Albeity Hassan Abdalla v Independent Electoral and Boundaries Commission (IEBC), Mohammed Adan Ali, Anuar Loitiptip & Wiper Democratic Movement Party [2018] KECA 449 (KLR)
The bottom line
#Kenya's Court of Appeal nullified the Lamu Senate election after over-voting at one polling station wiped out the winner's 58-vote margin, ordering a fresh election.
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 trial Judge sitting as an election court had jurisdiction to hear and determine the petition concerning allegations that the appellant was denied an opportunity to appoint agents
- 2.Whether the learned Judge misdirected herself and failed to appreciate that the appellant had demonstrated sufficient grounds in his pleadings, affidavits and annexed documents to warrant an order of scrutiny, recount and production of documents, considering the margin of 58 votes
- 3.Whether the Judge's conclusion that the allegation that votes cast at Kiangwe Primary School polling station exceeded the number of registered voters was not pleaded and could not be considered was so erroneous and perverse as to indicate that the 1st and 2nd respondents failed in their constitutional mandate to conduct fair, free and verifiable elections
- 4.Whether the trial Judge exercised her discretion judiciously by declining to award costs
Key legal issues
#Jurisdiction over the dispute regarding appointment of party agents
The election court lacked jurisdiction over the agents dispute; the right to nominate an agent vests primarily in the political party, and the resulting internal wrangle was for the PPDT
Under Section 30 of the Elections Act, a political party appoints one agent for its candidates, and a candidate may appoint his own only where the party fails to do so. The 4th respondent duly appointed agents; the appellant's complaint was that those agents favoured the Women Representative candidate. That dispute was between a member and his political party, squarely within Section 40(1)(b) of the Political Parties Act. Where the law provides a resolution mechanism, it must be strictly followed.
Whether the appellant established a basis for scrutiny and recount
Yes, at least in respect of the nine named polling stations with unsigned Forms 38A, the arrested polling clerk incident, and non-tallying results, especially given the 58-vote margin
A party seeking scrutiny must establish a basis through pleadings, affidavits or evidence. The appellant pleaded specific polling stations with unsigned forms 38A, discrepancies between Forms 38A, 38B and 38C, and an uncontroverted allegation that a polling clerk was arrested for allowing 16 persons to vote without KIEMS verification. The slim 58-vote margin made these allegations material. The trial Judge's dismissal of the scrutiny prayer as a fishing expedition overlooked this material.
The Kiangwe Primary School over-voting (216 votes cast against 213 registered voters)
The trial Judge erred in holding the issue unpleaded; the Form 38C was pleaded by the respondents themselves in reply, and the returning officer was bound under Regulation 83(1)(b) to disregard those results
Although the specific ground was not raised by the appellant, the Form 38C disclosing the over-voting was annexed to the respondents' reply, making it a matter on the pleadings. It was incumbent on the 1st and 2nd respondents to explain why the results were not disregarded under Regulation 83(1)(b). Removing the Kiangwe results eliminated the winner's 58-vote margin, demonstrating substantial non-compliance that affected the result.
Whether the irregularities cumulatively warranted nullification under Section 83 of the Elections Act
Yes; substantial non-compliance rendered the election not free and fair, and the 3rd respondent was not validly elected
Applying the Supreme Court's test that an election is invalidated where irregularities are of a magnitude affecting the result, the court found that taking away the Kiangwe results alone erased the 58-vote margin. The cumulative effect of the over-voting, unsigned forms and uncontroverted malpractice allegations could not be said not to substantively affect the outcome.
Costs and the respondents' cross-appeals on Section 84 of the Elections Act
Costs followed the event in favour of the appellant, with caps fixed against each respondent
The court affirmed the general principle that costs follow the event but held costs should not be used to deter deserving litigants. The appellant, having succeeded, was awarded costs of the appeal and of the High Court proceedings, capped at specified sums against the 1st and 2nd respondents and the 3rd respondent respectively.
