transparent. In short, the method used in an election ought to have been auditable.
  2. Section 82(1) of the Elections Act and rule 28 and 29 of the Elections (Parliamentary and County Elections) Petitions Rules, 2017 empowered an Election Court to order scrutiny.
  3. Although the terms scrutiny and recount were often used together and interchangeably, and petitioners often prayed for ‘scrutiny and recount’ of the votes cast at an election, the two remedies were conceptually different. A recount was limited to establishing number of votes garnered by the candidates and the tallying of such votes. Scrutiny, on the other hand went beyond the simple question of the number of votes garnered by the candidates and extended to the validity of such votes. There was no room for examination of electoral misconduct in a recount. Although scrutiny and recount were conceptually different, the conduct of a scrutiny inevitably entailed the conduct of a recount. The converse, however, was not true.
  4. The following were the guiding principles with respect to scrutiny and recount of votes in an election petition:
    1. The right to scrutiny and recount of votes in an election petition was anchored in section 82(1) of the Elections Act and rule 33 of the Elections (Parliamentary and County Elections) Petition Rules, 2013. Consequently, any party to an election petition was entitled to make a request for a recount and/or scrutiny of votes, at any stage after the filing of petition, and before the determination of the petition.
    2. The Trial Court was vested with discretion under section 82(1) of the Elections Act to make an order on its own motion for a recount or scrutiny of votes as it could specify, if it considered that such scrutiny or recount was necessary to enable it to arrive at a just and fair determination of the petition. In exercising that discretion, the Court was to have sufficient reasons in the context of the pleadings or the evidence or both. It was appropriate that the Court was to record the reasons for the order for scrutiny or recount.
    3. The right to scrutiny and recount did not lie as a matter of course. The party seeking a recount or scrutiny of votes in an election petition was to establish the basis for such a request, to the satisfaction of the Trial Court or Magistrate. Such a basis could be established by way of pleadings and affidavits, or by way of evidence adduced during the hearing of the petition.
    4. Where a party made a request for scrutiny or recount of votes, such scrutiny or recount if granted, was to be conducted in specific polling stations in respect of which the results were disputed, or where the validity of the vote was called into question in the terms of rule 33(4) of the Election (Parliamentary and County Elections) Petition Rules.
  5. An order for scrutiny or recount could also be made in the interests of justice. A sufficient basis had to be established in the interests of justice, and it was considered fair and proper to all the parties, in the circumstances.
  6. A scrutiny of the results and the tallying forms used in an election would help in establishing the accuracy of the total tallies, the number of registered voters, the number of valid votes cast and the number of rejected votes.
  7. The following conditions had to be met before orders for scrutiny could issue:
    1. The court had to be satisfied that a prima facie case was established;
    2. The material facts and full particulars had been pleaded stating the irregularities in counting of votes;
    3. A roving and fishing inquiry was not to be directed by way of an order to re-count the votes;
    4. An opportunity was to be given to file objection; and
    5. Secrecy of the ballot was to be guarded.
  8. An application for scrutiny and/or recount could only be adequately and properly considered after the witnesses had testified. It was only then that the Court could decide, based on tested evidence, whether to allow the application.
  9. It was in the interests of justice to recount and scrutinize the votes cast for all the candidates in all the 122 polling stations in the impugned election. The credibility of the election could only be established by such a recount.
  10. By virtue of article 81 of the Constitution, the elements of free and fair elections were that the elections were to be conducted through secret ballot; free from violence, intimidation, improper influence or corruption; conducted by an independent body; transparent; and administered in a neutral, efficient, accurate, accountable and impartial manner.
  11. The Elections Act, 2011 and the Elections (General) Regulations, 2012 as amended by Legal Notice No. 72 of 2017- the Elections (General) (Amendment) Regulations, 2017 (the Regulations) gave flesh to article 81 and 86(a) of the constitution.
  12. An electoral cause was established much in the same way as a civil cause: the legal burden rested on the Petitioner, but, depending on the effectiveness with which he or she discharged it, the evidential burden kept shifting. Ultimately, of course, it fell to the Court to determine whether a firm and unanswered case had been made.
  13. The threshold of proof should, in principle was to be above the balance of probability, though not as high as beyond reasonable doubt - save that that was not to affect the normal standards where criminal charges linked to an election, were in question. In the case of data-specific electoral requirements (such as those specified in article 38(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof had to discharge it beyond any reasonable doubt. Thus a Petitioner who sought the nullification of an election on account of non-conformity with the law or on the basis of irregularities had to adduce cogent and credible evidence to prove those grounds to the satisfaction of the court. That was fixed at the onset of the trial and unless circumstances changed, it remained unchanged.
