Timamy Issa Abdalla v Independent Electoral and Boundaries Commission & 3 Others

Rule 5 of the Election Appeal Rules confers discretion to determine the effect of 'any' non-compliance, whether the rule breached is directory or mandatory. Discretion must be exercised judiciously, balancing the overriding objective and constitutional timelines. Because the application attacked the competency of the appeal and the Court's jurisdiction, a threshold question best taken at inception, extension was warranted despite inordinate delay of about 49 days.

Whether a Notice of Appeal against an Election Court decision is invalid for non-compliance with Rule 6 depends on the circumstances of each case. Here the appellant filed the same Notice in this Court's registry on even date within the requisite time, which mitigated the anomaly and activated the appellate jurisdiction. The respondents were served with the same Notice on time and suffered no prejudice.

Two schools of thought exist on mixed grounds. The Court aligns with the liberal approach in Stanley Muiruri and Wavinya Ndeti: Section 85A is not a blanket 'no entry zone'; poor drafting should not shut out genuine grounds since points of law may be difficult to separate from factual determination. The Court abridged the 41 grounds into five points of law and addressed them.

The Supreme Court in National Bank of Kenya held that a legal document's validity cannot be questioned merely because it was drawn by an advocate without a current practising certificate; this was crystallized by Section 34B inserted in 2017. The Law Society's letter confirmed the advocate was certified from 27th April 2018, and he first appeared in Court on 10th May 2018, after certification.

Section 83 as amended provides that no election shall be void for non-compliance if it was conducted in accordance with constitutional principles or the non-compliance did not affect the result. The Supreme Court in Raila Odinga 2017 held the two limbs apply disjunctively. On perusal of the impugned judgment, the Court found the learned Judge correctly appreciated this.

A petitioner must adduce cogent and credible evidence proving irregularities and their effect on the result to the satisfaction of the court. The evidential burden shifts only after the initial burden is discharged. Findings on denial of the right to vote, impartiality, the officer swap, assisted voters, pre-marked ballots, unverified voting, Form 36B and vote variance were findings of fact or probative assessments beyond the Court's mandate under Section 85A.

Pleadings define the scope of the dispute; an election court's inquiry cannot traverse matters beyond the petition. The Court noted the Deputy Registrar did not open the ballot boxes but used the Forms 37A affixed on them, and the allegedly missing Forms 37A were in fact inside the ballot boxes. The totality showed the alleged anomalies were unsubstantiated.

Costs in electoral disputes must be guided by fairness, justice and access to justice; they compensate a successful litigant and are not a punishment or deterrent. Comparing comparable election disputes, the Court found the capped award excessive regardless of the number of witnesses, complexity or preparation time, and interfered with the discretion, substituting Kshs.3,000,000.