Weekly Newsletter 008/2019

Weekly Newsletter 008/2019



Kenya Law

Weekly Newsletter


A member of the Judicial Service Commission elected or appointed to serve a second term was exempt from retaking the oath of office
Law Society of Kenya v Attorney General & 3 others
Petition 307 of 2018
High Court at Nairobi
E C Mwita, J
January 18, 2019
Reported by Chelimo Eunice
Download the Decision

 
Statutes- interpretation of statutes-interpretation of section 15(2) (b) of the Judicial Service Act - whether the requirement for the President to appoint nominees as members of the Judicial Service Commission within three days of receipt of names was mandatory- whether the President was violating the law in delaying to appoint the 1st interested party -Judicial Service Act, section 15(2) (b)
Statutes- interpretation of statutes-interpretation of section 40 of the Judicial Service Act- whether members of the Judicial Service Commission were required to take oath or make affirmation upon re-election for the second term-  whether the 1st interested party, having been elected to serve a second term, was exempt from retaking the oath of office in terms of section 40 of the Judicial Service Act before assuming office- Judicial Service Act, 2011, section 40
Constitutional Law-interpretation of constitutional provisions-interpretation of article 23 as read with articles 22, 165(3) (d)(ii) & 159(2) of the Constitution – a claim that the Court could not grant the reliefs sought since the President’s action could only be supervised by the National Assembly and that the alleged violations did not fall within the ambit of article 23- whether violation of the Bill of Rights included the right of representation at the Judicial Service Commission and the right to represent the electorate in the Commission -whether in the circumstances, the Court could grant the reliefs sought-Constitution of Kenya 2010, articles 22, 23, 159(2) & 165(3) (d)(ii)
Civil practice and procedure – res judicata – rationale of res judicata – elements of res judicata - what was the rationale for the doctrine of res judicata - what were the elements for the doctrine of res judicata - whether the matters raised in the instant petition were res judicata for addressing the issues raised in the Petition No. 106 of 2018 (consolidated with Petition No 119 of 2018)– Civil Procedure Act, section 7


Brief facts:
The petitioner averred that the 1st interested party was elected as the representative of the Court of Appeal to the Judicial Service Commission (JSC), but there had been inordinate delay in gazetting him with a view to finalizing the process of appointing him as a member of the JSC, an action the petitioner contended, was unconstitutional. In the alternative, the petitioner averred that the 1st interested party, who was re-elected for the second term, was exempt from re-taking the oath of office before assuming office as a member of the JSC. The 1st respondent opposed the petition contending that it was res judicata based on the fact that the Court had dealt with Petition No. 106 of the 2018 (consolidated with Petition No. 119 of 2018), and in his view, that decision determined the issue at hand.

Issues:
  1. Whether a member of Judicial Service Commission elected or appointed to serve a second term was exempt from retaking the oath of office.
  2. Whether it was mandatory for the President to appoint a person as a member of the Judicial Service Commission upon receipt of his name, and whether his inaction violated the law.
  3. Whether the matters raised in the instant petition were res judicata for addressing the issues raised in the Petition No. 106 of 2018 (consolidated with Petition No 119 of 2018).
  4. Whether violation of the Bill of Rights included the right of representation at the Judicial Service Commission and the right to represent the electorate in the said Commission.

Relevant provisions of the law
Judicial Service Act;
Section 15;
Procedure of appointment; 
(2) Where the nominations are to be made by bodies specified under article 171(2)(b), (c), (d), (f) and (g) of the Constitution—

(a) the respective nominating body shall submit the name of its nominee to the President; and
(b) the President shall, within three days of receipt of the names, appoint the nominees as members of the Commission.

Section 40;
(1) The Chairperson and members of the Commission shall, on first appointment, take the oath or make the affirmation in the form prescribed in the Third Schedule to the Constitution.
(2) The Chief Registrar and such other judicial officers and staff of the Commission as the Commission may require so to do, shall, on first appointment, take the oath or make the affirmation in the prescribed form.

Civil Procedure Act;
Section 7;

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
 
Held:

  1. Section 7 of the Civil Procedure Act barred subsequent proceedings that were similar to those in former suits, between same parties or substantially same parties and over similar or nearly similar issues and which had been heard and determined by a court of competent jurisdiction to hear such matters.
  2. For a suit to be res judicata, the subsequent suit ought to raise similar or substantially similar issues to those in the former suit; the suit ought to be between the same parties and relate to the same subject matter and the issues ought to have been conclusively determined by a court of competent jurisdiction.
  3. Although Petition No. 106 of 2018 (consolidated with Petition No 119 of 2018), was between same parties as in the instant petition (except the 2nd respondent), it primarily raised the question of interpretation of various articles of the Constitution, including articles 171(2)(c) and 250. The question of the delay or omission in appointing the 1st interested party which was the central issue in the instant petition and whether the President’s inaction violated the law were not issues presented for determination in those former petitions. Thus, the instant petition was not res judicata as contemplated by section 7 of the Civil Procedure Act.
  4. In electing the 1st interested party as their representative in JSC, the Judges of the Court of Appeal were exercising their constitutional right in accordance with article 171(2) (c) of the Constitution.  That article gave them the right of representation in the JSC and their representative was identified through that election.
  5. The National Assembly, as the representative of the people, enacted the Judicial Service Act so that under section 15(2) (b), names of those elected and nominated as required by the Constitution were to be sent to the President who would then formally appoint them within 3 days of receipt of the names. The President received the 1st interested party’s name for appointment but forwarded it to the National Assembly for approval on the basis that the 1st interested party required such approval under article 250(2) of the Constitution. That action was the subject of the two Petitions Nos. 106 of 2018 and 119 of 2018 which however concluded that there was no constitutional requirement for such approval and further, that section 15(2) of the Judicial Service Act was not unconstitutional. What remained was for the President to formally appoint the 1st interested party which he did not.
  6. The President was a state officer and, as head of state and government, he exercised delegated authority from the people and he was bound to act in accordance with the Constitution which was the supreme law. Article 3(1) obligated every person, including the President, to respect, uphold and defend the Constitution. Kenya was a democratic state founded on the essential values in article 10 of the Constitution, including the rule of law which required that the country be governed through observance of the laws.
  7. Article 131(2) of the Constitution required the President to respect, uphold and safeguard the Constitution and ensure the protection of human rights and fundamental freedoms and the rule of law. Those were constitutional commands that bound any person acting as President.
  8. The 1st interested party was elected in a manner specified by the Constitution as a member of an independent constitutional Commission, established under the Constitution. The Judicial Service Act, a legislation enacted by the National Assembly, required the President to appoint the 1st interested party to take his place as a representative of the Court of Appeal in the JSC within three days of receipt of his name.  He had not done so ten months since his re-election.
  9. The President was a servant of the Constitution and the law who had not only the obligation to uphold, respect and defend the Constitution, but also the duty to ensure protection of human rights, fundamental freedoms and the rule of law.  Actions by the President, any other state officer or public officer had to be legally justifiable as the essence of the rule of law and democratic governance demanded by the Constitution.
  10. The Constitution required justification of every governmental or public action, taken or not taken. Actions of any state officer or public officer, including that of the President, had to meet the constitutional test of justification as an incidence of the rule of law and a founding value in the Constitution.
  11. The President had not appointed the 1st interested party as was required by the law.  He had not attempted to justify his inaction which was in violation of section 15(2) (b) of the Judicial Service Act and did not, in any way, advance constitutionalism, the rule of law or inspire peoples’ confidence in the discharge of his duties as demanded by the law.  The inaction further denied the JSC an important member, thus violated the right of the Judges of the Court of Appeal to be represented in JSC, which undermined the independence and integrity of JSC.
  12. The President’s act of commission or omission, if allowed, had the potential of not only interfering with the independence of the JSC, but also that of the Judiciary as guaranteed by the Constitution. 
  13. In exercising its judicial authority, the Court in Petition No. 106 of 2018 (consolidated with Petition No 119 of 2018) determined the issue surrounding the 1st interested party’s election and any potential approval by the National Assembly, as well as the constitutionality of section 15(2) of the Judicial Service Act. That determination was final unless set aside on appeal.  In that regard, there remained no extra judicial discretion on the part of the President to exercise in so far as the 1st interested party’s election to JSC was concerned. He was required by law to appoint the 1st interested party and that requirement was mandatory. Section 15(2) (b) of the Judicial Service Act was mandatory.
  14.  The 1st interested party’s election conferred on him a right and a provision would be construed to be mandatory if failure to adhere to a requirement contained in it would take away a vested right of a party and, in effect, scuttle the administration of justice. In that regard, the President’s delay in appointing the 1st interested party took away his vested right to represent the Judges of the Court of Appeal in JSC thus tended to scuttle the administration of justice.
  15. The President had no other role to play once the 1st interested party was elected as a member of the JSC as required by the Constitution and the law and the name forwarded to him, except to put in place mechanisms to have him formally appointed as required by section 15(2(b) of the Judicial Service Act.
  16. The President’s inaction violated the sovereign will of the Kenyan people. Parliament legislated on behalf of the people and, in that regard, enacted section 15(2) of the Judicial Service Act in exercise of its delegated authority. In essence it was the people of Kenya who enacted section 15(2) of the Act on the appointment of members of the JSC. By his inaction, delay or refusal to appoint the 1st interested party, the President was defying the people of Kenya on whose behalf section 15(2) (b) was enacted, which did not inspire confidence in the country, as a true democracy.
  17. The President was not also living up to his oath of office, to bear true allegiance to the Republic; to obey, preserve, protect and defend the Constitution and laws of the Republic.  The President undertook to diligently serve the people and do justice to all in accordance with the laws.  His inaction was not, therefore, in keeping with the law. Neither was he doing justice to the 1st interested party and the Judges of the Court of Appeal who elected him. He was not doing justice to the people of Kenya who were to be served by the JSC, the 1st interested party was elected to serve in. To decline to appoint the 1st interested party without constitutional justification, the President was also not acting in accordance with the values and principles in article 10 of the Constitution. Thus, the President was violating the Constitution and its essential values including the rule of law.
  18. Section 40 of the Judicial Service Act showed that the chairperson and members of the JSC were required to take the oath on their first appointment. The same thing applied to the Chief Registrar, judicial officers and other staff of the JSC. The section did not make it mandatory for a member elected or appointed to serve a second term to take the oath of office. The section did not require any other interpretation other than giving the words their ordinary meaning as used in the Judicial Service Act in the absence of any ambiguity arising from the words in that provision. A member of JSC elected or appointed to serve a second term, did not have to take the oath of office again.
  19. The Court could grant the reliefs sought since the Constitution had assigned functions to state organs, including the Court. The Court was assigned the function of interpreting the Constitution and the laws and settling disputes brought before it. Article 165(3)(d)(ii) of the Constitution conferred on the Court jurisdiction to determine the question whether anything said to be done under the authority of the Constitution or of any law was inconsistent with, or in contravention of, the Constitution. The Court was also required by article 159(2) of the Constitution to ensure that the purpose and principles of the Constitution were protected and promoted.
  20. The Court was the custodian and protector of the Constitution and the rule of law. In discharging that mandate, the Court exercised jurisdiction conferred on it by the Constitution, including to determine the question of whether the President’s action was in conformity with the law. And where it was not satisfied, the Court ought to prescribe a remedy following such a determination.
  21. Article 23(1) of the Constitution gave the Court jurisdiction to hear applications for redress of denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Article 23(3) of the Constitution further gave the Court power to grant an appropriate relief as circumstances of the case demanded. The Court had jurisdiction to redress any violations occasioned by the President’s inaction. The Judiciary performed a vital function as the interpreter of the Constitution, the arbiter in disputes between organs of State and was the watchdog over the Constitution and its Bill of Rights, even against the State.
  22. Article 171(2) (c) of the Constitution gave the Court of Appeal the right of representation in the JSC.  That was a constitutional right granted to that court and could not be taken away from them at whims.  At any one time, the Court of Appeal had to have a representative in the JSC and the JSC would not be fully constituted without the Court of Appeal’s representative.
  23. The 1st interested party having been elected, he acquired a right to represent his electorate in the JSC, a right flowing from the Constitution and which was constitutionally protected. Anything that infringed on that right, was a violation or a threat to violate the right of representation or to represent, which fell within the scheme of articles 22 and 23 of the Constitution and which the Court had jurisdiction to redress.
  24. The Court had jurisdiction to grant any relief for purposes of enforcing the Constitution and or redressing violation of fundamental rights and freedoms. There was no injustice that the Constitution was powerless to redress.
  25. It was the duty of the Court to settle disputes and for that reason, the Court could come in where a state organ, state officer or public officer acted in a manner that violated the law. The Court would not stand by and watch because exercise of administrative power called on the state, its organs and public officers to observe the principle of legality which was an incidence of the rule of law and a founding value in the Constitution.
  26. Appropriate relief should be an effective remedy for purposes of enforcing the Constitution, human rights and the rule of law. In determining appropriate relief, courts should carefully analyse the nature of the constitutional infringement, and strike effectively at its source. Thus, the Court ought to grant a relief that would effectively strike at the source of the violation as a way of enforcing the Constitution and strike a blow to any future incentives for any state organ, state officer or public officer to violate, infringe and or frustrate a legitimate constitutional or legal process.
  27. It was not the mandate of the 1st respondent to appoint the 1st interested party, thus, he would not be compelled to do so. The most effective remedy should not be to direct the 1st respondent to do that which he had failed to advice the President to do. Rather, the Court should grant a remedy that would bring the constitutional process to a conclusion, do away with any further or potential stalemate and enable an independent constitutional commission function at its optimal in the discharge its constitutional mandate.
  28. The 1st interested party, having been elected as required by the law, but the President had failed to perform his duties as required by law without constitutional or legal justification, the Court should grant an appropriate relief that should deem the 1st interested party to have been appointed to enable him take his position in the JSC as a representative of Judges of the Court of Appeal. It was not the President’s act of appointment that made the 1st interested party a commissioner but his election. That was the best way to strike at the heart of the problem and discharge the Court’s obligation to respect, uphold and defend the Constitution and its essential values including the rule of law.
Petition allowed.
Orders;
  1. A declaration was issued that the President’s failure to appoint the 1st interested party as required by section 15(2)(b) of the Judicial Service Act, 2011, was in violation of articles 1, 2(1), 3(1), 10, 47, 73, 75(1), 131(2), 132(4)(a), 171 and 172 of the Constitution and was, therefore, unconstitutional and invalid.
  2. A declaration was issued that the 1st interested party, a state officer elected to serve a second term based on his re-election, was exempted under section 40(1) of the Judicial Service Act, 2011, from retaking the oath of office before assuming the office of Commissioner in the Judicial Service Commission.
  3. A declaration was issued that the 1st interested party, having been duly elected Commissioner of Judicial Service Commission as required by the Constitution and the law, and the President having failed to appoint him in violation of mandatory timelines set by section 15(2) (b) of the Judicial Service Act, the 1st interested party was deemed to have been appointed and was at liberty to take his position as a Commissioner of the Judicial Service Commission, representing judges of the Court of Appeal.
  4. An order of mandamus was issued compelling the 2nd respondent and the 2nd interested party to take immediate measures and or steps to enable the 1st interested party take office as a Commissioner of the Judicial Service Commission and discharge his constitutional mandate.
  5. The 1st Respondent was ordered to bear costs of the petition.
Kenya Law
Case Updates Issue 008/2019
Case Summaries

