Wanjohi v Kariuki & 2 others (Petition 2A of 2014)
The bottom line
#Once a returning officer issues Form 38, they cannot cancel it – only the Election Court can.
What this practically means
#The Supreme Court ruled that after a returning officer declares a winner and issues Form 38, that officer has no power to cancel or change the certificate. Any disputes must go to the Election Court. The Court also stressed that its own decisions are binding on all lower courts, ensuring consistency. In this case, the cancellation of one candidate's Form 38 and re-issuance to another was unlawful.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Court of Appeal exceeded its jurisdiction as specified under Article 164(3) of the Constitution
- 2.whether the Court of Appeal upheld the principles of stare decisis enshrined in Article 163(7) of the Constitution, in applying the Joho decision
- 3.whether IEBC exceeded its mandate under Article 88(4)(e) of the Constitution
- 4.whether the Court of Appeal misinterpreted or misapplied Article 105 of the Constitution
- 5.whether the Court of Appeal contravened Article 27 of the Constitution, in awarding costs to the 1st respondent only
Key legal issues
#Whether the Court of Appeal exceeded its jurisdiction under Article 164(3) of the Constitution by determining an issue not pleaded in the Memorandum of Appeal.
The Court of Appeal did not exceed its jurisdiction because the issue of cancellation and re-issuance of Form 38 was expressly raised in grounds 10, 11 and 20 of the Memorandum of Appeal, and the prayers were wide enough to encompass that issue.
The Supreme Court reviewed the Memorandum of Appeal and found that three grounds (10, 11 and 20) pointedly addressed the cancellation of the 1st respondent's Form 38. The Court of Appeal distilled the 23 grounds into one main issue, which was properly before it. The assertion that unpleaded issues were determined was without merit.
Whether the Court of Appeal correctly applied the principle of stare decisis under Article 163(7) of the Constitution in applying the Joho decision.
The Court of Appeal correctly applied the Joho decision because the material facts were not sufficiently dissimilar to warrant distinguishing it; the principle that a Returning Officer becomes functus officio upon issuing Form 38 applies uniformly.
The Supreme Court held that the Joho case established a principled enunciation marking the essence of a declaration of election results. The appellant failed to demonstrate any meritorious exception that would justify distinguishing Joho. The Court emphasised that decisions of the Supreme Court bind all lower courts, and distinguishing is only permissible where material facts are substantially different.
Whether the IEBC and the Returning Officer had the power to cancel a Form 38 already issued to a candidate and issue a new one to another candidate.
The IEBC and the Returning Officer had no such power; once Form 38 is issued, the Returning Officer becomes functus officio and cannot unilaterally cancel or alter the certificate.
The Supreme Court held that the issuance of Form 38 marks the termination of the Returning Officer's mandate. Any error in the electoral process must be challenged before the Election Court, not through administrative fiat. The Court emphasised that allowing a Returning Officer to nullify results would undermine the sanctity of the electoral process and encroach on the powers of the Election Court.
Whether the Court of Appeal contravened Article 27 of the Constitution in its costs order.
The Court of Appeal's costs order was not discriminatory, but the Supreme Court varied it to require the 2nd respondent to bear the 1st respondent's costs.
The Supreme Court found that both the High Court and Court of Appeal had determined that the 2nd and 3rd respondents were the cause of the dispute. Applying the principle that costs follow the event under Section 84 of the Elections Act, the Court held that the 2nd respondent should bear the 1st respondent's costs, while the appellant should bear his own costs.
Legal principles established
#- A returning officer becomes functus officio upon issuing Form 38 and cannot alter it.
- Election results are final only after Form 38 is issued, representing the aggregate of all tallying stages.
- Supreme Court decisions under Article 163(7) bind all other courts.
- If election results are tainted by constitutional breaches, courts should not uphold them but may order fresh elections.
Court orders
#- 1.The appellant's appeal is disallowed, and the determination made by the Court of Appeal is upheld.
- 2.The declaration of election results in Form 38 issued to George Mike Wanjohi on 8th March, 2013 is hereby declared null.
- 3.The declaration of election results in Form 38 issued to Steven Kariuki on 6th March, 2013 is declared null.
- 4.The Registrar shall forthwith serve these Orders upon the parties and upon the Speaker of the National Assembly.
- 5.The 1st respondent's costs shall be borne by the 2nd respondent.
