Weekly Newsletter 030/2018

Weekly Newsletter 030/2018



Kenya Law

Weekly Newsletter


Division of matrimonial property acquired during the subsistence of a polygamous marriage.
EMN v NM
Civil Case No 14 of 2013
High Court at Embu
F Muchemi, J
May 23, 2018
Reported by Beryl A Ikamari
Download the Decision
 
 
Family Law -division of matrimonial property-contribution-non-monetary contribution of the wife-child care for 10 children, companionship and farm work-where the monetary contribution of the husband included acquisition of property including rental property and a cattle trade and butchery business, investments for the family, educating the children and providing for other family needs-the extent of the share of matrimonial property that each party to the marriage was entitled to under the circumstances-Constitution of Kenya 2010, article 45(3); Matrimonial Property Act, No 49 of 2013, sections 2, 6 & 8.
Family Law-division of matrimonial property-polygamous marriage-contribution to the acquisition of property in a polygamous marriage-allegations that a second wife contributed to the acquisition of matrimonial property-how the Court would apportion a share of the matrimonial property to the first wife who had separated from the husband and claimed to have made non-monetary contributions to property acquisition- Matrimonial Property Act, No 49 of 2013, sections 2, 6 & 8.

Brief facts :
The Applicant sought half a share of the matrimonial property. She got married, under Embu customary law, to the Defendant in 1950 and they had 10 children. During the subsistence of the marriage, they acquired four parcels of land, including one in which the matrimonial home was built. The properties were developed.
The parties established a butchery business in Embu town and the Defendant moved to reside in the town to run the business while the Plaintiff remained in the rural home working on other land parcels. In another parcel of land, a plot in Embu, 10 rental rooms were constructed and the Defendant collected rent from them.
While residing in Embu town, the Defendant married another woman as his second wife. He stayed with her and bought land at Makima for the two of them. The Defendant denied that the Plaintiff contributed to the matrimonial property either monetarily or in non-monetary terms. He stated that it was only the parcel of land on which the matrimonial home was situated that he bought before he married his second wife. He also said that his second wife extensively contributed to the acquisition of his property.

 
Issues :
  1. How the Court would identify and undertake division of matrimonial property in a polygamous marriage.
  2. What share or proportion of matrimonial property would a former first wife in a polygamous marriage, who alleged to have made non-monetary contribution to the acquisition of matrimonial property, be entitled to?
 
Held:
  1. Pursuant to article 45(3) of the Constitution, parties to a marriage were entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. Matrimonial property under section 6 of the Matrimonial Property Act included the matrimonial home or homes, household goods and effects in the matrimonial home or homes or any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.
  2. Section 8 of the Matrimonial Property Act made provision for matrimonial property where a polygamous marriage was dissolved. The property acquired by the man and the first wife would be retained equally by the man and the first wife only, if the property was acquired before the man married another wife. The matrimonial property acquired by the man after marrying another wife would be regarded as property owned by the man and the wives taking into account any contributions made by the man and each of the wives.
  3. The parties were husband and wife but they had separated. The Defendant was living with a second wife and had not expressed an intention to resume co-habitation with the Plaintiff.
  4. The Plaintiff was not employed and the Defendant undertook the business of cattle trade and butchery. At the parcel on which the matrimonial home was built, there was subsistence farming and it was the Plaintiff who managed the farm.
  5. The Plaintiff did not make financial contribution towards the acquisition of parcels of land during the subsistence of the marriage. Her contribution was that of taking care of the children, managing the family farm and giving moral support to her husband as he struggled to earn a living and invest for his family's benefit. The work done by the Plaintiff as a mother and wife, including farming, contributed to the welfare of the family.
  6. The companionship and comfort the Defendant had, enabled him to have enhanced mental and physical capacity to invest as the Plaintiff took care of the children. That moral support made a tremendous difference in the social and economic life of the Defendant and it enabled him to acquire property and make other strides in life.
  7. Section 2 of the Matrimonial Property Act provided the definition for the term "contribution." Contribution meant monetary and non-monetary contribution and it included domestic work and management of the matrimonial home, child care, companionship, management of the family business or property and farm work. The Plaintiff contributed to the properties acquired during the marriage and registered in the name of the Defendant.
  8. The Plaintiff testified that the marriage was entered into in 1950 while the Defendant said that he married the Plaintiff in 1960. The year of separation was between the years 1995-2000 and it meant that the parties were married for 35 to 40 years.
  9. L.R. Gaturi/Githimu/xxx and xxxx resulted from sub-division of L.R. Gaturi/Githimu/xxxx.The parcels were registered in the names of the Defendant on November 18, 1987. Additionally, the Plaintiff cultivated land on which the matrimonial home was built and the Defendant cultivated a different parcel of land. L.R. Nthawa/Riandu/xxx was acquired and registered in the Defendant's name on January 11, 1978 as shown by the certified copy of the register.It was acquired during the subsistence of the marriage and was part of matrimonial property.
  10. L.R. Gaturi/Githimu/xxxx measuring 0.05 ha and registered in the name of the Defendant from January 18, 1990, was also part of matrimonial property. It was the plot on which 10 rental houses were built and the Defendant alleged that he bought it with his second wife but did not provide proof of such purchase. It was unlikely that the second wife who was then newly married and not gainfully employed could have raised money to contribute to the purchase of the property. Additionally, the Plaintiff did not provide adequate information on the year he married his second wife.
  11. The Defendant generated income which was used to invest for the family, educate the children and provide for the other needs of the family. The Plaintiff, on the other hand, took care of the family's 10 children and other duties and that was not a mean task. The Plaintiff's contribution was 45% while the Defendant's contribution was 55%
Judgment entered in favour of the Plaintiff against the Defendant.
Kenya Law
Case Updates Issue 030/2018
Case Summaries