JURISDICTION Principles to be considered in determining whether an election petition appeal merits the Supreme Court’s appellate jurisdiction.

Clement Kungu Waibara v Annie Wanjiku Kibeh & another [2019] eKLR
Petition 24 of 2018
Supreme Court of Kenya at Nairobi
D K Maraga, CJ & P; M K Ibrahim, J B Ojwang, S C Wanjala, N Njoki & I Lenaola, SCJJ
January 18, 2019.
Reported by Kakai Toili.

Download the Decision

Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction-where a party filed an election petition appeal-principles to be considered- what were the principles to be considered in determining whether an election petition appeal merited the Supreme Court’s appellate jurisdiction-Constitution of Kenya, 2010, article 81, 86 &163(4); Elections Act, 2011, section 83
Electoral Law–election petition–scrutiny of votes–application for scrutiny of votes–requirements-whether it was mandatory for a party making an application of scrutiny of votes to identify the particular polling stations in which he sought the scrutiny of votes- Constitution of Kenya,2010 article 48 & 159(2)(d)
Electoral Law–election petitions–standard of proof–where there were irregularities and illegalities-whether the mere sight of irregularities and illegalities was a basis for annulling an election for the position of Member of the National Assembly

Brief facts:
The 1st respondent was declared the winner of the elections for the position of Member of National Assembly Gatundu North constituency. The appellant, who was a contestant in the said elections, challenged the election before the Trial Court on the grounds of irregularities in the conduct of elections. At the end of the trial, while nullifying the 1st respondent’s election, the Trial Court concluded that the election was so badly conducted for failure by the 2nd respondent to strictly comply with the Constitution and statutory law. Aggrieved by the decision of the Trial Court, the 1st respondent filed an appeal at the Appellate Court which allowed the appeal and set aside the decision of the Trial Court. Aggrieved by the Appellate Court’s decision the appellant filed the instant appeal.

Issues:

  1. What were the principles to be considered in determining whether an election petition appeal merited the Supreme Court’s appellate jurisdiction?
  2. Whether it was mandatory for a party making an application of scrutiny of votes to identify the particular polling stations in which he sought scrutiny.
  3. Whether the mere sight of irregularities and illegalities was a basis for annulling an election for the position of Member of the National Assembly.Read More..

Held :

