Entire Judgement of the Court of Appeal
by Julius Malombe against Charity Ngilu
by Julius Malombe against Charity Ngilu
IN THE COURT
OF APPEAL AT NAIROBI
(CORAM: NAMBUYE, WARSAME &
OTIENO-ODEK JJA) ELECTION PETITION APPEAL NO. 24 OF 2018
BETWEEN
DR. JULIUS
MAKAU MALOMBE....................................................... APPELLANT
AND
CHARITY KALUKI NGILU......................................................... 1st
RESPONDENT
INDEPENDENT ELECTORAL
AND BOUNDARIES COMMISSION........................................... 2nd
RESPONDENT
GOGO ALBERT NGUMA........................................................... 3rd
RESPONDENT
(Being an
appeal from the judgment of the High Court of Kenya at Kitui, (Nyamweya, J.),
dated 2nd March 2018
in
Kitui Election Petition No. 4 of 2017)
JUDGMENT OF THE COURT
1. Charity Kaluki Ngilu, the 1st respondent, was declared Governor-elect for Kitui
County after the 81,1 August 2017 gubernatorial elections. Dr. Julius Makau Malombe, the appellant, was the 2nd runner
up. The declared results
were as follows:
(i) Dr. Julius Makau Malombe...................
74,681 votes
(ii) David Musila.........................................
114,827 votes
(iii) Charity Kaluki Ngilu.............................
169,990 votes
2. Aggrieved by the
declared results, the appellant filed a petition at the High Court in Kitui
challenging the declaration of the 1st respondent as winner of the
election. The grounds in support of the petition were that the election and
declaration of the 1st respondent as governor-elect was irregular,
illegal and did not reflect the will of the people of Kitui County. That the
appellant's agents were denied access to various polling stations; that the
voting process was marred by violence and intimidation of voters; that the data
entered into the KIEMS Kit was not consistent, comparable and verifiable with
the information recorded in Fonns 37As; that the 2nd and 3rd
respondents unlawfully issued more than one ballot paper to some voters in
contravention of Section
59 of the Elections Act; that the 1st respondent did
not administer the election in an efficient, accurate and accountable manner as
envisaged in Article 81
(e) of the Constitution;
that the results were based on false figures arrived at as a result of forgery
of the Statutory Fonns 37As, Fonn 37B and Fonn 37C; that the security of the
ballot boxes at polling stations was compromised; that the lsl
respondent mismanaged the gubernatorial elections; that in sum total, the Kitui
gubernatorial elections was not conducted in a free, fair and transparent
manner.
3. The respondents
denied the allegations in support of the petition. The 2nd and 3rd
respondents denied that agents of the appellant were denied access and entry
into polling stations. It was stated that in the process of vote counting, the
votes were displayed to all persons present to confirm the identity of the
person voted for; that there were no acts of violence and intimidation in the
polling stations; that the election was conducted in a free, fair and
transparent manner, in accordance with constitutional principles and electoral
laws. In addition, it was contended that the appellant engaged in voter bribery
and breached the electoral code of conduct by misrepresenting that the 1st
respondent was no longer contesting the gubernatorial seat and falsely branding
a vehicle with the 1st respondent's posters during the polling day. The 1st
respondent also denied all the allegations in the petition.
4. Whereas the appellant called a total of
nine (9) witnesses, the respondents
called a total of four (4) witnesses. Upon
hearing the parties, the trial court
in a judgment dated 2nd March
2018 dismissed the appellant's petition. The
court expressed itself as follows:
"172.
The sum total of the foregoing findings is that the
Petitioner's case was largely based on allegations, suppositions and arguments
which were either not pleaded in his Petition, or not supported by sufficient evidence. In addition, the
irregularities noted and found by this Court to exist will not in any way affect the results of the 1st Respondent as the winner of the election for Governor of Kitui County. Furthermore,
after applying the provisions of Section 83 of the Elections Act,
I find that these
irregularities would not have affected the ultimate result given
the margin of votes and the fact that the irregularities
were established to have occurred in only 10 out of over 1000 polling stations
in the Kitui County."
5. The trial court awarded costs as follows:
(i)
Instruction fees to be paid by the appellant to the 1st respondent capped at
Kshs. 3,000,000/=.
(ii)Instruction
fees to be paid to the 1st respondent jointly or severally by the 2nd
and 3ld Respondents capped at Kshs. 1,000,000/=.
(Hi) The 2nd and 3ld
Respondents to be paid instruction fees by the appellant capped at Kshs.
2,000,000/=.
6. Aggrieved by the judgment of the trial court, the appellant lodged
the instant
appeal citing the following grounds:
appeal citing the following grounds:
(i) Whether the learned judge erred in law
in her failure to
appreciate the legal effect of illegalities, irregularities and
malpractices proven by the appellant.
appreciate the legal effect of illegalities, irregularities and
malpractices proven by the appellant.
(ii) Whether the learned judge erred in law in
holding that the
appellant had not discharged the burden of proof.
appellant had not discharged the burden of proof.
(Hi)
Whether the judge erred in law in not taking into account the
uncontroverted evidence of the appellant.
(iv) Whether the
conclusions arrived at in the judgment is supported
by analysis of the evidence on record.
by analysis of the evidence on record.
(v) Whether the judge
erred in law in awarding costs in the terms
expressed in the judgment.
expressed in the judgment.
7.
On
their part, the 2nd and 3rd respondents filed a
cross-appeal contending that the trial judge erred in law in condemning them to
pay jointly and severally costs in the sum of Ksh. 1,000,000/= to the 1st
respondent. That the trial court award of Ksh. 2,000,000/= payable by the
appellant to the 2nd and 3rd respondents are an error in
principle and discriminatory. That the judge erred in failing to take into
account the principle that costs follow the event. We were on that account
urged to set aside the trial courts order on costs and award costs to the 2nd
and 3rd respondents who were successful in the petition. That the
2nd and 3rd respondents be awarded costs capped at Ksh. 4,000,000/=.
8.
At
the hearing of this appeal, learned counsel Mr. Steve Ogolla appeared for the
appellant while learned counsel Mr. Kioko Kilukumi appeared for the lsl respondent
and learned counsel Mr. Elias Masika appeared for the 2nd and 3rd
respondents. All parties filed written submissions and list of authorities in
the appeal.
APPELLANT'S SUBMISSIONS
9. Counsel for the
appellant submitted that the substratum of the appeal is in ground 9 of the
memorandum which states that the trial judge misapplied the law by failing to
note the appellant's testimony as petitioner was without rebuttal. That the
trial court did not consider the qualitative aspects of the conduct of the
elections; that the judge erred in the application of the law to proven facts;
that resolution of election disputes require a predictable philosophy to wit there must be compliance with the law at
every step in the conduct of elections. That the IEBC is at the epicenter of
democracy and election management in Kenya and non-compliance by the IEBC of
any electoral principles and laws demonstrates lack of competence, openness,
transparency and accountability in the conduct of elections. That the net
effect of all proven irregularities and illegalities demonstrates that
qualitatively, the Kitui gubernatorial elections was not conducted in a free,
fair, transparent and accountable manner. That the trial court erred in law in
failing to appreciate the qualitative effect of the proved irregularities,
illegalities and malpractices.
10. Counsel contended that the petitioner
pleaded and proved that the entire Kitui gubernatorial election was marred with
irregularities which singularly and collectively rendered the process and the declared
results lacking in integrity; that the credibility of the declared results is
impugned due to substantial, glaring and qualitative anomalies; that the
appellant led evidence that revealed irregularities in the electoral process;
that the irregularities included massive inflation of votes in favour of the 1st
respondent in at least 10 out of 54 polling stations; votes cast exceeded
registered voters in most polling stations; that there was flagrant violation
of and substantial noncompliance with the Constitution and applicable laws and
principally, that a number of Forms 37As did not bear the IEBC stamp; that
alterations on statutory forms were not countersigned; that there was irregular
and illegal issuance of Form 37D; that in the instant case, Form 37D which is
the Certificate for the Winner is dated 11th August 2017 while Form
37C which contains the results of the election is dated 12 August 2017. That it
is irregular and illegal for the Certificate to predate the declaration of
results.
