Pius Yattani Wario v Independent Electoral & Boundaries Commission & 3 others

The Supreme Court in Outa and Munya had squarely addressed and upheld the validity of section 85A, holding that it gives effect to the constitutional value of timely resolution of electoral disputes under Article 87(1). The provision is not a limitation on the Court's Article 164(3) jurisdiction but donates the appellate jurisdiction contemplated under Article 105(3). This Court is therefore confined to matters of law only.

The trial judge heard the returning officers and agents and found the forms were signed at different times, plausibly given the movement of agents. Failure of an agent to sign is not per se a ground for nullification. Form 37A is the primary source of results, which the appellant did not challenge, and no evidence showed discrepancies between the B series and the A series results.

The petitioners' witnesses' allegations were general and were rebutted by presiding officers and party agents who witnessed the process. The trial judge, who saw and heard the witnesses, preferred one version over the other; this Court cannot re-evaluate that evidence absent perversity. Over 50% of voters in Marsabit County required assistance, and there was no evidence of instructions to coerce voters.

The IEBC itself cleared both candidates after finding the violence was caused by supporters, not the candidates personally; no objection was raised at the time; the issue was an afterthought not pleaded in the petition; and no evidence demonstrated that the incident disfranchised any voter or gave an undue advantage. An election should not be nullified absent proof that violence affected voting and the final result.

Regulation 3 addresses initial appointments, which were complied with and gazetted. The transfer was published in corrigenda a month before the election, was a course-of-business move affecting others too, and Galgalo was from Isiolo, not Marsabit. His role was confined to tallying polling-station results which he could not alter, and shared ethnicity alone cannot disqualify a returning officer without proof of bias.

The evidence showed the persons named could not be traced in the register of voters, some were registered elsewhere, and presiding officers could not lawfully allow persons with acknowledgement slips to vote. The appellant's challenge was merely an invitation to re-evaluate evidence the trial judge had considered, which this Court on a matter-of-law appeal cannot do.

The report found all ballot boxes intact save minor issues (one lid slightly broken, one missing turnout figure). The regulation requires a seal of the Commission suitable for the purpose; logo branding is not mandated, and the seals used had serial numbers identifying them as the Commission's. There was no misdirection in the judge's reading of the report.

Evidence not adduced in the petition before the court could not be tested by cross-examination and was not a matter of public notoriety for judicial notice. Having found the reference improper, the Court could not approve consideration of other aspects of the same evidence; upon exclusion, the alleged variations in the six elections remained unproven.

Costs follow the event under section 84 of the Elections Act and rule 90 of the Petition Rules. The hearing took over four months and involved travel from Nairobi to Marsabit. The appellant and 4th respondent voluntarily inherited the petition and could not complain of late joinder, since the respondents were in the petition from the beginning.

Relying on the Supreme Court's reading of Morgan v. Simpson, section 83 applies disjunctively but requires that, looking at the conduct of the whole election, the court be satisfied the election substantially breached constitutional and electoral principles. No election can be perfect; trivial breaches do not void an election. On the whole, no substantial breach was proved here.