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Court of AppealDismissedElection Petition Appeal No. 16 of 2018· [2018] KECA 424 (KLR)

Hussein Abshiro Herin & 22 others v Independent Electral and Boundaries Commission & 2 others [2018] KECA 424 (KLR)

Court of Appeal of Kenya
31 July 2018
PWP. N. WakiSKS. Gatembu KairuJOJ. Otieno-Odek
5,659 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed 23 Mandera North voters' challenge to a 2017 MP election, ruling that irregularities must be proven to have changed the result.

What this practically means

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Executive summary

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This Court of Appeal judgment dismisses an election petition appeal brought by 23 voters of Mandera North Constituency challenging the High Court's dismissal of a petition that had sought to nullify the election of Bashir Sheikh Abdullahi as Member of the National Assembly following the 8th August 2017 general election. The original petitioner withdrew, and the appellants were substituted to continue the petition. The High Court had found the appellants' allegations to be generalised and unsupported by cogent, credible and consistent evidence, dismissing the petition with costs. On appeal, and constrained by Section 85A(1) of the Elections Act to matters of law, the Court framed the principal issue as whether the Judge erred in holding that the appellants failed to discharge their burden of proof. Applying the Supreme Court's decisions in Raila 2017 and Obado v Oyugi, the Court reaffirmed that a petitioner bears the burden of proving non-conformity with electoral law to the required standard and that such non-conformity affected the result. The Court declined to interfere with the trial Judge's findings on each ground: the failure to share a list of proposed presiding officers under Regulation 5(2) was not proved by competent witnesses; uncountersigned alterations affected only 503 votes against a margin of over 10,000 and did not vitiate the election; the missing SD cards related to results excluded from the tally; police involvement in delivering election materials was authorised by Section 105 of the Elections Act and did not compromise IEBC's independence; and the allegation about un-gazetted polling stations was not borne out by the record. The Court declined to address the movement of the tallying centre as that issue was live in a separate pending appeal. Costs followed the cause, with instruction fees capped at Kshs. 1,500,000 for the respondents. The decision binds subordinate courts and election courts on burden of proof, appellate deference to election court findings of fact, and the treatment of procedural irregularities.

Key legal issues

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01

Burden and standard of proof in election petitions

Holding

The petitioner bears the legal and evidential burden of proving non-conformity with electoral law and that such non-conformity affected the result; the burden shifts to the respondent only once sufficient evidence warranting impugning the election is adduced.

Reasoning

The Court applied the Supreme Court's pronouncements in Raila 2017, holding that a petitioner must adduce cogent and credible evidence 'to the satisfaction of the court', and that although the evidential burden may shift during trial, the legal burden remains on the petitioner throughout. Failure to discharge that burden is fatal to a petition.

p. 4
02

Deference to findings of fact by the election court

Holding

An appellate court sitting on an election appeal under Section 85A of the Elections Act interferes only with findings of fact that were arrived at without evidence or which are perverse.

Reasoning

Counsel for the respondents invoked Section 85A(1) limiting the appeal to matters of law, and the Court adopted the test in Damodar Lal vs Sohan Devi: findings are perverse only if arrived at by ignoring or excluding relevant material, relying on inadmissible material, or defying logic. Since the Judge's findings were demonstrably supported by evidence, the Court had no basis to interfere.

p. 5
03

Effect of uncountersigned alterations on statutory forms

Holding

Uncountersigned alterations do not by themselves invalidate an election; the purpose of countersigning is to authenticate the amendment, and absent evidence of improper motive, an altered document is as genuine as an unamended one.

Reasoning

Following the Supreme Court's reversal of the Court of Appeal position in Munya, procedural irregularities occasioned by human imperfection are not enough to vitiate an election. Scrutiny of the SD cards ascertained only 503 votes were affected against a margin of over 10,000 votes, so the result could not have been affected.

p. 6
04

Independence of IEBC and involvement of the police

Holding

Deployment of police to provide security and escort for election materials does not amount to an abdication by IEBC of its duty or compromise the independence of the electoral body.

Reasoning

Section 105 of the Elections Act imposes a duty on police officers to maintain law and order necessary for the conduct of an election and to support the Commission. Given evidence of chaos outside IEBC offices, IEBC was entitled to rely on police for security, and there was no complaint that any polling station lacked materials.

p. 7
05

Costs in election petitions

Holding

Under Section 84 of the Elections Act costs follow the cause; an election court dismissing a petition is entitled to award costs against the losing party, and an appellate court will not interfere absent misdirection in the exercise of that discretion.

Reasoning

The Court held the power to award costs is discretionary and, applying Mercy Kirito Mutegi, interference requires misdirection or misapprehension of law. The irregularities alluded to did not affect the result or the outcome of the petition, so the Judge was entitled to award costs against the appellants and to cap instruction fees.

p. 7

Legal principles established

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  • A petitioner who seeks nullification of an election bears the burden of proving non-conformity or irregularities with cogent and credible evidence, and must also prove that any non-conformity affected the result of the election.
  • An appellate court will not interfere with findings of fact by an election court unless those findings are unsupported by evidence or perverse.
  • Alterations on election results forms that are not countersigned do not, without more, vitiate an election where the alterations are explained and the result is unaffected.
  • The police have a statutory duty under Section 105 of the Elections Act to provide support to IEBC in the conduct of elections, and reliance on police for security does not compromise the independence of IEBC.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents
  2. 2.Instruction fees capped at Kshs. 1,500,000.00 in favour of the 1st and 2nd respondents
  3. 3.Instruction fees capped at Kshs. 1,500,000.00 for the 3rd respondent
On appeal from
High Court of Kenya at Nairobi
Election Petition No. 7 of 2007 [as printed; petition concerned the 2017 general election]
Jurisdiction invoked
Section 85A(1) of the Elections Act (appeals from election court limited to matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hussein Abshiro Herin & 22 others v Independent Electral and Boundaries Commission & 2 others [2018] KECA 424 (KLR)", Case Analysis (2018). Election Petition Appeal No. 16 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/424/eng@2018-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.