11.
It
was further submitted that there is proven evidence on record that there was
violence and intimidation on the polling day. That Kalungu Nzau, (PW5) testified that he was violently attacked by a group of 9 men and
beaten up just moments after voting and within the precincts of the polling
station. That this evidence was uncontroverted and the trial court erred in
failing to find that this proven violence qualitatively affected the result of
the election.
12.
Another
ground raised is that the appellant's agents were denied access to more than
400 polling stations. Bernard
Kitheka (PW8) testified that he made several calls to the
3 rd respondent who was the County Returning Officer to address the
complaint on denial of access. That the complaint was not resolved and neither
the presiding officers nor returning officers testified in court. That the
Polling Day Diary was not produced in court to establish the claims that the
agents were either denied access or admitted to the polling stations. That
various Forms 37As did not bear the names and signatures of Wiper Party Agents
who were agents of the political party for the appellant. Counsel contended
that the illegalities, irregularities and malpractices established by the
appellant proved that the IEBC conducted the Kitui gubernatorial elections
without a sense of responsibility, justice or common decency in violation of Articles 38, 81, 86 and 88 of the
Constitution.
13.
The
appellant urged us to examine the iixegularities, illegalities and malpractices
disclosed and place emphasis on the entire electoral system and processes
rather than focusing on the results alone. That in this way, this
Court
will unearth inconsistent administrative actions on the part of IEBC and its
agents.
14.
On
the question of burden of proof, it was submitted that none of the presiding
officers were called to testify and neither were polling station diaries
produced in court. That the appellant adduced cogent and credible evidence to
show that agents were denied access to polling stations; that there was
violence and intimidation; that the appellant had proved there was substantial
non-compliance with the electoral law with regard to counting, tallying and
declaration of results. That it was proved that there was massive inflation of
votes in favour of the returned candidate; that there was connivance,
complacency, incompetence and illegality in the conduct of elections; that
there was irregular and illegal issuance of Form 37D. That in the face of these
proven illegalities, irregularities and malpractices, the trial court erred in
finding that the burden of proof had not been discharged by the appellant. That
in this context, the learned judge erred in failing to find that the
appellant's evidence was uncontroverted and consequently, the conclusions and findings
of the trial court are not supported by the evidence on the record. That the
judge erred in taking a quantitative and numerical approach to determine
whether non-compliance significantly affected the results.
15.
The
appellant urged that the issues in this appeal require a qualitative approach
that looks at the overall process of the election especially the transparency
of voting, chaos at polling stations, the process of counting, tallying and
declaration of results and the ability of each voter to cast their vote. Counsel therefore urged us to adopt a
historical, teleological and purposive interpretative approach when examining
the issues canvassed in the appeal.
16. On costs, we were
urged to reverse the orders of the trial court and find that
this appeal has merit and the respondents should pay costs in the trial court
and in this appeal.
this appeal has merit and the respondents should pay costs in the trial court
and in this appeal.
1st
RESPONDENT'S SUBMISSIONS
17. Learned Counsel Mr. Kilukumi submitted that pursuant to Section 85A of
the Elections Act, an appeal to this Court is confined to matters of law. That
the memorandum of appeal raises 20 grounds; that out of the 20 grounds, 17
are based on matters of fact; that only grounds 9, 16 and 20 raises matters of
law. Consequently, counsel submitted that this Court has no jurisdiction to
consider the grounds premised on matters of fact. Counsel cited dicta in
Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 others [2014]
eKLR where the Supreme Court expressed that 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. It
was further stated that the test of whether a question is one of law or of fact
is not the appellation given to such question by the party raising the same;
rather, it is whether the appellate court can determine the issue raised
without reviewing or evaluating the evidence, in which case, it is a question
of law; otherwise it is a question of fact.
the Elections Act, an appeal to this Court is confined to matters of law. That
the memorandum of appeal raises 20 grounds; that out of the 20 grounds, 17
are based on matters of fact; that only grounds 9, 16 and 20 raises matters of
law. Consequently, counsel submitted that this Court has no jurisdiction to
consider the grounds premised on matters of fact. Counsel cited dicta in
Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 others [2014]
eKLR where the Supreme Court expressed that 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. It
was further stated that the test of whether a question is one of law or of fact
is not the appellation given to such question by the party raising the same;
rather, it is whether the appellate court can determine the issue raised
without reviewing or evaluating the evidence, in which case, it is a question
of law; otherwise it is a question of fact.
18. On
the merits of the appeal, the 1st respondent submitted that the
trial court did not err in arriving at its conclusions. That the errors of
transpositions of results from Forms 37As to Form 37B and ultimately to Fonn
37C were
freely
admitted by the 3" respondent. That the errors of transposition did not
affect the result of the impugned election. That the learned judge correctly
analyzed the evidence and came to a finding of fact that the transposition
errors did not affect the result.
19.
Regarding
the allegation that there was massive inflation of votes, it was submitted that
there was no factual finding by the trial court of 100% inflation of votes in
favour of the 1st respondent. The fact that a few Forms 37As were
not stamped did not in any way affect the result of the election. That the Elections (General) Regulations 2012 do not make provision for stamping of Forms
37As; that the only legal requirement in Regulation 61 (4) (c) is the stamping of ballot papers. That the results reflected in the
statutory Fonns were not forgeries but the actual results which were also
stored electronically in the SD cards. Counsel submitted that there is no legal
requirement on counter-signing expressed either in Article 86 of the Constitution or Regulations 73, 75, 76, 79, and 82.
20.
The
1st respondent submitted that the allegation on illegal and
irregular issuance of Fonn 37D was sufficiently explained by the Returning
Officer who testified that Form 37D was dated 11th August 2017 as
that was the time when he announced the results; that it takes longer to fill
Fonn 37C and to get it signed by the agents; that when the process of filling
Form 37C was completed, it was 1.00 am and the date had changed to 12th
August 2017. Accordingly, the Returning Officer explained that he signed Form
37C and dated it 12th August 2017. Counsel submitted that
notwithstanding the cogent explanation given by the Returning Officer, the
trial court did not err in law in finding that the difference in dates between
Form 37C and 37D was not pleaded in the petition. That it is trite that in an
election petition, a court should not consider and detennine un-pleaded issues.
21.
On
violence and intimidation, the 1st respondent submitted that the
violence proved was neither widespread nor attributed to the 1st
respondent and thus the trial court did not err in finding that the isolated
incident of violence did not affect the result of the election.
22.
Submitting
on the allegation that the appellant's agents were denied access to the polling
stations and tallying centers, Counsel expressed that it was the appellant's
duty to lead evidence and establish that his agents were denied access. That
the evidence tendered by the appellant was hearsay; that the trial court
correctly held so at paragraphs 68 and 70 of the judgment. Noting that hearsay
evidence was led in an attempt to prove that agents were denied access, it was
submitted that the legal and evidential burden was not discharged by the
appellant. That there was no cogent and credible prima facie evidence to shift
the evidential burden to the respondents. That the irregularities admitted by
the 2nd and 3rd respondents were peripheral and
inconsequential transposition errors that did not affect the result. That it
was the duty of the appellant to demonstrate that the admitted transposition
errors quantitatively affected the result. That the appellant failed to
discharge this legal and evidential burden. Counsel further submitted that the
evidence by the appellant was not uncontroverted; it was challenged in all
material aspects, issue by issue, through extensive cross-examination.
23.
We
were urged by the 1st
respondent to find that
the trial court examined both the quantitative and qualitative aspects of the
impugned election; that the trial court was satisfied that the declared results
was not affected by any iiTegularity; the court correctly applied Section 83 of
the Elections Act and found that the evidence led by the
appellant did not affect the declared result of the election. On costs, it was
submitted that the appellant subjected the respondents to incur costs in
defending the petition and it is only just, fair and equitable that the
appellant should reimburse the costs. That failure to make the appellant liable
in costs would encourage vexatious litigants under the guise of access to
electoral justice.
2nd
and 3rd RESPONDENTS' SUBMISSIONS
24.
