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Supreme CourtPartially AllowedPetition 12 of 2014· [2015] KESC 12 (KLR)

Wetangula & another v Kombo & 5 others

Supreme Court of Kenya
17 March 2015
19,572 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~78 min to read original · ~4 min brief

The bottom line

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A candidate found guilty of bribery in an election petition is not automatically disqualified; a criminal conviction is required.

What this practically means

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The Supreme Court ruled that election petitions are special cases, not criminal trials. Even if a court finds a candidate committed bribery during an election, that alone does not disqualify them from future elections. Disqualification only happens after a criminal court convicts them. The court also said judges can delegate tasks like vote recounts to court officials, as long as parties are present and the judge supervises.

Executive summary

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The Supreme Court partially allowed the appeal by Moses Masika Wetangula against the Court of Appeal decision that had upheld the High Court's nullification of his election as Senator for Bungoma County on grounds of bribery and treating of voters. The Court addressed four main issues: jurisdiction of the election Court, the nature of election offence proceedings, delegation to the Deputy Registrar, and disqualification from future elections. On jurisdiction, the Court declined to find that the petition was filed out of time, noting that the date of declaration of results was a disputed fact not resolved by lower courts and that the Supreme Court lacks fact-finding jurisdiction. The Court upheld the finding that Wetangula committed electoral offences, confirming that election petitions are sui generis proceedings where the standard of proof for election offences is beyond reasonable doubt, but the process is not a criminal trial. The Court also upheld the delegation of scrutiny and recount functions to the Deputy Registrar. Crucially, the Court quashed the Court of Appeal's order disqualifying Wetangula from future elections, holding that disqualification under Article 99(2) of the Constitution requires a criminal conviction or other lawful process, not merely a finding by an election Court. The Court ordered the Registrar to report the commission of the bribery offence to the DPP, IEBC, and Speaker of the Senate. Costs before the Supreme Court were ordered to be borne by each party. Deputy Chief Justice Rawal wrote a concurring opinion highlighting the need for legislative reform of Section 87 of the Elections Act to clarify the relationship between election Court findings and criminal prosecution.

Key legal issues

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01

Whether the High Court election petition was filed out of time, depriving it of jurisdiction.

Holding

The Supreme Court could not make a finding that the petition was filed out of time because the date of declaration of results was a disputed fact that had not been resolved by the lower courts, and the Supreme Court lacks fact-finding jurisdiction in an appeal under Article 163(4)(a).

Reasoning

The Court noted that there was an evidentiary dispute as to when the declaration of results was made, and neither the High Court nor the Court of Appeal made a finding on this issue. The Supreme Court, exercising appellate jurisdiction on points of law only, could not resolve this factual dispute. The Court held that the legal principle in the Joho case on electoral timelines gave no basis for impugning the legality of the High Court petition on the facts of this case, as the ascertainment of critical moments in an election process is vital and this Court lacked the opportunity for evidence-testing.

02

Whether an election Court exercises criminal jurisdiction when determining election offences.

Holding

An election Court does not exercise criminal jurisdiction; its proceedings are sui generis. While it can inquire into criminal-like offences such as bribery and treating, this does not constitute a criminal trial with its dedicated procedures and safeguards.

Reasoning

The Court emphasized that election petitions are statutory proceedings governed by a special self-contained regime. The election Court's primary duty is to give effect to the will of the electorate. Although the Court can investigate election offences, the proceedings remain sui generis and are not criminal trials. The finding of an election offence by the election Court is for purposes of the petition, and a report is sent to the DPP for possible criminal prosecution, which is a separate process.

03

Whether an election Court Judge may delegate functions to the Deputy Registrar.

Holding

An election Court may delegate to the Deputy Registrar the task of carrying out an inquiry, scrutiny or recount, as long as it is done in the presence of the parties' representatives and under the superintendence of the Court.

Reasoning

The Court agreed with the Court of Appeal that such delegation is proper and expedites the hearing. The Deputy Registrar is part of the senior administrative personnel of the Court and can assist in gathering evidence. The Court noted that it had itself, in the Raila case, ordered the Registrar to carry out a scrutiny of Forms 34. The key safeguard is that the exercise must be carried out under the directions and superintendence of the election Court.

04

Whether proof of commission of an election offence by a candidate is a basis for the Court to disqualify that candidate from future elections.

Holding

A finding by an election Court that a candidate committed an election offence does not, by itself, disqualify that candidate from future elections. The Court of Appeal's order on disqualification was quashed.

Reasoning

The Court held that disqualification from candidacy is governed by Article 99(2) of the Constitution, which requires either a sentence of imprisonment of at least six months or a finding in accordance with any law of misuse of office or contravention of Chapter Six. The election Court's finding of an election offence does not automatically trigger disqualification. The proper course is for the election Court to report the matter to the DPP and IEBC under Section 87(1) of the Elections Act, and any disqualification would follow from a subsequent criminal conviction or other lawful process.