ELECTORAL LAW High Court upholds election of the Governor of Kirinyaga County

Martha Karua & another v Independent Electoral & Boundaries Commission & 3 others [2018] eKLR
Election Petition 2 of 2017
High Court at Kerugoya
L W Gitari, J
June 14, 2018
Reported by Kakai Toili

Download the Decision

Electoral Law – standard of proof – standard of proof in electoral disputes – what was the standard of proof in electoral disputes – Evidence Act, section 107; Elections Act, 2011, section 83
Jurisdiction- jurisdiction of the High Court – jurisdiction in electoral disputes – scope of jurisdiction - what was the scope of the High Court’s jurisdiction in electoral disputes - Constitution of Kenya, 2010, article 87(1)
Electoral Law – burden of proof – burden of proof in electoral disputes – who bore the burden of proof in electoral disputes - what was the rationale for Petitioners in electoral disputes bearing the burden of proof - Evidence Act, section 107
Electoral Law – elections – election officials – party agents – requirements for one to be admitted as an agent - documents required - what were the documents required by a person in order to be admitted as an authorized agent in a polling station – Elections Act 2011, section 30; Elections (General) Regulations, 2012
Evidence Law – witnesses – witnesses in election petitions – party agents – where it was alleged that party agents were barred from polling stations – failure to call the agents as witnesses – effect of failure to call agents as witnesses - whether failure to call agents who were barred from polling stations as witnesses in court was fatal to an election petition - Evidence Act, section 107;
Evidence Law – evidence – evidence to be considered by a court – unpleaded evidence - where the evidence was not pleaded and produced in court - whether evidence not pleaded and produced by a party in court could be considered in making a determination
Evidence Law – evidence – production of evidence – where the evidence had not been attached to an affidavit - whether evidence which had not been attached to an affidavit could be produced from the witness box
Electoral Law –- standard of proof – standard of proof in electoral disputes - where a party relied on specified data - what was the standard of proof where a party relied on specified data
Evidence Law - evidence – witnesses – failure to call witnesses – effect of failure to call witnesses - where the witnesses were expected to have crucial evidence – negative inference from the court - what were the circumstances in which a court was entitled to draw adverse inferences from the absence of witnesses who could be expected to have crucial evidence
Civil Practice and Procedure - contempt of court - definition of contempt of court - failure to comply with court orders - conduct that would amount to contempt of court - whether failure to give access to the KIEMS Kit was in contravention of the Court’s order that access be given to the data in the KIEMS kit
Electoral law – doctrine waiver – doctrine of waiver in electoral disputes - what was the nature of the doctrine of waiver in electoral disputes
Stare Decisis – applicability of stare decisis – applicability in electoral disputes – rationale – what was the rationale of the doctrine of stare decisis in electoral disputes

Brief Facts:
The gubernatorial elections for Kirinyaga County (the County) were held in the general elections held on August 8, 2017. The Petitioners and the 3rd and 4th Respondents were among the contestants for the gubernatorial elections. The 1st Respondent (I.E.B.C) conducted the elections and after tallying all the votes cast in the gubernatorial election for the County declared that the 3rd and 4th Respondents had received the greatest number of votes and were therefore the Governor elect and the Deputy Governor elect. Aggrieved by the decision the Petitioners filed the instant Petition. The Petition was based on the ground that the elections were not credible, free, fair or verifiable.

Issues:

  1. What was the standard of proof in electoral disputes?
  2. What was the scope of the High Court’s jurisdiction in electoral disputes?
  3. What was the rationale for Petitioners in electoral disputes bearing the burden of proof?
  4. What were the documents required by a person in order to be admitted as an authorized agent in a polling station?
  5. Whether failure to call agents who were barred from polling stations as witnesses in court was fatal to an election petition.
  6. Whether evidence not pleaded and produced by a party in court could be considered in making a determination.
  7. Whether evidence which had not been attached to an affidavit could be produced by a witness in court.
  8. What was the standard of proof where a party relied on specified data?
  9. What were the circumstances in which a court was entitled to draw adverse inferences from the absence of witnesses who could be expected to have crucial evidence?
  10. Whether failure to give access to the KIEMS Kit was in contravention of the Court’s order that access be given to the data in the KIEMS kit.
  11. What was the rationale for stare decisis in electoral disputes?
  12. What was the nature of the doctrine of waiver in electoral disputes? Read More...

Relevant Provisions of the Law:
Constitution of Kenya, 2010
Article 1(1)
All sovereign power belongs to the people of Kenya and shall be exercised only accordance with this constitution.

Article 38
(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(e)
The electoral system shall comply with following principle 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 86
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.

Article 87
(1)Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes.
(2)Petition concerning an election, other than a Presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Independent Electoral and Boundaries Commission.
(3)Service of a petition maybe direct or by advertisement in a newspaper with national circulation.

Evidence Act
Section 107
(1)Whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist.
(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 Act, 2011
Section 30
1)A political party may appoint one agent for its candidate’s at each polling station.
2)Where a political party does not nominate an agent under subsection (1) a candidate nominated by a political party may appoint an agent of the candidate’s choice.
3)An Independent candidate may appoint his own agent.

Section 83
No election shall be declared to be void by reason of non compliance with any written law relating to the 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 none compliance did not affect the results of the election.

Section 39(1B)
The Commission shall appoint county returning officers to be responsible for tallying, announcement and declaration, in the prescribed form, of final results from constituencies in the county for purposes of the election of the county Governor, Senator and county women representative to the National Assembly.

Elections (General) Regulations 2012
Regulations 62(1)
The Presiding Officer shall regulate the number of voters to be admitted to the Polling station at the same time and may exclude all other persons except;

a)A candidate
b)A person nominated as Deputy to the Candidate where applicable
c)Authorized agents.
d)Members of the commission and elections officers on duty.
e)Persons necessarily assisting or supporting voters with special needs or assisted voter and
f)Observers and representatives of the print and electronic media accredited by the commission.