The
respondents, through learned counsel Mr. Masika, made submissions in the main
appeal and on the cross-appeal on costs. Submitting on the cross-appeal,
counsel emphasized that costs follow the event; that the 2nd and 3rd
respondents having successfully defended the petition, the trial court
erred in making an order that they pay costs capped at Ksh. 1 million to the
1st respondent. That the respondents only admitted transposition errors which
affected 10 polling stations out of a total of 1454 polling stations. That the
transposition errors were not deliberate and were as a result of inadvertent
human error. That by denying the respondents full costs and condemning them to
pay the 1st respondent costs, the trial court was in effect
punishing the 2nd and 3rd respondents despite them having
delivered an election in accordance with Constitutional principles and the
election law. That it is trite that costs should follow the event and the
respondents having successfully defended the petition, they should be awarded
costs and not punished with costs.
25.
On
the main appeal, counsel emphasized the pivotal role of Section 83 of the Elections Act. That under the Section, no election
shall be declared void by reason of non-compliance with any written lav/
relating to that election if it appears that the election was conducted in
accordance with the principles laid down in the Constitution and in that
written law or that the noncompliance did not affect the result of the
election. Counsel cited Raila
Odinga & 2 others v Independent Electoral & Boundaries
Commission & 3 others [2013] eKLR where the Supreme Court expressed itself as
follows:
"[196]
.... Where a party alleges non-conformity
with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of
proving the contrary. This
emerges from a long-standing common law approach in respect of alleged irregularity
in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the
public authority's departures from the prescriptions of the law."
26. It was submitted
that none of the witnesses that were called by the appellant gave any cogent
evidence to establish that the Kitui gubernatorial elections was conducted
contrary to the principles set out in the Constitution or the Elections Act and
Regulations made thereunder. That in the absence of such evidence, the
appellant failed to discharge the legal and evidentiary burden to prove that
the gubernatorial elections were not free, fair, transparent and that the declared
results were not accurate and verifiable. Counsel agreed with the finding of
the trial court that the margin between the 1st respondent and the
appellant was 95,309 votes and the margin was not affected by the errors of
transposition or other irregularities that were proven. It was submitted that
the scrutiny, recount and re-tallying Report by the Deputy Registrar confinned
that the variances or minor inconsistencies or inaccuracies in 10 out of 51
polling stations were transposition errors. That the trial judge correctly
relied on the Deputy Registrar's Report and held that the proven errors did not
benefit any candidate. It was submitted that based on the clear finding of the
Scrutiny Report, the appellant's allegation that there was inflation of votes
had no factual basis. We were urged to find that
the Scrutiny, Recount and Re-tallying Report showed and confirmed that the eiTors did not render the results of the election
liable for nullification as provided for under Section 83 of the Elections Act.
27.
Submitting
on the alleged lack of IEBC stamps on some Forms 37As, counsel stated that
stamping of Forms 3 7 As is not a legal requirement; that it is the signatures
of the presiding officers and the agents that authenticate the results; that if
any Form is stamped, it is a gratuitous and superfluous discretionary or administrative act incapable of creating a statutory obligation. On
the allegation that some Forms 3 7As had alterations that were not
countersigned, counsel submitted that it is this allegation that was the basis of the scrutiny and recount exercise. That the Deputy Registrar's
Report revealed that entries in most Forms 37As were accurate and the few eiTors did not materially affect the overall
result. Besides, it was submitted that countersigning is an administrative act
not founded in any law; that an inadvertent
failure to countersign an alteration cannot manifest as a breach of any law to give rise to nullification of an election result.
28.
On
the illegal and irregular issuance of Form 37D, it was submitted that the trial
court did not err in finding that this issue was not pleaded
in the petition. Counsel cited the case of Zakariah Okoth Obado -v- Edward Akongo Oyugi & 2 others, [2014] eKLR, where it was held that "an appellate
court cannot overrule a trial court and make finding on previously undisputed matters and introduce fresh matters which had
not been the subject of dispute in the pleadings."
Notwithstanding, counsel submitted that in the instant case, Fonn 37D confirms
that the person named thereon was duly elected as per the results in Fonn 37C.
That it is very clear from the evidence on record that the results and content
of Fonn 37D is in line with the certified results in Form 37C and that the IEBC
respondent correctly declared the 1st respondent as the winner of
Kitui gubernatorial election.
29.
On
alleged violence and voter intimidation, it was submitted that PW5 who
testified on violence stated that the violence occurred after he had voted;
that there was no violence that prevented him from voting.
30.
In
totality, the respondents reiterated that there is no cogent evidence on record
to prove that the appellant's agents were denied access to the polling
stations. That although Section
30 of the Elections Act provides for appointment of agents, it does
not provide that the agents must sign Form 37A since it is the responsibility
of the candidates to ensure that their agents are present throughout the
conduct of the elections and that they sign Form 3 7A. Counsel urged that the
trial court did not err in finding that the Kitui gubernatorial election was
conducted substantially in compliance with constitutional principles and the
election laws.
APPELLANT'S
REPLY
31. The appellant
reiterated that the present appeal is grounded on the
application of electoral law to the facts established and proved by the
evidence on record. That the design of the appeal is on the application of law
to proven facts. That the trial court erred in applying the law to the set of
proved facts; the court erred in ignoring the qualitative aspects of the
conduct of elections and further erred in failing to consider and evaluate
collectively and in totality the irregularities and malpractices proved. That
had the trial court considered the irregularities collectively, the court would
have found that the Kitui gubernatorial election was not conducted in a free,
fair and transparent manner and that the declared results should be nullified.
application of electoral law to the facts established and proved by the
evidence on record. That the design of the appeal is on the application of law
to proven facts. That the trial court erred in applying the law to the set of
proved facts; the court erred in ignoring the qualitative aspects of the
conduct of elections and further erred in failing to consider and evaluate
collectively and in totality the irregularities and malpractices proved. That
had the trial court considered the irregularities collectively, the court would
have found that the Kitui gubernatorial election was not conducted in a free,
fair and transparent manner and that the declared results should be nullified.
ANALYSIS
AND ISSUES FOR DETERMINATION
32. We have considered the grounds of appeal and cross-appeal. We have
also
considered submissions by counsel and the
authorities cited. The law on
burden and standard of proof is well
settled. In Raila
Odinga & 2 others -v-
Independent Electoral & Boundaries
Commission & 3 others [2013]
eKLR, the Supreme Court expressed itself as follows:
"[195]
.... an electoral cause is established much in the same way as a civil cause:
the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it
falls to the Court to determine whether a firm and unanswered
case has been
made."
33. In Raila Amolo Odinga & another -v-
Independent Electoral and
Boundaries Commission & 2 others, SC Election Petition No. 1 of 2017,
Boundaries Commission & 2 others, SC Election Petition No. 1 of 2017,
it was expressed:
"[276]
In these circumstances, bearing in mind that IEBC had the custody of the record
of elections, the burden of proof shifted to it to prove that it had complied
with the law in the conduct of the
presidential election especially on the transmission of the presidential
election results and it failed to discharge that burden."
34. The constitutional and legal threshold makes it vital for IEBC to
ensure that
elections are conducted in accordance with the principles laid down with no
deviation or distortion. The first issue for our consideration is the disputed
application of Section 85 A of the Elections Act that limits the jurisdiction
of this court to matters of law. In Gatirau Peter Munya -v- Dickson
Mwenda Kithinji & 2 others [2014] eKLR it was stated that with specific
reference to Section 85A of the Elections Act, it emerges that the phrase
"matters of law only" means a question or an issue involving:
elections are conducted in accordance with the principles laid down with no
deviation or distortion. The first issue for our consideration is the disputed
application of Section 85 A of the Elections Act that limits the jurisdiction
of this court to matters of law. In Gatirau Peter Munya -v- Dickson
Mwenda Kithinji & 2 others [2014] eKLR it was stated that with specific
reference to Section 85A of the Elections Act, it emerges that the phrase
"matters of law only" means a question or an issue involving:
(a) the interpretation, or construction of a
provision of the Constitution, an Act of Parliament, Subsidiary Legislation, or
any legal doctrine, in an election petition in the High Court, concerning
membership of the National Assembly, the Senate, or the office of County
Governor;
(b) the application of a provision of the
Constitution, an Act of Parliament, Subsidiary Legislation, or any legal
doctrine, to a set of facts or evidence on record, by the trial Judge in an
election petition in the High Court concerning membership of the National
Assembly, the Senate, or the office of County Governor;
(c) the conclusions arrived at by the trial
Judge in an election petition in the High Court concerning membership of the
National Assembly, the Senate, or the office of County Governor, where the
appellant claims that such conclusions were based on "no evidence",
or that the conclusions were not supported by the established facts or evidence
on record, or that the conclusions were "so perverse", or so illegal,
thai no reasonable tribunal would arrive at the same; it is not enough for the
appellant to contend that the trial Judge would probably have arrived at a
different conclusion on the basis of the evidence.
