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Supreme CourtDismissedPetition (Application) E020 of 2023

Garama v Karisa & 3 others

Supreme Court of Kenya
9 August 2024
1,948 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Supreme Court dismisses election review bid as a disguised appeal.

What this practically means

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The Supreme Court dismissed an application to review its earlier election judgment. The applicant, Harrison Garama Kombe, tried to relitigate issues already decided, but the Court said review is not a second chance to appeal. The Court confirmed it correctly applied the law on election nullification, which requires proof of either illegal conduct or non-compliance with electoral laws. The application was an abuse of court process, and the applicant must pay costs to the respondents.

Executive summary

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This ruling arises from a Notice of Motion dated 6th June 2024 by Harrison Garama Kombe, seeking review of the Supreme Court's judgment of 31st May 2024. The applicant argued that the Court misapplied the disjunctive test under Section 83 of the Elections Act, failed to state the place of scrutiny vis-à-vis burden of proof, did not specify which ground under Section 83 was proved, and that the judgment was obtained through misrepresentation of facts. The 1st respondent opposed the application, submitting that the Court lacked jurisdiction, the grounds were a replica of the petition already determined, and the application was a disguised appeal and an abuse of process. The 2nd and 3rd respondents supported the application, while the 4th respondent opposed it. The Supreme Court, applying the principles in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others, found that the application did not meet the threshold for review under Section 21A of the Supreme Court Act. The Court held that the application was an appeal disguised as a review, seeking to relitigate matters already determined. The Court clarified that it had correctly applied the disjunctive test under Section 83, which was affirmed by legislative reforms and the Raila 2022 decision. It also stated that it had been categorical that both limbs of Section 83 were satisfied. The Court dismissed the application with costs to the 1st and 4th respondents, finding it to be a clear abuse of the court process.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application meets the test for review under Section 21A of the Supreme Court Act and Rule 28(5) of the Supreme Court Rules.
  2. 2.Whether the Court misapplied the disjunctive test under Section 83 of the Elections Act.
  3. 3.Whether the Court misapplied the standard of proof in election disputes.
  4. 4.Whether the judgment was obtained through misrepresentation of facts.
  5. 5.Whether the Court failed to state which ground under Section 83 of the Elections Act was proved.

Key legal issues

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01

Whether the application for review met the threshold under Section 21A of the Supreme Court Act.

Holding

The application did not meet the threshold as it was a disguised appeal seeking to relitigate matters already determined.

Reasoning

The Court found that the applicant's grounds were a replica of the petition and submissions already dealt with in the judgment. The Court reiterated that review is not an avenue for appeal or relitigation. The alleged misrepresentation of facts was not proven; the Court had merely reproduced facts from the lower courts and applied established law. The application was therefore an abuse of process.

02

Whether the Court misapplied the disjunctive test under Section 83 of the Elections Act.

Holding

The Court correctly applied the disjunctive test, which was the subject of legislative reforms and affirmed in Raila 2022.

Reasoning

The Court explained that its judgment analyzed the Raila 2017 and Raila 2022 decisions and the legislative history of Section 83. The amendment to Section 83 was not solely based on Raila 2017 but was the result of legislative reforms leading to Raila 2022, which reaffirmed the disjunctive construction. The Court held that proof of either limb is sufficient to nullify an election.

03

Whether the Court failed to state which ground under Section 83 of the Elections Act was proved.

Holding

The Court was categorical that both limbs of Section 83 were satisfied.

Reasoning

The Court referred to paragraph 111 of its judgment, where it stated that the 1st respondent had satisfied both limbs of Section 83 of the Elections Act. This directly addressed the applicant's complaint.

Legal principles established

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  • Review is not a disguised appeal; it cannot be used to relitigate decided matters.
  • Under Section 83 of the Elections Act, proving either illegal practices or non-compliance is enough to nullify an election.
  • Election offences require proof beyond reasonable doubt; other election claims need an intermediate standard of proof.
  • A court may dismiss a review application as an abuse of process if it merely repeats earlier arguments.
  • Legislative reforms and Supreme Court precedent confirm the disjunctive test under Section 83.

