Philip Osore Ogutu v Michael Onyura Aringo & 2 others [2014] KECA 811 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the Butula MP's election, ruling that minor irregularities count only if they actually change the result.
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 election of the Member of National Assembly for Butula Constituency was conducted in accordance with the principles laid down in the Constitution, the Elections Act and the Regulations, or whether non-compliance affected the result
- 2.Whether declaration of results before all party agents signed Forms 35 and 36 invalidates the results
- 3.Whether alterations, erasures and cancellations on Forms 35 and the Document Examiner's report established invalidity
- 4.Whether there was ballot stuffing after polling
- 5.Whether the allegations of electoral violence, voter bribery and treating, use of public servants in campaigns, late campaigning and dissuading voters were proved
- 6.Whether the appellant, a mere voter, should be condemned to pay costs
Key legal issues
#Effect of non-signing of Forms 35/36 by agents before declaration of results
Non-signing of declaration forms by agents does not by itself invalidate results; the petitioner had to prove the results were untruthful or inaccurate.
Regulations 79(6) and (7) expressly provide that refusal or failure of a candidate or agent to sign a declaration form shall not by itself invalidate the results announced. The election court correctly held that invalidation requires proof that the results do not reflect a true and accurate account of the ballots. The Court of Appeal endorsed that reading and rejected the appellant's broader contention that declaration before all agents sign is unlawful.
Unpleaded complaints: alterations, erasures and cancellations on Forms 35 and the Document Examiner's report
Issues not pleaded cannot found a decision; the appellant's statistical interpretation of the Document Examiner's report was not evidence.
The appellant's petition did not plead alterations, erasures or cancellations; the learned Judge nevertheless considered them and found no proof of deliberate defects affecting results. The Document Examiner did not opine on the impact on election results, and the appellant's own interpretation was not evidence tendered for cross-examination. Had the Judge decided on these unpleaded matters, a legitimate complaint would have arisen.
Standard and burden of proof for election irregularities and election offences
Petitioner must prove non-compliance and its effect on the result; criminal-type election offences must be proved beyond reasonable doubt.
Relying on the Supreme Court's decisions in Raila Odinga v IEBC, the court restated that a petitioner must prove non-conformity with electoral law and that it affected validity, and that the threshold of proof is above balance of probability though below beyond reasonable doubt, save that allegations of criminal charges linked to an election require proof beyond reasonable doubt, informed by Article 50(2)(a) and the penal consequences of election offences.
Section 83 Elections Act - substantial compliance and effect on result
Non-compliance does not void an election if it was conducted in accordance with constitutional principles or did not affect the result.
The court applied section 83 and the scrutiny/retally results, which confirmed the 1st respondent's victory with an unchanged margin of 1,387 votes despite minor discrepancies in registered votes, votes cast, rejected votes and individual candidates' tallies. The invalidation of one polling station, Buluma Township, for breach of Regulation 79(1) actually widened the winning margin, so the anomalies were not so pervasive or serious as to affect the election.
Costs in election petitions
Under section 84 of the Elections Act costs follow the cause; an election court has no discretion to spare a losing petitioner merely because he is a voter.
Section 84 obliges an election court to award costs of and incidental to a petition, and such costs follow the cause; the Civil Procedure Code discretion (section 27) is displaced. The appellant lost the petition and the appeal, and his status as a voter who was not found guilty of malpractice was insufficient to depart from the normal rule on costs.
Legal principles established
#- It is not the law that declaration of results cannot be made before all party agents or candidates have signed Forms 35 and 36; non-signing alone does not invalidate results unless the results are shown not to reflect a true and accurate account of the ballots.
- A petitioner alleging non-conformity with electoral law must prove both the non-compliance and that it affected the validity of the election.
- Allegations of electoral offences of a criminal nature, such as voter bribery and electoral violence, must be proved beyond reasonable doubt; other allegations in election petitions are proved to a standard above balance of probability.
- Under section 84 of the Elections Act an election court must award costs which follow the cause, and the losing petitioner's status as a mere voter does not displace that rule.
Court orders
#- 1.The appeal is dismissed and the decision of the learned Judge of the High Court is confirmed
- 2.The appellant pays costs of this appeal to the respondents
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 Busia
- Busia Petition No. 1 of 2013
- Jurisdiction invoked
- Appeal from a decision of the Election Court (High Court) in an election petition under the Elections Act No. 24 of 2011 (s.85A regime discussed); appeal as of right to the Court of Appeal under the Elections Act.
Relief refused
#Nullification of the election of the 1st respondent as Member of National Assembly for Butula Constituency
The election was conducted substantially in compliance with the Constitution, the Act and the Regulations and the anomalies found did not affect the result
Appellant's plea not to be condemned to costs of the appeal on account of his status as a mere voter
Under section 84 of the Elections Act costs follow the cause; the appellant's status as a voter was insufficient to depart from the normal rule
Costs
Appeal dismissed with costs; the appellant to pay costs of this appeal to the respondents (the costs below having also been awarded against him, the election court having no discretion under section 84 of the Elections Act).
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 not the law, as the appellant seemed to suggest in his pleadings and contention before us, that declaration of results of candidates cannot be made before all party agents or the candidates have signed forms 35 and or 36 as the case may be.
Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections.
So, the appellant in this case had to prove the allegations of voter bribery and treating, which are of a criminal nature, beyond reasonable doubt.
We dismiss the appeal and confirm the decision of the learned Judge of the High Court.
We therefore order that the appellant pays costs of this appeal to the respondents.
Issues in the judgment
#The caption describes an 'Application by Member of National Assembly for Butula Constituency' rather than a conventional appellant/ respondent appeal format, and the 'Appeal from a Judgment' line is grammatically incomplete; the underlying party roles are nonetheless clear from the body of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Osore Ogutu v Michael Onyura Aringo & 2 others [2014] KECA 811 (KLR)", Case Analysis (2014). Civil Appeal No. 38 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/811/eng@2014-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.