The
parties in this appeal identified five salient issues for determination. We
confine ourselves to the issues as identified and urged by the parties namely:
(i) Whether the learned
judge erred in law in her failure to
appreciate the legal effect of illegalities, irregularities and
malpractices proven by the petitioner.
appreciate the legal effect of illegalities, irregularities and
malpractices proven by the petitioner.
(ii) Whether the learned
judge erred in law in holding that the
appellant had not discharged the burden of proof.
appellant had not discharged the burden of proof.
(Hi)
Whether the judge erred in law in not taking into account the uncontroverted
evidence of the appellant.
(iv) Whether
the conclusion arrived at in the judgment is
supported by the analysis of the evidence.
supported by the analysis of the evidence.
(v) Whether the judge erred
in law in awarding costs in the
terms expressed in the judgment.
terms expressed in the judgment.
It
has been submitted by the Is respondent that the appeal before us is
defective for want of non-compliance with Section 85A of the Elections Act. That
17 out of the 20 grounds of appeal are based and raises matters of fact; and
only 3 grounds raise issues of law, consequently this court has no jurisdiction
to consider the other grounds. In essence, we have been invited to strike out
the said grounds. Time and again, it has been held that the jurisdiction of
this Court in election matters kicks on matters of law only unless the
conclusion reached by the trial judge on factual evaluation is so perverse,
outrageous, unreasonable and that no reasonable justice will arrive at such a
conclusion. It means the jurisdiction of this Court is extinguished if the
conclusions are those reached by a reasonable tribunal wearing its judicial
lenses correctly, and addressing all the pertinent and important questions set
for its detennination. It is important to restate that we are alive to the fact
that drafting of grounds of appeal is a matter of sophistication acquired
through experience and good advocacy. It is not a one-day affair but an art
acquired through experience, diligence and meticulous attention to the legal
requirements. Often times, injustices would arise where an advocate would craft
pleadings poorly and below expectation of the Court. We have noted that the
grounds of appeal before us contain the words that "the trial judge erred
in fact and in law" but that is not a good ground to say that there is
non-compliance with Section 85A of the Elections Act. There must be evidence
that notwithstanding that the words "the trial judge erred in fact"
were used, the grounds are so hopeless that they only raise matters of fact
only. The court has to go further, and ensure justice is done to the parties,
to decipher whether the grounds although not elegantly drafted disclose issues
or matters of law requiring investigation and determination. On our part, we
have scrutinized all the grounds of appeal and are satisfied that there are
sufficient grounds for us to say that this appeal is rightly before us.
In Wavinya Ndeti & another - v- Independent Electoral and Boundaries
Commission & 2 others [2018] eKLR, Nairobi Election Petition Appeal
No. 8 of 2018, this Court expressed as follows:
"49.
We are aware and
appreciate that an appellate court like ours would rarely interfere with a
factual determination of a trial judge
unless the trial judge has clearly failed on some material point, to take into
account particular circumstances, probabilities material to an estimate of the
evidence tendered before it, or that the judge failed to appreciate an
important and relevant point in the case, or that he misapprehended or
misapplied the law on the facts thereby arriving at an outrageous conclusion
which is inconsistent or a departure from the evidence adduced by the parties. Section 85A is not a blanket, no entry zone
for this Court not to consider and address its mind on grounds of appeal
sfimply on account of a plea in the memorandum of appeal that "the trial
judge erred on facts and law."
50.
We are mindful that
drafting of pleadings is a technical matter. If the judge had deduced an
unknown legal principle from the facts of the case to arrive at his decision, it would be preposterous to shut out a litigant simply
on account of inelegance in drafting. The Court has to ensure that justice
prevails at all times and that Section 85A is not
used as a roadblock to shut out genuine grounds of
appeal on account of poor drafting of the grounds of appeal. In essence the
Court has to undertake a delicate examination to ensure that appeals are not
outrightly and without proper investigation rejected. In the same breadth, we
underscore the importance of compliance with Section 85A but we are mindful that often times points of law may inescapably be
difficult to separate from factual determination. The line is opaque and
therefore circumspection is necessary.
In an appeal such as this, the burden is on the appellant to prove how the
decision under appeal is wrong. To succeed the appellant must go beyond asking
the Court to re-assess the
evidence, because that
is not the role of this Court. The appellant must demonstrate that the
assessment of the evidence by the trial court was wrong."
38. In the instant appeal, the appellant contends that the trial court
erred in
failing to appreciate that there was an
illegality involving massive inflation
of votes in favour of the 1st
respondent. That in at least 10 out of 54 polling
stations, the votes cast exceeded the number
of registered voters. In
considering this allegation, the trial court
expressed itself as follows:
"141.
The above cited results of the scrutiny exercise confirm that the
transpositional errors affected all the candidates in the elections for
Governor, with all of them getting a few additional votes in the Forms 37B and Form 37C that were not reflected in the Form 37A. In particular, the errors as summarized in the foregoing resulted in
the Petitioner getting 40
more votes, the 1st
Respondent 106 more votes, and the second runner up who was Mr. David Musila
getting 254 more votes. Some of the errors did not benefit any candidate,
particularly as regards the errors on transposition of the rejected votes.
142.
It is thus my finding for these reasons that given the
difference of votes that between the votes cast in favour of the Petitioner and
those cast in favour of the 1st Respondent which was 95,309 votes, the said errors did not affect the
outcome of the election, and cannot be a basis for nullifying the election of
the 1st Respondent as presently sought.
144.
Besides the findings on the effect of the transpositional errors and the
stamping of Forms 37A hereinabove, this Court finds and agrees
with the submissions made by the Respondents that the other allegations made by
the Petitioner were not supported by any evidence, and in particular no
witnesses were called on the KIEMS data inconsistencies and on the stuffing and sealing of ballot boxes in the pleaded polling
stations."
39. We have examined the record of appeal to determine if the conclusion
arrived at by the trial court is supported by the evidence on record. Gogo
Albert Nguma (DW1), the County Returning Officer, testified and agreed
that there were transposition errors. He testified that the effect of the
transposition error is that Dr. Malombe garnered 39 extra votes which he should not have gotten; that Mr. David Musila had an additional 254 votes and Ms Charity Ngilu had 181 extra votes. That 17 rejected votes were not properly entered. That none of the transposition errors could materially affect the result of each candidate once the extra votes are removed.
arrived at by the trial court is supported by the evidence on record. Gogo
Albert Nguma (DW1), the County Returning Officer, testified and agreed
that there were transposition errors. He testified that the effect of the
transposition error is that Dr. Malombe garnered 39 extra votes which he should not have gotten; that Mr. David Musila had an additional 254 votes and Ms Charity Ngilu had 181 extra votes. That 17 rejected votes were not properly entered. That none of the transposition errors could materially affect the result of each candidate once the extra votes are removed.
40. The trial court in evaluating the evidence expressed itself as
follows:
"138.
The Deputy Registrar of the Kitui High Court conducted the scrutiny, recount
and re-tallying of the valid votes cast for each candidate in the presence of
the parties and their representatives, and the final report thereof was signed
by the Parties and the findings filed and adopted in Court on 1st
February, 2018.
139.
From the findings in the report, there is no tangible basis in the Petitioner's
assertions that the results in the Forms 37A were forgeries, as the same were confirmed during the scrutiny of the original Forms 37A, and
the recount of votes cast in the 51 polling stations where the results had been
contested because of the errors and irregularities alleged by the Petitioner.