  14. Though the legal and evidential burden of establishing the facts and contentions which supported a party’s case was static and “remained constant throughout a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharged that, the evidential burden kept shifting” and “its position at any time was determined by answering the question as to who would lose if no further evidence were introduced.”
  15. Once the Court was satisfied that the Petitioner had adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifted to the Respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground was one of irregularities, that they did not affect the results of the election. The Petitioner bore an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifted and it behooved the Respondent to adduce evidence to prove compliance with the law.
  16. In electoral disputes, the standard of proof remained higher than the balance of probabilities but lower than beyond reasonable doubt and where allegations of criminal or quasicriminal nature were made; it was proof beyond reasonable doubt. Some had criticized that higher standard of proof as unreasonable, however, electoral disputes were not ordinary civil proceedings hence reference to them as sui generis. It had to be ascertainable, based on the evidence on record, that the allegations made were more probable to have occurred than not.
  17. Illegalities referred to breach of the substance of specific law while irregularities denoted violation of specific regulations and administrative arrangements put in place. Even where a Court had concluded that the election was not conducted in accordance with the principles laid down in the Constitution and the applicable electoral laws, it was good judicial practice for the Court to still inquire into the potential effect of any irregularities that may have been noted upon an election. That helped to put the agencies charged with the responsibility of conducting elections on notice.
  18. Not every irregularity or procedural infraction was enough to invalidate an election. The irregularities had to be of such a profound nature as to affect the actual result, or the integrity of an election, for a court of law to nullify the same.
  19. The right of every citizen to participate in free, fair and regular elections based on universal suffrage was a right guaranteed by article 38 of the Constitution. The right to vote was not a right to be trifled with. It signified the power of the people to pick those they desired to lead them for a given period of time. Not one single vote was more important than the next vote.
  20. The importance of the right to vote was to be approached in a manner that was mindful of the bright, symbolic value of the right to vote as well as the deep, democratic value that lay in a citizenry conscious of its civic responsibilities and willing to take the trouble that exercising the right to vote entailed.
  21. He who alleged had to prove. In the instant case, the Petitioner and his witnesses asserted disenfranchisement which was a serious allegation. The witnesses called by the Respondents testified that they did not see any voter being denied the right to vote. It was the duty of the Petitioner and his witnesses to prove their allegation to the required standard.
  22. It was not enough for the Petitioner and his witnesses to state that they were chased away from polling stations. Such evidence could have been sufficient in an ordinary civil suit. In an election petition where the standard of proof was higher than the standard of proof in an ordinary civil case, they ought to have backed their case with documentary evidence. Only registered voters were allowed to vote. They therefore needed to avail the register of voters to support their evidence. They failed to do so.
  23. IEBC had power over the electoral register only as regards its custody as it was a public document. Its production was thus a matter of course, upon an application by a party who wished to rely on its contents. The evidential burden regarding the contents of the register and declared results lay on the IEBC; save that that burden was activated, in an election petition, only when the initial legal burden had been discharged.
  24. The Petitioner and his witnesses ought to have availed evidence that the alleged voters had verified their registration particulars prior to the election. The best way to do so would have been by availing copies of the responses to the messages sent to the 1st Respondent. They did not do so. They could also have availed the register of voters for the particular polling stations. They also failed to do so.
  25. The only conclusion was that they were not registered as voters or they failed to turn up at the polling stations on the voting day. The allegation of disenfranchisement of voters was found to be without merit and was dismissed.
  26. The totality of the evidence placed before the Court showed that the marks on the ballot papers originated from the printer. The people on the ground, including the Petitioner’s agents, agreed that a pen of a different colour from the print marks was to be used by voters to mark the ballot papers. The expression of the voters’ will was therefore not interfered with. The polling officials and the agents of the candidates in the two affected stations acted wisely in finding an agreeable solution to the problem. The right of the voters registered in the polling stations located at Mapenya Primary School was thus secured.
