Kitur v Keter & another (Petition 27 of 2018) [2018] KESC 77 (KLR)
The bottom line
#One minor campaign violation, even if criminal, is not enough to overturn an election result.
What this practically means
#The Supreme Court upheld the election of Alfred Kiptoo Keter as Nandi Hills MP. A challenger argued he campaigned before the official period. The Court said this single issue, involving small gatherings in a large constituency, did not make the election invalid. The challenger also failed to present proper evidence because he adopted someone else's sworn statement, which is not allowed. The election stands.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to determine the petition of appeal?
- 2.Whether the judges of appeal acted in excess of their jurisdiction by delving into matters of fact contrary to the provisions of Section 85A of the Elections Act?
- 3.Whether the judges of appeal erred in their finding that the substituted petitioner’s evidence amounted to hearsay evidence and that the petitioner failed to shift the burden of proof?
- 4.Whether campaigning outside of time constitutes a ground for nullification of an election?
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal from the Court of Appeal in an election petition where the main issue was campaigning outside the gazetted period.
The Supreme Court has jurisdiction because the issue of campaigning outside time engages constitutional principles under Articles 81, 86, and 84 of the Constitution, and the Court of Appeal's reasoning took a trajectory of constitutional interpretation.
The Court noted that the High Court considered whether campaigning outside the gazetted period prejudiced a fair election under Articles 81 and 86 of the Constitution. The Court of Appeal, while not expressly deliberating on constitutional violations, looked at the Electoral Code of Conduct, which derives from constitutional principles. The Supreme Court held that the Elections Act and Regulations are normative derivatives of Articles 81 and 86, and interpreting them cannot disengage from the Constitution. Therefore, the appeal raised questions of constitutional interpretation and application, meeting the jurisdictional threshold.
Whether the Court of Appeal acted in excess of its jurisdiction under Section 85A of the Elections Act by delving into matters of fact.
The Court of Appeal did not act in excess of jurisdiction; it properly limited itself to evaluating the trial judge's conclusions based on the evidence on record, which is a matter of law.
The Supreme Court applied the principles from Munya 2B, which define 'matters of law' to include evaluating whether conclusions were based on no evidence or were so perverse that no reasonable tribunal would arrive at them. The Court of Appeal examined whether the conduct found by the trial judge amounted to a 'campaign' under the legal definition in the Elections (General) Regulations 2012. This was an evaluation of the application of law to facts, not a re-examination of probative value or credibility of witnesses. The appellate court did not re-weigh evidence but assessed whether the facts as found met the legal threshold.
Whether the Court of Appeal erred in finding that the substituted petitioner's evidence was hearsay and that he failed to shift the burden of proof.
The Court of Appeal did not err; a substituted petitioner cannot adopt the original petitioner's affidavit as his own evidence because affidavit evidence is personal to the deponent, and relying on facts not within his knowledge constitutes hearsay.
The Supreme Court examined Rule 12(1)(b) of the Election Petition Rules, which requires a petitioner to file an affidavit personally. It held that the trial judge erred in directing the substituted petitioner to adopt the original petitioner's affidavit word for word, as this violated rules of evidence by admitting hearsay. The substituted petitioner could have filed a supplementary affidavit under Rule 15(1)(h) but could not introduce new issues. Since the only evidence of unlawful campaigns was the original petitioner's affidavit, which was hearsay, the petitioner failed to discharge the initial burden of proof, and the evidential burden never shifted to the respondents.
Whether campaigning outside the gazetted period constitutes a ground for nullification of an election under Section 83 of the Elections Act.
Campaigning outside time, without more, does not automatically nullify an election; the election must be shown to be a sham or travesty, or the irregularity must be of such magnitude as to affect the result.
The Supreme Court applied Section 83 of the Elections Act and the principles from Raila 2017 and Munya 2B. It held that an election is voided only when it is a 'sham or travesty' or when irregularities are substantial and affect the result. In this case, the alleged campaigning involved small gatherings of less than 25 people in a constituency with over 51,000 registered voters, and the margin of victory was 10,051 votes. The Court found that this single issue did not amount to massive or substantial non-compliance, and the election was conducted substantially in accordance with constitutional principles.