The results in the Forms 37A also dovetailed with the records in the SD Cards
of the KIEMS used during the Kitui gubernatorial elections held on 8th
August, 2017. In addition, out of the 51 Polling stations, it is only
transpositional errors that were identified in 10 of them where mistakes were
made when transferring the results from Forms 37A to Forms 37B and Form 37C.
The rest of the polling stations' results were accurately reflected in Forms
37A, 37B and 37C."
41. The evidence of Mr. Gogo Albert Nguma (DW1), the
County Returning
Officer, on the overall effect of the transposition errors on the declared result
was not challenged. The testimony by DW1 taken together with the Deputy
Registrar's Report rebutted the allegation of massive inflation of votes in
favour of the 1st respondent.
Officer, on the overall effect of the transposition errors on the declared result
was not challenged. The testimony by DW1 taken together with the Deputy
Registrar's Report rebutted the allegation of massive inflation of votes in
favour of the 1st respondent.
We
have considered the evidence on record and have neither seen nor identified
"the massive inflation of votes." The appellant in his submission did
not show us on record at which specific polling stations there was massive
inflation of votes. We have given the word "massive" its ordinary
English meaning. The word means substantial, considerable, immense, colossal,
huge or humongous. On record there is no specific polling station where there was
"massive" inflation of votes. The appellant has submitted that in 10
out of 54 polling stations there were irregularities. Be that as it may, the
scrutiny and recount report did not disclose "massive" inflation of
votes in favour of the 1st respondent. The record shows that the
appellant never led prima facie evidence to prove the "massive"
inflation of votes. The appellant had the legal and evidentiary burden to lead
such evidence. Accordingly, we find that the trial court did not err in
arriving at the determination that the appellant's allegation was not supported
by evidence and that the appellant did not discharge the burden of proof to the
required standard. In any case, even if the transposition errors are added or
removed, it cannot change the final outcome of the result as declared. There is
no evidence to demonstrate that the 1st respondent gained an
advantage from the alleged inflation which, we did not find on record. Again,
there is no evidence to show that the appellant was disadvantaged in any manner
or that the final outcome is not a demonstration of the will of the people of
Kitui County. In the absence of evidence, we think the allegation of
"massive inflation of votes" in favour of the 1st
respondent was not proved. It remains a mere allegation with no foundation and
basis. On our part, we cannot interfere with the win of the 1st
respondent merely on speculation. To do so would subvert democracy and will of
the people of Kitui County. We decline that invitation and consequently, that
ground of appeal fails.
The
other irregularity alleged by the appellant is that some Forms 3 7As did not
bear the stamp of IEBC. The burden to prove that some Forms did not bear the
IEBC stamp was on the appellant. The appellant also bore the burden to prove
that the absence of such stamps affected the result of the election. In IEBC -v- Stephen Mutinda Mule & 3 Others
[2014] eKLR it was held
that there was no statutory requirement for stamping of Forms. In the
persuasive case of Kalla
Jackson Musyoka-v-
Independent
Electoral &Boundaries Commission (I.E.B.C) & another
[2018] eKLR, the trial court correctly held that the lack
of a stamp on the statutory fonns did not create a problem as long as the forms
had the requisite security features. In Mark Nkonana Supeyo & another -v- Independent Electoral and Boundaries
Commission & 2 others [2018] eKLR the trial court correctly held that in the
absence of proof of any negative effect on the declared results, the omission
to stamp a statutory Form cannot per se stand
on the way of the electorate to frustrate the will of the people especially
when the result in the specific polling station including the votes garnered by
each candidate is not in question and party agents have signed.
In
the instant appeal, the appellant did not lead evidence to demonstrate how the
absence of IEBC stamp on some Form 37As affected the result. The first question
is whether the non-stamping was explained and its effect on the final results.
Secondly, whether the appellant contested the results entered in the said
Forms; thirdly, whether the results contained therein are legitimate and not a
distortion of what actually occurred at the polling station. Lastly, whether
the said Forms were actually and legally signed by the relevant persons. In
this appeal, it is not contested that the said Fonns 37As were signed by the
relevant presiding officers and agents of the parties. This is not disputed by
the appellant. Again, the contents or results contained in the said
Forms
were not disputed, as an expression or manifestation that the said Forms are
legitimate, legal and accurate. More importantly, there is no requirement under
Regulation 79 of the Elections (General) Regulations, 2017 for stamping of
Forms. In our view, the question of stamping can be a good ground for
nullification where the entries in the statutory Forms, results therein and
signatures thereon are contested in terms of authenticity, legitimacy, accuracy
and correctness. This is not the case in this matter.
45.
Further,
the appellant did not lead evidence to prove that the integrity of the declared
result had been compromised by the absence of stamps on some Fonn 37As. The
appellant did not lead evidence to show with specificity how many Fonns 37As
did not have an IEBC stamp. There is no quantitative demonstration how absence
of stamps affected the integrity of the declared results of the election. In
the absence of such evidence, we affirm the finding by the trial court that the
appellant did not discharge the burden of proof to the required standard.
46.
One
of the contestations by the appellant is that the Kitui gubernatorial election
was mareed by violence and voter intimidation. To prove this allegation, we
were referred to the testimony of Kalungu Nzau (PW5)
who testified that on
the voting day he went to the polling station at around 1.30 pm accompanied by
his mother. That on their way out before leaving the precincts, a group of 9
young men emerged and attacked him, slapping him on his face and tearing his
shirt.
47.
The
trial court in evaluating the evidence on violence and intimidation of
voters held as follows:
"102.1
have considered the evidence adduced and arguments made on the incidents of
violence and intimidation alleged by the Petitioner. It is evident that there
were incidents of violence and assault were some of the Petitioner's witnesses,
particularly PW2 and PW5 were injured. Reports of the same were also made to
the police. The 1st Respondent has also admitted to having been present at the
Syongila Youth polling station when the incident involving PW4'S motor vehicle
occurred, (sic)
103.
The
question before the Court therefore is whether the threshold necessary to
invalidate an election on account of these incidents has been met. This
threshold is that the Petitioner must show that the violence is traceable to or
attributed to the respondent(s), the violence
must be widespread and not isolated and the violence
must have affected the voting and the election results. See in this regard the
decisions in Benson Maneno v Jacob
Machekele and Others, [2013] eKLR, Kajembe v Nyange and Others, [2008]2 KLR 1, Lenno Mwambura Mbaga & Another v Independent
Electoral & Boundaries Commission & Another, [2013] eKLR, Joho v
Nyange & Another, (No 4)(2008) 3KLR(EP) and Justus Gesito Mugali
M'mbaya v Independent Electoral & Boundaries Commission & 2 Others,
[2013]eKLR.
104.
It
is my finding that this threshold has not been met for the following reasons.
In the case of the incidents narrated by PW2 and PW5, the Petitioner did not adduce evidence linking the said incidents to the Respondents,
or showing their active participation therein, or their connection to the
perpetrators."
We
have considered the allegations on violence and intimidation of voters. Proof
of violence per se cannot vitiate the results of an election.
To vitiate the results, the violence must inter alia be widespread. In English dictionary,
widespread means extending over a wide area, to a large extent or to a great
extent. In Dickson
Mwenda Kithinji -v- Gatirau Peter Munya & 2
others [2013] eKLR, Meru High Court Election Petition No. 1 of 2013, it was stated that in electoral context,
widespread violence can only be taken to mean a systematic, planned or
organized infliction of injury, harm, damage or loss on any person because they
have voted in a particular way or to induce them to vote in any particular way.
There must be evidence to prove the widespread violence. Widespread violence
may also include indiscriminate violence. In Ferdinand Nahimana & Jean Bosco Bayaragwiza & another (Media case) (ICTR-99-52) the Appeals Chamber of the International
Criminal Court (ICC) at paragraph 920 of its judgment observed that:
"Widespread"
refers to the large-scale nature of the attack and the number of victims,
whereas "systematic" refers to "the organized nature of the acts
of violence and the improbability of their random occurrence." Patterns of
crimes - that is the non-accidental repetition of similar
criminal conduct on a regular basis — are a common expression of such
systematic occurrence."
