Richard Nchapi Leiyagu v The Independent Electoral & Boundaries Commission & 2 others

The Court held that Article 81 obliges IEBC to deliver free, fair and impartial elections and to be seen to do so, but the principle must be interpreted realistically. Clan membership alone cannot disqualify officials in a multi-clan constituency. As to qualifications, the Constitution protects marginalized communities, and importing officials wholesale from other regions would undermine the national values of inclusiveness and participation. IEBC was justified recruiting literate, honest locals without degrees or diplomas given the constituency's realities.

The Court accepted the irregularity as established but applied the principle that elections should not be annulled for transgressions committed without corrupt motive where the result could not have been affected. The box was opened in good faith, in the presence and with the concurrence of all parties and agents, to reconcile figures in Form 35. No allegation was made that votes were added or removed. Although the 3rd respondent argued the issue was unpleaded, the parties had canvassed it without objection and no prejudice was shown.

Regulation 72 permits an assisted voter to choose an assistant who cannot be a candidate or agent; failing that, the presiding officer may assist in the presence of all agents. The trial judge preferred the unshaken and corroborated evidence of the presiding officer over PW12 and PW13, and no complaint was lodged at the polling station or recorded on Form 35, which the agents signed. The Court deprecated the trial judge's speculation about other polling stations but held that speculation alone could not found nullification.

Bribery and undue influence under sections 63(1) and 64(1) of the Elections Act are criminal offences attracting fines and imprisonment, requiring proof beyond reasonable doubt. The trial judge found the appellant's witnesses contradictory and unworthy of belief, and preferred the rebuttal evidence. Further, the Court of Appeal's jurisdiction under section 85A is confined to issues of law, so factual findings of the election court stand unless no reasonable tribunal could have reached them. The Court found a misapprehension in asking it to re-evaluate evidence.

Rule 34 of the Elections (Parliamentary and County Elections) Petition Rules, 2013 empowers the election court to cap costs, an innovation designed to rein in astronomical awards that threatened to discourage poor citizens from questioning elections. An appellate court will not interfere with costs discretion absent a wrong principle or irrelevant considerations. Here the learned judge overlooked that the reinstatement appeal's costs were to abide the petition's outcome, justifying interference.