Karanja Kabage v Joseph Kiuna Kariambegu Ng’ang’a & 2 others [2014] KECA 639 (KLR)
The bottom line
#Kenya's Court of Appeal upheld the Njoro MP's 2013 election because claims of bribery, violence and misuse of public resources were not proved beyond reasonable doubt.
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 allegations of bribery by the 1st respondent and his agents during the nomination and campaign periods were proved to the required standard
- 2.Whether the allegations of use of force or violence by the 1st respondent and his agents were proved to the required standard
- 3.Whether the allegation of use of public resources (a CDF cheque handed over at a campaign rally) was proved to the required standard
- 4.Whether an election falling short of substantial compliance with Article 81(e)(ii) can nonetheless be saved by Section 83 of the Elections Act
- 5.Whether the trial court erred in its evaluation of the evidence and in the applicable standard of proof
- 6.Whether the trial court's order on costs, including the failure to cap costs under Rule 36 of the Election Petition Rules, was erroneous
Key legal issues
#Standard of proof for election offences
Allegations of election offences must be proved beyond reasonable doubt, given the quasi-criminal consequences of debarment and possible prosecution.
The Court drew on the Supreme Court's decision in Raila Odinga v IEBC and its own decision in Moses Wetangula v Musikari Kombo, reasoning that election offences are criminal offences attracting Article 50(2)(a) protection and dire consequences including reporting to the IEBC for debarment. The general election-petition standard of satisfaction of the court, higher than balance of probability, applies to other allegations, but offences require the criminal standard.
Effect of Section 83 of the Elections Act on constitutional non-compliance
Section 83 embodies substantial compliance, but an election proved to fall qualitatively short of substantial compliance with the Constitution is invalid whether or not the result was affected.
Following Ledama Olekina v Samuel Kuntai Tunai and Morgan v Simpson, the Court held that where offences such as bribery, violence or misuse of public resources are proved, the election is vitiated notwithstanding the curative limb of Section 83. Section 83 saves only immaterial non-compliance that does not affect the result where the election was otherwise substantially in accordance with the law.
Appellate deference to trial court findings of fact
In election petition appeals, which lie on matters of law only, the Court defers to the trial court's findings of fact and credibility assessments unless they are based on no evidence, a misapprehension of evidence, or wrong principles.
Distinguishing ordinary first appeals (Selle v Associated Motor Boat Co), the Court held that the trial judge, having seen and heard the witnesses and assessed demeanor through cross-examination, is better placed to judge credibility. Interference with discretionary decisions is similarly circumscribed per Mbogo v Shah. On the evidence, the trial court's rejection of the petitioner's witnesses was well founded.
Proof of bribery
Bribery requires clear and unequivocal proof of both the prohibited act and the intent to induce a voter, and mere suspicion is insufficient.
Section 64 of the Elections Act spells out the actus reus and mens rea, both of which must be proved beyond reasonable doubt. Hearsay, rumour and unverified information given to the petitioner's witnesses, and evidence failing to link the alleged givers to the candidate, could not discharge the burden. Direct evidence and proof that the recipient was a registered voter are required.
Use of public resources under Section 68
The single incident of a CDF bursary cheque allegedly handed over by the 1st respondent at a rally was not proved; the credible evidence was that CDF officials delivered the cheque in the ordinary course.
The petitioner's star witness, Kibunja, told police days after the event that Kigiri gave him the cheque, then months later altered his account in an affidavit prepared by the petitioner's advocates. His inconsistencies, and the corroborated evidence of the CDF Assistant Manager and Kigiri, left the offence unproved beyond reasonable doubt, contrasted with the clear evidence in the Outa case.
Costs under Rule 36 of the Election Petition Rules
An election court errs in principle when it ignores Rule 36 and simply orders costs to taxation under Rule 37; the appellate court substituted its own capped costs order.
Rule 36 obliges the court at the conclusion of the petition to specify the total amount of costs payable and the persons by and to whom they shall be paid. The Court criticised the Rule as potentially arbitrary for lacking a requirement that parties be heard, but held that until revoked it must be given effect. Section 84 makes costs follow the cause, and the petitioner could not complain of costs against IEBC having joined it and pleaded inaction against it.