49. In Rahim
Khan -v- Khurshid Ahmed, AIR 1975 SC 290 it was stated that
imaginary threats of violence and half serious apprehensions are not undue
influence by any standards; that such chimerical apprehensions are unreal
and cannot receive judicial approval. Realism is a component of judicial
determination. In our view, localized and isolated manifestation of violence
is not widespread violence. In Gitau -v- Thuo & 2 Others, [2010] 1 KLR
526 at 547 the court expressed that the violence that engulfed the election
was an isolated and one off incident of a fight between supporters and this
did not amount to a generalized or widespread violence that could vitiate an
election.
imaginary threats of violence and half serious apprehensions are not undue
influence by any standards; that such chimerical apprehensions are unreal
and cannot receive judicial approval. Realism is a component of judicial
determination. In our view, localized and isolated manifestation of violence
is not widespread violence. In Gitau -v- Thuo & 2 Others, [2010] 1 KLR
526 at 547 the court expressed that the violence that engulfed the election
was an isolated and one off incident of a fight between supporters and this
did not amount to a generalized or widespread violence that could vitiate an
election.
50. Settled
jurisprudence reveals that widespread violence can nullify and void
an election especially when it is the winner or returned candidate who is
directly or indirectly responsible for the violence. In Borgaram Deuri -v-
Premodhar Borah, AIR 2003 Gau 135: 2003 (10) GLT 541, it was held
that as the evidence of poll violence was not against the returned candidate
but against some other candidate, the plea of violence would not lead to the setting aside of the election. In Hosea Mundui Kiplagat -v- Sammy Komen Mwita & 2 Others, Election Petition (Eldoret) No. 11 of 2013 it was held that where the election offence is allegedly committed by the agents of a candidate, the connection with the candidate must be established. It is not enough to show that the perpetrators of the offence were proxies or kinsmen of the candidate. It must be shown that the perpetrators were agents of the candidate and they engaged in the alleged acts with the candidate's consent. (See also Gitau -v- Thuo & 2 Others, [20101 1 KLR 526).
an election especially when it is the winner or returned candidate who is
directly or indirectly responsible for the violence. In Borgaram Deuri -v-
Premodhar Borah, AIR 2003 Gau 135: 2003 (10) GLT 541, it was held
that as the evidence of poll violence was not against the returned candidate
but against some other candidate, the plea of violence would not lead to the setting aside of the election. In Hosea Mundui Kiplagat -v- Sammy Komen Mwita & 2 Others, Election Petition (Eldoret) No. 11 of 2013 it was held that where the election offence is allegedly committed by the agents of a candidate, the connection with the candidate must be established. It is not enough to show that the perpetrators of the offence were proxies or kinsmen of the candidate. It must be shown that the perpetrators were agents of the candidate and they engaged in the alleged acts with the candidate's consent. (See also Gitau -v- Thuo & 2 Others, [20101 1 KLR 526).
51. In the instant case, there is no
evidence on record to link the returned candidate with the violence meted upon
PW5. There is evidence that voting, counting and declaration of result was done
in accordance with the requirements of the law. There is no evidence that
voting was postponed in any polling station on account of violence or
intimidation; there is no evidence that counting of votes was disrupted or
stopped due to violence; there is no evidence on record to prove that the
alleged violence was widespread; there also is no evidence on record to prove
that any voter, including PW2, PW4 and PW5 and his mother, were disenfranchised by acts of violence. It is the
appellant who had the burden of proof to lead prima facie evidence to
demonstrate that the violence was widespread; that the returned candidate was
linked to the violence or that a substantial number of voters were
disenfranchised due to violence and intimidation. The appellant neither
discharged the legal burden nor led prima facie evidence that could shift the
evidentiary burden to the respondents. In the absence of such evidence on
record, we are obliged to find that the trial court did not err in arriving at
the conclusion that the violence meted on PW2, PW4 and PW5 were
isolated cases and that there was no evidence linking the 1st
respondent or any candidate to the said violence. The trial court did not earn
holding that the appellant did not discharge the burden of proof to the
requisite standard. In any case, these are matters of fact, which the trial
judge after analyzing the evidence on record correctly reached the conclusion
that the violence disclosed did not affect the final results. On our part, we
decline the invitation to reconsider that factual detennination in line with
Section 85A of the Elections Act.
A
prominent allegation in this appeal is that the appellant's agents were denied
access to over 400 polling stations; that various Forms 37As did not bear the
names and signatures of agents of the appellants who were Wiper Party Agents.
It was contended that faced with this allegation, the 2nd respondent through
the testimony of the 3r respondent explained that some Wiper Party
agents had changed their names or were signing for other parties. The trial
court in considering the allegation expressed itself as follows:
"62.
The 3rd Respondent was also taken through various Forms 37A and
admitted that on their face they did not have the names and signatures of Wiper
agents. He however explained that the evidence of PW8 had shown that some Wiper
Party agents had changed their names or were signing for other parties, and
gave examples of some such agents.
63.
The 2nd and 3rd Respondents' counsel submitted that only
one of the Petitioner's agents, Veronica Syombua Wambua (PW7), gave evidence
that the Petitioner's agents were chased away from Moi Primary School at around
10 pm. Nonetheless, that her evidence does not prove this ground at all,
because Moi Primary School was only one of the many polling stations and is not
among the 27 Polling Stations pleaded in the Petition where the Petitioner's
agents were purportedly denied access, and the witness confirmed that she was
at the said Moi Primary Polling Station throughout the day voting.
64.
Further,
that the Petitioner's evidence was hearsay because he expressly confirmed that
he did not personally witness any of the incidents in question in the Petition,
but learnt of them from the information from his chief agent and by his experts
and agents. In addition, that during the cross-examination of the Petitioner's
chief agent, (PW8), it was revealed that over 100 of the Petitioner's agents
from the list he produced in Court had signed the Forms 37A in the Polling
Stations to which they were attached, but deliberately misstated the party for
which they were acting as agents with some mostly indicating that they were
NASA (National Super Alliance) coalition, and others naming various political
parties.
65.
According
to the 2nd and 3rd Respondents, the Petitioner's agents
at the constituency level and chief agent respectively signed the Forms 37B and 37C ratifying the results on Form 37A. That if they had any problem with such results, they were enjoined by law to record
the reasons for their refusal to do so, which they did not."
One
of the grounds of appeal is that the appellant's agents were denied access to
the polling stations. Is there cogent evidence on record to prove denial of
access? It is not clear to us, neither can we find on record, which polling
station was affected and the person(s) who was denied entry by the respondents.
The appellant only alluded to 27 polling stations but PW1 (Julius Makau Malombe), PW7 {Veronica Syambua Wambua) and PW8 (Benard
Kitheka Mulatia) did not
show any evidence of denial of access to any specific polling station. Indeed, PW7 confirmed that she stayed at Moi Primary School throughout the day
and she did not encounter any hindrances. We think the trial judge analyzed the
evidence on denial of access and came to the correct conclusion. We have no
evidence on record and none was shown to us to come to depart from that sound
and solid conclusion to say it was perverse or unreasonable. We decline the
invitation to reconsider that factual conclusion and determination.
54. Another ground
of appeal urged by the appellant relates to the difference in
dates between Forms 37C and Fonn 37D. Form 37C bears the date of 12lh
August 2017 and Fonn 37D is dated 11th August 2017. Fonn 37C contains
the declared results of the election, Fonn 37D is the Certificate given to the
winner of the elections. The appellant's argument is how could the
Certificate be issued before the results were declared? The trial court in
addressing this matter held that it was an un-pleaded issue and the court
could not consider it. The Judge expressed himself as follows:
dates between Forms 37C and Fonn 37D. Form 37C bears the date of 12lh
August 2017 and Fonn 37D is dated 11th August 2017. Fonn 37C contains
the declared results of the election, Fonn 37D is the Certificate given to the
winner of the elections. The appellant's argument is how could the
Certificate be issued before the results were declared? The trial court in
addressing this matter held that it was an un-pleaded issue and the court
could not consider it. The Judge expressed himself as follows:
"110.
