Omar & another v Mbuzi & another
The bottom line
#Kenya's Court of Appeal confirmed that a wrong party symbol on ballot papers is a serious defect that invalidates an election, not a minor error courts can overlook.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ballot papers for the 27th December 2002 Magarini Constituency parliamentary elections were legally valid, and whether the first respondent's resignation/withdrawal letter could validate them
- 2.What was the effect of the postponement of the election and its announcement in the media, followed by reinstatement of the election
- 3.What was the effect of the late arrival of ballot boxes at polling stations on the parliamentary elections
Key legal issues
#Validity of ballot papers bearing a wrong party symbol
The ballot papers were invalid; the wrong symbol (a ram instead of a pot) misrepresented the first respondent's sponsoring party and went to the foundation of a free and fair election.
The court held a party symbol is an integral part of the election, identifying the candidate with the sponsoring party and guiding voters. A ballot paper that misleads rather than guides voters is the most serious defect. The election therefore did not comply with the written law or the constitutional duty to promote free and fair elections, and the defect could not be ignored or cured.
Effect of the purported resignation/withdrawal letter of 26th December 2002
The letter was a withdrawal, not a resignation; being written after nominations and unattested, it had no legal effect and could not cure the defective ballot papers.
Resignation is available only to elected Members of Parliament, not candidates. Regulation 19 permits withdrawal only before the close of nominations and requires attestation by another person. The letter satisfied neither condition, and the candidate's name remained on the ballot papers and in the results, demonstrating it had no effect on his candidacy.
Effect of postponement and reinstatement of the election announced in the media
The postponement and its announcement, followed by reinstatement, seriously affected the continued election and made it a flawed exercise; the postponement should have been sustained.
Voters were told the night before polling that the election was postponed; many would not turn up, and those who heard only the postponement but not the reinstatement were disenfranchised. Turnout was under 50% of registered voters. The confused announcements compounded the defect and affected the freeness and fairness of the election.
Effect of late arrival of ballot boxes
The inordinate delay would ordinarily have been covered by section 28, but because it accompanied and confirmed the confused postponement announcements, it affected the free and fair election.
The court accepted that lateness alone is minor non-compliance saved by section 28. Here, however, the delay on polling day tended to confirm the announced postponement, deepening voter confusion; some voters returned after 3.30 pm while most had left. The delay thus contributed to the flawed exercise rather than standing alone.
Allegations of violence, bribery and other electoral irregularities
Not proved to the standard required in law; the trial judge properly dismissed them and rightly declined to report any election offence to the Speaker.
The court independently evaluated the evidence and found the complaints of intimidation, violence, bribery, cheating, unsealed ballot boxes and campaigning within polling stations were not properly proved at the hearing. The trial judge's reasons for dismissal were proper, and her decision not to report offences to the Speaker was plainly right.
Legal principles established
#- A party symbol is an integral part of a parliamentary election; a ballot paper that misrepresents a candidate's party symbol misleads voters and vitiates the election.
- A candidate may withdraw but cannot resign from candidature; withdrawal is valid only before the close of nominations and must be attested by another person.
- The saving provision (section 28 of cap 7) applies only to minor non-compliance, not to non-compliance with a fundamental part of the election law that adversely affects the election.
- On a first appeal the Court of Appeal must analyze and evaluate the evidence afresh and reach its own independent conclusion, allowing for the trial court's advantage of seeing witnesses.
Court orders
#- 1.Appeal dismissed
- 2.Only the appellants to pay the costs of the appeal and the costs of the petition in the Superior Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Election Petition No. 1 of 2003
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the applicable appellate statute (not expressly cited in the judgment)
Relief refused
#Appellants' prayer to treat the withdrawal letter as a valid resignation under section 44(4) of the Constitution allowing the election to stand
A candidate can only withdraw, not resign, and withdrawal after nomination and without attestation is of no effect under regulation 19
Appellants' submission that the wrong symbol and other irregularities did not affect the result under section 28 of cap 7
The defect went to the foundation of a free and fair election and section 28 covers only minor non-compliance
Second respondent's request to be relieved of costs
Rejected; costs were nonetheless shifted to the appellants only, so this request effectively succeeded
Costs
Only the appellants will pay the costs of this appeal and the costs of the petition in the Superior Court.
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.
We cannot, on our part, conceive a more important defect in an election than a ballot paper that, instead of guiding voters, misleads them.
a candidate to an election can only withdraw from being a candidate and cannot resign from being a candidate, as being a candidate is not a position one holds from which he can resign
We think section 28 is dealing with minor non-compliance with law such as opening a polling station a few minutes later than the time scheduled in the Regulations and/or Rules but it certainly cannot be used to cover up non-compliance with a fundamental part of the written law that would, and did affect, the elections adversely.
In view of the foregoing, we order that only the appellants will pay the costs of this appeal and the costs of the petition in the Superior Court. Judgment accordingly.
We have, on our own as we must do, analyzed the evidence on record afresh in details and having done so, we have come to our own independent conclusion that the petition that was before the Superior Court was properly allowed. We have no alternative but to dismiss this appeal. It is dismissed.
Issues in the judgment
#Wrong year in the judgment text regarding the announcement of continuance
Inconsistent reference to the constitutional provision on promoting free and fair elections
Delivery clause states Nairobi although the appeal is at Mombasa
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar & another v Mbuzi & another", Case Analysis (2006). Civil Appeal 50 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/387/eng@2006-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.