Joseph Amisi Omukanda v Independent Electoral & Boundaries Commission (I.E.B.C.) & 2 others [2014] eKLR

Key Facts

Issues

• The court considered whether the narrow margin of victory (32 votes) and evidence of unaccounted votes necessitated a full recount. The learned Judge found no legal basis for a mandatory recount in such cases, emphasizing that a slim margin does not automatically invalidate an election unless errors directly affected the outcome. The appeal challenged the Judge's discretion in limiting the recount to two polling stations, arguing the discrepancies in forms 35/36 warranted broader scrutiny.
• The cross-appeal addressed the cost allocation under Section 84, which mandates that costs follow the cause. The original Judge dismissed the petition without awarding costs to the 3rd respondent, citing 'normal human errors.' The appellate court set aside this decision, ruling that the 3rd respondent was entitled to costs as the successful party, per Section 84, and capped the award at Ksh.1.5 million.
• The court evaluated whether minor alterations in forms 35 (e.g., corrections to totals) and discrepancies in form 36 (omitted polling stations) rendered the election invalid. It concluded that such errors, while present, did not impact the final results as candidates' vote counts remained unchanged. The Judge emphasized that agents signed forms 35, confirming authenticity, and that Section 83 of the Elections Act permits non-compliance if it did not affect the outcome.
• The court applied Section 83, which deems elections valid if non-compliance did not affect the result. It held that the Returning Officer's minor errors (e.g., transposed totals) and omissions in form 36 were insufficient to nullify the election, as the 3rd respondent's victory margin widened after partial recounts. The analysis referenced precedents, including Raila Odinga v. IEBC, to affirm that procedural flaws must demonstrably alter outcomes to invalidate elections.

Holdings

• The Court of Appeal dismissed the entire appeal, finding no merit in the grounds raised by the appellant. It upheld the High Court's determination that the election was validly conducted and the errors in forms 35/36 did not affect the result. The court emphasized that a narrow winning margin (32 votes) does not automatically justify a full recount, and the petitioner failed to prove any material irregularities that vitiated the election outcome.
• The Court of Appeal corrected the High Court's cost order, holding that Section 84 of the Elections Act mandates costs to follow the cause. It set aside the original order requiring each party to bear their own costs and substituted an order for the petitioner (appellant) to pay costs to the 3rd respondent (Ksh.1,500,000) and to the 1st and 2nd respondents (Ksh.1,000,000 each) for the appeal. It also adjusted the cost award for the partial recount application.

Remedies

• The court substituted the order partially allowing the recount application with costs to the appellant against the I.E.B.C. and Returning Officer, capped at Kenya shillings one hundred thousand (Ksh.100,000).
• The Court of Appeal set aside the learned Judge's order and awarded costs to the 3rd respondent (Emmanuel Wangwe) for the petition, capped at Kenya shillings one million five hundred thousand (Ksh.1,500,000).
• The appeal was dismissed, and the appellant (Joseph Amisi Omukanda) was ordered to pay costs of the appeal to the 1st, 2nd, and 3rd respondents, each capped at Kenya shillings one million (Ksh.1,000,000).

Legal Principles

• The court corrected the learned Judge's misinterpretation of Section 84 of the Elections Act, which mandates that costs 'shall follow the cause' in election petitions. It ruled that the successful party (3rd respondent) was entitled to costs, capped at Ksh.1,500,000, and adjusted the costs order for the partial recount application.
• The court applied the common law presumption 'Omnia praesumuntur rite et solemniter esse acta' (all acts are presumed to have been done rightly and regularly) to uphold the legitimacy of election procedures unless proven otherwise. This presumption supported the learned Judge's findings on the authenticity of forms 35 and 36.
• The court emphasized that in election petitions, the petitioner must prove non-compliance with electoral law and that such non-compliance affected the election's validity. This principle was applied to dismiss the appellant's claims as he failed to demonstrate that errors in forms 35 and 36 impacted the results.

Precedent Name

• Morgan v Simpson
• Fitah v Stephenson & Others
• Kundu Swam v Dzungwe
• Re Kensington North Parliamentary Elections

Cited Statute

• Elections Act
• Elections (Parliamentary and County Elections) Petition Rules, 2013
• Constitution of Kenya
• Civil Procedure Act

Judge Name

• S. Ole Kantai
• F. Azangalala
• D.K. Musinga

Passage Text

• 83. No election shall be declared to be void by reason of non-compliance with any written law 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 non-compliance did not affect the result of the election.
• The upshot is that the entire appeal has no merit and we dismiss it.
• The election was properly conducted and the tabulation was also properly done. There was a normal human error which did not affect the final outcome. It would have been different if the polling stations that had been left out made a different winner to be the winner. However, since the 3rd respondent still emerged the winner by widening the gap, the error cannot be the cause of vitiating the results.