  27. The fact that the voters’ will was not affected by the print marks was evident from the successful execution of the recount exercise which confirmed the votes received by the candidates as had been captured during the election. The said ballot papers had not contravened regulation 76(1) of the regulations. The applicable law was regulation 76(2). Applying regulation 76(2) to the facts of the instant case showed that the votes cast in the two polling stations conveyed the choice of the voters. There was therefore no irregularity committed and the election could not be overturned on that ground.
  28. The centrality of agents in an election could not be disputed. Parts XII and XIII of the regulations were populated with provisions on the roles of agents from the time the polling stations were opened until the time the votes were counted and the results announced.
  29. The regulations gave a caveat as to when the failure of agents or candidate to sign the declaration forms was to be excused. The failure to sign was excused if the Presiding Officer recorded that fact in the declaration form itself. That was what regulation 79(4) decreed. The requirement was mandatory. In that regard, for regulation 79(6) to apply and excuse the failure by an agent to sign the form, the Presiding Officer had to record the fact on that form. The recording of the fact was for purposes of accountability, credibility and verifiability of the results in the declaration form.
  30. While failure by agents or candidates to sign form 37A did not invalidate the results, the fact of such failure had to clearly be noted or recorded in the form by the Presiding Officer in terms of regulation 79(4) of the Regulations. Where such forms were not signed by agents and the presiding officer failed to note or record that fact, a question of credibility of the results therein arose.
  31. It was time to develop Kenya’s election petition litigation. The courts had to depart from the current practice in which a Petitioner pleaded 30 grounds for challenging an election, but only proffered cogent evidence for 3. A candidate, or her agent, could not abscond duty from a polling station, and then ask the Court to overturn the election because of her failure to sign a statutory form. Every party in an election needed to pull their own weight, to ensure that the ideals in article 86 were achieved: that was the means to achieving once and for all simple, accurate, verifiable, secure, accountable, transparent elections. The election belonged to everybody, and it was, therefore, in everybody’s collective interest, and in everybody’s collective and solemn duty, to safeguard it.
  32. Failure by a candidate or his/her agent to sign the form declaring the results did not of itself render an election a candidate for invalidation. However, Regulation 79(4) made it mandatory for a presiding officer to record the fact of the refusal or failure by a candidate or an agent to sign the declaration form. Failure by a presiding officer to record the fact or refusal by a candidate or an agent to sign the declaration form amounted to an irregularity. Whether such an infraction of the regulations was to result in the voiding of the election depended on the facts and circumstances of each case. Not all irregularities or illegalities were to result in the invalidation of an election.
  33. The Petitioner gave the impression that he was targeted by the Presiding Officers. The evidence adduced by his witnesses showed otherwise. The facts that some of the Petitioner’s agents were denied access to the polling stations was not disputed. The main reason advanced was that NASA agents were already in those polling stations. The presiding officers did not act in error by denying ODM agent’s entry to polling stations in which NASA agents had already been admitted. For the purpose of the election NASA and ODM was one and the same thing.
  34. No malice could be read into the actions of the presiding officers. The failure to admit the agents of the Petitioner did not affect the transparency or validly of the elections. Agents representing the other candidates were in the polling stations. No evidence was adduced to show that those agents colluded with the polling officials to tilt the playing field to the disadvantage of the Petitioner. No prejudice was suffered by the Petitioner as a result of the delayed admission of his agents to a few of the polling stations.
  35. The allegation by the Petitioner that his agents were singled out for ejection from polling stations had no basis.
  36. Regulation 72 provided the procedure for dealing with voters who required assistance to vote. Regulation 72 showed that the preferred method for assisting an illiterate voter or one with disability to vote was for the voter to go to the polling station with a person of his or her own choice. In such a situation, the voter marked and casted his or her vote with the assistance of a person he or she had selected and trusted. However, where the voter was not accompanied by a person who was qualified to assist him or her, the presiding officer was to assist such a voter, in the presence of the agents. The evidence adduced by the witnesses on improper voter assistance could not be believed.
  37. Regulation 66 provided for eleven hours of voting on an election day. Where voting in a particular polling station started late, regulation 64(3) authorized the presiding officer, in consultation with the returning officer to extend the hours of polling by the amount of time which was lost in starting late. In the instant case, an irregularity could have occurred in respect to the two identified polling stations. However, there was no evidence tendered to show that failure to adhere to the polling hours disenfranchised any voter. The election was not affected by the breach of the Regulations.