Regulation 62(3)
The absence of agents shall not invalidate the proceedings at the polling station.

Regulation 72
(2)On the application of a voter who is, by reason of a disability or being unable to vote in the manner prescribed in these Regulations, the presiding officer shall permit the voter to be assisted os supported by a person of the voter’s own free choice, and who shall not be a candidate or an agent.
(3)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 a voter, in the presence of the agents.

Regulation 94 (6)
All the accredited Election observers shall submit to the Commission a written report in accordance with the guidelines issued by the commission in sub-regulation (2).

Elections (Parliamentary and County Elections) petition Rules, 2017
Rule 11(1) provides:
Upon being served with the petition in accordance with Rule 10 a respondent may oppose the petition by filing and serving a response to an election petition within 14 days.

Rule 12 (12)
An affidavit shall form part of the record of the hearing and may be deemed to be the deponents evidence for the purpose of an examination in Chief.

Held:

  1. Kenyans exercised their sovereign will and the political rights enshrined under article 1 and 38 of the Constitution, the general election and the electoral process put in place the mechanisms for the realization of that will. In compliance with the realization of the sovereign will, the electoral system in place had to ensure that the elections were free and fair. That was one of the guiding principles which had to guide the electoral system.
  2. Under the Constitution, it was the responsibility of the I.E.B.C to ensure that voting was free and fair. I.E.B.C which was established under article 88(1) of the Constitution and enjoined it to exercise its powers and perform its functions in accordance with the Constitution and national legislation. It was the electoral system which was envisaged in the Constitution that had the function and was designed to ascertain the will of the people.
  3. The fundamental principle in the resolution of the electoral disputes stood to ascertain the will of the people and give it unwavering effect while upholding the guiding principles. The Election Court did not become a forum to re-look afresh to the elections nor was it an opportunity to conduct a fresh election through the Court. There was a presumption that the elections were conducted in accordance with the Constitution and the law and the candidate validly elected unless the contrary was proved. The courts would have nothing to do with elections unless and until a dispute was filed in court. The Court then determined the dispute based on the allegations pleaded in the Petition. That was provided for under article 87(1) of the Constitution and had been done under the Elections Act and Rules there under.
  4. The Petitioner was bound by her pleadings. The determination had to be based on what was pleaded. The Court was bound to consider what was pleaded, a party could not deviate midway from what was pleaded and bring in new matters. That was meant to ensure that the Respondents were well informed in advance of the allegations and the case of their opponent and prepare the evidence to adduce and to challenge evidence. It behoved the Court to consider what was pleaded in the Petition the supporting evidence and the evidence tendered to determine the Petition based on the agreed issues for determination.
  5. Grave contradictions unless satisfactorily explained would usually but not necessarily lead to the evidence of a witness being rejected. The Court would ignore minor contradictions unless they pointed to deliberate untruthfulness or if they did not affect the main substance of the case.
  6. None of the agents who were barred from polling stations were called as witnesses. No single agent testified as to why he/she was not at the Polling station in time, why he/she was barred if at all and was not present at some point during polling. There were many reasons why agents could fail to be at polling stations, it was only the agents who could tell. The documents which were given to the Petitioner’s agents were not exhibited in Court to show that they had in deed given the agents the required documents. The list of agents was not exhibited in Court.
  7. The evidence in support of the allegation on agents not being allowed in polling stations was not cogent. A fact had to be proved by evidence. Once the burden of proof was discharged, the burden shifted. The names of agents barred were not given. The Presiding Officers who barred agents had not been named. The list of agents was not availed to the Court and there was no way of telling whether they were the same agents who went to the polling station on the day of polling.
  8. The legal burden of proof in electoral disputes lay on and remained with the Petitioner throughout the case. The rationale for that was that the Petitioner was the one who sought relief from the Court and in particular the nullification of elections. That burden could shift between the parties based on the weight of the evidence adduced. The Petitioners had the burden to prove that their agents were not unlawfully barred from the Polling Stations.
  9. The burden was on the Petitioner to prove the illegalities and irregularities complained of with regard to barring of her agents from polling stations in order to render the said election invalid. That called for credible evidence which proved the case to the required standard, above the balance of probability though not as high as beyond reasonable doubt. The evidence had to be cogent and establish that the allegations were substantial and convincing. The law with regard to agents was at section 30 of the Elections Act.
  10. The Elections (General) Regulations, 2012 (the Regulations) provided for the powers of the Returning Officer to admit persons in the Polling Station. The Regulations required that the person to be admitted had to be an authorized agent. The authorized agent required a letter of appointment from the party or candidate. A copy of accreditation letter from the I.E.B.C and duly signed and commissioned Oath of Secrecy. The Petitioners had the burden to prove that their agents had those requisite documents in order to be allowed to the polling station. The Petitioners needed to prove to the Court in order to shift the burden that the agents who they alleged were denied access to polling stations had letters of appointment. They should have proved to the Court that those agents were on the list furnished to I.E.B.C.
  11. The Evidence Act was the law applicable in production and admissibility of evidence in proceedings before courts. The proceedings being judicial proceedings with regard to evidence presented were governed by the Evidence Act. The Act provided that facts be proved by direct evidence and outlawed admissibility of hearsay evidence. The Act provided for direct evidence to be adduced.
