Moses Masika Wetang’ula v Musikari Nazi Kombo & 2 others [2014] KECA 734 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that one proven act of bribery by a candidate personally is enough to cancel their election, regardless of the vote margin.
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 appellant was guilty of the election offences of bribery under Section 64 and treating under Section 62 of the Elections Act
- 2.Whether the Bungoma County Senatorial election was conducted substantially in accordance with the principles laid down in the Constitution and the written law governing that election
- 3.Whether the irregularities allegedly committed in the conduct of the election affected the result of the election
- 4.Whether a single proved incident of bribery by a candidate is sufficient to annul an election
- 5.Whether the election court properly delegated the inquiry and scrutiny to the Deputy Registrar
Key legal issues
#Whether the appellant committed the election offences of bribery and treating
Yes. The appellant gave Kshs. 260,000/= to Pastors and Bishops at the Red Cross meeting at Kanduyi on 22nd February 2013 to mobilize votes for him, satisfying the ingredients of both treating under Section 62 and bribery under Section 64 of the Elections Act, proved beyond reasonable doubt despite minor contradictions among the petitioner's witnesses.
The Court re-evaluated the evidence of PW4, PW6 and PW7 and the appellant's own testimony. Minor discrepancies among witnesses describing the same incident are natural and did not destroy credibility. All witnesses placed the appellant at the meeting as donor or one of the donors of Kshs. 260,000/= whose purpose was to induce the church leaders to mobilize votes. Article 50(2)(a) and the dire consequences of election offences justify the beyond-reasonable-doubt standard, which the Court found met.
Effect of a single proved incident of corruption by a candidate on the validity of the election
A single act of corruption by the candidate himself vitiates the election, regardless of whether it affected the numerical outcome, because it impeaches the integrity the Constitution demands of State Officers.
Distinguishing corruption by agents, which requires a consistent pattern implying the candidate's sanction, the Court held that corruption by the candidate is condemned for what it reveals about his mental attitude and character. Chapter Six of the Constitution requires State Officers to be persons of integrity; a person who bribes lacks integrity, and his election offends the constitutional principle of free and fair elections. The Nigerian Fayemi authority relied on by the appellant was distinguished as concerning violence and multiple malpractices, not bribery.
Whether the irregularities in the conduct of the election affected its result
No. Neither the quantitative nor the qualitative irregularities affected the result: the margin of 17,839 votes could not be reversed by the isolated errors, and the documentary anomalies did not render the election a sham.
The Court applied the quantitative test (effect on the numerical result) and the qualitative test (integrity of the process). The only clear case of double registration and voting involved one voter; the single quantitative error on Forms 35 concerned one polling station; the arithmetic error on Forms 36 was admitted and corrected, still leaving the appellant a majority of 17,839. The handwritten multiple copies of Forms 35, unsigned or uncountersigned in immaterial respects, were inadvertent errors excused by Section 83 and did not prevent the election from being 'a true election'.
Whether the Deputy Registrar had jurisdiction to conduct the inquiry and scrutiny
Yes. Delegation of an inquiry, scrutiny or recount to the Deputy Registrar under the superintendence of the election court is proper and does not offend Article 105 of the Constitution.
The Court reasoned that a judge cannot personally recount votes without imperilling the constitutional timelines for disposal of election petitions. So long as the exercise is conducted in the presence of the parties' representatives and under the court's directions and supervision, it is as good as one conducted by the court itself. The contention that the inquiry was biased was also rejected as the parties fully participated without opposing the order of scrutiny.
Standard of proof and burden in election petitions
The burden lies on the petitioner, and the general standard is the satisfaction of the court, higher than balance of probabilities but below beyond reasonable doubt; only allegations of election offences attract the beyond-reasonable-doubt standard.
Relying on Section 107 of the Evidence Act and the Supreme Court decisions in Raila Odinga v IEBC and Joho v Nyange, the Court reaffirmed that the petitioner who seeks nullification bears the burden. Because election offences are criminal offences attracting reporting, disqualification and potential prosecution under Article 50(2)(a), allegations of such offences must be proved beyond reasonable doubt.