  38. The form 35A which was filled in respect of the election of a Member of National Assembly for a given constituency was only to be signed by agents of the parties or candidates who were participating in that election. Agents for political parties not participating in the election of Member of National Assembly were not supposed to sign the form 35A which was the results form for that election. However, the signing of the form by a person who was not entitled to sign, unless established to be fraudulent or to have affected the outcome of the election, was not to be a ground for invalidating an election. Genuine mistakes could sometime occur due to the pressures attendant to the conduct of a general election.
  39. Evidence adduced that in some polling stations, agents for political parties which had not sponsored candidates for the National Assembly contest signed forms 35 was not proper. The alleged act of signing forms 35 did not affected the outcome of the election. The alleged impropriety was a simple act of signing results that had already been announced and there was no way that a signature could change the results.
  40. An allegation of voter intimidation or voter bribery was a serious allegation amounting to an accusation of commission of an electoral offence. In such a situation the standard of proof required was beyond reasonable doubt. That standard had not been discharged by the Petitioner. The election could not therefore be overturned on those grounds.
  41. It was wrong for the 1st Respondent to gazette DW8 as the Deputy Returning Officer for Lamu East Constituency yet her station was Lamu West Constituency. That amounted to non-compliance with regulation 3, which required returning officers and deputy returning officers to be gazetted before an election. The Petitioner had however not indicated in what manner the participation of DW8 in the impugned election affected the outcome of the election.
  42. The Constitution required that for one to be declared a winner in a gubernatorial election, he or she needed to garner a majority of the votes. That was the logical meaning to be attributed to the words “greatest number of votes”. It mattered not how wide or small the margin of victory was. That was the requirement in all the elections other than a Presidential election, where specific percentages were prescribed by the Constitution.
  43. The issue of margins in an election other than a Presidential election could bear only transient relevance and only where it was alleged that there were counting, and tallying errors or other irregularities that affected the final result. A narrow margin between the declared winner and the runner-up beckoned as a red flag where the results were contested on allegations of counting and tallying errors at specified polling stations. Where a re-count, re-tally or scrutiny did not change the final result as to the gaining of votes by candidates, the percentage or margin of victory however narrow was immaterial as a factor in the proper election-outcome. To nullify an election in such a context would have violated article 180 (4) of the Constitution.
  44. The mere description of a percentage or margin as small or wide was of no legal import, unless it was inextricably linked to a definite uncertainty, an unresolved doubt, as to who won an election.
  45. In the instant case, there was clear evidence that the votes cast were adulterated by the activities of the 1st and 2nd Respondents.
  46. Whereas human error could have been an excuse for tallying mistakes, a party that raised that excuse had to prove the existence of human error. Human error was not a blanket excuse that justified and excused any arithmetic, collating or tallying mistakes. Human error was neither an excuse for all errors or mistakes in transposition nor was it an excuse for failure to have the statutory forms duly signed by authorized persons. Simply stating that human error was responsible for the mistakes was not proof of existence of the error. The burden to prove the existence of human error rested on he who asserted. Human error had to be proved. Human error was excusable if it was a single, isolated and random occurrence. When the mistakes or errors were multiple and persistent such mistakes ceased to be human errors and pointed towards an inefficient, negligent, careless or even deliberate occurrence of the errors and that affected the credibility of the declared results.
  47. The defence of human error was not available to the Respondents in the instant case as there was a deliberate move by the 1st and 2nd Respondents to suppress the votes of the Petitioner. What was not clear was whether the 3rd Respondent who was a beneficiary of the activity was involved in the manipulation of the results. A perusal of the evidence presented to the Court did not link him to the activity.
  48. The allegation of declaration of results prior to announcement of results from all the polling stations was not proved.
  49. In an election that was closely contested, it was the little things that really counted. Small mistakes whether intended or accidental could distort the will of the people. It was the duty of the courts to ensure that those who occupied elective offices did so on the strength of clean electoral processes. In the circumstances of the instant case, one could not confidently say that the impugned election reflected the will of the people of Lamu West Constituency.