  12. The Petitioner’s evidence with regard to the allegation of the agents being disallowed to access the polling station and that of her witnesses was hearsay and inadmissible. No agent was called to testify. The evidence of appointment of agents was not presented. No letter appointing the agents and Oath of Secrecy was produced by the Petitioners. The list of the Narc Kenya agents assigned to the various polling stations as agents of the Petitioners was not produced in court. The Petitioners failed to discharge the burden of proof that the agents were denied access to the polling station unlawfully.
  13. If one was not supposed to be at the polling station he could not claim to have been unlawfully excluded. Failure to call agents who were barred to prove that they were barred when they had the requisite documents was fatal. All those who testified were not the agents who were excluded. The agents of the Petitioners were barred because they did not have the requisite documents. The Returning Officers had a duty to admit only those agents who were authorized. The Presiding Officers barred agents who did not have documents authorizing them to be at the polling station. Once they produced the documents they were admitted.
  14. It was not proved that the Petitioners’ agents were unlawfully barred from the polling station. The Petitioners did not prove that failure to have agents at the polling stations compromised the election or put in doubt the independence of I.E.B.C while conducting the elections. It was not proved that failure to have agents affected the manner in which the elections were conducted or the integrity of the elections.
  15. The allegation of bribery was not proved to the required standard. The evidence in support of the allegation was not cogent. In any case all those mentioned swore affidavits which bore more weight and probative value than the informants who informed the Petitioner and did not testify.
  16. Evidence in instances where an election offence was alleged was crucial to the making of a proper judicial finding. That evidence should be clear and certain. By section 67 (2) of the Elections Act, the offence of bribery was cognizable: a person alleged to have committed it was liable to arrest without a warrant. It showed the gravity of the offence and signaled that a high standard of proof was required. Accordingly, an allegation that an election offence had been committed had to be specific, cogent and certain. That requirement guaranteed the right of fair trial, for the person(s) against whom such allegations were made.
  17. Pleadings had to be clear, the allegations elaborated and the evidence adduced, focused and clear-cut. The circumstantial evidence of bribery was not cogent. There were material contradictions in the evidence of PW3 and PW4 which entitled the Court to reject their testimony. They did not strike the Court as credible witnesses, more so because the Returning officer Ndia Constituency testified in court and deponed that she was not aware of any voter bribery anywhere in Ndia Constituency. PW3 & 4 deponed that they voted at Upper Baricho Secondary Polling station in Ndia Constituency. After going through the Form 37 C there was no Polling station by that name. That raised doubts as to where the two voted and where they witnessed the alleged bribery.
  18. The incident of bribery at Upper Baricho Secondary was not disposed in the Affidavit of the 1st Petitioner, worse still it was not pleaded in the sub heading of canvassing and voter bribery and other electoral offences. That evidence by PW3 & PW4 was fabricated and not credible or reliable. Evidence not pleaded in the pleadings and produced by the party could not be considered. The incident at Upper Baricho Secondary was not one of the incidents specifically pleaded. The Petitioners failed to prove the allegation of bribery which was an election offence which should be proved with cogent evidence and standard of proof was beyond any reasonable doubts.
  19. Hearsay evidence was not admissible to prove the facts. The Petitioners were under an obligation under the law to produce the best evidence. Failure to annex the printed list of voters, which the Petitioners alleged that the Head teacher of Muthithi was bribing, had to attract negative inference that either it did not exist or would not support the averments.
  20. The Petitioner did not witness the Returning officer for Mwea Constituency locking himself in the hospitality room at Wang’uru Girls tallying centre with 4th Respondent. She was informed of the incident by her Super-Agent who was not called as witness. There was no wrong doing on the part of the Returning officer. He was expected to go in the hospitality room as it was where I.E.B.C officers were being facilitated. Suspicion was not sufficient to prove an allegation as grave as impropriety.
  21. The Petitioners did not adduce cogent evidence in support of the allegation of violation of ballot boxes. There was a material contradiction of the complaint the 1st Petitioner made to the County Returning officer and the averments in her affidavit. The evidence by PW7 was not credible. No purpose would be served by putting more ballot papers in favour of the 3rd Respondent ‘mijis’ at the tallying centre in ballot boxes.
  22. The polling station was where votes were counted and information put in Form 37 A. At the tallying centres there was no counting of ballots. It was the Form 37 A which was filled at the polling station that formed the basis of determining the will of the people. No question was raised in the Petition as to the accuracy of the Form 37 A which was filled at Ciagini polling station. The diary from Ciagini polling centre showed that the agent for Narc Kenya was present throughout. The Narc Kenya agent signed in at 5.30am and witnessed certification of ballot box and seals used at start of polling. The agent was also present at the closure of polling, before counting, at sealing of packages and at the closure of counting. That agent was not called as a witness. There was nothing to show that what was filled in Form 37 A was not what was tallied at the tallying centre.
  23. The allegation by PW7 that the ballot box was opened at the tallying centre was made in ignorance of the procedures of voting and tallying. It would not make sense to add ballot papers at the tallying centre as there were safeguards under regulation 83 (1) (b) of the Regulations which allowed the Returning officer to disregard the results of the count of a polling station where the total valid votes exceeded the number of registered voters. There was no allegation that the total valid votes for Ciagini exceeded the number of registered voters.
  24. The Regulations showed that the County Returning Officer could not order a recount after it was concluded at the polling station. The 1st Petitioner in her Petition had not applied for a recount of the gubernatorial box for Ciagini. There was no proof of conspiracy. No gubernatorial box was violated. The incident had been properly explained and considering the work that the Presiding officers had to undertake on the polling it was understandable that one could forget to put all the seals. There were mechanisms for confirming and verifying the results from Form 37 A, 37 B and 37 C. The Petitioners had not discharged the burden to prove that the gubernatorial ballot box for Ciagini was violated.