/ accordingly find that
even though the Petitioner called evidence on this limb and made lengthy
submissions thereon, this Court will not render a decision thereon and on other
particularities that were not pleaded in the Petition. These were aptly
identified by the 1st Respondent's counsel in his submissions to
include particulars that voters were assisted in a manner that violated the
Regulations, that usage of carbon copies of Forms 37A was irregular or contrary
to the law, the absence of security features of Forms 37A, such as watermarks
or serial numbers; that votes cast exceeded the registered number of voters,
that there were ungazetted polling stations, that the formats of the Forms 37B
were irregular, and of the different handwritings on the Forms 37A. In
addition, the Petitioner's counsel cross-examined the 3rd
Respondent, and made lengthy submissions on the time of signing of the Form
37D, whilst there was no mention of any irregularity in the Form 37D in the
Petition."
55. On our part, we have examined the record of appeal. The record
reveals that
DW1 was able to explain the difference in time at the signing of Fonn 37D
and Fonn 37C. We note that the appellant is not challenging the contents of
Fonn 37D. Further, there is no evidence on record that the contents of Form
37D do not reflect the results of the election. As was stated by this Court
in IEBC -vs- Maina Kiai & Others [20141 eKLR). the polling station is where the people cast their votes and it is where the votes are counted. The results declared at the polling station are final. If the results in Fonn 37A can stand the test of scrutiny, verifiability and accountability, any irregularity in Form 37D cannot vitiate the election. On our part, we are satisfied that the respondent explained the difference in dates in Fonn 37C and Fonn 37D.
DW1 was able to explain the difference in time at the signing of Fonn 37D
and Fonn 37C. We note that the appellant is not challenging the contents of
Fonn 37D. Further, there is no evidence on record that the contents of Form
37D do not reflect the results of the election. As was stated by this Court
in IEBC -vs- Maina Kiai & Others [20141 eKLR). the polling station is where the people cast their votes and it is where the votes are counted. The results declared at the polling station are final. If the results in Fonn 37A can stand the test of scrutiny, verifiability and accountability, any irregularity in Form 37D cannot vitiate the election. On our part, we are satisfied that the respondent explained the difference in dates in Fonn 37C and Fonn 37D.
The
appellant passionately urged us to find that the trial court erred in focusing
on quantitative and ignored the qualitative aspects of the conduct of
elections. That the IEBC failed in its management of the Kitui gubernatorial
elections; that the said election was not free and fair; that the multiple
irregularities, illegalities and malpractices proved and admitted qualitatively
affected the result of the election. Of relevance to this submission is the
Supreme Court observation in Raila Odinga & 5 Others -v- Independent Electoral and Boundaries
Commission & 3
others [20131 eKLR where
it was expressed:
"[197]
IEBC is a constitutional entity entrusted with specified obligations, to
organize, manage and conduct elections, designed to give fulfilment to the
people's political rights [Article 38 of the Constitution]. The execution of
such a mandate is underpinned by specified constitutional principles and
mechanisms, and by detailed provisions of the statute law. While it is
conceivable that the law of elections can be infringed, especially through
incompetence, malpractices or fraud attributable to the responsible agency, it
behoves the person who thus alleges,
to produce the necessary evidence in the
first place - and thereafter, the evidential burden
shifts, and keeps
shifting." (Emphasis
supplied).
Our
appraisal of the evidence on record shows that the trial court considered both
the quantitative and qualitative aspects of the Kitui gubernatorial elections.
The appellant urged us to take into account singularly and collectively the
irregularities and illegalities proved in the petition. We have considered the
collectivity of the proven irregularities, illegalities and malpractices.
Collectively, what has been proved is isolated incidents of violence and
transposition errors in 10 out of 1454 polling stations. It has been proved
that the transposition errors do not quantitatively affect the declared result.
There is no evidence on record proving voter disenfranchisement; there is no
direct evidence to prove that polling agents were denied access to any polling
station; there is no evidence on record to prove that the admitted or proven
irregularities affected the result of the election. In our view, collectively,
the admitted and proven irregularities neither affect the integrity of the
declared results nor affect the result of the election. Both quantitative and
qualitative analysis of the evidence on record shows that the declared result
of Kitui gubernatorial election was not affected by admitted or proven
irregularities, illegalities or any malpractice.
In
arriving at this determination, we are guided by dicta in Raila Amolo Odinga & another -v - Independent Electoral and Boundaries Commission & 2 others, SC Election Petition No. 1 of 2017 where it was expressed that:
"[374] ........ inquiry about the effect of
electoral irregularities
and
other malpractices, becomes only necessary where an election court has
concluded that the non-compliance with the law relating to that election, did
not offend the principles laid down in the Constitution or in that law. But
even where a Court has concluded that the election was not conducted in
accordance with the principles laid down in the Constitution and the applicable
electoral laws, it is good judicial practice for the Court to still inquire
into the potential effect of any irregularities that may have been noted upon
an election. This helps to put the agencies charged with the responsibility
of conducting elections on notice" (Emphasis supplied.)
59.
Guided
by the Supreme Court dictum in Raila Amolo Odinga & another -v - Independent Electoral and
Boundaries Commission & 2 others, SC Election
Petition No. 1 of 2017 (2017) eKLR, we find that the trial court did not err in delving into the
quantitative aspects of the alleged and proven irregularities. We find that the trial court adopted good judicial practice to inquire
into the potential effect of any irregularities and in so doing; the trial
court correctly held that the proven irregularities did not affect the declared
election result.
60.
The
appellant further contended that the trial court erred in failing to find that
the gubernatorial election results were not credible because presiding officers
were not called to testify. We are alive
to the fact that there is no legal requirement in law on the number of
witnesses to prove or disprove a fact. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides: -
"143.
No particular number of witnesses shall, in the absence of any provision of law
to the contrary, be required for the proof of any fact".
61. On the
appellant's contestation that presiding officers were not called to
testify, we are persuaded by and affirm the dicta in John Munuve Mati -v-
Returning Officer Mwingi North Constitutency, Independent Electoral
& Boundaries Commission & Paul Musyimi Nzengu [2018] eKLR,
testify, we are persuaded by and affirm the dicta in John Munuve Mati -v-
Returning Officer Mwingi North Constitutency, Independent Electoral
& Boundaries Commission & Paul Musyimi Nzengu [2018] eKLR,
where
it was stated that it does not invariably follow that failure by a respondent
to call a witness means that the petition must be allowed. The petitioner must
first adduce evidence of the nature that would entitle him to judgment if the
respondent did not adduce any evidence at all in rebuttal.
The
appellant's ground of appeal that presiding officers were not called to testify
fails.
62.
An
interesting submission by the 1st respondent is to the effect that
there is no legal obligation to countersign alterations in any statutory Fonn.
That neither Article 81 nor 86 of the
Constitution expressly provide for countersigning of alterations in statutory
Fonns. That there is no express provision in the Elections Act or Regulations thereunder that require
countersigning. We hold that the submission by the 1st respondent
has no merit in law. Whereas there is no express constitutional Article
requiring countersigning, settled jurisprudence on documentary evidence is that
alterations in any written instrument must be countersigned by the maker to
authenticate the document. In William Kabogo Gitau -v-George Thuo& 2 others [2010] Eklr, it was stated that cancellations and
alterations which are not countersigned by the presiding officer may raise the
questions regarding veracity and authenticity of the results. In Ndolo -v- Mwangi & 2 others [2010] 1 KLR
372, the trial court observed that where there
are alterations, the same must be authenticated by countersigning. In William Odhiambo Oduol -v-Independent Electoral and Boundaries
Commission & 2 others [2013] eKLR, the trial judge observed that it is desirable for each
alteration, cancellation or over-writing to be counter-signed and stamped by
the maker as a way of owning the same and saying the Fonn was authentic.
63.
All
in all, we are satisfied that the Kitui gubernatorial elections held on 8lh
August 2017 was conducted in accordance with constitutional and legal
principles and that the allegations raised against the said elections do not
meet the threshold for nullification of an election. Having scrutinized all the
issues raised thoroughly and meticulously, we decline the invitation to nullify
the said election. We are also satisfied that the 1st respondent's
win, declaration and gazettement were legal and legitimate.
