Owino Paul Ongili Babu v Francis Wambugu Mureithi & 2 others [2018] KECA 554 (KLR)
The bottom line
#Kenya's Court of Appeal restored Babu Owino's Embakasi East seat, ruling that tallying errors must actually change the election result before a win is nullified.
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 1st respondent's application to strike out the record of appeal for non-compliance with the Court of Appeal (Election Petition) Rules, 2017 should succeed
- 2.Whether the trial judge erred in finding that variation of results between Forms 35A and Form 35B justified nullification of the election
- 3.Whether failure to stamp Forms 35A with the IEBC stamp invalidated the results (cross-appeal)
- 4.Whether the trial judge erred in failing to interrogate the countersigning of altered Forms 35A (cross-appeal)
- 5.Whether the violence at Soweto Social Hall Polling Centre affected the result of the election
- 6.Whether the appellant coerced and intimidated the Constituency Returning Officer
- 7.Whether the trial judge erred in refusing to admit the 1st respondent's video evidence (cross-appeal)
- 8.Whether criminal charges against two presiding officers were conclusive evidence of electoral malpractice (cross-appeal)
Key legal issues
#Whether a notice of appeal in an election petition appeal must be lodged in the Court of Appeal registry, and the effect of non-compliance with the Election Petition Rules
The notice of appeal was improperly filed in the High Court and the record was not elegantly compiled, but the non-compliance was curable; the Court exercised its discretion under rule 5, Article 159(2)(d) and Sections 3A and 3B of the Appellate Jurisdiction Act to deem the appeal properly filed as no prejudice was caused.
Rule 5 of the Election Petition Rules makes the effect of non-compliance a matter for the Court's discretion, subject to Article 159(2)(d) of the Constitution on substantive justice. The notice was served within the stipulated period and the record was served within five days, so the 1st respondent suffered no prejudice. Section 72 of the Interpretation and General Provisions Act also provides that a document in the prescribed form is not void for mere deviation not affecting substance. The Court relied on the Supreme Court's Lemanken Aramat decision to cure the procedural defect.
Whether summation errors in Form 35B affecting other candidates' votes justified nullification of the election
The trial judge asked the wrong question; the errors were arithmetical, affected only four minor candidates, were rectified, and did not affect the result between the two leading candidates. The recount confirmed the appellant's victory by 4,316 votes. Nullification on that basis was not well founded in law.
Applying the substantiality test from Raila 2017 and Munya's Case, tallying errors which after scrutiny and recount do not change the result cannot justify nullification. The errors were summation errors of four other candidates' totals, not transpositional errors, and were promptly rectified by the Returning Officer. The scrutiny and recount confirmed the appellant's win with a 4,316-vote margin, which the 1st respondent did not dispute at any polling station. The primary source of results is the ballot box as recorded in Form 35A.
Whether violence at Soweto Social Hall Polling Centre and alleged intimidation of the Returning Officer vitiated the election
Violence attributable to voters and youths at one polling centre did not affect the result; no voter testified to being disenfranchised and voting hours were extended. The appellant's pressure on the Returning Officer was not intimidation or coercion and did not affect the declared results.
It is not enough to find that some violence occurred; the petitioner must demonstrate that the violence affected the voting and the final result. The trial judge made no finding that any voter was disenfranchised, and remedial measures extended voting time. As to the Returning Officer, the evidence showed results streamed on the screen were correctly announced despite the pressure, so the Court could not see how any intimidation materially affected the result. The judge's conclusion that the election in the polling centre was affected had no legal premise.
Admissibility of the 1st respondent's video evidence under Sections 78A and 106B of the Evidence Act
The trial judge erred in rejecting the video evidence; a certificate under Section 106B need not be sworn by affidavit and the video met the statutory requirements and was admissible.
Section 78A makes electronic and digital material admissible and Section 106B provides the conditions for computer output evidence, including a certificate signed by a person in a responsible position. The Court found no legal requirement that the maker of the certificate swear an affidavit. However, since the Court's jurisdiction to take additional evidence under rule 29(b) was not properly invoked, the Court went no further than declaring the evidence admissible.
Legal principles established
#- For an election to be voided for non-compliance, the non-compliance must have affected the result; an appellate court in an election petition may only interfere on matters of law and may not re-evaluate factual findings of the trial court under Section 85A of the Elections Act.
- Arithmetical or summation errors in Form 35B that do not change the result of the election, are promptly rectified and do not affect the winning candidate's result do not justify nullification.
- Failure to stamp Forms 35A with the IEBC stamp is not fatal where the forms are signed by the presiding officer and agents, as there is no stamping requirement in Regulation 79 of the Elections (General) Regulations, 2017.
- Violence at a polling station does not of itself vitiate an election unless it is shown to have affected the final result, for example by disenfranchising voters or conferring an undue advantage.