  25. The Petitioner adduced evidence and it was not only the video evidence which could prove the allegations. What mattered was not the nature of the evidence but the weight and the probative value of the evidence tendered. The evidence of tampering was inconsistent as the Petition stated that the incident was at Ciagini polling station while the Affidavit of Petitioner talked of Wang’uru tallying centre. Such inconsistencies raised doubts on the credibility of witnesses. There were also material contradictions as to the time the incident occurred.
  26. Two of the Petitioners’ witnesses testified that they were observers accredited by IEBC, however, none of them produced any letter to show they were accredited nor did they produce any badges. Such letters of accreditation and badges, if the witnesses were telling the truth should have been attached to their Affidavits. They could not be produced from the witness box. PW7 was not truthful and was not a reliable witnesses. There was no way of confirming that he was an observer as he had no evidence of accreditation by I.E.B.C and he never filed a report which could confirm to the Court that what he was telling the Court was what he had witnessed. There was no proof that a gubernatorial box was deliberately violated at Wang’uru tallying centre.
  27. An election petition was not an open ended inquiry, an election court enquired into pleaded matters to determine whether the principles laid down in the Constitution were observed in the conduct of elections. As such the Court determined the Petition based on the matters pleaded in the Petition and based on the Constitution and the laws. Matters not pleaded could not form a basis for the determination of the Petition. Matters not pleaded could not be considered.
  28. The Petitioner did not prove the allegation that strangers took control of Thiba Primary School as she did not specify the polling station or the presiding officer. It was not shown how they took control of the polling station. The Petitioners as demonstrated from the diaries had agents at the polling station and none was called to confirm that allegation. No witness was called to testify as having given the report to the Petitioner what he or she witnessed to make her conclude that strangers had taken control. The allegations were hearsay and had been disapproved as the two were alleged to have taken control had sworn affidavits and were cross-examined in court. The allegation had not been proved and was dismissed.
  29. The allegation of inflating 48,000 votes for the 3rd Respondent related to a specific number and forms. In her Supporting Affidavit, the 1st Petitioner did not refer to any specific form where the votes were inflated. The 1st Petitioner had not made an averment as to that allegation. None of her witnesses who testified had sworn an affidavit on the issue of inflating votes of the 3rd Respondent. It was an allegation which was not supported by any evidence. In the case of data specific electoral requirements, the standard of proof had been put very high when a party had to rely on specified data. The standard was beyond any reasonable doubts. The Petitioner had the evidential burden to discharge the allegation.
  30. The fulcrum of the Petition was the conduct of the Returning Officer at the tallying hall and the contested documentation and declarations that flowed from there. It was critical to evaluate the evidence of witnesses against the burden of proof and standard of proof in election petitions. The statutory and evidential burden of proof rested with the Petitioner. It was underpinned by section 83 of the Elections Act. That section was coached in negative language to emphasize the caveat placed on the election court. There was in it a rebuttable presumption in favour of the Respondents that the election was conducted properly and in accordance with the law. Section 83 implied that elections were not always perfect, consequently not all malpractices led to nullification of the result of an election.
  31. There were various processes in the elections and various forms used to capture the number of votes cast which were then captured in the tallying process at the constituency and finally at the county where after tallying the final results were declared. The Petitioner intended to use forms to prove to the Court that the votes were inflated with 48,000 votes in favour of the 3rd Respondent. Such forms were not availed and the burden to prove to the Court from the forms was not discharged to the required threshold. The allegation had not been proved and was therefore dismissed.
  32. A court could in certain circumstances be entitled to draw adverse inferences from the absence of a witness who might be expected to have crucial evidence. In such circumstances, the inferences could go to strengthen the evidence adduced 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 had to first be some evidence, however weak, adduced by the opposite party on the issue before the Court could draw the desired inference. If the reason for the absence of the witness was satisfactory, the Court should not draw any such adverse inference. On the other hand, if there was some credible explanation given, even though not wholly satisfactorily, the potentially detrimental effect of the witness’ absence could be reduced.
  33. The evidence in support of the allegation of misleading assisted voters was insufficient. It was the mandatory duty of the presiding officer to assist a voter who required assistance. The burden was on the Petitioners to prove that the Presiding Officer breached regulation 72 of the Regulations. The burden was not discharged and the allegations of misleading assisted voters had not been proved. There were several agents including those of the Petitioners who would have corroborated PW2’s Affidavit if it was indeed there and none was availed. The allegation was dismissed.
  34. No evidence was adduced to prove cheating, intimidation, forgery of ballot papers and breach of mandatory statutory and constitutional requirements in voting, counting tallying and transmission of votes across the county.
  35. The role of judicial precedents in the administration of justice was an indispensable foundation upon which to decide the law and its application to individual cases in a common law legal system. It was the doctrine of stare decisis where decisions of superior courts were followed unless distinguished or overruled. The rationale for stare decisis had in the need to ensure predictability, certainty, consistency, uniformity and stability in the application of the law.
  36. Matters not pleaded which included unauthorised alternations of Forms 37 A, including alleged cancellations of votes garnered by various candidates, the alleged haphazard and casual manner of maintaining the diaries, over writings and inaccuracies and forgeries which had not been pleaded could not be considered to determine the Petition.
  37. After the scrutiny exercise the law did not allow the Election Court to use the material which emerged from the exercise of the read only access to base its decision. That was why the Court declined an application for filing of affidavits to introduce new evidence. The Petitioner moved to Court to determine whether the elections were conducted in accordance with the law. That was why an exercise of scrutiny under section 82 of the Elections Act which included scrutiny and recount on an application by a party or by the Court suo moto would entitle the Court to consider them in the wider interests of electoral justice.