  1. Elections in general drew legitimacy from the broad lines of the Constitution and from the electoral laws. That generality, however, had to be crystallized into clearly-defined normative prescriptions, before the Court could take up an electoral appeal as a matter of course, by virtue of article 163 (4) (a) of the Constitution.
  2. It was not every election petition that merited the Court’s appellate intervention. For an electoral dispute to come within the Court’s mandate, the conclusion reached by the trial court had to clearly emerge as one requiring constitutional interpretation or application. The principles to be considered in determining whether an election petition merited the Court’s appellate jurisdiction included the following:
    1. a party could not invoke the Court’s jurisdiction under article 163 (4) (a), where the trial court found that alleged irregularities and malpractices were not proved, as a basis therefore it did not lie for an application or interpretation of the Constitution;
    2. the articles of the Constitution cited by a party as requiring interpretation or application at the trial court, had to have required interpretation or application at the trial court and had to have been a subject of appeal at the appellate court; in other words, the article in question had to have remained a central theme of constitutional controversy, in the life of the cause;
    3. a party had to indicate how the appellate court misinterpreted or misapplied the constitutional provision in question. Therefore, the said constitutional provision had to have been a subject of determination at the trial court; and
    4. a party had to indicate in specific terms the issues requiring the interpretation or application of the Constitution and had to signal the perceived difficulty or impropriety with the appellate court’s decision.
  3. A limited number of the issues raised in the petition involved constitutional interpretation or application: for instance, the issue of the application of section 83 of the Elections Act, 2011 and the conduct of election in relation to the terms of articles 81 and 86 of the Constitution. However, some of the issues raised in the appeal and in the cross-petition fell outside the Court’s mandate and the Court would omit them from the ambit of its determination.
  4. The Trial Court’s order of scrutiny was made pursuant to the appellant’s motion. It was incumbent on the appellant to identify the particular polling stations in respect of which he sought scrutiny, a matter to be ascertained from the petition and the evidence. The scrutiny had been conducted in polling stations that could not be identified in the petition or in the evidence. The forensic audit by the Trial Court had improperly opened out the scope of the election petition to all polling stations thus grasping such matters as were not part of the pleadings. The forensic audit projected well beyond the trial motions that embodied the essence of the course of justice.
  5. A question regarding regular method in trial court processes and the importance of such in assuring justice was certainly a constitutional question: for article 159 (2) (d) of the Constitution stipulated that the purpose and principles of the Constitution would be protected and promoted and a central one of such principles was access to justice with article 48 of the Constitution specifying that the State should ensure access to justice for all persons.
  6. The conduct of an election took many vital roles and inputs on the part of a large number of persons and agencies: so that the co-ordinated initiative and outcome was the basis of the overall integrity that would convey the democratic and electoral intent. That was essentially an episode of administrative ethics that depended upon the inputs of many, including the voters, by their integrity and conduct. Such a scenario would not lend itself to any specific formula of rectitude and each case stood to be assessed on the basis of general standards of compliance and integrity.
  7. The Trial Court ought to have ascertained whether the irregularities revealed by the process of scrutiny affected the outcome of the election. It was inapposite to settle the dispute on the basis of any conjecture, however logical.
  8. The basis for the annulment of the election of the 1st respondent was that the electoral process entailed irregularities. The audit conducted in the Trial Court did not form an integral element in the lawful proceedings of that Court, such irregularities or illegalities as disclosed lay outside proper procedure and would not constitute a basis for annulling the election.
  9. The mere sight of irregularities and illegalities gave no basis for annulling the election: they had to have affected the election outcome. The irregularities and illegalities named in the pleadings did not affect the election results. Therefore, the Appellate Court rightly upheld the election of 1st respondent.

Appeal dismissed

  1. Petition of appeal dated August 16 2018 disallowed.
  2. Cross-appeal by the 1st respondent, dated September 4, 2018 disallowed.
  3. The declaration of election results by the Independent Electoral and Boundaries Commission in respect of the seat of Member of the National Assembly for Gatundu North Constituency affirmed.
  4. The 2nd respondent to bear the 1st respondent’s costs incurred in the appeal, as well as in the Courts below.
  5. The appellant and the 2nd respondent to bear their own respective costs.
  6. Costs to be regularly assessed and determined by the Deputy Registrar.
CONSTITUTIONAL LAW It is not mandatory for the President to approve the resignation of an Independent Electoral and Boundaries Commission commissioner

Okiya Omtatah Okoiti v Consolata Nkatha Maina & 3 others [2018] eKLR
Petition 160 of 2018
High Court at Nairobi
E C Mwita, J
December 7, 2018.
Reported by Kakai Toili

Download the Decision

Constitutional Law-constitutional commissions-Independent Electoral and Boundaries Commission-Independent Electoral and Boundaries Commission commissioners-resignation of commissioners-procedure to be followed-what was the procedure to be followed by a commissioner resigning from the Independent Electoral and Boundaries Commission-whether it was mandatory for the President to approve the resignation of an Independent Electoral and Boundaries Commission commissioner-Independent Electoral and Boundaries Commission Act, section 7A
Constitutional Law-constitutional commissions-Independent Electoral and Boundaries Commission-Independent Electoral and Boundaries Commission commissioners-removal from office-procedure to be followed-what was the procedure to be followed for the removal of a commissioner of the Independent Electoral and Boundaries Commission-Constitution of Kenya, 2010, article 251

Brief Facts:
The 1st, 2nd and 3rd respondents were commissioners with the 4th respondent (IEBC). On April 16, 2018 the three respondents addressed a press conference publicly announcing their resignation from IEBC with immediate effect. As a result of the 1st, 2nd and 3rd respondents actions, the petitioner filed the instant petition seeking orders to the effect that the three respondents vacate office, formally hand over commission properties and that they should not be paid salaries and benefits.

Issues:

  1. Whether it was mandatory for the President to approve the resignation of an Independent Electoral and Boundaries Commission commissioner.
  2. What was the procedure to be followed for the removal of a commissioner of the Independent Electoral and Boundaries Commission?
  3. What was the procedure to be followed by a commissioner resigning from the Independent Electoral and Boundaries Commission?Read More...

Held:

  1. IEBC was an independent constitutional commission established under article 88(1) of the Constitution. Its Commissioners were identified and appointed in accordance with article 250(2) of the Constitution and section 5 of the Independent Electoral and Boundaries Act (the Act) as read with the first schedule to the Act. The commissioners were identified in accordance with the Act, approved by Parliament and appointed by the President.
  2. Article 251 of the Constitution provided how a commissioner could be removed from office. According to article 251, a commissioner could only be removed from office on grounds of serious violation of the Constitution or any other law including contravention of chapter six of the Constitution, gross misconduct, physical or mental incapacity, incompetency or bankruptcy. A person desiring the removal of a commissioner on any of the said grounds, had to present a petition to the National Assembly setting out the alleged facts constituting the ground. The National Assembly would then consider the petition and if it was satisfied that the petition disclosed a ground for removal, it would send the petition to the President. On receiving the petition the President could suspend the commissioner pending the outcome of the complaint and appointed a tribunal to investigate the complaint.
  3. From a reading of the constitutional text, there was no provision for a commissioner’s resignation. The Constitution spoke of removal from office which meant that the action to remove a commissioner was third party driven as opposed to self-desire to leave. That could not mean that a commissioner who desired to leave could not resign because the Constitution did not allow it. A commissioner just like any other person, had a constitutional right to leave the commission if he wished and no one could stop him. To leave employment was a right to make a choice and therefore a constitutional right that could not be limited as it was not legally possible to force one to keep a job he or she did not wish to.
  4. The Act provided for resignation of a commissioner, stating at section 7A (1) (b) of the Act that a vacancy could arise following resignation by notice in writing to the President. Section 7A(2) required the President to then publish a notice of the vacancy in the Gazette within seven days of the occurrence of the vacancy and under section 7A(3), recruitment should commence immediately after declaration of the vacancy. The Act therefore, recognized that a commissioner could resign and actualized that resignation through a written notice to the President. In the instant case, the 1st, 2nd and 3rd respondents followed the statutory script when they resigned as commissioners of the IEBC. They did not only send to the President written notices but also publicly informed the people of Kenya that they had resigned as commissioners, a self-removal act as opposed to one instigated by a third party in terms of article 251 of the Constitution.
  5. The 1st, 2nd and 3rd respondents resigned with immediate effect, that was because they had not stated anywhere in their affidavits that they gave a periodic notice within which they were to resign. That meant that they resigned on April 16, 2018 and not any other date. The 1st, 2nd and 3rd respondents’ resignation was immediate following their written notice to the President and public announcement.
  6. Section 7A of the Act did not require the President to approve or decline resignation by a member of the commission. The act of sending a letter to the President communicating resignation, was intended to create a vacancy and kick off;
    1. declaration of the vacancy;
    2. followed by recruitment for the replacement.
    In interpreting section 7A, the court should give it a plain language in determining the Legislature’s intention. Where the intention of the Legislature was clear, the court should not do more than give effect to that intention. The court should only go on to search for the intention where there was ambiguity in the legislation or its provision.
  7. The Court should not stretch the meaning of a statute or its provision beyond that intended by the law maker. Giving section 7A of the Act a plain interpretation, the section did not require a commissioner to notify the President of his/her intention to resign but rather to notify the President of his or her resignation. The commissioner was deemed to have resigned upon sending a written notice to that effect to the president. The President did not have discretion whether or not to accept the resignation. He was only notified by the commissioner of the resignation and the President’s mandate was that to initiate the rest of the process by declaring a vacancy which led to the process of recruitment of replacement(s). Resignation of a commissioner was immediate upon notifying the President in writing of the resignation. Publication of the vacancy in the gazette was a formal step and had no bearing on the actual act of resignation.
  8. The 1st, 2nd and 3rd respondent could not rely on the decision of the Court in Isaiah Biwott Kangwony v Independent Electoral and Boundaries Commission & another [2018] eKLR(Isaiah Biwott Kangwony case) which stated that the three respondent’s resignation was not proper. The Court in that case did not have material evidence before it on the three respondents’ resignation except what was in the media. The three respondents were not parties to the Isaiah Biwott Kangwony case and the facts they disclosed to the instant Court were not available for consideration by the Court in the Isaiah Biwott Kangwony case
  9. The 1st, 2nd and 3rd respondents resigned as commissioners with the Independent Electoral and Boundaries Commission on April 16, 2018 and ceased to be members of the commission upon notifying the President of their resignation. Whether or not vacancies had been declared did not make them commissioners. Whether the 1st, 2nd and 3rd respondents should be paid salaries and benefits was not a matter for the Court since there were oversight organs that dealt with such issues.

Petition allowed

  1. A declaration issued that the 1st, 2nd and 3rd respondents ceased to be commissioners of the Independent Electoral and Boundaries Commission, the 4th respondent, on April 16, 2018 upon resigning.
  2. Each party to bear their own costs

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

Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR
Petition 21 of 2018
Supreme Court of Kenya at Nairobi
M K Ibrahim, J B Ojwang, Wanjala, S N Ndungu, Lenaola, SCJJ
December 21, 2018
Reported by Chelimo Eunice

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Jurisdiction-jurisdiction of the Supreme Court to hear appeals from the Court of Appeal- appeal involving interpretation or application of the Constitution- guiding principles before hearing appeals brought before Supreme Court pursuant to article 163(4)(a) of the Constitution-a claim that the case appealed from had nothing or little to do with the interpretation or application of the Constitution- whether in the circumstances, the Supreme Court would hear the appeal-Constitution of Kenya, 2010, articles 163 (4), 81 & 86; Supreme Court Act, section 15.
Electoral Law-electoral irregularities-considerations governing determinations on whether an election was conducted substantially in accordance with the law-allegations of non-compliance with the Constitution and electoral laws- whether the election was conducted in accordance with the laid down principles-whether there were irregularities and illegalities committed in the conduct of the election and if in the affirmative, what was their impact, if any, on the integrity of the election-Constitution of Kenya 2010, articles 38, 81(a), 81(d), 81(e), 86 & 87.
Electoral Law - election petition-nullification of election-relevance of vote margin in nullifying or upholding elections – the question of marginal victory and the protection of the voter’s enfranchisement under article 38(1)-whether the appellate court erred in its appreciation of the legal effect of errors and irregularities upon an election-Constitution of Kenya,2010, articles 86 & 38(1); Elections Act, section 83.
Jurisdiction- appellate jurisdiction-jurisdiction of the Court of Appeal-election petition appeals-appeals relating to matters of law-the meaning given to a matter of law in an election petition-claim that the Court of Appeal considered matters of fact contrary to section 85 of the Elections Act-Elections Act, section 85.

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

Issues:

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

Held:

  1. The appellate jurisdiction of the Court was aptly captured in article 163(4) of the Constitution. Section 15 of the Supreme Court Act also made provisions to the effect that appeals to the Supreme Court would be heard only with the leave of the Court, but that did not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution.
  2. The appeal ought to originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. An appellant ought to be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party ought to be faulting the Court of Appeal on the basis of such interpretation. Where the case to be appealed from had nothing or little to do with the interpretation or application of the Constitution, it could not support a further appeal to the Supreme Court under the provisions of article 163 (4) (a).
  3. Right from the Trial Court, the primary issue revolving around the petition against the appellant’s election was whether the election was conducted in accordance with the principles of the Constitution. The operative principles in question were the provisions of articles 81 (e) and 86 of the Constitution. Although the issues, as later formulated by the Court of Appeal, narrowed down to the specifics of whether the violation was substantial to nullify the election and whether the Trial Court failed to make vital findings of fact and abdicated its judicial duty and responsibility, the main issue of the application of articles 81 and 86 of the Constitution to the dispute was never lost. Throughout its analysis and assessment of the evidence on record, in determining the integrity of the impugned election, the Court of Appeal was applying the provisions of article 86(a) of the Constitution. Thus the appeal fell within the ambit of article 163(4) (a) of the Constitution.
  4. The general principles to guide the electoral system in Kenya was captured in article 81 of the Constitution. On political rights, article 38(2) of the Constitution made it clear that every citizen had the right to free, fair and regular elections. Article 86 of the Constitution on the other hand imposed an obligation on the Independent Electoral and Boundaries Commission to ensure that the stipulated conditions were met, in any election process conducted in the country. Section 83 of Elections Act was also applicable.
  5. The practical realities of election administration were such that imperfections in the electoral process were inevitable and on that account, elections should not be lightly overturned, especially where neither a candidate nor the voters had engaged in any wrongdoing.
  6. On the effect of proven irregularities in an election petition, judicial practice ought not make it burdensome to enforce the principles of properly conducted elections which gave fulfilment to the right of franchise. Where a party alleged non-conformity with the electoral law, the petitioner ought not to only prove that there was non-compliance with the law, but that such failure of compliance did affect the validity of elections.
  7. There was an error apparent in the Court of Appeal’s judgment. The Court of Appeal did not apply the principles established by the Court on nullification of an election based on constitutional violations, including, the substantial effect of the irregularity on the conduct of the contested results. That principle held that irregularities in the conduct of an election should not lead to annulment, where the election substantially complied with the applicable law, or that the results of the election were unaffected.
  8. The Court of Appeal ought to have considered the fact that the election for the Member of National Assembly in the whole of Kilgoris Constituency in all polling stations, save for Endoinyo Nkopit Polling station, was conducted in compliance with the laid down constitutional principles and applicable laws; and the fact that even in Endoinyo Nkopit Polling station, all the electoral processes preceding the diversion were in compliance with the constitutional principles and applicable electoral laws. Had the Court of Appeal properly applied that test, it would have reached a different conclusion than it did.
  9. The Court of Appeal arrived at an inconsistent determination of the law. The election, despite the isolated cases of irregularities which did not affect the result of the election, was essentially free and fair. The fact that the election went on smoothly in all 165 polling stations, save for one, the alleged violation of article 86(a) of the Constitution did not substantially affect the outcome of the election. The Court of Appeal also contravened article 163(7) the Constitution by not applying the binding precedent set by the Court.
  10. On the question of marginal victory, as a principle of electoral law, an election was not to be annulled except on cogent and ascertained factual premises. It was by that principle, that the Constitution protected the voter’s enfranchisement under article 38(1).Section 83 of the Elections Act was the definitive statement of the standard that an election court ought to apply, in verifying the election results. As to the effect of irregularities, and the point at which a court should overturn an election, courts had to only act on ascertained facts, not conjecture, and had to demonstrate how the final statistical outcome had been compromised.
  11. The Constitution in articles 259(1) and 20(3) set out the framework of applicable principles while interpreting the Constitution and for applying a provision of the Bill of Rights respectively.
  12. While weighing the 1st respondent’s claim that the impugned election did not comply with article 86 of the Constitution, the Court took note to the right of voters from 164 other polling stations where the elections were conducted in compliance with the Constitution, and whose political rights were similarly guaranteed under article 38(2) of the Constitution. Thus, where a voter had made his choice known, having been registered in accordance with articles 82 and 83, 138(3) (a) of the Constitution, having voted in accordance with articles 81 and 83 of the Constitution and his vote counted at the polling station and the result announced at the polling station in accordance with the law and the outcome was known and uncontested (the results in 164/165 polling stations in Kilgoris Constituency were not contested), his rights should not be ignored especially where the alleged violations did not affect the outcome of the election.
  13. The Court of Appeal erred in failing to apply the quantitative test in its interpretation and application of article 86(a) of the Constitution against the political right of the citizens of Kilgoris Constituency to free, fair elections based on universal suffrage and the free expression of the will of the people. The stated irregularities did not affect the outcome of the election, all other factors taken into account.
  14. Section 85A of the Elections Act limited the Court of Appeal’s jurisdiction on election appeals to matters of law only. Matters of law were:-
    1. the technical element; involving the interpretation of a constitutional or statutory provision;
    2. the practical element; involving the application of the Constitution and the law to a set of facts or evidence on record;
    3. the evidentiary element; involving the evaluation of the conclusions of a trial court on the basis of the evidence on record.
  15. With reference to section 85A of the Elections Act, the phrase matters of law only meant a question or an issue involving:
    1. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of County Governor;
    2. the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the trial court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor;
    3. the conclusions arrived at by the trial court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of County Governor, where the appellant claimed that such conclusions were based on no evidence, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were so perverse, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the trial court would probably have arrived at a different conclusion on the basis of the evidence.
  16. A petition which required the appellate court to re-examine the probative value of the evidence tendered at the trial court, or invited the appellate court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted. Those principles stroke a balance between the need for an appellate court to proceed from a position of deference to the trial court and the trial record, on the one hand, and the trial court’s commitment to the highest standards of knowledge, technical competence, and probity in electoral-dispute adjudication, on the other hand.
  17. The Trial Court addressed all issues but failed to make an ultimate finding on discrepancies on the scrutiny report. However, the Court could not address the issues on discrepancies without delving into matters of fact yet its hands were tied by article 163(4)(a) of the Constitution. The Court of Appeal, when examining matters of law would thus not completely ignore the evidence on record. As a result, it erred in finding that the Trial Court failed to address issues raised before it, thereby exceeding its mandate provided for under section 85 of the Elections Act.
  18. Costs followed the event and a court had the discretion in awarding costs. The appellant did not submit on the issue before the other courts and had raised the question of the ultra vires nature of rule 30 of the Elections Petitions Rules, 2017 for the first time at the Court. There was no explanation by the appellant as to why the same was not addressed at the Court of Appeal or why it did not form part of the appellant’s grounds of appeal. Respecting the hierarchy of the judicial system was paramount, and thus the issue of costs was rejected.
  19. The alleged and proven irregularities did not have the effect of nullifying the outcome of the election of Member of the National Assembly for Kilgoris Constituency.

Orders;

  1. The Judgment of the Court of Appeal sitting at Nakuru, dated July 31, 2018 annulling the election of Gideon Sitelu Konchellah as Member of National Assembly for Kilgoris Constituency, was quashed and set aside.
  2. The petition of appeal dated August 8, 2018 was allowed.
  3. For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the seat of Member of National Assembly Kilgoris Constituency, was restored.
  4. The 3rd Respondent ordered to bear the costs of the appellant, 1st respondent’s costs at the High Court, Court of Appeal and Supreme Court.
JURISDICTION Supreme Court affirms the result of the elections of August 8, 2017 for Member of the National Assembly for Nandi Hills Constituency.

