Andrew Toboso Anyanga v Mwale Nicholas Scott Tindi & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Date of declaration of election results for computing the 28-day filing period
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.
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.
Whether the preliminary objection was based on contested facts
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.
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.
Whether the election court had discretion over a late petition
None; the 28-day limit is constitutional with no extension provision, and a late petition is a nullity.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs to the 1st, 3rd and 4th respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.