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Supreme CourtDismissedPetition 11 of 2014

Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others

Supreme Court of Kenya
21 April 2016
8,001 words in judgment
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The bottom line

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Supreme Court upholds that election results are declared when Form 38 is issued, not later.

What this practically means

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The Supreme Court of Kenya dismissed Mable Muruli's attempt to challenge the 2013 Kakamega gubernatorial election results. The Court confirmed that election results are officially declared when the Returning Officer issues Form 38, not when the IEBC publishes a Gazette notice. This means the 28-day deadline to file an election petition starts from Form 38 issuance. The Court also said it will only overturn its own past decisions for very strong reasons, not just because someone disagrees.

Executive summary

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The Supreme Court of Kenya dismissed an application by Mable Muruli to review its earlier decision in Hassan Ali Joho v Suleiman Said Shahbal (Petition No 10 of 2013). The appellant had filed an election petition challenging the Kakamega gubernatorial election, which was dismissed by the High Court and Court of Appeal. Upon appeal to the Supreme Court, the 1st and 2nd respondents raised a preliminary objection arguing that the High Court petition was filed outside the 28-day constitutional timeline under Article 87(2), relying on the Joho precedent which held that the declaration of election results occurs upon issuance of Form 38 by the Returning Officer. The appellant sought to have the Supreme Court depart from or overrule the Joho decision, arguing it was erroneous and per incuriam. The Court, in a unanimous judgment, rejected the review application. It held that no valid cause had been shown for departing from precedent, as the Joho decision had been consistently applied in subsequent cases and political rights had vested. The Court reaffirmed that the declaration of election results under Article 87(2) is the certificate in Form 38, which triggers the time for filing an election petition. It also held that the Returning Officer, though an employee of the IEBC, properly acts on behalf of the Commission. Consequently, the preliminary objection was allowed, and the appeal was struck out for lack of jurisdiction, with costs to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether a basis exists for the Supreme Court to consider departing from earlier decisions?
  2. 2.what is the meaning of ‘declaration of election results,’ as used in article 87(2) of the Constitution?
  3. 3.whether the Returning Officer during the conduct of national elections, is a mere employee, or the valid representative of IEBC?

Key legal issues

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01

Whether a basis exists for the Supreme Court to consider departing from its earlier decisions

Holding

No valid cause was shown for the court to depart from its precedent in the Joho case; the appellant failed to demonstrate conflict, error, or public-interest infractions.

Reasoning

The court examined the appellant's arguments that the Joho decision was per incuriam and had resulted in conflicting decisions. It found that the decisions in Wambui, Munya, and Aramat were fundamentally consistent with Joho. The court emphasized that precedent promotes certainty, predictability, and uniformity, and that departure requires good cause and significant legal considerations. The appellant's mere assertion of error was insufficient, and the court noted that Joho had been endorsed in numerous subsequent election petitions, with political rights having vested.

02

What is the meaning of 'declaration of election results' as used in article 87(2) of the Constitution

Holding

The declaration of election results is the certificate in Form 38 issued by the Returning Officer, which marks the final stage of the electoral process and triggers the time-frame for filing an election petition.

Reasoning

The court adopted the holding in the Joho case, which defined 'declaration' as taking place at every stage of tallying, with finality depicted in the issuance of Form 38. This certificate declares the winner and terminates the Returning Officer's mandate, shifting jurisdiction to the election court. The court rejected the appellant's argument that declaration requires a Gazette notice by the IEBC as a corporate body, affirming that the Returning Officer's act constitutes the declaration under article 87(2).

03

Whether the Returning Officer is a mere employee or the valid representative of IEBC

Holding

The Returning Officer, though an employee of the IEBC, is the valid representative of the Commission for purposes of conducting elections and declaring results.

Reasoning

The court analyzed the constitutional and statutory framework, noting that article 88(4) entrusts the IEBC with conducting elections, but it would be impractical for the nine Commissioners to perform all functions. The Elections (General) Regulations, 2012 appoint Returning Officers to conduct elections at the constituency level. The court concluded that the IEBC comprises both Commissioners and duly authorized employees, and the Returning Officer acts on behalf of the Commission. A contrary interpretation would render many electoral actions nullities and be contrary to public interest.

Legal principles established

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  • The Supreme Court will only depart from its own precedents for compelling reasons like error or conflict, not mere doubt.
  • Election results are declared under Article 87(2) when the Returning Officer issues Form 38, not upon Gazette notice.
  • The 28-day deadline to file an election petition starts from the date Form 38 is issued.
  • A Returning Officer, though an IEBC employee, validly represents the Commission when declaring results.
  • Precedent promotes certainty and uniformity; political rights vest once a precedent is consistently applied.