Petition allowed
Orders

  1. Costs of Kshs. 3 million awarded to the Plaintiff. The 1st and 2nd Respondents were to pay 1.5 million shillings and the balance of Kshs. 1.5 million was to be paid by the 3rd Respondent as the total costs payable;
  2. A declaration issued that the election of the Member of the National Assembly for Lamu West Constituency held on August 8, 2017 contravened the constitutional and statutory provisions governing elections;
  3. A declaration issued that the 3rd Respondent was not validly declared the elected Member of the National Assembly for Lamu West Constituency and the declaration was invalid , null and void;
  4. A certificate was to issue to the 1st Respondent and the Speaker of the National Assembly conveying the determination of the Court;
  5. The determination of the Court was to be transmitted to the Director of Public Prosecutions for action on the criminal aspect of the identified election malpractice;
  6. An order was issued directing the 1st Respondent to hold a fresh election in conformity with the Constitution, the Elections Act, 2011 and the regulations made thereunder.
ELECTION LAW Court Allows Application for Substitution of Petitioners

David K Ole Nkedianye & 2 others v. Joseph Jama Ole Lenku & 4 others [2017] eKLR
Election Petition No. 2 of 2017
High Court at Kajiado
J.N. Onyiego, J
November 6, 2017.
Reported by Felix Okiri
Download the Decision

Election Law – Election petition – parties in an election petition – Petitioner - substitution of parties – who could be admitted as a Petitioner in an election petition – whether a person intending to be admitted as a Petitioner ought to tender proof that he was a registered voter or that he voted in the disputed election

Brief Facts:
The Petitioner had filed a petition seeking to nullify the August 8, 2017 election of governor of Kajiado County.
Subsequently, the Petitioner sought to withdraw the petition pursuant to rules 21 and 22 of the Elections (Parliamentary and County Elections) Petitions Rules 2017(the rules).
The Applicants sought to be enjoined in the petition in place of the Petitioner. The application was based on the grounds that the intended withdrawal of the petition amounted to an impediment of justice; that elections were a matter of public interest litigation (suit in rem); and that the Petitioner had been compromised by defecting to another political party.

Issues:

  1. Whether one ought to have been registered or voted in a particular electoral area in an election in order to qualify as a Petitioner or to be substituted as a Petitioner in an election petition.
  2. What was the nature of an election petition? Read More...

Relevant provisions of the law
The Elections (Parliamentary and County Elections) Petitions Rules 2017 (the rules)
Rule 21
(i) “A petition shall not be withdrawn without leave of the election court.
(ii) The election court may grant leave to withdraw a petition on such terms as to payment of costs or as the election court may otherwise determine.
(iii) An application for leave to withdraw a petition shall:

a. Be in form 5 set out in the first schedule.
b. Be signed by the petitioner or person authorized by the Petitioner.
c. State grounds for withdrawing the petition and
d. Be lodged at the registry

(iv) The parties to petition shall each file an affidavit, before leave for withdrawal of petition is determined, addressing the grounds on which the petition is intended to be withdrawn.
(v) Despite sub-rule (4), an election court may, on cause being shown dispense with the affidavit of a party to the petition if it seems it is fit to the election court on special grounds to be fit and just.
(vi) Each affidavit filed vide sub-rule (4) shall contain the following:

“to the best of the deponent’s knowledge and belief, that no agreement or terms of any kind has been made and that no undertaking has been entered into, in relation to the withdrawal of the petition”.

Rule 24
(1) At the hearing of the application for withdrawal of a petition, a person who is qualified to be a petitioner in respect of the election to which the petition relates may apply to the election court to be substituted as the petitioner in place of the petitioner who has applied to withdraw the petition.
(2) The election court may grant the application to substitute the applicant under sub-rule (1) as the petitioner.
(3) The election court may direct that the security deposited on behalf of the original petitioner shall remain as security for any costs that may be incurred by the substituted petitioner and that to the extent of the sum deposited as security, the original petitioner may be liable to pay costs of the substituted petitioner.
(4) If the court does not make an order under sub-rule (3), security of the same amount would be required of a new petitioner and subject to the same conditions imposed on the original petitioner, the substituted petitioner shall pay, within three days after the order of substitution, the security before proceeding with the petition.
(5) Subject to sub-rules (3) and (4), a substituted petitioner shall stand in the same position, to the extent possible, and shall be subject to the same liabilities as the original petitioner.