Bernard Kibor Kitur v Alfred Kiptoo Keter & another
Petition 27 of 2018
Supreme Court of Kenya at Nairobi
M K Ibrahim, J B Ojwang, SC Wanjala, Njoki Ndungu & I Lenaola, SCJJ
December 21, 2018
Reported by Beryl A Ikamari

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Jurisdiction-jurisdiction of the Supreme Court-appellate jurisdiction of the Supreme Court-jurisdiction relating to matters of constitutional interpretation and application-whether a Supreme Court appeal raised matters of constitutional interpretation and application-Constitution of Kenya 2010, article 163(4)(a).
Appeals-election petition appeal from the High Court to the Court of Appeal-appeal on matters of law only-nature of matters that would constitute matters of law-extent to which the Court of Appeal could consider factual evidence when making its determinations-whether in an election petition appeal, the Court of Appeal wrongfully delved into matters of facts in making its determinations-Elections Act, No 24 of 2011, section 85A.
Electoral Law-withdrawal and substitution of parties to an election petition-original petitioner's petition and supporting affidavit-probative value of the original petitioner's petition and supporting affidavit after substitution of the petitioner-where the original petitioner did not appear as a witness in court and give oral testimony-whether the original petitioner's petition and supporting affidavit had probative value or was hearsay-Constitution of Kenya 2010, articles 38 & 22; Elections (Parliamentary and County Elections) Petition Rules, 2017, rules 15(1)(h), 21 & 24;
Evidence Law-burden of proof-discharge of the burden of proof by a petitioner in an election petition-circumstances in which the burden of proof would shift to the respondent-claim that the petitioner's evidence was hearsay and that the burden of proof could therefore not shift to the respondents-whether the petitioner had discharged his burden of proof and the burden had shifted to the respondents.
Electoral Law-conduct of an election-electoral irregularities and malpractices-conduct of an unlawful campaign-claim that campaigns were held outside of the gazetted period-unlawful campaigns involving groups of less than 25 people in three locations where the winning margin in an election was 10, 051 votes-whether the unlawful campaigns would lead to the nullification of the result of the election-Elections Act, No 24 of 2011, section 83.

Brief facts:
The 1st respondent was declared the winner of the election for member of National Assembly for Nandi Hills Constituency held on August 8, 2017. A registered voter filed a petition to challenge that result. When that voter sought to withdraw the petition, the petitioner, who was a candidate in the election, applied to be substituted as a petitioner. The High Court dealt with issues concerning voter bribery, campaigning outside the gazetted period and mishaps in the declared results as concerned three polling stations. The results said to have been from Ng’ame Nursery School were meant to be results from Lelwak Primary School and the mix up was alleged to have added an extra 121 votes to the petitioner and subtracted 36 votes from the 1st respondent. It was alleged that Form 35B omitted results from Ndurutu Primary School thereby affecting 197 votes for the 1st respondent and 174 votes for the petitioner.
The High Court found that there was no cogent evidence on bribery and that the mishaps related to the three polling stations were not sufficiently pleaded. However, the High Court found that the 1st respondent engaged in unlawful campaigns and was therefore not validly elected. The High Court nullified the result of the election.
The 1st respondent lodged an appeal at the Court of Appeal. The petitioner and the IEBC each filed a cross-appeal, on the issue of affidavits and adducing additional evidence and on whether the evidentiary burden ought to have shifted to the respondents before the initial burden was discharged. The Court of Appeal made the determination that the petition and supporting affidavit of the original petitioner remained intact but without that petitioner appearing as a witness, the contents thereof would be hearsay. The Court of Appeal added that it was not necessary for the substituted petitioner to adopt the original petitioner's affidavit word for word as some facts were only within the knowledge of the original petitioner and they would be hearsay and of no probative value. In setting aside the High Court's decision, the Court of Appeal found that there was no evidence of unlawful campaigns and the meaning given to a campaign by the High Court was too broad.
In a Supreme Court appeal, the petitioner stated that the Court of Appeal wrongfully assumed jurisdiction and concerned itself with matters of fact contrary to section 85A of the Elections Act. He added that his right to a fair hearing was violated when the Court of Appeal denied him the right to file a supplementary affidavit based on the depositions of the original petitioner. He also asserted that on the issue as to whether the original petitioner ought to have been a witness, the Court of Appeal heavily relied on rule 12(13) of the Election Petition Rules 2017 which required personal attendance of the deponent without considering the circumstances of the case. The petitioner explained that the High Court dismissed his application to have the original petitioner called as a witness. He said that the Court of Appeal's holding that a supplementary affidavit was not an affidavit in support of a petition left the petition unsupported. The petitioner said that those circumstances occasioned breaches of articles 25(c), 27(1) and 27(2) of the Constitution, on the right to a fair trial and to equal protection and benefit of the law.
The respondents raised a challenge on jurisdiction and stated that the appeal did not raise issues of constitutional interpretation and application.

Issues:

  1. Whether the Supreme Court had jurisdiction to entertain the suit, under article 163(4)(a) of the Constitution, as a suit involving matters of constitutional interpretation and application.
  2. Whether the Court of Appeal in an election petition appeal exercised its jurisdiction wrongfully by delving into matters of fact as opposed to dealing with matters of law only as required in section 85A of the Elections Act.
  3. Whether in circumstances where an original petitioner withdrew from a suit and was substituted with another petitioner, the original petitioner's petition and supporting affidavit would be hearsay if the original petitioner did not give oral testimony as a witness in Court.
  4. In an election petition, when would the petitioner be said to have discharged his burden of proof and thereby shift the burden of proof to the respondent?
  5. Circumstances under which campaigning outside of the period allowed for campaigns would be a ground for nullification of the results of an election. Read More..