- 6.The appellant shall bear his own costs.
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
The Deputy Chief Justice concurred with the majority decision but wrote separately to expound on the application of stare decisis and the principle of restrictive distinguishing in constitutional adjudication, emphasising that electoral disputes in Kenya are resolved with particular reference to constitutional values and principles which should be upheld and interpreted as required by the Constitution.
I have considered the majority decision and concur with the reasons leading to, and the conclusion and final orders derived after a careful consideration of the case set forth in this matter. There are certain aspects of the judgement upon which, I concur, but wish to expound.p. 35
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 272 of 2013
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Appeal against the Court of Appeal decision
The Supreme Court found no merit in the appellant's grounds of appeal and upheld the Court of Appeal's determination.
Declaration that the appellant was the validly elected Member of National Assembly for Mathare Constituency
The Form 38 issued to the appellant was declared null as it was issued after the IEBC had become functus officio.
Costs
The 1st respondent's costs shall be borne by the 2nd respondent. The appellant shall bear his 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.
The appellant's appeal is disallowed, and the determination made by the Court of Appeal is upheld.
The declaration of election results in Form 38 issued to George Mike Wanjohi on 8th March, 2013 is hereby declared null.
The declaration of election results in Form 38 issued to Steven Kariuki on 6th March, 2013 is declared null.
The mandate of the returning officer, according to Regulation 83(3), terminates upon the return of names of the persons-elected to the Commission. The issuance of the certificate in Form 38 to the persons-elected indicates the termination of the returning officer's mandate, thus shifting any issue as to validity, to the Election Court.
Declaration takes place at every stage of tallying. For example, the first declaration takes place at the polling station; the second declaration at the Constituency tallying centre; and the third declaration at the County returning centre. Thus the declaration of election results is the aggregate of the requirements set out in the various forms, involving a plurality of officers.
The guiding principle, therefore, is that decisions of the Supreme Court, as a matter of constitutional imperative, are binding on all other Courts, and are to be adhered to so that certainty, predictability and consistency in the law is institutionalized within the legal system.
Issues in the judgment
#The judgment contains a post-delivery correction order indicating that paragraphs 59, 60 and the first sentence of paragraph 63 were erroneously included and should have been deleted, but were read out during delivery.
Key timeline
#Practical implications
#Functus officio restricts post-declaration actions
Counsel must advise clients that once a returning officer issues Form 38, the officer's mandate ends. Any challenge must be filed in the Election Court under Article 105. Attempts to administratively nullify results are void and can lead to nullification of the entire election.
Election finality protects business certainty
Businesses relying on election outcomes for contracts or policy stability can take comfort that results cannot be unilaterally altered by returning officers. The court's emphasis on binding precedent ensures predictable legal environment for commercial decisions tied to election results.
Your vote counts only if Form 38 is final
Individuals should understand that once a returning officer declares a winner and issues Form 38, that result is final unless challenged in court. Attempts to cancel certificates undermine the will of the voters. The Supreme Court protects the integrity of the electoral process.
Frequently asked questions
#Can a returning officer cancel a Form 38 in Kenya?+
No. The Supreme Court in George Mike Wanjohi v. Steven Kariuki (2014) ruled that once a returning officer issues Form 38, they become functus officio and cannot cancel or alter it. Only the Election Court can set aside the results.
What is functus officio in Kenyan election law?+
Functus officio means an officer's mandate ends after completing a task. In elections, a returning officer's power ends once they issue Form 38. They cannot later change the declaration. This principle was affirmed in the 2014 Supreme Court case.
Is the Supreme Court binding on lower courts in Kenya?+
Yes. Under Article 163(7) of the Constitution, decisions of the Supreme Court are binding on all other courts. Lower courts must follow them unless the material facts are substantially different, as confirmed in the Wanjohi case.
What happens if election results are tainted by breaches in Kenya?+
If the court finds that constitutional breaches made the results not reflect the will of the electorate, it will not uphold those results. It may order fresh elections or other remedies, as stated in the Wanjohi judgment.
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.
- Republic v Manyeso[2025] KESC 16 (KLR)11 Apr 2025followed
Cite this brief
#Cite this brief
Caselaw, "Wanjohi v Kariuki & 2 others (Petition 2A of 2014)", Case Analysis (2014). Petition 2A of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/26/eng@2014-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.