Held:

  1. The law governing withdrawal of petitions was anchored in rules 21 and 22 of the Elections (Parliamentary and County elections) Petitions Rules 2017(the rules).
  2. Save for allegations of compromise, there was no dispute that Petitioner had met all the requisite conditions attached to withdrawal of a petition as required under rules 21 and 22. The application was not opposed by anybody as both parties agreed to have the same withdrawn with no order as to costs. The allegation by the intended Petitioners that the Petitioner was compromised by defecting to some party was not proven. Attachment of photographs with the Petitioner appearing at State House with the President was not supported by a certificate as required under section 106 (B) (4) of the Evidence Act Cap 80 of the Laws of Kenya thus subjecting their authenticity into question hence not admissible in law.
  3. A Court has unfettered discretion to grant leave to withdraw as a Petitioner as long as it was satisfied that the application was bona fide. In the instant case, the Petitioner stated that, the withdrawal was out of his free will and volition for the sake of unity and cohesion of Kajiado people. The allegation that he was compromised was unsubstantiated. Change of political party affiliation alone was not sufficient enough to infer a compromise or corruption. There was no proof that the Petitioner had entered into any agreement or terms of any kind and or undertaking in relation to the withdrawal of the petition.
  4. It was the Petitioner’s constitutional right under article 36 of the Constitution of Kenya, 2010 (the Constitution) to enjoy freedom of association which included the right to form, join or participate in activities of an association of any kind. Article 38(1) of the Constitution further guaranteed every citizen freedom to make choices including the right to form or participate in forming, a political party or participate in activities of, or recruit members for, a political party or campaign for a political party. Therefore, going to State House or joining another political party was not evil or unconstitutional. In any event, under normal circumstances, a Petitioner could not be forced to prosecute a case he had voluntarily filed and wished to withdraw subject to attendant conditions like payment of costs if necessary. To that extent, the application for withdrawal of petition was merited.
  5. Rule 2 defined a Petitioner as a person who filed a petition to the Election Court under the Constitution or under the Act in accordance with the rules. The word Petitioner was derived from the word petition, which under section 2 of the Elections Act meant - an application to the Election Court under the Constitution or under the Election Act.
  6. There was no particular provision requiring one to have been registered or actually voted in a particular electoral area in an election exercise in order to qualify as a Petitioner or to be substituted as a Petitioner. Articles 22 and 258 of the Constitution allowed anybody to file public interest litigation either on his own or on behalf of others in case of a denial, violation or infringement of, or threat to a right or fundamental freedom in the bill of rights. The law was silent on whether anybody who was not a registered voter or did not vote in a certain county could apply to take over the petition in case of a withdrawal by the Petitioner. Any Kenyan adult of sound mind or who had capacity to sue or to institute a suit for redress on any wrong committed in relation to an election exercise could apply to take over the petition in any case. The Applicants were thus qualified to be Petitioners and to be substituted in accordance with rule of the Elections (Parliamentary and County elections) Petitions Rules 2017.
  7. Election petitions were not ordinary suits. Though they were disputes in rem, brought between certain parties, election petitions were nevertheless disputes of great public importance. An election petition though filed by an individual was not strictly speaking a private suit. It was a public interest litigation with a wider public inclination and legitimate expectation by the affected electorate that, the will and sovereign power of the people, through democratically elected representatives based on universal suffrage was protected and preserved as guaranteed by the Constitution and that where there was such denial, infringement of, violation or threat to a right or fundamental freedom in the bill of rights, due process by way of judicial remedy was critical.
  8. The right to be heard and fair hearing was derived from the Constitution whose primacy or sanctity could not be compromised at the altar of any person’s convenience. The intended Petitioners demonstrated a bonafide claim that elections in Kajiado County were not conducted in accordance with the law hence the public interest in the instant petition and the Court had no reason not to exercise its unfettered discretion conferred upon it by rule 24 in their favor.
  9. Rule 24 allowed a party being substituted as Petitioner to deposit security within three days from the date application for substitution was allowed.

Application allowed

Orders

  1. The application for leave to withdraw as Petitioner dated October 11, 2017, was granted.
  2. The Applicants in respect of the application dated October 16, 2017 Joseph Tarayia Kipelian Kores and Benjamin Tipatet were substituted in place of the Petitioner.
  3. The substituted Petitioners were to deposit security for costs amounting to Kshs.500,000 within three days from the date of delivery of the ruling.
  4. The security deposited by the withdrawing Petitioner was to be refunded less any costs that may have been incurred on that account.
  5. The substituted Petitioners were granted two days leave from the date of delivery of the ruling within which to file and serve their affidavits in support of the petition provided that they did not introduce new issues that would change the character of the petition.
  6. The Respondents were granted corresponding leave to file and serve their response in reply thereto where there was need within two days from the date of service.
  7. Each party was to bear their own costs.

Long'et Terer - CEO and Editor

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t: @LongetTerer

The Kenya Law Team

Where Legal Information is Public Knowledge.

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