Dickson Mwenda Githinji v Gatirau Peter Munya & 2 others [2014] eKLR

Key Facts

Issues

• The court evaluated whether the trial judge erred in discrediting the appellant's witnesses (PW3, PW4, PW5, PW6) without sufficient legal basis. The appeal highlighted procedural flaws in the judge's reliance on witness demeanor without addressing substantive evidence.
• The court evaluated whether the trial judge erred in dismissing allegations of post-declaration irregularities, such as improper custody of ballot boxes, as insufficient to vitiate the election. The appeal highlighted the need to consider these as evidence of pre-declaration malpractice.
• The court examined whether the trial judge erred by shifting the evidential burden to the appellant to prove the total number of registered voters, despite the IEBC being the statutory custodian of voter registration data under the Constitution and Elections Act.
• The court addressed whether the trial judge misdirected by accepting human error as a defense for multiple irregularities in Forms 35 and 36. The appeal argued that persistent errors undermined the election's efficiency, accuracy, and accountability required by Article 86.
• The court considered whether the trial judge violated the appellant's right to a fair hearing by striking out annexures (DMK2, DMK3, DMK4) that detailed polling station irregularities, despite these being referenced in the petition and supporting affidavit.
• The court determined whether it could hear the appellant's interlocutory appeal regarding the trial judge's scrutiny order. The appeal argued that the Court of Appeal's supervisory role under Article 164(3) permitted review of such rulings.
• The court analyzed whether the trial judge erred in interpreting Articles 81(e) and 86 of the Constitution, which mandate free, fair, transparent, and accountable elections. The appeal challenged the trial judge's failure to weigh these constitutional principles in determining the validity of the election results.
• The court considered whether the trial judge misapplied the legal test for materiality of irregularities. The appeal argued that the judge incorrectly framed the issue by requiring proof that irregularities affected the result, rather than voiding the election outright for constitutional non-compliance under Section 83 of the Elections Act.
• The court examined whether the trial judge erred in downplaying irregularities in Forms 35 and 36, such as uncountersigned alterations and missing agent signatures. The appeal cited precedents affirming that such irregularities render results unverifiable.
• The court reviewed whether the trial judge improperly restricted scrutiny and recount to only seven polling stations, despite the appellant alleging irregularities across four constituencies. The appeal emphasized the need for a broader review to ensure verifiability of results.

Holdings

• The court held that the trial judge failed to independently evaluate the evidence, particularly the testimony of DW10 and the scrutiny report, and instead relied on the respondents' submissions without critical analysis. This misdirection affected the conclusion on the materiality of the irregularities.
• The court ordered the Independent Electoral and Boundaries Commission (IEBC) to issue a certificate confirming the nullification of the election results and notify the relevant Speaker of the determination. This certificate was mandated under Section 86(1) of the Elections Act.
• The Court of Appeal declared the Meru gubernatorial election results null and void, finding that the tallying process violated constitutional principles of efficiency, accuracy, and accountability. The court identified errors in Forms 35 and 36, including uncountersigned alterations, missing polling station results, and discrepancies in vote tallies. These irregularities undermined the integrity of the declared results, which were not verifiable through the paper trail. The margin between the winner and runner-up (0.819%) was deemed insufficient to withstand the cumulative effect of the errors.
• The court ruled that the trial judge erred in refusing to order cross-examination of witnesses DW8 and DW9 on the irregularities in Forms 35 and 36, violating the appellant's right to a fair trial under the Elections Act.
• The court set aside the High Court's order for the arrest and prosecution of witnesses PW4 and PW6, substituting it with a recommendation for the Director of Public Prosecutions to investigate potential election offences by these witnesses.

Remedies

• A certificate was ordered to be issued to the Independent Electoral and Boundaries Commission (IEBC) certifying the nullification of the election results. The IEBC was directed to notify the relevant Speaker to issue necessary notifications regarding the invalidation.
• The 2nd respondent (IEBC) was ordered to bear the costs of the petitioner at the High Court and the appellant in the appeal, with specific monetary limits (Kshs 2.5 million for the High Court and Kshs 1.5 million for the appeal). The 1st respondent (Gatirau Peter Munya) was to bear his own appeal costs.
• The Court declared the Meru gubernatorial election of 4th March 2013 null and void due to non-compliance with constitutional principles of efficient, accurate, and accountable elections. The election of Gatirau Peter Munya as Governor was invalidated because of material errors in the tallying process and failure to ensure transparency.
• The Court set aside the trial Judge's order for the arrest and prosecution of PW4 and PW6. Instead, a recommendation was made to the Director of Public Prosecution (DPP) to investigate whether these individuals committed election offences, as per Section 87 of the Elections Act.

Legal Principles

• The petitioner bears the legal burden to prove that electoral irregularities occurred and that these irregularities materially affected the election results. The court emphasized that this burden must be discharged to the required standard, particularly for allegations involving electoral malpractices like bribery.
• The trial judge erred in failing to independently evaluate the evidence, particularly the testimony of DW10 and the scrutiny report. The court highlighted the importance of independent judicial reasoning to uphold the principle of natural justice in electoral disputes.
• The court applied the quantitative and qualitative tests to assess whether irregularities affected the election's integrity. The quantitative test examined the margin between candidates, while the qualitative test evaluated the overall fairness and transparency of the electoral process.
• The appellate court affirmed its limited jurisdiction to review interlocutory rulings in election petitions, emphasizing that it will not interfere with the trial judge's credibility assessments unless there is a clear error of law. The court also applied the quantitative test to determine if irregularities affected the election outcome.
• The standard of proof in electoral petitions is higher than a balance of probabilities but lower than beyond reasonable doubt. For allegations of electoral malpractices such as bribery, the petitioner must provide cogent and reliable evidence to establish the claim.
• Elections must be conducted in accordance with constitutional principles and statutory laws. The court held that non-compliance with these principles, even if the election result appears unaffected, can vitiate the election process under Articles 81(e) and 86 of the Constitution.

Precedent Name

• William Kabogo Gitau - v- George Thuo
• Mbowe – v- Eliufoo
• Manson Oyongo Nyamweya - v- James Omingo Magara
• Islington West Division Case
• Benard Shinali Masaka – v- Boni Khalwale
• Morgan - v - Simpson
• Raila Odinga & Others - v- IEBC
• Hari Vishnu Kamath vs Syed Ahmed Ishaque
• Mohammed Ali Mursal - v- Saadia Mohammed
• Thomas Malinda Musau & 2 others - v- IEBC

Cited Statute

• Elections Act, 2011
• Election General Regulations, 2012
• Constitution of Kenya, 2010
• Oaths and Statutory Declaration Act, Cap 15
• Election Petition Rules, 2013
• Evidence Act, Cap 146

Judge Name

• J. Mohammed
• Alnashir Visram
• J. Otieno-Odek

Passage Text

• 221. This appeal has merit and is hereby allowed with the result that the election of the 1st respondent as the Governor for Meru County is hereby determined and declared to be null and void.
• 214. The Supreme Court in Ali Hassan Joho & another – v- Suleiman Said Shahbal & 2 others, stated that a quantitative breakdown is a key component when the issue involves numerical composition.
• 217. It is our considered view that the trial Judge erred and misdirected himself in finding that a margin of 0.819 per cent which is less than one per cent could be described as wide.