  38. From the primary documents of form 37 A the Petitioner did not dispute the votes she garnered in all the polling stations. The 1st and 2nd Respondents had shown that they substantially complied with the Court Order of October 23, 2017 (Court Order) save for the KIEMS kit which had been configured. The information was confirmed by the Deputy Registrar and he indicated that a distribution list was provided for the parties.
  39. Failure to avail the KIEMS kit amounted to concealing evidence. The Court Order ordered that the access given was to the data in the KIEMS kits. The SD cards contained the data. There was no Court Order which had been issued to order preservation of the KIEMS kit. The data was preserved in the SD card. Technology in respect to gubernatorial elections was limited to identification of voters. There was no requirement for transmission electronically. Section 44 of the Elections Act provided for use of technology which enabled voter registration, identification and transmission of results. Section 39 (1) of the Elections Act provided for electronic transmission of results in Presidential election. No prejudice was suffered by failure to give access to the KIEMS kit. The information required to verify the results was adequately supplied and accessed.
  40. The doctrine of waiver operates to deny a party his right on basis that he had accepted to forgo the same rights having known of their existence. The witnesses referred to the diaries which were annextures to affidavits without any objection and the 1st Petitioner after relying on the diaries was cross-examined on them and re-examined. It was a technicality to say they had not been produced. The Constitution discouraged use technicalities to defeat justice. The 1st Petitioner was stopped from approbating and reprobating. The Court should always seek to do substantial justice. Since the fact of the 1st Petitioner’s Affidavit not having a date was not raised and she testified and was cross-examined on oath, the issue became a technicality.
  41. A party was not permitted to approbate and reprobate to the detriment of his opponent. The Petitioner was stopped from challenging the production of the diaries. The annexures to the 1st Petitioner’s Affidavit were admissible but an objection on the Petitioner’s annexures was challenged on a different front and a ruling was issued.
  42. No allegations were made against the 3rd Respondent by the Petitioner and her witnesses. A party’s case was made from pleadings but not from cross-examining his/or her opponent. Cross-examination was expected to test the evidence. A party wishing to cross examine had to demonstrate to the Court material in the adverse party’s affidavit which was adverse or disputed.
  43. The affidavits of witnesses who had not been availed for cross-examination could not be relied on by any party, though the affidavits remained part of the record by dint of rule 12 (12) Elections (Parliamentary and County Elections) petition Rules, 2017 they had no probative value and could not be relied on.
  44. Rule 11(1) of Elections (Parliamentary and County Elections) petition Rules, 2017 (the Rules) provided that the 3rd Respondent could oppose the Petition by filing a response. The Response had to be supported by an affidavit sworn by the Respondent. The 1st and 2nd Respondent filed a Response and Affidavits. The 4th Respondent testified. In the instant case the 4th Respondent who was joined jointly in the Petition, testified and was cross-examined on allegations made against him. The 2nd Petitioner did not testify and no explanation was given. The Petitioners were contented with that. The Petitioner and witnesses had not made allegations against the 3rd Respondent.
  45. A party who assisted the Court to facilitate the just expeditious, proportionate and affordable resolution of dispute could not be faulted. Failure to call the 3rd Respondent was not an abuse of court process as the 3rd and 4th Respondents who were joint Respondents called witnesses and one of them, the 4th Respondent, answered to the specific allegations which were pleaded.
  46. The declaration by the Supreme Court in Raila Amolo Odinga and others v I.E.B.C 2017 eKLR (Raila Odinga case) on non-compliance by the IEBC was in regard to Forms 34A and its electronically transmission thereof to the National Tallying Centre. It did not therefore apply to the gubernatorial election of the County as provided for under section 39(1B) of the Elections Act. The Petitioners would have to discharge the legal burden of proof in regard to elections of a County Governor. They would have to adduce specific evidence relating to the election process of the Kirinyaga County Governor and the tallying process which was to be differentiated with the presidential election. Section 39(1B) of the Elections Act would therefore be applicable. In addition, the Petition was governed by the subsidiary legislation, Elections (Parliamentary and County Elections) Petitions Rules, 2017.
  47. The Petitioner did not adduce evidence to prove that the statutory constitutional requirements in vote counting and transmission of votes across the County was violated. The decision of the Raila Odinga case could not therefore apply to summarily determine the Petition.
  48. The absence of a candidate or an agent at the signing of a declaration forms or announcement of results under Regulation 79 of the Regulations could not by itself invalidate the results announced. It was not the business of the Court to aid the indolent. If the Petitioners failed to ensure that their agents were at the polling stations in time with proper documentation they only had themselves to blame.
  49. There was no evidence to prove that the elections were not conducted in accordance with the principles of the Constitution and the law. There was no violence, the voters exercised their sovereign rights to vote in a peaceful manner and the elections were free, fair and verifiable as required under article 38, 81, & 86 of the Constitution. The voting, tallying and transmission complied with the Constitution and the will of the people as expressed in the results was not challenged. The alleged illegalities and irregularities did not affect the results. The legal burden was on the Petitioner and did not shift. The Respondents could not be called upon to answer to matters which were not pleaded.
  50. The receipt which was issued to the Petitioner upon filing of her Super Agent’s Affidavit and a copy which was in the file did not corroborate the averment that she filed the flash disk together with the Petition. In any case she stated that she filed a CD and a Disk and there was no proof that she was issued with a receipt for the CD and Flash Disk. It was not proved that any electronic evidence inform of CD and Flash Disk was filed with the Petition.
  51. Costs should not be so exorbitant as to impede access to justice and unjustly enrich the parties. The Election Court was supposed to determine costs guided by the principles of fairness justice and access to Justice.