Legal principles established
#- Any election not conducted substantially in accordance with the electoral law of that election is null and void; to void an election on non-compliance, the petitioner must prove the non-compliance impugned the integrity of the election.
- The general standard of proof in election petitions is higher than a balance of probabilities but below beyond reasonable doubt; allegations of commission of election offences must be proved beyond reasonable doubt.
- Proof of a single act of corruption committed by the candidate himself is sufficient to void an election, because it impeaches the candidate's integrity; the requirement of widespread corrupt acts applies only to acts of the candidate's agents.
- Section 83 of the Elections Act imposes both a quantitative and a qualitative test: irregularities void an election either if they affect the numerical result or if their cumulative effect impeaches the integrity of the election or renders the result indeterminate.
- An election court may properly direct the Deputy Registrar or any court officer to conduct an inquiry, scrutiny or recount, provided it is done in the presence of the parties' representatives, in accordance with the directions and under the superintendence of the election court.
- An election court that finds an election offence proved against a respondent who was afforded an opportunity to defend himself is obliged to report him under Section 87(1) of the Elections Act without waiting for a separate criminal trial; the petition itself is sufficient notice of the offences alleged.
Court orders
#- 1.Appeal dismissed on the ground that the appellant committed the election offences of bribery and treating at the Red Cross meeting at Kanduyi on 22nd February 2013, which vitiated the election
- 2.Costs awarded to the 1st respondent against the appellant and the 2nd and 3rd respondents jointly and severally, capped at Kenya Shillings four million (Kshs.4,000,000/=)
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 Bungoma
- Election Petition No. 3 of 2013
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals from the High Court election court to the Court of Appeal on points of law)
Relief refused
#Appellant's prayer to allow the appeal and reverse the nullification of his election as Bungoma Senator
The offences of bribery and treating were proved beyond reasonable doubt against the appellant personally, and proof of commission of any election offence by the candidate himself vitiates the election
Reporting the appellant to the DPP, IEBC and Speaker under Section 87(1) of the Elections Act
There was no cross-appeal and the issue of reporting the appellant was not canvassed before the Court
Costs
Costs to the 1st respondent against the appellant and the 2nd and 3rd respondents jointly and severally, capped at Kenya Shillings four million (Kshs.4,000,000/=).
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.
It is settled law that any election that is not conducted substantially in accordance with the electoral law of that election is null and void.
Section 83 of the Elections Act requires the validity of the result of an election to be gauged upon both quantitative and qualitative tests.
Proof of one act or incident of corruption therefore suffices to demonstrate that one is a corrupt person or one is lacking in integrity.
we hold that there is nothing wrong with the election court directing the Deputy Registrar or any officer of the court to carry out an inquiry, scrutiny or recount.
That, in our view, satisfied the ingredients of the two offences of treating and bribery and we therefore find that those offences were proved beyond reasonable doubt.
we dismiss this appeal with costs to the 1st respondent against the appellant and the 2nd and 3rd respondents jointly and severally, capped at Kenya Shillings four million (Kshs.4,000,000/=).
Issues in the judgment
#Internal inconsistency in the sums attributed to the appellant and Hon. Khangati at the Red Cross meeting: PW4 is first recorded as claiming the appellant contributed Kshs. 140,000/= and Hon. Khangati Kshs. 120,000/=, but the narrative of PW4's court testimony records the appellant as giving Kshs. 160,000/= and Hon. Khangati Kshs. 140,000/=, though the total in both accounts is stated as Kshs. 260,000/=.
The Court records the International Convention on Civil and Political Rights as '1999' although it also records that Kenya ratified that Convention on 1st March 1972, an internally inconsistent date.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Masika Wetang’ula v Musikari Nazi Kombo & 2 others [2014] KECA 734 (KLR)", Case Analysis (2014). Civil Appeal No. 43 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/734/eng@2014-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.