Legal principles established
#- Scrutiny and recount do not lie as of course; the party seeking them must establish a basis to the satisfaction of the election court
- The absence of a candidate's agents, standing alone, cannot invalidate an otherwise well-conducted election
- Internal disputes between a candidate and his political party over the appointment of party agents fall within the jurisdiction of the Political Parties Disputes Tribunal, not the election court
- A returning officer must disregard results of a polling station where total valid votes exceed the number of registered voters; an allegation of over-voting is of such gravity that an election court will not treat it lightly
- A matter appearing in a pleading filed by a respondent is on the record before the election court, and any party may rely on it even without cross-examination on it
Court orders
#- 1.The appellant's appeal is allowed and the judgment and order of the High Court given on 9th February 2018 is set aside
- 2.Declaration that the 3rd respondent was not validly declared as Senator for Lamu County
- 3.IEBC directed to organize and conduct a fresh election for the position of Senator Lamu County in conformity with the Constitution, the Elections Act and the relevant Regulations
- 4.The certificate issued by the Election Court pursuant to Section 86 of the Elections Act is set aside and substituted with a Certificate that the 3rd respondent was not validly declared as having been elected as senator during the elections held on 8th August 2017
- 5.The 1st and 2nd respondents shall pay the appellant's costs incurred before the election court, to be taxed, but not to exceed Kshs.1,500,000
- 6.The 3rd respondent shall pay the appellant's costs incurred before the election court, to be taxed, but not to exceed Kshs.500,000
- 7.The 1st and 2nd respondents shall pay the appellant's costs of the appeal, to be taxed, but not to exceed Kshs.1,000,000
- 8.The 3rd respondent shall pay the appellant's costs of the appeal, to be taxed, but not to exceed Kshs.500,000
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Malindi Election Petition No. 8 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 Senate lies to the Court of Appeal on matters of law only)
Relief refused
#Determination of the appellant's grievance over the appointment of party agents by the High Court
The dispute between the candidate and his political party over agent appointment fell within the jurisdiction of the Political Parties Disputes Tribunal, and the court endorsed the trial Judge on this point
Scrutiny and recount in respect of the approximately 50 polling stations identified under paragraph 27(b) of the petition relating to the agents issue
The court declined to concern itself with allegations touching on the appointment of agents, having ruled that aspect was for the PPDT
The respondents' cross-appeals seeking an order that costs of the petition be awarded to them under Section 84 of the Elections Act
The court awarded costs to the appellant instead, capping them against each respondent
Costs
The appellant was awarded the costs of the appeal and of the proceedings in the High Court, taxed but capped: against the 1st and 2nd respondents, Kshs.1,500,000 for the election court and Kshs.1,000,000 for the appeal; against the 3rd respondent, Kshs.500,000 for the election court and Kshs.500,000 for 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.
A. The appellant’s appeal is allowed and the judgment and order of the High Court given on 9 th February 2018 is hereby set aside.
B. It is hereby declared that the 3rd respondent was not validly declared as Senator for Lamu County.
C. IEBC is hereby directed to organize and conduct a fresh election for the position of Senator Lamu County in conformity with the Constitution the Elections Act and the relevant Regulations.
It is very clear that taking away the entire results of Kiangwe Primary School polling station from the results of Lamu Senatorial seat, the difference of 58 votes disappears.
Moreover, absence of a candidate’s agents alone without more cannot invalidate an otherwise well conducted election.
… the right to scrutiny and recount do not lie as a matter of course. The party seeking a recount or scrutiny of votes in an election petition is to establish a basis for such a request, to the satisfaction of the trial judge or magistrate …
[T]he allegation that the total number of votes cast exceeds the number of registered voters is such a serious one, that an election court would not treat it lightly.
No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.
Issues in the judgment
#The text of the judgment contains an apparently misplaced registry certification line and garbled passages within paragraphs [34]-[35], corrupting the quotation of the trial Judge's findings
The date of the appellant's three applications is given as 27th September, 2017 in paragraph [8] but later referred to as 27th November, 2017 in the appellant's submissions
The statement of the third issue for determination in paragraph [27] is corrupted and does not read as a coherent sentence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Albeity Hassan Abdalla v Independent Electoral and Boundaries Commission (IEBC), Mohammed Adan Ali, Anuar Loitiptip & Wiper Democratic Movement Party [2018] KECA 449 (KLR)", Case Analysis (2018). Election Petition Appeal No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/449/eng@2018-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.