Petition dismissed

  1. The 3rd Respondent declared validly elected as the Governor for Kirinyaga County in the General Elections held on August 8, 2017.
  2. The certificate of court as to the validity of elections pursuant to section 86 of the Elections Act to issue to the I.E.B.C and the Speaker of the Senate.
  3. Costs awarded to the Respondents, costs awarded were instructions fees. Instructions fees capped at Kshs 2,000,000/- for the 1st and 2nd Respondents and Kshs.3,000,000/- for the 3rd and 4th Respondents.
  4. Costs to be taxed and total costs to be certified by the Deputy Registrar.
STATUTES A toy pistol did not fit the definition of an imitation firearm under the Firearms Act.

Lewis Muli Wanza v Republic [2018] eKLR
Criminal Appeal Number 205 of 2015
High Court at Nairobi
G W Ngenye-Macharia, J
January 3, 2018.
Reported by Kakai Toili

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Statutes – interpretation of statutes – interpretation of section 34 of the Firearms Act - whether a toy pistol fit the description of an imitation firearm under the Firearms Act - Firearms Act, section 34
Words and Phrases – firearm – definition of a firearm – a weapon that expels a projectile (such as a bullet or pellets) by a combustion of gunpowder or other explosive - Black’s Law Dictionary, 9th Edition
Words and Phrases – toy – definition of a toy – a plaything: a trifle: a thing only for amusement or look - Chambers Concise Dictionary

Brief facts:
The Appellant was charged with the offence of attempted robbery with violence. The particulars of the offence were that the Appellant jointly with others, while armed with a toy pistol attempted to rob the Complainant her properties and threatened to use personal violence against her. The Appellant was acquitted of the offence charged. However, the Trial Court convicted him of the offence of being in possession of an imitation of a firearm and sentenced to serve 10 years imprisonment. Being dissatisfied with the conviction and sentence, he filed the instant Appeal.

Issue:

  1. Whether a toy pistol fit the description of an imitation firearm under the Fire Arms Act. Read More..

Relevant Provisions of the Law:
Firearms Act, cap 114 Laws of Kenya
Section 2
A lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged or which can be adapted for the discharge of any shot, bullet or other missile.

Section 34
(1)If any person makes or attempts to make any use of a firearm or an imitation firearm with intent to commit any criminal offence he shall be guilty of an offence and liable to imprisonment of not less than seven, but not exceeding fifteen years, and where any person commits any such offence he shall be liable to the penalty provided by this subsection in addition to any penalty to which he may be sentenced for that other offence.
(2)A firearm or imitation firearm shall, notwithstanding that it is not loaded or is otherwise incapable of discharging any shot, bullet or other missile, be deemed to be a dangerous weapon or instrument for the purposes of the Penal Code (Cap. 63).
(3)In this section, “imitation firearm” means anything which has the appearance of being a firearm, whether it is capable of discharging any shot, bullet or other missile or not.

Held:

  1. Section 34 of the Fire Arms Act set out the definition of an imitation firearm as anything which had the appearance of being a firearm. The exhibit in the instant case was referred to by all the witnesses before the Court as a toy pistol. The Court was hard pressed to find that the toy pistol fell within the definition of an imitation firearm. That was predicated by the use of the word toy throughout the trial to refer to the exhibit in question.
  2. The definition of a toy in the Chambers Concise Dictionary properly fit the toy pistol as a jocular object and therefore, the exhibit that the Appellant was arrested in possession of did not at all fit the definition of an imitation of a firearm. The offence of being in possession of an imitation of a firearm contrary to section 34(1) of the Firearms Act was not proved beyond a reasonable doubt.

Appeal allowed

  1. Conviction quashed, sentence set aside and the Appellant to be set free unless otherwise lawfully held.
JURISDICTION Court of Appeal upholds the result of the election held on August 8, 2017 for member of National Assembly for Marakwet East Constituency.

Bowen David Kangongo v Sammy Kemboi Kipkeu & 2 others
Election Petition Appeal No 15 of 2018
Court of Appeal at Eldoret
E M Githinji, H Okwengu & J Mohammed, JJ A
July 12, 2018
Reported by Beryl A Ikamari

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Jurisdiction-jurisdiction of the Court of Appeal-election petition appeals-appeals based on matters of law only-nature of grounds of appeal that would constitute matters of law-whether an issue, on whether the Election Court's findings or conclusions were supported by the evidence, was a matter of law-Elections Act, No 24 of 2011, section 85A(1).
Electoral Law-burden of proof and standard of proof-standard of proof in an election petition-circumstances under which a Petitioner would be said to have discharged his burden of proof in an election petition.
Statutes-interpretation of statutory provisions-interpretation of section 83 of the Elections Act-the nullification test-whether an election was conducted substantially in accordance with constitutional and legal principles and whether an electoral irregularity or malpractice affected the outcome of an election-Elections Act, No 24 of 2011, section 83.
Electoral Law-election petition-precision in drafting an election petition-pleadings which entailed generalized allegations-effect of failure to plead an issue sufficiently-whether the Election Court could make determinations on issues that were not pleaded sufficiently in the petition.

Brief facts:
In the elections held on August 8, 2017, the Appellant was declared the duly elected member of National Assembly for Marakwet East Constituency with 14,812 votes.  His closest rival was Linah Jebii Kilimo who had 13,845 votes. There were three other candidates in the elections. The 1st Respondent, a registered voter in the constituency, was dissatisfied with the conduct and outcome of the election and he filed a petition at the High Court. He alleged that the Appellant was not duly and validly elected.
The High Court delivered a judgment on February 27, 2018 wherein it declared that the impugned elections were not free, fair, credible or verifiable and that the Appellant was not validly elected as the member of the National Assembly for Marakwet East Constituency. The Appellant appealed against the judgment and the 2nd and 3rd Respondents cross-appealed while urging the Court of Appeal to allow the appeal.

Issues:

  1. Whether the appeal and cross-appeal raised only matters of law which the Court of Appeal had the jurisdiction to hear and determine.
  2. What was the proper burden and standard of proof applicable to the election petition and was that burden and standard of proof discharged by the 1st Respondent in proving the alleged electoral illegalities and irregularities?
  3. What was the import of the nullification test provided for in section 83 of the Elections Act?
  4. Whether there could be determinations made for issues that were not pleaded for in the petition Read More..

