Independent Electoral & Boundaries Commission & another v Abdalla & 2 others
The bottom line
#Supreme Court consolidates election appeals but rejects new evidence from IEBC.
What this practically means
#The Supreme Court allowed two election appeals about the Lamu Senator seat to be heard together, saving time and avoiding repetition. However, the Court refused IEBC's request to add a new document (Form 38A) as evidence, saying the commission did not meet the strict legal test for introducing fresh evidence at this stage. The ruling streamlines the appeal process but keeps the focus on the original record.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the two petitions should be consolidated under Rule 14 of the Supreme Court Rules, 2012
- 2.Whether the Applicants should be exempted from including documents already in Petition No. 18 of 2018 in their Record of Appeal
- 3.Whether leave should be granted to lodge a Supplementary Record of Appeal including Form 38A for Kiangwe Primary School polling station as additional evidence
Key legal issues
#Whether the two petitions should be consolidated under Rule 14 of the Supreme Court Rules, 2012
The Court allowed consolidation, holding that the two petitions arise from the same cause of action and the same judgment of the Court of Appeal, and consolidation is pragmatic to avoid duplicity and expedite hearing.
The Court considered the rival submissions, noting that the 1st Respondent opposed consolidation but invoked the same Rule 14 to argue for a test case. The Court followed its decision in Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR and exercised its discretion under Rule 14 in favour of consolidation. The Court found that since both petitions stem from the same Court of Appeal judgment, using a single set of Record of Appeal would avoid duplicity and expedite the hearing of the consolidated matters.
Whether leave should be granted to lodge a Supplementary Record of Appeal including Form 38A for Kiangwe Primary School polling station as additional evidence
The Court disallowed the application, holding that the Applicants' prayer had not met the requisite threshold for admission of additional evidence as set out in Hon. Mohammed Abdi Mohamad vs Ahmed Abdullahi Mohammed & others (unreported).
The Court noted the 1st Respondent's opposition, including arguments that the Applicants had opposed production of the same Form 38A at the High Court and were estopped under section 120 of the Evidence Act. The Court also considered the 1st Respondent's reliance on Zacharia Okoth Obado vs Edward Akong'o Oyugi & 2 others [2014] eKLR regarding the need for judicious exercise of discretion in electoral disputes. Ultimately, the Court found that the Applicants had not met the threshold established in its recent decision on additional evidence.
Legal principles established
#- The Supreme Court can consolidate petitions that arise from the same Court of Appeal judgment to avoid duplicity and speed up hearings.
- Consolidation under Rule 14 of the Supreme Court Rules is discretionary and pragmatic when cases share the same cause of action.
- A party seeking to introduce additional evidence in the Supreme Court must meet a high threshold set in established case law.
- The Court will not allow new evidence if the applicant fails to show it could not have been obtained earlier or would change the outcome.
- Costs of an interlocutory application in a consolidated appeal will be determined at the final appeal stage.
Court orders
#- 1.Petition No. 18 of 2018 and Petition No. 20 of 2018 are hereby consolidated with Petition No. 18 of 2018 being the lead file.
- 2.The Applicants, Independent Electoral and Boundaries Commission and Mohamed Adan Ali, are hereby exempted from including in their Record of Appeal those documents already included in the Record of Appeal filed in Petition No. 18 of 2018.
- 3.The application for leave to file and serve a Supplementary Record of Appeal including the Form 38A for Kiangwe Primary school polling station is disallowed.
- 4.Costs of this application shall abide the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Malindi
- Election Petition Appeal No. 2 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Petition 18 of 2018
Relief refused
#Leave to file a Supplementary Record of Appeal including Form 38A for Kiangwe Primary School polling station
The Applicants' prayer has not met the requisite threshold for such admission as set out in Hon. Mohammed Abdi Mohamad vs Ahmed Abdullahi Mohammed & others (unreported).
Costs
Costs of this application shall abide the appeal.
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.
Having considered the rival submissions of the parties, we are of the unanimous decision that the two petitions should be consolidated.
Having allowed consolidation, we are also of the opinion that as the two petitions stream from the same cause of action and the same judgment of the Court of Appeal, the use of a single set of Record of Appeal is pragmatic.
We find the Applicants’ prayer has not met the requisite threshold for such admission.
Petition No. 18 of 2018 and Petition No. 20 of 2018 are hereby consolidated with Petition No. 18 of 2018 being the lead file.
The application for leave to file and serve a Supplementary Record of Appeal including the Form 38A for Kiangwe Primary school polling station is disallowed.
Costs of this application shall abide the appeal.
Key timeline
#Practical implications
#Consolidation strategy for election appeals
When multiple parties appeal the same Court of Appeal judgment, file a consolidation application early under Rule 14. The Supreme Court favors consolidation to avoid duplicity and expedite hearings. However, be prepared to oppose or support consolidation based on your client's interests—here, the 1st Respondent opposed consolidation but the Court still granted it.
Election disputes affect business certainty
Election petitions can delay finality of leadership, impacting business contracts and regulatory approvals. This ruling shows that courts will streamline appeals to resolve disputes faster. Businesses should monitor election cases closely, as a consolidated appeal may lead to a quicker outcome, reducing uncertainty for investments in affected counties.
New evidence in election cases is rare
If you are involved in an election petition, know that the Supreme Court rarely allows new evidence after the initial appeal. You must present all key documents at the High Court and Court of Appeal stages. Trying to introduce evidence later, like IEBC's Form 38A, is likely to fail unless you meet a very strict legal test.
Frequently asked questions
#What does consolidation of election petitions mean in Kenya?+
Consolidation means two or more cases about the same election dispute are combined into one hearing. The Supreme Court did this for the Lamu Senator appeals to avoid repeating arguments and speed up the final decision. It saves time and ensures consistent rulings.
Can IEBC introduce new evidence in a Supreme Court election appeal in Kenya?+
No, not easily. The Supreme Court rejected IEBC's request to add Form 38A as new evidence because the commission did not meet the strict legal test. You must show the evidence could not have been obtained earlier and would likely change the outcome. This is very hard to prove.
What is Form 38A in Kenyan elections?+
Form 38A is the official result declaration form for a polling station in Kenya. IEBC wanted to add it as evidence in the Lamu Senator appeal, but the Supreme Court refused. The form records votes cast at a specific station and is critical in election disputes.
How does the Supreme Court decide costs in election appeals in Kenya?+
In this case, the Court ordered that costs of the application would 'abide the appeal,' meaning the final decision on who pays costs will be made when the main appeal is concluded. This is common in interlocutory rulings to avoid multiple cost assessments.
Cite this brief
#Cite this brief
Caselaw, "Independent Electoral & Boundaries Commission & another v Abdalla & 2 others", Case Analysis (2018). Petition 20 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/65/eng@2018-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.