Mureithi v Babu & 2 others
The bottom line
#Supreme Court upheld election results, ruling minor procedural errors don't invalidate if no prejudice occurs.
What this practically means
#John Njoroge Chege challenged the election results for Embakasi East in the Supreme Court. He argued the Court of Appeal wrongly allowed a technically flawed appeal. The Supreme Court disagreed, saying courts can fix minor procedural mistakes as long as no one is harmed and key deadlines are met. The Court also said it won't interfere with a lower court's discretion unless it was unreasonable. The election results stand, and Chege must pay the respondents' costs.
Executive summary
#Key legal issues
#Whether the Supreme Court has jurisdiction under article 163(4)(a) of the Constitution to hear an appeal from the Court of Appeal in an election petition.
The Supreme Court has jurisdiction under article 163(4)(a) to hear appeals from the Court of Appeal in election petitions where questions of constitutional interpretation or application are at play, as electoral disputes generally involve constitutional principles.
The Court relied on its earlier decisions in Munya 2, Joho, and Fredrick Outa, holding that electoral adjudication generally bears a constitutional and statutory provenance. The petitioner challenged the Court of Appeal's interpretation of articles 81 and 86 of the Constitution, the competency of the appeal, and the admissibility of evidence, all of which involved constitutional interpretation or application. The Court found that these issues raised cogent constitutional controversies warranting its jurisdiction.
Whether the Court of Appeal erred in exercising its discretion to deem the appeal properly filed despite non-compliance with the rules on filing the Notice of Appeal.
The Court of Appeal did not err in exercising its discretion under rule 5 of the Court of Appeal (Election Petition) Rules, 2017, read with article 159(2)(d) of the Constitution, to cure the procedural defect, as no prejudice was caused to the petitioner and the timelines were observed.
The Supreme Court noted that the Court of Appeal considered several factors: it acted under rule 5, the need to determine the appeal on its merits, the substance of the Notice of Appeal was clear, the petitioner was served within time and suffered no prejudice, and article 159(2)(d) obligated the court not to pay undue regard to technicalities. The Court held that interference with discretionary powers is only warranted if exercised whimsically, capriciously, or unreasonably, which was not the case here.
Whether the Court of Appeal erred in failing to admit and evaluate video evidence that it had declared admissible.
The Court of Appeal did not err in declining to admit the video evidence because the petitioner did not appropriately move the court to admit it as additional evidence, and the probative value of the evidence had not been established by the trial court.
The Supreme Court found that the Court of Appeal correctly exercised its discretion under rule 29(1)(b) of the Court of Appeal Rules, 2010, delimited by section 85A of the Elections Act. The appellate court noted that the trial judge had not applied his mind to the video evidence, and the cross-appeal merely urged the court to find it admissible without a prayer for its admission. The Court held that parties are bound by their pleadings, and the court could not venture beyond what was placed before it.
Whether the Court of Appeal acted in excess of jurisdiction by delving into matters of fact contrary to section 85A of the Elections Act.
The Court of Appeal did not act in excess of jurisdiction because it re-evaluated the evidence on violence at Soweto Social Hall under the 'no evidence' rule established in Munya 2, to determine whether the trial court's conclusions were supported by evidence.
The Supreme Court applied the principles from Munya 2, which allow the Court of Appeal to re-examine evidence where the appellant claims that the trial court's conclusions were based on 'no evidence' or were 'so perverse' that no reasonable tribunal would have arrived at them. The Court of Appeal found that the trial judge did not establish how the violence affected the election, and there was no evidence that voters were disenfranchised. This fell within the appellate court's mandate on matters of law.
Whether the Court of Appeal misdirected itself in the interpretation of articles 81(e)(ii) and 86 of the Constitution.
The Court of Appeal did not misdirect itself; it correctly applied the test under section 83 of the Elections Act as interpreted in Raila Odinga 2017, and found that the election was conducted substantially in accordance with constitutional principles and that any irregularities did not affect the result.
The Supreme Court reviewed the Court of Appeal's analysis and found that it properly considered whether the violence at Soweto Social Hall impacted the outcome of the election. The appellate court concluded that the violence was localized, voting hours were extended, and no voter testified to being disenfranchised. The Court held that the petitioner failed to demonstrate that the election did not meet constitutional muster under articles 81(e) and 86.
Legal principles established
#- Courts can cure procedural defects in election appeals if no prejudice and timelines are kept.
- The Supreme Court will not overturn a lower court's discretion unless it was arbitrary or unfair.
- The Court of Appeal may re-evaluate evidence if the trial court's conclusions had no evidence or were perverse.
- To nullify an election, a party must show non-compliance with electoral law and that it affected the result.
- Parties are bound by their pleadings; courts cannot go beyond what is asked in the appeal.
Court orders
#- 1.The Petition of Appeal dated July 12, 2018 and filed on July 13, 2018 is hereby dismissed.
- 2.For the avoidance of doubt, the declaration of the results of the election by the Independent Electoral and Boundaries Commission in respect of the seat of the member of the National Assembly for Embakasi East, is hereby restored.
- 3.The appellant shall bear the costs of the respondents in this Appeal.
- On appeal from
- Court of Appeal at Nairobi
- Election Petition Appeal No 18 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Key timeline
#Practical implications
#Use procedural discretion cautiously
When filing election appeals, you can rely on rule 5 of the Court of Appeal (Election Petition) Rules 2017 and article 159(2)(d) to cure minor defects. But you must show no prejudice to the other side and that constitutional timelines were met. The Supreme Court will only overturn this discretion if it was exercised whimsically or unreasonably.
Election certainty supports investment
This judgment reinforces that election results are not easily overturned by procedural technicalities. Businesses in Kenya can rely on finality of election outcomes unless serious non-compliance affected the result. This stability supports long-term planning and investment, especially in constituencies where election disputes could delay projects.
Your vote counts but not on technicalities
If you challenge an election in Kenya, you must prove that the election was not conducted according to law and that the failure affected the outcome. Minor procedural mistakes by the court or commission won't automatically cancel the election. Focus on substantial evidence of irregularities that changed the result.
Frequently asked questions
#Can the Supreme Court hear election petition appeals in Kenya?+
Yes, under article 163(4)(a) of the Constitution, the Supreme Court can hear appeals from the Court of Appeal in election petitions if the case involves interpretation or application of the Constitution. This case confirmed that electoral disputes generally raise constitutional issues.
What happens if a notice of appeal is filed late or incorrectly in Kenya?+
The Court of Appeal can use its discretion under rule 5 of the Election Petition Rules 2017 and article 159(2)(d) to allow the appeal despite the defect, as long as the other party is not prejudiced and the constitutional timelines for election petitions are still met.
What must be proved to nullify an election in Kenya?+
Under section 83 of the Elections Act, you must show either that the election was not conducted in compliance with the Constitution and electoral laws, or that the non-compliance affected the result of the election. Both elements are required to succeed.
Does the Court of Appeal have to re-evaluate evidence in election appeals in Kenya?+
Yes, under section 85A of the Elections Act, the Court of Appeal can re-evaluate evidence to check if the trial court's conclusions were based on 'no evidence' or were so perverse that no reasonable tribunal would have reached them. However, the Court must defer to the trial judge on witness credibility.
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.
- Ongaga v Orieri & 2 others (Civil Appeal 93 of 2019) [2025] KECA 1162 (KLR)[2025] KECA 1162 (KLR)20 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Mureithi v Babu & 2 others", Case Analysis (2019). Petition 15 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/63/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.