Held:

  1. Under section 85A (1) of the Elections Act, the Court of Appeal's jurisdiction to handle election petition appeals was restricted to hearing appeals that were based on matters of law only. The Court had no jurisdiction to hear an appeal anchored on matters of fact.
  2. The Court had jurisdiction to consider facts in determining appeals for purposes of questioning the Election Court's conclusions in order to determine whether the conclusions were supported by the evidence. However, such consideration would not extend to questioning the credibility or probative value of the evidence.
  3. The issues raised in the grounds of appeal which were anchored on facts questioned the findings of the Election Court as either being unsupported by the evidence or based on a wrong application of the law. Therefore, the Court had jurisdiction to determine such questions.
  4. The 1st Respondent had the obligation to adduce cogent evidence in support of the alleged electoral irregularities in order to discharge the legal and evidential burden. He was also required to meet the standard of proof, which was higher than proof on a balance of probability but lower than proof beyond reasonable doubt.
  5. Section 83 of the Elections Act was amended by the Election Law Amendment Act No. 34 of 2017. However, the petition was filed before the amendment came into effect. Therefore, the Court would apply the provision as it was before the amendment came into effect. The said section 83 of the Elections Act provided that no election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appeared 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.
  6. The import of section 83 of the Elections Act was that an election could be voided on the basis of two grounds. The first was that the Petitioner proved that the conduct of the election substantially violated the principles laid down in the Constitution as well as other written law on elections. The second was where the Petitioner proved that although the election was conducted substantially in accordance with the applicable constitutional and legal principles, it was fraught with irregularities or illegalities that affected the result of the election. 
  7. The Election Court found some of the irregularities to be minor omissions that had no impact on the polls, while others were serious enough to affect the results of the election. That classification on the question of electoral irregularities was legally sound.
  8. The Elections Court found that irregularities, as pleaded by the 1st Respondent in the petition, which included Forms 35A that were only signed by the Presiding Officer or his Deputy, Forms that did not have the signatures of agents and Forms that did not have the official IEBC stamp, were irregularities that had no impact on the polls. The Election Court could not be faulted for making the finding.
  9. On the issue of broken seals found inside sealed ballot boxes at Mungwa primary school polling station and Mungwa dispensary hall polling station, the Election Court found that the broken seals cast doubt on the integrity of the materials inside the ballot boxes. The finding was without substance. The presence of the broken seals inside the ballot boxes that had been sealed after the voting exercise was not an irregularity. The finding was made by the Election Court which drew an inference from the failure of the Appellant and the 2nd and 3rd Respondents to offer an explanation on the broken seals. The broken seals were discovered in a scrutiny process conducted after all the parties had tendered their evidence and did not have an opportunity to offer any explanation.
  10. The Election Court identified serious irregularities which included Forms 35A that were not signed by either the Presiding Officer or the Deputy Presiding Officer. What was pleaded was that a large number of Forms 35A were not signed but the evidence only related to proof with respect to Bororwa Nursery School polling station and to only one Form. Given that it only affected one Form 35A, the magnitude of the breach was not such as could be said to have an impact on the elections.
  11. As regards errors in transposing results from Form 35A to Form 35B, which the Election Court found to be a serious irregularity, five polling stations were identified as having the transposing errors. It was admitted that there were errors but the errors appeared to have been insignificant. The figures which were affected by the errors did not justify the finding that a sizeable number of the votes were unaccounted for.
  12. There was an issue with the declaration of the results which was identified as a serious irregularity. A figure of 29,573 votes was announced but the Form 35B which was used to declare the results indicated a figure of 30, 020 votes which was said to be the correct figure. However, that discrepancy did not affect the votes cast for the winning candidate and the votes cast for the closest rival. Although there was an issue regarding the accuracy of the aggregate number of the votes cast, it was clear that the issue was basically an arithmetical issue which was not addressed by the Election Court.
  13. The Election Court found that the conduct of the elections was vitiated by the use of ungazetted polling stations and the exclusion of gazetted polling stations. Section 2 of the Elections Act defined a polling station as ‘any room, place, vehicle or vessel set apart and equipped for the casting of votes by voters at an election.’ Therefore, nothing stopped the 2nd and 3rd Respondents from using Embokala Nursery School and Ketmekinget Health Centre as polling stations provided that they were set apart for that purpose. Besides, from the evidence it was apparent that the so-called ungazetted polling stations were actually polling stations that were interchanged with gazetted polling stations for reasons that were explained.
  14. Regulation 7(3) of the Elections (General) Regulations 2012, which required gazettement of changes was not complied with by the 2nd Respondent in relation to changing the name of the polling station. However, it was not shown that the breach substantially affected the outcome of the election as no evidence was tendered to show that there was confusion or that any voter failed to vote on account of the change of the polling stations.
  15. The general principle of pleadings is that parties are bound by their pleadings. The judgment had to be based on what was pleaded in the petition. The Election Court went out of its way to consider complaints relating to Embokala and Kitmekinget, the ungazetted polling stations that were not expressly mentioned in the petition, or the supporting affidavit, based on the general complaints pleaded in the petition. That was an error as the general allegations were not sufficient to show the specific complaints that the Respondents were required to address. Additionally, the evidence adduced with respect to those complaints was insufficient and did not meet the required standard.

Appeal allowed.
Orders:-

  1. Orders made by the Election Court were set aside and substituted with an order dismissing the petition and confirming the election of the Appellant Bowen David Kangogo as Member of National Assembly for Marakwet East Constituency.
  2. The order of the Election Court on costs was set aside and substituted with an order for costs in favour of the Appellant and the 2nd and 3rd Respondent against the 1st Respondent capped at Kshs. 2, 000, 000/=.

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