Legal principles established
#- Election petition appeals lie on matters of law only and the appellate court will not disturb the trial court's findings of fact unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.
- Allegations of commission of election offences must be proved beyond reasonable doubt, not merely on a balance of probability.
- An election that qualitatively falls short of substantial compliance with the Constitution is vitiated regardless of whether the result was affected; Section 83 of the Elections Act is not a cure-all.
- At the conclusion of an election petition the court must itself, under Rule 36 of the Election Petition Rules, specify the total amount of costs payable rather than remitting costs to taxation.
Court orders
#- 1.The appeal is dismissed in its entirety on the merits of the three electoral offences
- 2.The trial court's order for taxation of costs under Rule 37 of the Election Petition Rules is set aside as an error in principle
- 3.Substituted order under Rule 36 that the costs payable to the 1st respondent before the trial court, and to both the 2nd and 3rd respondents, shall not exceed shillings two million
- 4.The costs of this appeal shall not exceed shillings 1.5 million for the 1st respondent and shillings 1.5 million for both the 2nd and 3rd respondents, payable by the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nakuru
- NKR. E.P. No. 12 of 2013
- Jurisdiction invoked
- Article 164(3) of the Constitution and Section 85A of the Elections Act, 2011
Relief refused
#Nullification of the Njoro Constituency National Assembly election
None of the three alleged election offences (bribery, violence, use of public resources) was proved beyond reasonable doubt
Bar of the 1st respondent from future elections
The election offences were not proved; the debarment consequences under the Elections Act do not arise
An order leaving costs to the taxing officer (as the trial court had ordered)
Rule 36 of the Election Petition Rules requires the court itself to specify the total amount of costs at the conclusion of the petition; the trial court ignored it
Costs
The trial court's order for taxation was set aside; substituted with an order under Rule 36 that the costs payable to the 1st respondent before the trial court, and to both the 2nd and 3rd respondents, shall not exceed shillings two million, and the costs of this appeal shall not exceed shillings 1.5 million for the 1st respondent and shillings 1.5 million for both the 2nd and 3rd respondents, payable by the appellant.
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.
An election, therefore, which qualitatively falls short of substantial compliance with the Constitution, is not an election and it matters not whether the result, in quantitative terms, is or is not affected. The Section is not a cure-all prescription and in that sense, it accords with the Constitution.
In an election petition appeal, this Court will defer to the trial court’s findings of fact and will not readily disturb them. The findings will be disturbed as a matter of law, however, where they are based on no evidence, or on a misapprehension of the evidence or if the trial court is demonstrably shown to have acted on wrong principles.
Where the allegations amount to commission of election offences, however, they must be proved beyond reasonable doubt.
Having come to the conclusion on all three allegations that they were not proved to the required standard, it only remains for us to dismiss the appeal in its entirety, and we hereby dismiss it.
Accordingly, we set aside the order for taxation and substitute an order under Rule 36 that the costs payable to the first respondent before the trial court on the one hand, and both the 2nd and the 3rd Respondents on the other, shall not exceed shillings two million and the costs of this appeal shall not exceed shillings 1.5 million for the 1st Respondent and shillings 1.5 million for both 2nd and 3rd Respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ayiera v Kimwomi & 3 others (Election Petition Appeal E001 of 2023) [2023] KECA 1021 (KLR)[2023] KECA 1021 (KLR)4 Aug 2023
- David Gitau Thairu v County Government of Machakos & 2 others [2019] KEELC 3946 (KLR)[2019] KEELC 3946 (KLR)27 Mar 2019followed
- George Kinoti Ringera v Mukiria Water Project & 9 others [2019] KEELC 4266 (KLR)[2019] KEELC 4266 (KLR)1 Mar 2019applied
- Outa & another v Okello & 5 others[2014] KESC 20 (KLR)3 Jul 2014
Cite this brief
#Cite this brief
Caselaw, "Karanja Kabage v Joseph Kiuna Kariambegu Ng’ang’a & 2 others [2014] KECA 639 (KLR)", Case Analysis (2014). Civil Appeal No. 301 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/639/eng@2014-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.