Legal principles established
#- A single irregularity, even criminal, is not enough to nullify an election unless it is massive or substantial.
- A substituted petitioner cannot adopt the original petitioner's affidavit as their own evidence; it is hearsay.
- For Supreme Court appeal under Article 163(4)(a), the constitutional issue must have been argued in lower courts.
- Campaigning outside the gazetted period does not automatically nullify an election; the result must be affected or the election a sham.
- The Court of Appeal may evaluate whether facts meet a legal definition without exceeding its jurisdiction.
- The petitioner bears the burden of proof and cannot shift it using hearsay evidence.
Court orders
#- 1.That the petition of appeal dated August 24, 2018 is hereby dismissed.
- 2.That the judgment of the Court of Appeal of Kenya sitting at Eldoret dated July 11, 2018 is upheld.
- 3.For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the Member of National Assembly for Nandi Hills Constituency is affirmed.
- 4.Each party shall bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Eldoret
- Election Petition Appeal No. 21 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Nullification of the election of the 1st respondent as Member of National Assembly for Nandi Hills Constituency
The Supreme Court found that the election was conducted substantially in accordance with constitutional principles and that the single issue of campaigning outside time did not amount to massive or substantial non-compliance.
Costs
Each party shall bear their own costs.
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.
That the petition of appeal dated August 24, 2018 is hereby dismissed.
That the judgment of the Court of Appeal of Kenya sitting at Eldoret dated July 11, 2018 is upheld.
For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the Member of National Assembly for Nandi Hills Constituency is affirmed.
Each party shall bear their own costs.
we find that a single issue, even where the effect is criminal, where it does not amount to massive or substantial non-compliance with the law or irregularities is not enough to dissuade from the fact that an election was conducted largely in accordance with the law.
We find that in limiting the substituted petitioner to adopting word for word the averments of the original petitioner, the learned trial judge erred as it was tantamount to relying on facts not within his knowledge violating rules of Evidence and admitting hearsay evidence.
Applying these principles to the matter at hand, we find that the petitioner's case meets the jurisdictional threshold under article163(4)(a) of the Constitution and is properly before the Court for determination.
Key timeline
#Practical implications
#Evidence pitfalls for substituted petitioners
When taking over an election petition, you cannot adopt the original petitioner's affidavit. You must file your own evidence or call the original deponent to testify. Otherwise, your case is hearsay and you fail to shift the burden. File a supplementary affidavit under Rule 15(1)(h) without introducing new issues.
Pre-campaign risks for candidates
Campaigning before the official period is illegal, but a single minor violation will not automatically nullify an election. The court examines whether the irregularity is substantial enough to affect the result. Candidates should ensure strict compliance, but a small-scale breach alone is unlikely to overturn an election.
Your vote's weight in election challenges
The court considers the margin of victory and the scale of the irregularity. A single violation affecting few voters in a large constituency won't cancel an election. If you challenge an election, you must provide credible, personal evidence, not rely on someone else's complaint.
Frequently asked questions
#What happens if a candidate campaigns before the official period in Kenya?+
It is illegal, but the court will only nullify the election if the pre-campaigning amounts to massive or substantial non-compliance that affects the result. A single small violation is not enough.
Can a single violation nullify an election in Kenya?+
No, unless the violation is so massive that the election becomes a sham or the result is affected. The court looks at the overall conduct of the election and the margin of victory.
Can a substitute petitioner use the original petitioner's evidence in Kenya?+
No. A substituted petitioner cannot adopt the original petitioner's affidavit as their own. That evidence is hearsay unless the original deponent testifies. The substitute must file their own sworn evidence.
What is the burden of proof in Kenyan election petitions?+
The petitioner bears the burden to prove irregularities that affected the election result. If they rely on hearsay or fail to provide credible evidence, the burden never shifts to the respondent, and the petition fails.
Cite this brief
#Cite this brief
Caselaw, "Kitur v Keter & another (Petition 27 of 2018) [2018] KESC 77 (KLR)", Case Analysis (2018). Petition 27 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/77/eng@2018-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.