Clement Kungu Waibara v Annie Wanjiku Kibeh & another
The bottom line
#Election results stand unless irregularities actually changed the outcome.
What this practically means
#The Supreme Court ruled that an election cannot be nullified just because there were irregularities. The person challenging the election must prove that the irregularities affected the result. In this case, the winner had such a large margin of victory that any problems did not change the outcome. The Court also said judges cannot order their own investigations without involving the parties or going beyond what the case is about.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellate court properly applied articles 81 and 86 of the Constitution and section 83 of the Elections Act
- 2.Whether the appellate court rightly upheld the election of the 1st respondent as Member of the National Assembly for Gatundu North Constituency
Key legal issues
#Whether the Court of Appeal erred in holding that the trial court's 'per se test' for nullifying elections was improper.
The Supreme Court agreed with the Court of Appeal that the trial court's 'per se test' was inapposite; the court must ascertain whether irregularities affected the election outcome.
The trial court had interpreted section 83 of the Elections Act as incorporating three separate criteria, treating the first as a 'per se test' that automatically nullified an election once established. The Supreme Court held that the conduct of an election involves many inputs and does not lend itself to a specific formula of rectitude. Each case must be assessed on general standards of compliance and integrity. The trial court ought to have determined whether the irregularities revealed by scrutiny affected the election outcome, rather than settling the dispute on conjecture.
Whether the Court of Appeal erred in finding that the trial court's forensic audit was improper and based on unpleaded issues.
The Supreme Court upheld the Court of Appeal's finding that the forensic audit was improper as it went beyond the pleadings and was conducted without party participation.
The Supreme Court found the appellate court's reasoning 'unanswerable' that the forensic audit projected well beyond the trial motions embodying the essence of the course of justice. The audit was not a lawful suo motu order under section 82 of the Elections Act, and the parties were denied the right to be heard on it. The audit improperly opened the scope of the petition to all polling stations, grasping matters not part of the pleadings.
Whether the Court of Appeal rightly upheld the election of the 1st respondent.
The Supreme Court affirmed the Court of Appeal's decision upholding the election, as the irregularities did not affect the outcome.
The Supreme Court agreed with the Court of Appeal that the basis for annulment—the forensic audit—did not form an integral element in lawful proceedings. The irregularities and illegalities named in the pleadings had not affected the election results. The appellate court correctly established that the overwhelming majority of votes attained by the 1st respondent was an explicit manifestation of the will of the people.
Legal principles established
#- Irregularities alone do not nullify an election; they must have affected the result.
- A court cannot conduct a forensic audit without party participation or on unpleaded matters.
- The Supreme Court only hears election appeals if constitutional issues were central from the start.
- Each election case is judged on its own facts, not a fixed formula of compliance.
- The will of the people, shown by a clear majority, is key to upholding an election.
Court orders
#- 1.The petition of appeal dated August 16, 2018 is hereby disallowed.
- 2.The cross-appeal by 1st respondent, dated September 4, 2018 is similarly 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, is hereby affirmed.
- 4.The 2nd respondent shall bear 1st respondent's costs incurred in this appeal, as well as in the courts below.
- 5.The appellant and the 2nd respondent shall bear their own respective costs.
- 6.Costs shall be regularly assessed and determined by the Deputy Registrar.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Nairobi
- Election Petition No 20 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Setting aside the Court of Appeal judgment and reinstating the High Court judgment
The Supreme Court found that the appellate court correctly held that the trial court's forensic audit was improper and that the irregularities did not affect the election outcome.
Declaration that the election was a nullity
The Supreme Court agreed with the Court of Appeal that the irregularities and illegalities did not affect the election result.
Costs
The 2nd respondent shall bear 1st respondent's costs incurred in this appeal, as well as in the courts below. The appellant and the 2nd respondent shall bear their own respective costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The petition of appeal dated August 16, 2018 is hereby disallowed.
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, is hereby affirmed.
We are, furthermore, in agreement with the Court of Appeal, that the mere sight of irregularities and illegalities gave no basis for annulling the election: they must have affected the election outcome.
The rationality and integrity of the appellate court's finding is, in our view, unanswerable. The forensic audit, though a critical factor in the learned trial judge's finding, projects well beyond the trial motions that embody the essence of the course of justice.
In view of such considerations, we are in agreement with the appellate court's standpoint: that the trial court ought to have ascertained whether the irregularities revealed by the process of scrutiny, did affect the outcome of the election.
Key timeline
#Practical implications
#Prove outcome-affecting irregularities
When challenging an election, you must present evidence that irregularities directly affected the result. Relying on a court-ordered forensic audit without party input is improper. Focus pleadings on specific polling stations and link each irregularity to vote changes. The Supreme Court will not hear appeals unless constitutional issues were central from trial through appeal.
Election challenges need clear proof
If your business relies on stable electoral outcomes, this case reinforces that election results are final unless challengers prove irregularities changed the outcome. Courts will not nullify elections based on speculation or broad audits. This reduces uncertainty after elections, but you must still ensure compliance with electoral laws to avoid disputes.
Your vote counts only if outcome changes
As a voter, you cannot get an election overturned just because there were problems like missing forms or procedural errors. You must show those problems actually changed who won. If the winner had a large margin, the election will likely stand. This protects the will of the majority but means you need strong evidence to challenge results.
Frequently asked questions
#Can an election be nullified in Kenya just because of irregularities?+
No. The Supreme Court in John Njoroge Muchiri v IEBC ruled that irregularities alone are not enough. You must prove they affected the election outcome. If the winner had a clear majority, the election will likely be upheld.
What is the 'per se test' for election nullification in Kenya?+
The 'per se test' was a wrong approach used by a trial court to automatically nullify an election once irregularities were found. The Supreme Court rejected it, saying each case must be assessed on whether irregularities actually changed the result.
Can a Kenyan court order its own investigation in an election petition?+
No, not without involving the parties. The Supreme Court said a forensic audit ordered by a judge without party participation and on unpleaded issues is improper. Courts must stick to what the parties raised in their pleadings.
When can the Supreme Court hear an election appeal in Kenya?+
Only if constitutional issues were a central theme from the trial court through the Court of Appeal. The Supreme Court will not hear appeals where constitutional questions were not consistently raised and argued throughout the case.
Cite this brief
#Cite this brief
Caselaw, "Clement Kungu Waibara v Annie Wanjiku Kibeh & another", Case Analysis (2019). Petition 24 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/61/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.