Garama v Karisa & 3 others (Election Petition Appeal 1 of 2023) [2023] KECA 974 (KLR) (28 July 2023) (Judgment)

Key Facts

Issues

• The court determined whether the Member of the National Assembly (MNA) election in Magarini Constituency was conducted in accordance with the Constitution and electoral laws, including allegations of non-compliance, election offences, and the impact of irregularities on the election results.
• The court examined whether the identified irregularities, such as altered vote counts and unauthorized recounting, had a material impact on the election outcome, especially given the narrow 21-vote margin.
• The court evaluated claims of election offences, including fraud, ballot stuffing, and failure to follow legal requirements for stamping ballots and handling rejected votes, to determine if they were substantiated.
• The court considered the appropriate cost allocation, including whether the High Court's decision to award costs to the petitioner was within its discretion under the Election Act and related rules.
• The court assessed whether there were violations of the Constitution and electoral laws during the conduct of the MNA election, such as procedural errors, false statutory forms, and improper handling of ballot materials.

Holdings

• The court ordered the Independent Electoral and Boundaries Commission (IEBC) to proceed with conducting a by-election for the Magarini Constituency as required under the law following the nullification of the initial election.
• The Court of Appeal dismissed both the appeal and cross-appeal in this election petition case. The court found no merit in the arguments presented by the appellant and the cross-appellants, upholding the High Court's decision to nullify the election. The costs of the appeal were awarded to the 1st Respondent, to be borne by the Appellant, capped at Kshs 1,500,000.00.
• The court determined that the MNA election in Magarini Constituency was not conducted in accordance with the Constitution and electoral laws. Irregularities such as the unlawful reopening of ballot boxes, lack of transparency in recounts, and numerous procedural violations were found to have affected the election's integrity and results, leading to the declaration of the election as null and void.
• The High Court's decision to award costs to the 1st Respondent was upheld. The court found that the Learned Judge exercised his discretion properly in awarding costs, which were to be borne by the Appellant, with a cap of Kshs 1,500,000.00.

Remedies

• The Court of Appeal ordered that the costs of the appeal and cross-appeal be paid by the Appellant to the 1st Respondent, Kombe Harrison Garama, with the total capped at Kshs 1,500,000.00. This decision was based on the High Court's discretion and the principles established in relevant legal precedents.
• The Court of Appeal dismissed the appeal and cross-appeal filed by Kombe Harrison Garama and the 2nd and 3rd Respondents, upholding the High Court's nullification of the Magarini Constituency election. The appeal was found to lack merit, and the decision was finalized with costs awarded to the 1st Respondent.

Monetary Damages

Legal Principles

• The Court examined the burden of proof placed on the Appellant and 2nd/3rd Respondents by the High Court, determining whether the trial judge's allocation of this burden was legally justified under the circumstances of the case.
• The Court of Appeal conducted a judicial review of the High Court's interpretation of Section 83 of the Election Act, Articles 81/86 of the Constitution, and electoral regulations, assessing whether the trial judge's legal conclusions were legally sound.
• The judgment emphasized that election petitions require proof of substantial non-compliance with constitutional and electoral laws affecting results, referencing Supreme Court guidance in Raila 2017 regarding the standard of proof for nullification.

Precedent Name

• Maina Kiai v IEBC & 5 Others Civil Appeal 105 of 2017
• Raila Amolo Odinga & another v IEBC & 2 others
• Ahmed Abdullabi Mohamed & Anor v Hon. Mohamed Abdi Mohamed & 2 Others
• Odinga & another v IEBC & 2 others (Presidential Election Petition 1 of 2017)
• James Omingo Magara v Manson Onyongo Nyamweya & 2 others
• Manson Oyongo Nyamweya v James Omingo Magara & 2 Others
• Walter Enock Nyambati Osebe v IEBC & 2 others
• Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others

Cited Statute

• Elections (General) Regulations, 2017 (Amendment)
• Constitution of Kenya, 2010
• Elections Act

Judge Name

• GV ODUNGA
• SG KAIRU
• JW LESSIT

Passage Text

• Not every irregularity, not every infraction of the law is enough to nullify an election. Were it to be so, there would hardly be any election in this Country, if not the world, that would withstand judicial scrutiny.
• Why would a returning officer, or for that matter a presiding officer, fail or neglect to append his signature to a document whose contents, he/she has generated? Isn't the appending of a signature to a form bearing the tabulated results, the last solemn act of assurance to the voter by such officer, that he stands by the 'numbers' on that form?
• In the premises, we find no merit in both the appeal as well as the cross appeal which we hereby dismiss with costs to the 1st Respondent to be borne by the Appellant. We cap the same at Kshs 1,500,000.00.