Legal principles established

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  • Election petitions are sui generis proceedings, neither civil nor criminal.
  • Standard of proof for election offences in petitions is beyond reasonable doubt, but not a criminal trial.
  • An election court can delegate scrutiny or recount to Deputy Registrar under its supervision.
  • A finding of an election offence does not automatically disqualify a candidate; disqualification requires criminal conviction.
  • The Supreme Court cannot resolve factual disputes in appeals on points of law only.
  • The election court must report election offences to the DPP for separate criminal proceedings.

Court orders

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  1. 1.The contest to the election Court's jurisdiction in Bungoma High Court Election Petition No.3 of 2013 is disallowed.
  2. 2.The finding of the Court of Appeal in Kisumu Civil Appeal No. 43 of 2013, as regards the commission of an electoral offence, is upheld.
  3. 3.The finding of the Court of Appeal in Kisumu Civil Appeal No. 43 of 2013 as regards disqualification of the appellant as an election candidate is hereby quashed.
  4. 4.In accordance with Section 87(1) of the Elections Act, 2011 (Act No.24 of 2011) [Rev. 2012], the Registrar of the Supreme Court, by proper form, shall serve a report of the commission of the election offence of bribery by the appellant herein, upon the Director of Public Prosecutions; the Independent Electoral and Boundaries Commission; and the Speaker of the Senate.
  5. 5.The apportionment of costs by the Court of Appeal is upheld.
  6. 6.As regards costs before this Court, the parties shall bear their own respective costs.
  7. 7.This Judgment shall be brought to the attention of the Attorney-General, the Kenya Law Reform Commission, and the Speakers of the two Chambers of Parliament, for information, and to the intent that re-formulated legislation be considered, delimiting the respective mandates of the election Court and the ordinary criminal Court, with due attention paid to the issues of jurisdiction for the different Courts adjudicating upon the two sets of matters.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 1(3)
  • Constitution of Kenya, 2010Article 2(4)
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 24(1)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 50(2)
  • Constitution of Kenya, 2010Article 50(2)(b)
  • Constitution of Kenya, 2010Article 50(2)(o)
  • Constitution of Kenya, 2010Article 73(1)
  • Constitution of Kenya, 2010Article 73(2)
  • Constitution of Kenya, 2010Article 79
  • Constitution of Kenya, 2010Article 81
  • Constitution of Kenya, 2010Article 87
  • Constitution of Kenya, 2010Article 87(2)
  • Constitution of Kenya, 2010Article 88(4)
  • Constitution of Kenya, 2010Article 88(4)(e)
  • Constitution of Kenya, 2010Article 99
  • Constitution of Kenya, 2010Article 99(2)
  • Constitution of Kenya, 2010Article 99(2)(g)
  • Constitution of Kenya, 2010Article 99(2)(h)
  • Constitution of Kenya, 2010Article 99(3)
  • Constitution of Kenya, 2010Article 105(1)
  • Constitution of Kenya, 2010Article 157
  • Constitution of Kenya, 2010Article 157(6)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 163(3)
  • Constitution of Kenya, 2010Article 163(4)
  • Constitution of Kenya, 2010Article 163(4)(a)
  • Constitution of Kenya, 2010Article 259(1)(c)
  • Supreme Court Act, 2011Section 3
  • Supreme Court Act, 2011Section 3(c)
  • Supreme Court Rules, 2012Rule 3(5)
  • Elections Act, 2011Section 24
  • Elections Act, 2011Section 24(3)
  • Elections Act, 2011Section 62
  • Elections Act, 2011Section 64
  • Elections Act, 2011Section 67
  • Elections Act, 2011Section 67(1)
  • Elections Act, 2011Section 67(1)(a)
  • Elections Act, 2011Section 67(2)
  • Elections Act, 2011Section 72
  • Elections Act, 2011Section 72(1)
  • Elections Act, 2011Section 72(2)
  • Elections Act, 2011Section 72(3)
  • Elections Act, 2011Section 72(3)(b)
  • Elections Act, 2011Section 72(4)
  • Elections Act, 2011Section 75
  • Elections Act, 2011Section 76(1)(a)
  • Elections Act, 2011Section 83
  • Elections Act, 2011Section 85A
  • Elections Act, 2011Section 87
  • Elections Act, 2011Section 87(1)
  • Elections Act, 2011Section 107(2)
  • Elections (General) Regulations, 2012Rule 87(3)
  • Elections (Parliamentary and County Election) Petition RulesRule 32(3)
  • Evidence Act (Cap. 80)Section 107
  • Criminal Procedure Code (Cap. 75)Section 138
  • Penal Code (Cap. 63)
  • Public Officer Ethics Act, 2003
  • Leadership and Integrity Act, 2012

Cases cited (25)

  • Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others
    Petition No. 10 of 2013
  • Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others
    Application No. 5 of 2014 [Munya 1]
  • Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others
    Petition No. 2B of 2014 [Munya 2]
  • Owners of Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd
    [1989] KLR
  • Mary Wambui Munene v. Peter Gichuki King'ara & 2 Others
    [2014] eKLR
  • Paul Posh Aborwa v. Independent Electoral and Boundaries Commission and 2 Others
    Civil Appeal No. 52 of 2013
  • Anami Silverse Lisamula v. The Independent Electoral & Boundaries Commission & 2 Others
    Petition No. 9 of 2014
  • Tononoka Steels Limited v. Eastern and Southern Africa Trade and Development Banks
    [1999] eKLR
  • Ferdinand Ndung'u Waititu v. Independent Electoral & Boundaries Commission & 8 Others
    [2013] eKLR
  • Fredrick Otieno Outa v. Jared Odoyo Okello & 4 Others
    [2014] eKLR
  • International Centre for Policy & Conflict & Others v. Attorney-General & 6 Others
    [2013] eKLR
  • Rehim Khan v. Khurshidahmed & Others
  • Raila Odinga v. IEBC & Others
  • Hon. Lemanken Aramat v. Harun Meitamei Lempaka & Two Others
    Sup. Ct. Petition No. 5 of 2014
  • Samuel Kamau Macharia & 2 Others v. Kenya Commercial Bank & 2 Others
    [2012] eKLR
  • Peter Oduor Ngoge v. Francis Ole Kaparo & 5 Others
    [2012] eKLR
  • Carmichele v. Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening)
    2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC)
  • Bruce and Another v. Fleecytex Johannesburg CC and Others
    [1998] ZACC 3; 1998 (2) SA 1143 (CC); 1998 (4) BCLR 415 (CC)
  • Jyoti Basu & Others v. Debi Ghosal & Others
    [1982] AIR 983; [1982] SCR (3) 318
  • Murathe v. Macharia
    [2008] 2KLR (EP) 244
  • Muiya v. Nyagah & 2 Others
    [2008] 2 KLR (EP) 493
  • William Kinyanyi Onyango v. Independent Electoral and Boundaries Commission & 2 Others
    [2013] eKLR
  • Mohamed Ali Mursal v. Saudia Mohamed and Others
    Garissa Election Petition No.1 of 2013
  • M. Narayana Rao v. G. Venkata Reddy & Others
    1977 AIR S.C 208
  • Moses Wanjala Lukoye v. Benard Alfred Wekesa Sambu & 3 Others
    [2013] eKLR
On appeal from
Court of Appeal at Kisumu
Civil Appeal No. 43 of 2013
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Key timeline

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2013
High Court Election Petition No. 3 of 2013 filed in Bungoma
2013
Court of Appeal in Kisumu Civil Appeal No. 43 of 2013 finds bribery and disqualifies candidate
2015
Supreme Court quashes disqualification but upholds bribery finding, orders report to DPP

Practical implications

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For lawyers

Election petition procedure clarified

Lawyers should note that election petitions are sui generis: the court can find election offences using criminal standard of proof but without full criminal procedure safeguards. Delegation to Deputy Registrar for scrutiny is allowed if supervised. A finding of an offence does not disqualify the candidate; that requires a separate criminal conviction. Advise clients accordingly when challenging or defending election results.

For businesses

Election integrity and candidate vetting

Businesses involved in political funding or partnerships should understand that a candidate found guilty of bribery in an election petition is not automatically barred from office. However, the finding triggers a DPP investigation. Monitor criminal proceedings closely, as a conviction would disqualify the candidate under Article 99(2). This affects political risk assessments and compliance with anti-bribery policies.

For individuals

Your vote and candidate accountability

If you suspect a candidate of bribery, you can raise it in an election petition. The court will investigate using a high standard of proof. Even if the court finds bribery, the candidate stays eligible unless a criminal court convicts them. The court sends a report to the DPP, who decides on prosecution. Your evidence can still lead to accountability through criminal channels.

Frequently asked questions

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Can a Kenyan candidate be disqualified for bribery without a criminal conviction?+

No. The Supreme Court ruled that a finding of bribery in an election petition does not automatically disqualify a candidate. Disqualification under Article 99(2) of the Constitution requires a criminal court conviction or a finding in accordance with law, after appeals are exhausted.

What is the standard of proof for election offences in Kenya?+

The standard is beyond reasonable doubt, same as criminal cases, but the election petition is not a criminal trial. The court can still find an offence and report it to the DPP for separate prosecution. This was confirmed in the Wetangula case.

Can a Kenyan election judge delegate vote recounts to court staff?+

Yes. The Supreme Court confirmed that an election court can direct the Deputy Registrar to carry out scrutiny or recount, as long as parties' representatives are present and the judge supervises. This helps speed up the process.

What happens after an election court finds a candidate guilty of bribery in Kenya?+

The court sends a report to the DPP, IEBC, and Speaker of Senate. The DPP then decides whether to prosecute criminally. The candidate is not automatically disqualified from future elections unless convicted by a criminal court.

Later judgments citing this (3)

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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, "Wetangula & another v Kombo & 5 others", Case Analysis (2015). Petition 12 of 2014. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2015/12/eng@2015-03-17

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