- A notice of appeal under rule 6 of the Court of Appeal (Election Petition) Rules initiates an appeal but is not itself the appeal; non-compliance with the Election Petition Rules is a matter for the Court's discretion under rule 5 and Article 159(2)(d) of the Constitution.
- A certificate under Section 106B of the Evidence Act need not be sworn by affidavit, and electronic video evidence satisfying Section 106B is admissible notwithstanding the producer of the certificate not swearing an affidavit.
Court orders
#- 1.The 1st respondent's application to strike out the appeal is declined and the appeal is deemed properly filed
- 2.The appeal is allowed and the decision of the High Court given on 2nd March 2018 invalidating the appellant's election is set aside
- 3.It is declared that the appellant was validly elected as member of the National Assembly for Embakasi East Constituency
- 4.The order nullifying the appellant's election and ordering a fresh election is quashed and set aside
- 5.A certificate confirming the appellant's election shall issue under Section 86(1) of the Elections Act, 2011 and be forwarded to the IEBC and the Speaker of the National Assembly
- 6.The 1st respondent's cross-appeal is dismissed save for the ground challenging the non-admission of the video evidence, which the Court found was admissible
- 7.The appellant is awarded the costs of the petition in the High Court against the 1st respondent capped at Kshs.3,000,000
- 8.The appellant is awarded the costs of the appeal against the 1st respondent capped at Kshs.1,000,000
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 Nairobi
- Election Petition No. 8 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeal on matters of law only); appeal from High Court election petition under the Court of Appeal (Election Petition) Rules, 2017
Relief refused
#1st respondent's application to strike out the record of appeal
Non-compliance with the rules was curable under rule 5, Article 159(2)(d) of the Constitution and the Court's discretion; no prejudice was shown
Cross-appeal ground that lack of IEBC stamps on Forms 35A invalidated the results
There is no statutory requirement for stamping; the signatures of presiding officers and agents authenticated the forms
Cross-appeal ground that the trial judge erred on countersigning of Forms 35A
It is a finding of fact on which the Court has no jurisdiction under Section 85A of the Elections Act
Cross-appeal ground that there was violence in polling centres other than Soweto Social Hall
It is a factual finding which the Court, under Section 85A of the Elections Act, has no jurisdiction to re-evaluate
Cross-appeal ground that criminal charges against two presiding officers were conclusive of electoral malpractice
The criminal cases were pending before the trial court and nothing on record proved conviction
Request that the Court take judicial notice of the alleged conviction of Jackline Waithira Muigai and Monica Kasaya Wambua
There was nothing on record to prove the convictions and the trial judge could not pronounce on a matter before a criminal court
Costs
The appellant is awarded the costs of the petition in the High Court as against the 1st respondent capped at Kshs.3,000,000/=, and the costs of this appeal as against the 1st respondent capped at Kshs.1,000,000/=.
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 hereby declared that the appellant was validly elected as member of the National Assembly for Embakasi East Constituency and the order nullifying his election and ordering fresh election is hereby quashed and set aside.
As costs follow the event, the appellant is awarded the costs of the petition in the High Court as against the 1 st respondent, which are capped at Kshs.3,000,000/=.
There has to be a demonstration that the violence affected not only the voting but the final result of the election; for example, that the violence disfranchised some voters and/or gave an undue advantage to one of the parties.
It means the court should not chart an easy course of nullifying an election or invalidating it under the slightest pretext. There must be sufficient reasons supported by evidence.
The primary source of results in a Parliamentary election is the ballot box, whose results are recorded in Form 35A at each polling centre, before tallying is done and the results obtained from the various polling centres are captured in Form 35B.
For an election irregularity to vitiate the result, the result must be affected. Which result must be affected? There is only one result that must be affected - the result that “A” is the winner of the election.
Under Section 85A of the Election Act, the jurisdiction of this Court in election matters is on matters of law only unless the conclusion arrived at, upon assessment of the facts is so perverse or unreasonable that a reasonable tribunal will not arrive at such a conclusion.
Issues in the judgment
#The judgment inconsistently records the 1st respondent's Form 35B vote figure, first as 42,501 and later as 42,253 in the recount comparison.
The learned judge is quoted as finding that the violence at Soweto Social Hall vitiated 'the 1st respondent's win' although the annulled election was the appellant's.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shafat v Independent Electoral and Boundaries Commission (IEBC) & 2 others (Election Petition E002 of 2022) [2023] KEMC 3 (KLR)[2023] KEMC 3 (KLR)27 Feb 2023
- Martin Nyaga Wambora v Lenny Maxwell Kivuti & 3 others [2018] KECA 365 (KLR)[2018] KECA 365 (KLR)17 Aug 2018
Cite this brief
#Cite this brief
Caselaw, "Owino Paul Ongili Babu v Francis Wambugu Mureithi & 2 others [2018] KECA 554 (KLR)", Case Analysis (2018). Election Petition Appeal No. 18 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/554/eng@2018-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.