Mohamed Ali Mursal v Saadia Mohamed & 2 others [2014] KECA 737 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a Wajir election petition failed because serious allegations of bribery and irregularities were not proven to the required high standards.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What is the standard of proof for electoral offences such as bribery, undue influence and forgery in an election petition?
- 2.Whether the transfer/change of polling stations contrary to the Elections (General) Regulations, 2012 affected the election result
- 3.Whether the trial judge erred in taking judicial notice of clan dynamics in Wajir contrary to Section 63 of the Elections Act
- 4.Whether the actions of the Degodia Council of Elders amounted to undue influence
- 5.Whether the learned judge was inconsistent in her analysis of the evidence
- 6.Whether acknowledged errors, inconsistencies and irregularities in counting and tallying of votes affected the election
- 7.Whether the election of Governor, Wajir County was free and fair in accordance with the Constitution, the Elections Act and regulations
Key legal issues
#Standard of proof for electoral offences
Bribery, undue influence and forgery are electoral offences attracting penal sanctions; proof of them in an election petition must be beyond reasonable doubt.
The Court distinguished electoral irregularities from election offences defined in Part VI of the Elections Act. Because commission of such offences attracts a fine, imprisonment or both on conviction, the threshold of proof cannot be lower than the criminal standard. The trial judge's finding was accordingly unassailable and ground one failed.
Effect of transfer of polling stations
The changes to eight polling stations in Eldas constituency were administrative changes, permitted by Regulation 64(2), advertised, and did not disfranchise any voter or affect the outcome.
Voter turnout in the affected stations ranged from 77.43% to 88.17% and there was no evidence any voter failed to vote. The returning officer explained each change; banners directed voters; distances were 200m-500m. The Court distinguished Sirat, where a single transfer was found to have significantly affected the outcome, and dismissed ground two.
Judicial notice of clan dynamics and undue influence
The trial judge was entitled to take judicial notice of clan dynamics as a matter of general and local notoriety; the remark was obiter; and clan dynamics without coercion do not constitute undue influence under Section 63 of the Elections Act.
Section 60(1)(o) of the Evidence Act permits judicial notice of matters of general and local notoriety. The judge's comment came after her findings and had no bearing on them. Each voter casts an individual ballot free of coercion; clan affiliation influencing a voter's mind remains his individual choice, so the two grounds failed.
Analysis of evidence and witness credibility
The trial judge properly treated PW4 as unreliable because he reported none of his alleged observations to any authority, and there was no commonality between the ODM T-shirt incident and the polling station changes warranting identical analysis.
The two incidents were unrelated and supported by separate sets of evidence. The petitioner's own cross-examination gave the short distances between stations. The returning officer was well acquainted with the polling stations and that was unchallenged. The ground was dismissed as lacking merit or misconceived.
Effect of errors in counting, tallying and Forms 35/36 on the result
Acknowledged errors, omissions and anomalies in Forms 35 and 36 affected all candidates equally and did not substantially affect the result; the election was conducted substantially in accordance with the law.
The trial judge painstakingly scrutinised all Forms 35 county-wide and found a 17,012-vote margin. No ballot boxes were missing, all forms were signed by presiding officers or deputies, the petitioner had agents who signed results, and he never sought recount or scrutiny. Section 83 of the Elections Act bars nullification where non-compliance did not affect the result; the Court agreed with the judge's conclusion and affirmed the judgment.
Legal principles established
#- The standard of proof for electoral offences such as bribery, undue influence and forgery in an election petition is beyond reasonable doubt, being offences carrying penal sanctions.
- The standard of proof for electoral irregularities or non-compliance with written election law (other than offences under Part VI of the Elections Act) is higher than a balance of probability but lower than beyond reasonable doubt.
- A winning candidate's majority of votes does not immunise an election from nullification where irregularities substantially affect the final result.
- A court may take judicial notice of clan dynamics as matters of general and local notoriety under Section 60(1)(o) of the Evidence Act, and clan dynamics per se do not amount to undue influence.
- Under Regulation 64(2) of the Elections (General) Regulations, 2012, a presiding officer may, after consultation with the returning officer, transfer proceedings to another station or public facility in the same constituency provided the change is advertised so as to bring it to voters' notice.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garissa
- Election Petition No. 1 of 2013
- Jurisdiction invoked
- First appellate jurisdiction under the Elections Act over an appeal from the High Court sitting in an election petition (appeal against dismissal of the petition)
Relief refused
#Setting aside the judgment and decree of the High Court dismissing the election petition
The Court found the trial judge's conclusions sound on the evidence and law
Vacating the certificate issued under Section 86(1) of the Elections Act
The appeal failed in its entirety
Nullification of the election of the Governor of Wajir County and a fresh election
Errors and irregularities did not substantially affect the result of the election
Costs
Appeal dismissed with costs to the respondents (all three respondents awarded costs of the appeal)
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.
In sum, we find that this appeal has no merit and dismiss it with costs to the respondents.
The standard of proof in such instances is no doubt beyond reasonable doubt. The threshold cannot be any lower.
The standard of proof in respect of electoral irregularities or acts that amount to non-compliance with any written law relating to an election (save those expressly stated under Part VI of the Elections Act) is higher than on a balance of probability but lower than beyond any reasonable doubt.
if it turns out that the impact of those other aspects is so substantial as to affect the final result of an election, then despite one’s majority votes, that election ought to be nullified.
It is our finding that the said clan dynamics does not amount to undue influence as contemplated by Section 63 of the Elections Act, 2011.
the errors disclosed, irregularities existing and breaches do not affect the results as to make this Court invalidate the elections or alter the will of the voters of Wajir County.
Dated and delivered at Nairobi this 7th day of February, 2014.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Ali Mursal v Saadia Mohamed & 2 others [2014] KECA 737 (KLR)", Case Analysis (2014). Civil Appeal No. 229 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/737/eng@2014-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.