Court orders

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  1. 1.The Notice of Motion dated 6th June 2024 and filed on 13th June 2024 is hereby dismissed.
  2. 2.The applicant shall bear the 1st and 4th Respondents’ costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
Jurisdiction invoked
Section 21A of the Supreme Court Act and Rule 28(5) of the Supreme Court Rules, 2020

Relief refused

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Review of the judgment dated 31st May 2024

The application is an appeal disguised as a Motion for review and does not fall within the confines of the parameters in the Fredrick Otieno Outa Case.

Order allowing the Petition of Appeal dated 1st August 2023

The application was dismissed in its entirety.

Costs

The applicant shall bear the 1st and 4th Respondents’ costs.

Quotable passages

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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 application is an appeal disguised as a Motion for review and does not fall within the confines of the parameters in the Fredrick Otieno Outa Case as set out above and must be therefore be dismissed.
p. 4 Review threshold
The Notice of Motion dated 6th June 2024 and filed on 13th June 2024 is hereby dismissed; and
p. 4 Final orders
The applicant shall bear the 1st and 4th Respondents’ costs.
p. 4 Costs order
the test to be applied in Section 83 is a disjunctive one and not a conjunctive one as argued by the appellant
p. 3 Disjunctive test under Section 83 of the Elections Act
in an allegation of an election offence or quasi-criminal conduct, the proof expected is one that is beyond reasonable doubt. In any other case, the standard has been set at an intermediate level, being higher than balance of probabilities but lower than beyond reasonable doubt.
p. 4 Standard of proof in election disputes

Key timeline

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2024-05-31
Supreme Court delivered judgment in the election dispute.
2024-06-06
Harrison Garama Kombe filed Notice of Motion for review of the judgment.
2024-06-13
Review application formally filed.
2024-07-25
Supreme Court dismissed the review application with costs.

Practical implications

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For lawyers

Limit review to narrow grounds

When drafting review applications under Section 21A of the Supreme Court Act, ensure you identify a clear error on the face of the record or new evidence, not just rehash arguments from the main petition. The Court will dismiss disguised appeals and may award costs against your client. Focus on the Fredrick Otieno Outa test to avoid abuse-of-process findings.

For businesses

Election challenges have high bars

If you are involved in election disputes as a candidate or party, understand that the Supreme Court strictly limits review. You cannot use it to reargue your case. Ensure your initial petition is thorough, because the review window is narrow. Also note that proving election offences requires a higher standard of proof than ordinary civil claims.

For individuals

Review is not a second appeal

If you lose an election case at the Supreme Court, you cannot simply ask the Court to reconsider because you disagree with the outcome. Review is only for very specific errors or new evidence. This ruling shows the Court will dismiss such attempts quickly and may order you to pay the other side's legal fees.

Frequently asked questions

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What is the standard of proof in Kenyan election disputes?+

For election offences or quasi-criminal conduct, the standard is beyond reasonable doubt. For other election claims, the standard is an intermediate level—higher than balance of probabilities but lower than beyond reasonable doubt.

Can I appeal a Supreme Court decision in Kenya?+

No, the Supreme Court is the final court. You can only apply for review under Section 21A of the Supreme Court Act, but only on very limited grounds like discovery of new evidence or an error on the face of the record. This case confirms review is not a disguised appeal.

What does Section 83 of the Elections Act say in Kenya?+

Section 83 allows a court to nullify an election if it finds either that the election was not conducted in accordance with the law, or that there were illegal practices or offences. The Supreme Court confirmed these two grounds are disjunctive—proving just one is enough.

What happens if I file a frivolous review application in Kenya?+

The court can dismiss it as an abuse of process and order you to pay the other party's costs. In this case, the Supreme Court did exactly that, finding the application was a disguised appeal that wasted court time.

Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Garama v Karisa & 3 others", Case Analysis (2024). Petition (Application) E020 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/45/eng@2024-08-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.