Mbaraka Issa Kombe v Independent Electoral and Bounderies Commission (IEBC) & 2 others [2018] KECA 650 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that minor paperwork gaps in an election petition should not kill it before a full hearing.
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 learned Judge of the Election Court exercised his discretion properly in striking out the petition for non-compliance with Rules 8(1)(c) & (d) of the Election Petition Rules
- 2.Whether the supporting affidavit and annexures to a petition can supply particulars required to be stated in the body of the petition
- 3.Whether the decision in John Mututho v Jayne Kihara, decided under the former constitutional dispensation, remained applicable
- 4.Whether the costs awarded were excessive
Key legal issues
#Whether failure to state the declared results and date of declaration on the face of the petition, where disclosed in the supporting affidavit and annexures, justified striking out
No; the non-compliance did not render the petition defective because the results were disclosed in the supporting affidavit by annexing Form 35, and the date of declaration appeared in the petition itself.
Rule 8(1)(c) requires results to be set out on the face of the petition, and the appellant only set out the 3rd respondent's results. However, the supporting affidavit is part and parcel of the petition, and reference to the annexed Form 35 incorporated its contents, so the respondents and the court were not in the dark. The omission went neither to jurisdiction nor to the root of the dispute nor occasioned prejudice. Further, the dates of declaration were pleaded in paragraphs 4 and 11 of the petition.
The proper approach to non-compliance with Rule 8(1) of the Election Petition Rules
Non-compliance with Rule 8(1) does not automatically invalidate a petition; the court must determine on a case-by-case basis whether the non-compliance goes to jurisdiction, to the root of the dispute, or occasions prejudice, guided by the overriding objective and Article 159(2)(d).
Two schools of thought had emerged in election court decisions. The court held that election law is a special jurisdiction, but interpretation of the Rules must be informed by the parent statute, the Elections Act, and the constitutional objective of timely resolution of electoral disputes under Article 87(1). Rule 5(1) requires the effect of failure to comply to be determined at the court's discretion in accordance with Article 159(2)(d), which accords precedence to substance over form.
Reliance on Mututho v Jayne Kihara
The learned Judge erred in relying on the Mututho decision because it was decided in 2008 under the previous constitutional dispensation and repealed statute, and its facts were distinguishable.
Mututho was decided in 2008 under the repealed National Assembly and Presidential Elections Act and the former Constitution. In that case the petitioner had not set out the election results at all, placing the court and parties in uncertainty, unlike the present case where the results were disclosed through the annexed Form 35 and the dates of declaration appeared on the face of the petition.
Legal principles established
#- Non-compliance with Rule 8(1) of the Election Petition Rules does not automatically warrant striking out a petition; whether it does depends on the circumstances of each case, guided by the overriding objective and Rule 5.
- A supporting affidavit and its annexures form part of an election petition; reference to an annexure incorporates its contents into the pleading.
- An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong and occasioned injustice.
- Striking out pleadings is a draconian power to be exercised sparingly as a last resort.
Court orders
#- 1.The learned Judge's ruling dated 2nd November, 2017 is set aside in its entirety
- 2.The costs of the application striking out the petition be in the petition
- 3.Election Petition No. 10 of 2017 be heard and determined on merit in Malindi before any Judge with jurisdiction other than P.J. Otieno J.
- 4.Appellant awarded costs of the appeal capped at Ksh.500,000.00 as against the 3rd respondent
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
- Election Court at Malindi (High Court)
- Election Petition No. 10 of 2017
- Jurisdiction invoked
- Section 85A(1) of the Elections Act - appeal from election court restricted to points of law
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.
The learned Judge's ruling dated 2nd November, 2017 is hereby set aside in its entirety.
Election Petition No. 10 of 2017 be heard and determined on merit in Malindi before any Judge with jurisdiction other than P.J. Otieno J.
We award the appellant costs of this appeal which we cap at Ksh.500,000.00, as against the 3 rd respondent.
In our view, whether non- compliance would warrant striking out or saving of the petition can only be determined on a case by case basis.
rules of procedure are meant to be handmaidens and should never be elevated to the status of mistresses of justice.
Issues in the judgment
#The judgment records that the appellant annexed 'Form 35B which was the 1st respondent's declaration of the results' when arguing the petition's compliance, but the Court's own analysis refers to annexing 'Form 35 which is the prescribed form for tallying, announcement and declaration of the final results from each polling station'; the two forms are treated interchangeably.
The court cites two versions of the Salat decision with different citation years and numbers of parties, and the Kiage, JA quotation from the Nicholas Salat case is reproduced in the body of the judgment without attribution as to which decision it comes from.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaraka Issa Kombe v Independent Electoral and Bounderies Commission (IEBC) & 2 others [2018] KECA 650 (KLR)", Case Analysis (2018). Election Petition Appeal No. 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/650/eng@2018-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.