Court orders

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  1. 1.The review application and the petitioner’s submissions to the Preliminary Objection are disallowed.
  2. 2.The Preliminary Objection dated May 9, 2014 is allowed.
  3. 3.As a consequence of Order No (b) above, and for the avoidance of doubt, this court lacks jurisdiction to entertain the appeal, as it was grounded on a High Court Petition filed contrary to the terms of article 87(2) of the Constitution.
  4. 4.The appellant shall bear the costs of this suit.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
S. N. NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Civil Appeal 41 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution, section 15 of the Supreme Court Act, and rules 9 and 33 of the Supreme Court Rules

Relief refused

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Review of the Supreme Court's decision in Hassan Ali Joho and another v Suleiman Said Shahbal and two others, Sup Ct Petition No 10 of 2013

No valid cause shown for the court to exercise its power of review of its past decisions.

Costs

The appellant shall bear the costs of this suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We thus find a basis for arriving at the conclusion that no valid cause has been shown, for this court to exercise its power of review of its past decisions.
p. 17 Review of precedent
We hold that the certificate in Form 38 comprises the declaration of election results. This declaration sets in motion the time-frame within which to lodge an election petition, and it is hereby so held.
p. 18 Declaration of election results
Consequently, and in accordance with the Joho precedent, the Returning Officer, an employee of the IEBC, properly acts on its behalf.
p. 20 Status of Returning Officer
The review application and the petitioner’s submissions to the Preliminary Objection are disallowed.
p. 20 Final orders
The Preliminary Objection dated May 9, 2014 is allowed.
p. 20 Final orders
As a consequence of Order No (b) above, and for the avoidance of doubt, this court lacks jurisdiction to entertain the appeal, as it was grounded on a High Court Petition filed contrary to the terms of article 87(2) of the Constitution.
p. 20 Final orders
The appellant shall bear the costs of this suit.
p. 20 Costs order

Key timeline

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2013-03-04
Kakamega gubernatorial election held.
2013-03-06
Returning Officer issues Form 38 declaring the winner.
2013-04-08
Mable Muruli files election petition in High Court (33 days after Form 38).
2014-05-09
Respondents file Preliminary Objection arguing petition is out of time.
2014-07-18
Supreme Court allows Preliminary Objection, strikes out appeal for lack of jurisdiction.

Practical implications

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For lawyers

Strict adherence to Form 38 deadline

When advising election petitioners, calculate the 28-day window strictly from the date the Returning Officer issues Form 38, not from any later Gazette notice. The Supreme Court has now firmly closed the door on arguments that the clock starts later. File within 28 days of Form 38 or risk automatic dismissal for lack of jurisdiction.

For businesses

Election timelines affect business certainty

If your business operations depend on election outcomes (e.g., contracts with county governments), note that results are final once Form 38 is issued. Legal challenges must be filed within 28 days of that date. Delays beyond that are fatal, giving you quicker certainty on who holds office and reducing prolonged uncertainty that can disrupt business planning.

For individuals

Know your 28-day window to challenge

If you want to challenge an election result in Kenya, you must file your petition in the High Court within 28 days of the Returning Officer issuing Form 38. Waiting for a Gazette notice or any other official announcement will not extend this deadline. Missing it means your case will be thrown out, as happened to Mable Muruli.

Frequently asked questions

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What is Form 38 in Kenyan elections?+

Form 38 is the official certificate issued by the Returning Officer declaring the winner of a gubernatorial or parliamentary election in Kenya. It marks the final declaration of results under Article 87(2) of the Constitution and triggers the 28-day deadline for filing an election petition.

How many days do I have to file an election petition in Kenya?+

You have 28 days from the date the Returning Officer issues Form 38 declaring the results. The Supreme Court confirmed in Mable Muruli v IEBC that this deadline starts from Form 38, not from any later Gazette notice. Missing this window means your petition will be dismissed.

Can the Supreme Court of Kenya overturn its own previous decisions?+

Yes, but only for very strong reasons, such as if the earlier decision was made in error (per incuriam) or if there are conflicting past decisions. Mere disagreement or doubt is not enough. The Court emphasized this in Mable Muruli v IEBC, refusing to overturn its earlier Joho precedent.

Who declares election results in Kenya: the Returning Officer or IEBC?+

The Returning Officer, though an employee of the IEBC, validly declares election results on behalf of the Commission. The Supreme Court confirmed this in Mable Muruli v IEBC, stating that the Returning Officer's issuance of Form 38 constitutes the official declaration under Article 87(2) of the Constitution.

Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mable Muruli v Wycliffe Ambetsa Oparanya & 3 others", Case Analysis (2016). Petition 11 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2016/14/eng@2016-04-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.