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Court of AppealDismissedElection Petition Appeal No. 3 of 2017· [2018] KECA 636 (KLR)

Andrew Toboso Anyanga v Mwale Nicholas Scott Tindi & 3 others

Court of Appeal of Kenya
14 May 2018
2,811 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that election petitions must be filed within 28 days of the Returning Officer's declaration, with no extension possible.

What this practically means

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Executive summary

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This Court of Appeal election petition appeal arose from the High Court at Kakamega (Sitati, J.) upholding a preliminary objection and striking out the appellant's petition challenging the election of Nicholas Scott Tindi Mwale as Member of Parliament for Butere Constituency in the 8th August 2017 general election. The striking out was on the ground that the petition, filed on 7th September 2017, lay outside the twenty-eight days allowed by Article 87(2) of the Constitution and section 77(1) of the Elections Act. The appellant argued that the date of declaration was a contested fact because agents signed Form 35B on 10th August 2017, so time should run from that date. The Court, in a single judgment of the bench, held that declaration of results is a function exclusively conferred on the Returning Officer, who may perform it even in the absence of candidates, agents or observers. Following the Supreme Court's decision in Joho's case, the Court held that the final certificate, Form 35C, is determinative of the date of declaration; here the Returning Officer signed and dated Form 35B, publicly declared the results and issued the certificate on 9th August 2017. The asserted dispute was not real, since the official forms were available, presumed genuine as public documents, and corroborated by the Returning Officer's affidavit, distinguishing Wetangula's case where the form was missing. The Court further held that the constitutional 28-day limit admits no extension and a late petition is a nullity, applying Mary Wambui Munene. The appeal was dismissed with costs to the 1st, 3rd and 4th respondents, with no orders as to costs against the absent 2nd respondent. The decision of the election court was affirmed in its entirety.

Key legal issues

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01

Date of declaration of election results for computing the 28-day filing period

Holding

The declaration occurred on 9th August 2017 when the Returning Officer signed and dated Form 35B, publicly declared the results and issued Form 35C; the petition filed on 7th September 2017 was out of time.

Reasoning

The court relied on the Supreme Court's decision in Joho's case that the final certificate is determinative of the date of declaration for time computation. Form 35B and 35C, both executed on 9th August 2017, were before the election court, are public documents presumed genuine under sections 79 and 83 of the Evidence Act, and were corroborated by the Returning Officer's affidavit. The agents' signing on 10th August was immaterial since the Returning Officer alone declares results.

p. 4
02

Whether the preliminary objection was based on contested facts

Holding

The mere assertion that declaration occurred on 10th August when agents signed Form 35B did not raise a real dispute of fact; the official forms spoke for themselves.

Reasoning

Unlike Wetangula's case, where the declaration form was missing and there was an evidentiary dispute, here both forms were available, executed, verified and supported by the Returning Officer's affidavit. The appellant did not contend that other forms were executed or a public declaration made on 10th August, so no genuine factual dispute existed to defeat the preliminary objection.

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03

Whether the election court had discretion over a late petition

Holding

None; the 28-day limit is constitutional with no extension provision, and a late petition is a nullity.

Reasoning

The time limit is prescribed by Article 87(2) of the Constitution and echoed in section 77(1) of the Elections Act. Following Mary Wambui Munene v Peter Gichuki King'ara, a petition filed outside the period is invalid and a nullity, so the court could not exercise discretion to salvage it.

p. 4

Legal principles established

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  • For purposes of computing the 28-day period for filing an election petition under Article 87(2), the declaration of election results is the act of the Returning Officer, and the final certificate (Form 35C), together with Form 35B and the public declaration, determines the date of declaration; the absence or later signing of the form by agents is immaterial.
  • An election petition filed outside the 28 days stipulated by Article 87(2) of the Constitution is invalid and a nullity, and the election court has no discretion to extend time.
  • Declaration of election results is a function exclusively conferred on the Returning Officer, which may validly be performed in the absence of candidates, agents or observers.

Court orders

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  1. 1.Appeal dismissed with costs to the 1st, 3rd and 4th respondents
  2. 2.No orders as to costs regarding the 2nd respondent, who did not attend the hearing of the appeal
On appeal from
High Court of Kenya at Kakamega
Election Petition No. 12 of 2017
Jurisdiction invoked
Section 85A of the Elections Act, 2011 (appeal in election petition on matters of law only)

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, "Andrew Toboso Anyanga v Mwale Nicholas Scott Tindi & 3 others", Case Analysis (2018). Election Petition Appeal No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/636/eng@2018-05-14

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