64. The final issue for our determination is the trial court's order on
costs. The
2nd and 3rd respondents filed cross-appeal on costs. On his part, the appellant
urged us to allow the appeal with costs. Both parties urge that costs should
follow the event. In Orix Oil (Kenya) Limited -v- Paul Kabeu & 2 Other
[2014] eKLR it was stated:
2nd and 3rd respondents filed cross-appeal on costs. On his part, the appellant
urged us to allow the appeal with costs. Both parties urge that costs should
follow the event. In Orix Oil (Kenya) Limited -v- Paul Kabeu & 2 Other
[2014] eKLR it was stated:
"...the
court should have been guided by the law that costs follow the event, and the
Plaintiff being the successful party should ordinarily be awarded costs unless
its conduct is such that it would be denied the costs or the successful issue
was not attracting costs."
65. In the instant matter, the trial court ordered the successful 2nd
and 3rd
respondents jointly and severally to pay the 1st respondent costs capped at
Ksh. 1 million. In awarding costs against the successful party, the trial court
observed that:
respondents jointly and severally to pay the 1st respondent costs capped at
Ksh. 1 million. In awarding costs against the successful party, the trial court
observed that:
"174.
In the present Petition, this Court finds
that as there were irregularities that were admitted and found to have been
committed by the 2nd and 3rd Respondents' agents, it is
only fair that the two parties share the burden of the costs borne by the 1st
Respondent, even if the Petitioner has largely been
unsuccessful.
66. The gist of the 2nd
and 3rd respondents' cross-appeal is that the
appellant's
petition before the trial court was successfully defended. That the
irregularities of transposition were inadvertent and the 2nd and 3rd
respondents should not be penalized in costs. The law on costs as it is
understood by courts in Kenya is this: where a party comes to enforce a legal
right and there has been no misconduct on his part - no omission or neglect,
and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his costs - the court has no discretion and cannot take away the party's right to costs. (See Richard Kuloba, Judicial Hints on Civil Procedure, 2nd Edition, page 101).
petition before the trial court was successfully defended. That the
irregularities of transposition were inadvertent and the 2nd and 3rd
respondents should not be penalized in costs. The law on costs as it is
understood by courts in Kenya is this: where a party comes to enforce a legal
right and there has been no misconduct on his part - no omission or neglect,
and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his costs - the court has no discretion and cannot take away the party's right to costs. (See Richard Kuloba, Judicial Hints on Civil Procedure, 2nd Edition, page 101).
67.
The
trial court in ordering the 2nd and 3rd respondents to
pay costs to the lsl respondent expressed that ;'as there
were irregularities that were admitted and found to have been committed by the
2nd and 3rd Respondents' agents, it is only fair that the
two parties share the burden of the costs borne by the 1sl Respondent."
Noting that the trial court gave reasons for awarding costs against the
successfully party, we consider whether the reason given by the trial judge
demonstrate a proper exercise of judicial discretion. Did an injustice occur by
exercise of the discretion to award costs against a successful party? We think
that the trial judge erred in law in awarding costs against a party who had
successfully defended the election petition. The eiTors committed and admitted
by the respondents did not vitiate and nullify the election results and hence
there is no justification for an order of costs against a successful party.
Such an award amounts to discrimination as costs follow the event. The
cross-appellants have convinced us that there has been some injustice in the
exercise of discretion on costs by the trial judge. (See Mbogo -v- Shah [1968] EA 93). Accordingly,
we set aside the order by the trial court that the 2nd and 3ld
respondents are to pay the 1st respondent costs capped in the sum of
Ksh. 1 million.
68.
As
regards costs awarded against the appellant, we are alive to the principle that
the award of costs is at the discretion of the trial court. We are also alive
to the principle that costs should neither be excessive nor exorbitant. The
trial court ordered the appellant to pay the 1st respondent costs
capped at Ksh. 3 million; in addition, the trial court ordered the appellant to
pay the 2nd and 3r respondents costs capped at Ksh. 2 million. The total liability of the appellant in terms of cost as
per the trial court's order is a maximum of Ksh. 5 million.
In
Martha Wangari Karua
-v- Independent Electoral & Boundaries Commission & 3 others [2018] eKLR, this Court expressed itself as follows:
"Section
84 of the Election Act provides that it is within the discretion of the
election court to award costs and that costs shall follow the cause. Again as
stated, Rule 30 of the Election Petition Rules gives the court unfettered
discretion which means that the discretion exercisable by the taxing master
under paragraph 16 of the Advocates Remuneration Order 2009 has been
circumscribed. It is up to the election court to determine whether a party
would be awarded costs or not and in doing so the court must be guided by the
principles of fairness, justice and access to justice. It is meant to
compensate a successful litigant. It is not a punishment or a deterrent measure
to scare away litigants from the doors of justice."
This
is a gubernatorial election petition and we have considered cases where the
trial court has capped costs. In Ismail Suleman and Others -v-Returning Officer, Isiolo County and Others Meru EP No. 2 of 2011 (Unreproted) and in Mohamed
Ali Mursal -v- Saadia Mohamed & 2 others [2013] eKLR, the amount was capped at Ksh. 2 million and Ksh. 1 million for each respondent respectively. Both
cases involved the gubernatorial elections. In Ferdinard Ndungu Waititu -v- Independent Electoral
& Boundaries Commission (IEBC) & 8 others
[2013] eKLR the court
capped the total costs at Kshs.5 million, capping the costs payable to the 1st
to 3rd respondents jointly at Kshs. 2,500,000/= and to both the 4th and 5th
respondents jointly at Kshs. 2,500,000/=.
This Court in Martha
Wangari Karua -v- Independent Electoral & Boundaries Commission
& 3 others [2018] eKLR, capped costs for gubernatorial elections at
Ksh. 2 million. We observe that this matter had not gone to full hearing on the
merits.
71. Guided by the
above cited comparable judicial capping of costs in
gubernatorial elections, we are of the considered view that in the instant
case, capping costs at a total of Ksh. 5 million is excessive. We are inclined
to interfere and hereby award the respondents total costs capped at Ksh. 3
million as follows: the appellant is to pay the 1st respondent costs capped at
Ksh. 2 million. The appellant is to pay the 2nd and 3rd respondent costs
capped at Ksh. 1 million.
gubernatorial elections, we are of the considered view that in the instant
case, capping costs at a total of Ksh. 5 million is excessive. We are inclined
to interfere and hereby award the respondents total costs capped at Ksh. 3
million as follows: the appellant is to pay the 1st respondent costs capped at
Ksh. 2 million. The appellant is to pay the 2nd and 3rd respondent costs
capped at Ksh. 1 million.
72. Having considered the grounds of appeal and cross-appeal as well as
submission by parties, the final orders of this Court are as follows:
submission by parties, the final orders of this Court are as follows:
(a)
The
appeal has no merit and is hereby dismissed with costs.
(b)
The
appellant shall pay costs to the respondents at the trial court capped at a
total of Ksh. 3 million as follows:
(i) the appellant to pay the 1st respondent costs
capped at Ksh. 2 million;
capped at Ksh. 2 million;
(ii) the appellant
to pay the 2nd and 3rd
respondent costs capped at Ksh. 1 million.
respondent costs capped at Ksh. 1 million.
(c)
The
cross-appeal succeeds to the extent that the cost awarded by the trial court
against the 2 nd and 3 rd respondent be and is hereby set
aside.
(d)
The
Kitui County gubernatorial elections held on 8lh August 2017 was
conducted in accordance with the constitutional and legal principles and the 1st
respondent was validly elected as Governor of Kitui County.
(e)
The appellant shall pay costs of the respondents in appeal.
Dated and delivered at Nairobi this 28th day of June, 2018.
R. N.
NAMBUYE
JUDGE OF APPEAL M. WARSAME
JUDGE OF APPEAL J. OTIENO-ODEK
JUDGE OF
APPEAL
I certify that this is a True copy of the
original
DEPUTY
REGISTRAR
