Ferdinand Ndung’u Waititu v The Independent Electoral & Boundaries Commission (iebc) & 8 others

The majority reasoned that the Elections Act sets no procedure for filing election appeals; Rule 35 imports the Court of Appeal Rules without qualification, including Rule 82's certificate-of-delay proviso. Excluding certified days does not enlarge the statutory period but prevents the court's own delay defeating the right of appeal, consistent with Articles 48 and 50. The majority distinguished Maitha v Said, Laboso and Kimanzi because those cases were decided under a repealed Act that did not apply the Court of Appeal Rules, and in Kimanzi there was no certificate of delay.

Kiage JA held there is no basis in the Constitution, the Elections Act or the Petition Rules for restricting cross-examination in electoral disputes to matters in affidavits; section 146(2) of the Evidence Act permits questions on any relevant and admissible matter. Documents deposited under Rule 21 are not automatically evidence, but the judge had discretionary power to admit them for cross-examination and wrongly refused. Citing R v Ndawd and Onwuka v Owolewa, he held that denial of cross-examination causes prejudice that cannot be discounted. G.B.M. Kariuki JA agreed that curtailment of the Returning Officer's cross-examination impeded a fair hearing.

Kiage JA, drawing on his dissent in Salat and the holding in Peter Gichuki King'ara, held that where irregularities and admitted errors are alleged, scrutiny is the mechanism to verify whether the will of the voters prevailed, and its denial left the judge without an evidential basis to conclude errors were minor. Warsame JA, dissenting, held scrutiny is discretionary, requires a laid basis, is a question of fact outside section 85A, and that the suo motu scrutiny cured any misdirection since the judge dealt with the discrepancies found.

Regulation 87(3) imposes the same duty of accuracy on the county returning officer as Regulation 87(2) on constituency returning officers, so the county Form 36 could be impugned. Stare decisis required the election court to follow or distinguish Magara, which involved a narrow margin and glaring irregularities absent here. On proof, the legal burden rests on the petitioner throughout but the evidential burden shifts; the appropriate standard is higher than a balance of probabilities for electoral offences but below beyond reasonable doubt, and a petitioner need only meet a prima facie standard to trigger the shift.

Warsame JA found the DVD unverifiable, unauthorised and a collateral attack on judicial dignity; the judge had made specific findings inconsistent with the alleged oral statement, and the slip rule would cure any inadvertent error. The allegation was raised over three months late without seeking the judge's response.

Kiage JA accepted that runaway costs against petitioners can deter the investigation of truth, and held the complaint would only be ripe once a bill of costs was drawn and taxed in a manner violative of the respondents' rights.