Mohamed Mahamud Ali v The Independent Electoral & Boundaries Commission & 2 others
The bottom line
#Kenya's Court of Appeal upheld the Changamwe MP's 2017 election, ruling that proving voting irregularities is not enough—you must show they changed the result.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's jurisdiction on election petition appeals
The Court is confined to matters of law under section 85A(1) of the Elections Act; it may not wade into the evidence to make its own factual determinations, though poor drafting of grounds of appeal should not shut out genuine grounds of law
The Court held that its engagement with facts is limited to background and context and to verifying whether the trial judge's conclusions rest on the evidence or are perverse. Although the memorandum of appeal alleged errors of fact, the Court declined to strike it out, finding genuine matters of law raised, guided by Wavinya Ndeti. The Court expressly resisted counsel's invitations to reassess witness credibility.
Burden of proof and adverse inferences
The legal burden remains on the petitioner throughout; failure by a respondent to call witnesses does not shift the burden or warrant an adverse inference that would allow the petition
Relying on Raila Odinga 2013 and 2017, Ranguma, and John Munuve Mati, the Court held that the onus probandi rests on the person asserting a fact; drawing an adverse inference against a respondent with no legal burden would be wrong in law. The petitioner had to present cogent evidence establishing a prima facie case that the election was not conducted in accordance with the law.
Effect of irregularities on election validity
Irregularities, even if proved, cannot nullify an election unless shown to have affected the result; isolated malpractices by polling clerks or improper influence of a single voter are insufficient
Applying Gatirau Peter Munya and the Raila Odinga 2013 two-limb test, the Court found a lack of nexus between the alleged breaches and the election result. Even disregarding the affected votes, the margin between the 3rd respondent and the runner-up remained wide. Echoing Magara v Nyamweya, courts endeavour to preserve elections where the result was unaffected by the breaches.
Disregard of polling station results where votes cast exceed voters who turned up
The trial court misdirected itself by holding that only the excess votes, rather than the results of the entire polling station, should be disregarded under Regulation 83(1)(c), though this error did not vitiate the election
The Court accepted the appellant's reading of Regulation 83(1)(c): the results of the entire polling station ought to have been disregarded where votes cast exceeded the number of voters who turned up. However, the Court deferred consideration of the effect of this misdirection to its overall analysis of whether the irregularities were of sufficient magnitude to invalidate the election, which they were not.
Award of costs capped at KShs. 8,000,000
The costs award was excessive and had to be interfered with; costs follow the event but should not be a scarecrow to chase away deserving litigants
Relying on Albeity Hassan Abdalla, Kaloki, and Owino Paul Ongili Babu, the Court held that KShs. 8,000,000 was simply astronomical. It reduced the 3rd respondent's costs to Kshs. 1,500,000 at trial and Kshs. 500,000 on appeal, and denied the 1st and 2nd respondents any costs because their conduct in the election left much to be desired and necessitated the petition.
Constitutionality of section 83 of the Elections Act raised for the first time on appeal
The Court declined to pronounce on the constitutionality of section 83 because the issue was raised for the first time on appeal without deliberation before the trial court
The Court held that the High Court, as the first port of call in interpreting the Constitution, ought to have been accorded the opportunity to pronounce itself on the issue. The appellant's challenge to the second limb of section 83 as offering excuses for illegalities and irregularities was therefore not entertained, being sprung on the Court at the appellate stage.
Legal principles established
#- Appeals to the Court of Appeal in election petitions are confined to matters of law only; the appellate court may examine trial findings only to gauge whether they are based on the evidence or are perverse, and may not re-evaluate facts or witness credibility
- The legal burden of proof in an election petition rests on the petitioner at all times, and an adverse inference should not ordinarily be drawn simply because a respondent chooses not to call witnesses
- A petitioner must prove not only non-compliance with electoral law but that the non-compliance affected the validity of the election; courts will preserve an election where the breaches did not affect the result
- A mere difference in votes cast between different elective seats cannot, without cogent evidence, be an inference of electoral malpractice; each election result must be challenged on its own ground
- Final results as reflected in Forms 35B supersede provisional electronic results transmitted to the online portal
Court orders
#- 1.The appellant's appeal fails and is dismissed, and the judgment of the High Court dated 28th February 2018 is upheld
- 2.The appellant shall bear the costs of the 3rd respondent incurred before the election court, to be taxed, but not to exceed Kshs. 1,500,000
- 3.The appellant shall bear the costs of the 3rd respondent in this appeal, to be taxed, but not to exceed Kshs. 500,000
- 4.The 1st and 2nd respondents are not entitled to any costs
- On appeal from
- High Court of Kenya at Mombasa (Election Court)
- Mombasa High Court Election Petition No. 7 of 2017
- Jurisdiction invoked
- Section 85A(1) of the Elections Act, No. 24 of 2011 (appeal from the High Court in an election petition concerning membership of the National Assembly lies to the Court of Appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Mahamud Ali v The Independent Electoral & Boundaries Commission & 2 others", Case Analysis (2018). Election Petition Appeal No. 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/409/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.