Loitiptip v Independent Electoral and Boundaries Commission & 2 others
The bottom line
#Supreme Court restored Lamu Senator’s election, ruling Court of Appeal exceeded its jurisdiction and shifted burden wrongly.
What this practically means
#The Supreme Court overturned a Court of Appeal decision that had nullified the election of Lamu County Senator Anuar Loitiptip. The Court of Appeal had improperly considered issues that were not properly appealed and examined evidence in a way that went beyond its legal authority. The Supreme Court clarified that in election disputes, appeals are limited to questions of law, and the person challenging the election must first prove a case before the burden shifts to the election officials. The Court of Appeal also wrongly relied on evidence that had been thrown out by the trial court.
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 Appellate Court ought to have entertained appeals on interlocutory application in respect of which no Notice of Appeal had been filed.
- 3.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, and whether they considered un-pleaded matters.
- 4.Whether the Judges of Appeal erred in shifting the ‘burden of proof’.
- 5.Costs.
Key legal issues
#Whether the Court of Appeal had jurisdiction to determine issues from interlocutory rulings where no Notice of Appeal had been filed.
The Court of Appeal erred in determining questions pertaining to rulings on interlocutory applications on scrutiny without proper Notices of Appeal, thereby exceeding its jurisdiction and jeopardizing the appellants' right to fair trial.
The Supreme Court held that a Notice of Appeal is a jurisdictional prerequisite. For election petitions, a party aggrieved by an interlocutory decision must file a notice of appeal against that decision consecutively with the notice of appeal against the final judgment. The failure to file a notice of appeal against an interlocutory ruling means the party has waived the right to challenge that decision. The Court of Appeal therefore lacked jurisdiction to entertain the appeal on the scrutiny applications because no notice of appeal had been filed in respect of those rulings.
Whether the Court of Appeal exceeded its jurisdiction under section 85A of the Elections Act by delving into matters of fact.
The Court of Appeal exceeded its jurisdiction by examining the probative value of evidence on overvoting and relying on expunged evidence, which were matters of fact, not law.
The Supreme Court found that the Court of Appeal, by looking at Form 38C and concluding that removing the Kiangwe results would make the margin of 58 votes disappear, was examining the probative value of evidence, which is a matter of fact. Additionally, the Court of Appeal relied on evidence (annextures AHA3 and AHA4) that had been expunged from the trial court's record. The trial court had properly declined to consider the overvoting issue because it was raised at the submissions stage without giving the other parties an opportunity to respond. The Court of Appeal's actions contravened section 85A of the Elections Act and the guidelines in Munya 2B.
Whether the Court of Appeal erred in shifting the burden of proof.
The Court of Appeal erred in shifting the evidential burden of proof to the IEBC and the appellant when the 3rd respondent had not discharged the initial burden of proof.
The Supreme Court reaffirmed that the initial burden of proof in an election petition lies on the petitioner. The 3rd respondent made allegations of non-compliance, but the evidence he intended to rely on was expunged. The issue of overvoting was raised for the first time at the submissions stage, without giving the other parties an opportunity to respond. Therefore, no prima facie case was established against the IEBC, and the burden of proof never shifted to them. The Court of Appeal's conclusion at paragraph 44 that the burden had shifted was erroneous.
Legal principles established
#- A party must file a notice of appeal against an interlocutory decision together with the final judgment appeal, or waive the right to challenge it.
- The Court of Appeal’s jurisdiction under section 85A of the Elections Act is limited to matters of law only, not re-evaluating evidence.
- The initial burden of proof in an election petition lies on the petitioner; it shifts to the respondent only after a prima facie case is established.
- Courts cannot rely on evidence that has been expunged from the trial record.
- Raising an issue for the first time in written submissions without giving the other side a chance to respond is improper.
Court orders
#- 1.That the Petitions of Appeal No 18 of 2018 and No 20 of 2018 are hereby allowed.
- 2.That the judgment of the Court of Appeal of Kenya at Malindi dated July 12, 2018 be and is hereby set aside.
- 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 Senator of Lamu County is affirmed.
- 4.The 3rd respondent shall bear the costs of this Appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal at Malindi
- Election Petition Appeal No 2 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Petition 20 of 2018
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 Petitions of Appeal No 18 of 2018 and No 20 of 2018 are hereby allowed.
That the judgment of the Court of Appeal of Kenya at Malindi dated July 12, 2018 be and is hereby set aside.
For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the Senator of Lamu County is affirmed.
The 3rd respondent shall bear the costs of this Appeal.
We therefore direct that, for the purposes of election petitions only, where one is aggrieved by a decision in an interlocutory application in election petitions, such a party must file a notice of appeal against the interlocutory decision consecutively with the notice of appeal against the final judgement.
a petition which requires the appellate Court to re-examine the probative value of the evidence tendered at the trial Court, or invites the Court to calibrate any such evidence, especially calling into question the credibility of witnesses, ought not to be admitted.
a petitioner should be under obligation to discharge the initial burden of proof before the respondents are invited to bear the evidential burden.
Key timeline
#Practical implications
#Strict procedural deadlines for appeals
In election petitions, you must file a notice of appeal against an interlocutory ruling at the same time as the notice against the final judgment. If you miss this, you lose the right to challenge that interlocutory decision. Also, the Court of Appeal can only review questions of law, not re-weigh evidence or witness credibility. Grounds for appeal must be purely legal.
Certainty in electoral outcomes
Businesses operating in Kenya should note that election results are not easily overturned. The Supreme Court has reinforced that challenges must follow strict procedural rules and limited legal grounds. This reduces the risk of prolonged electoral uncertainty that can disrupt business planning and investment, especially in regions like Lamu County.
Burden of proof remains on challenger
If you want to challenge an election result, you must first present clear evidence of wrongdoing before the election body or winner has to defend the result. You cannot rely on evidence that was excluded by the trial court or raise new issues at the last minute. This makes it harder to overturn an election but also protects against frivolous petitions.
Frequently asked questions
#What is the burden of proof in an election petition in Kenya?+
The petitioner must first prove non-compliance with the law and that it affected the election result. Only after a prima facie case is established does the burden shift to the election body or the respondent. The Supreme Court reaffirmed this in Anuar Loitiptip v IEBC.
Can the Court of Appeal re-examine evidence in an election appeal in Kenya?+
No. Under section 85A of the Elections Act, the Court of Appeal can only hear matters of law, not re-evaluate the probative value of evidence or weigh witness credibility. The Supreme Court in this case held that the Court of Appeal exceeded its jurisdiction by doing so.
What happens if a party fails to file a notice of appeal against an interlocutory ruling in Kenya?+
The right to challenge that ruling is waived. The Supreme Court directed that in election petitions, a notice of appeal against an interlocutory decision must be filed together with the notice against the final judgment. Otherwise, the appellate court has no jurisdiction to hear that issue.
Can an election be nullified based on issues raised for the first time in submissions in Kenya?+
No. Raising an issue for the first time in written submissions without giving the other parties an opportunity to respond is improper. The trial court cannot consider it, and the appellate court cannot rely on it to nullify an election. The Supreme Court emphasized this in the Loitiptip case.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamande v Judicial Service Commission[2025] KESC 48 (KLR)15 Aug 2025
Cite this brief
#Cite this brief
Caselaw, "Loitiptip v Independent Electoral and Boundaries Commission & 2 others", Case Analysis (2019). Petition 18 & 20 of 2018 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/67/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.