Held:

  1. In order for an appeal at the Supreme Court to be admissible under article 163(4)(a) of the Constitution, a litigant had to show that the appeal involved questions of constitutional interpretation and application and that those questions had been the subject of interpretation or application at the superior courts. Alternatively, a litigant had to show that the superior court's reasoning took on a trajectory of constitutional interpretation or application.
  2. Both the High Court and the Court of Appeal made determinations with respect to the issue of campaigning outside the gazetted period. The Court of Appeal considered the alleged violation of the Electoral Code of Conduct by campaigning out of the gazetted period and found the allegation unproved.
  3. The Electoral Code of Conduct developed by IEBC was contained in the Second Schedule to the Elections Act. The Code of Conduct was developed by the IEBC under the provisions of article 88 (4)(i) of the Constitution while article 84 of the Constitution required candidates and political parties to comply with the Code of Conduct. The constitutional principles applicable to elections were embodied in articles 1(2), 38(2), 81, 82 and 86 of the Constitution. Those principles were given effect through the Elections Act and Regulations, the Election Offences Act and the Independent Electoral and Boundaries Commission Act. Non-adherence to the Code of Conduct was therefore a violation of the Constitution.
  4. In interpreting statutory and regulatory provisions of the Elections Act, there was interplay with a wide range of constitutional provisions touching simultaneously on individual fundamental rights and political rights; particularly those recognized in articles 38, 81 and 82 of the Constitution.
  5. The petitioner's case met the jurisdictional threshold under article 163(4)(a) of the Constitution.
  6. Section 85 A of the Elections Act provided that an appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor would lie to the Court of Appeal on matters of law only. Matters of law meant questions involving:-
    1. the interpretation, or construction of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, in an election petition in the High Court, concerning membership of the National Assembly, the Senate, or the office of county governor;
    2. the application of a provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or any legal doctrine, to a set of facts or evidence on record, by the Court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of county governor;
    3. the conclusions arrived at by the Court in an election petition in the High Court concerning membership of the National Assembly, the Senate, or the office of county governor, where the appellant claimed that such conclusions were based on “no evidence”, or that the conclusions were not supported by the established facts or evidence on record, or that the conclusions were “so perverse”, or so illegal, that no reasonable tribunal would arrive at the same; it was not enough for the appellant to contend that the Court would probably have arrived at a different conclusion on the basis of the evidence.
  7. The High Court made a conclusion of fact to the effect that the 1st respondent conducted campaigns outside the gazetted period and thereby interfered with the integrity of the electoral process. The Court of Appeal evaluated whether the law supported a finding that the gatherings complained of were a campaign. The Court of Appeal limited itself to evaluating the conclusions of the High Court based on the evidence on record. The process of evaluating evidence at the Court of Appeal was not mechanical and the Court of Appeal was not expected to shut its mind to the evidence on record.
  8. In making the determination that upon the withdrawal of the original petitioner from the proceedings, the petition and the supporting affidavit remained intact, but that they would be of no probative value if the original petitioner did not appear as a witness to give oral testimony, the Court of Appeal did not act in excess of its jurisdiction. That Court made a pronouncement on the place in law of the supporting affidavit of the original petitioner after the substitution of the parties. That did not entail delving into matters of fact.
  9. Electoral disputes were disputes in rem and not in personam. Such litigation affected the interests of the public in knowing whether the declared winner was validly elected. Under rule 21 of the Elections (Parliamentary and County Elections) Petition Rules, 2017, it was necessary for leave of court to be granted before an election petition could be withdrawn as voters needed the assurance that their leaders were validly elected.
  10. In order to protect the rights articulated under article 38 of the Constitution enforceable under article 22 of the Constitution, and their public nature, the law provided for substitution of parties where an original petitioner in an election petition wished to withdraw. Rule 24 of the Elections (Parliamentary and County Elections) Petition Rules, 2017 provided for substitution of parties in that context.
  11. The rationale for substitution of parties was that an election petition sought to vindicate the rights of every citizen and withdrawal of such a petition would affect rights of members of the public. Under rule 24(5) of the Elections (Parliamentary and County Elections) Petition Rules, 2017, a substituted petitioner would stand in the same position, to the extent that was possible and would be subject to the same liabilities as the original petitioner. The strict timelines set under articles 87(2) and 105 of the Constitution on the filing and disposal of petitions meant that the law did not contemplate the filing of a new petition but the replacement of one suitable petitioner with another.
  12. The High Court directed the petitioner to adopt the affidavit of the original petitioner. The petitioner was required to file an affidavit personally and to swear his own evidence in support of a petition. Affidavit evidence was personal to the deponent and the petitioner could not rely on evidence that he was not privy to.
  13. In limiting the substituted petitioner to adopting word for word the averments of the original petitioner, the High Court erred as that was tantamount to the petitioner relying on facts that were not within his knowledge in violation of the rules of evidence and admitting hearsay evidence. Therefore, the Court of Appeal rightfully held that an affidavit had to state the substance of the evidence and be confined to facts that the deponent was able to prove based on his own knowledge.
  14. Rule 15(1)(h) of the Elections (Parliamentary and County Elections) Petition Rules 2017 allowed a substituted petitioner to file supplementary affidavits whose purpose was to advance and support a petition and its contents. However, in filing such affidavits, the substituted petitioner would not introduce new issues as that would advance a new case which was different from the original petitioner's case.
  15. In an election petition, a petitioner bore the obligation to discharge the initial burden of proof before the respondents were invited to bear the evidential burden. The threshold of proof should be above a balance of probabilities but not beyond reasonable doubt. Given that the evidence tendered by the petitioner amounted to hearsay, the Court of Appeal was right in finding that the evidentiary burden did not shift to the respondents.
  16. Section 83 of the Elections Act, as it was before its amendment in 2017, provided that no election would be declared void due to non-compliance with any written law relating to that election if it was apparent 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. That meant that elections were not perfect and that irregularities would not necessarily vitiate an election. Invalidation of an election would follow substantial irregularities, malpractices and non-compliance with the law.
  17. The Court of Appeal rightfully held that in light of the 10, 051 votes winning margin, the small crowds addressed in the alleged unlawful campaigns, could not have affected the result of the election. Additionally, the Court of Appeal rightfully found that the evidence in support of the alleged unlawful campaigns was hearsay.
  18. A single issue, even where the effect was criminal, which did not amount to massive or substantial non-compliance with the law or irregularities was not enough to dissuade from the fact that an election was conducted largely in accordance with the law.
  19. Under section 84 of the Elections Act, an election court would award costs of and incidental to a petition and costs would follow the cause. Costs were within the Court's discretion.

Petition dismissed.
Orders:-

  1. The petition of appeal dated August 24, 2018 was dismissed.
  2. The judgment of the Court of Appeal of Kenya sitting at Eldoret dated July 11, 2018 was upheld.
  3. The declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the Member of National Assembly for Nandi Hills Constituency was affirmed.
  4. Each Party was to bear their own costs.

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