[2014] KECA 630 (KLR)

[2014] KECA 630 (KLR)

The Court of Appeal held that the misspelling of the appellant's surname on the ballot paper did not materially affect the validity of the election or the will of the electorate, as other identifiers (photograph, party symbol, colours) were present and no empirical evidence was adduced to show significant loss of...

Source-derived case information.

Citation
[2014] KECA 630 (KLR)
Parties
Appellant: Arthur Kibira Apungu; Respondent: The Independent Electoral & Boundaries Commission; Respondent: The Returning Officer, Luanda Constituency; Respondent: Christopher Omulele
Court
Court of Appeal
Court Station
Court of Appeal at Nairobi
Jurisdiction
Kenya
Judgment Date
2 May 2014
Case Number
Civil Appeal 53 of 2013
Procedural Posture
Civil Appeal / Judgment
Outcome
appeal dismissed
Judges
AM Githinji, CM Kariuki, SP Ouko
Legal Topics
Election Irregularities, Burden of Proof, Voter Bribery, Scrutiny of Votes, Costs in Election Petitions, Electoral Principles
Source Language
english
Election Petitions Constitutional Law Civil Procedure Election Irregularities Burden of Proof Voter Bribery Scrutiny of Votes Costs in Election Petitions +1 more

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Summary, issues, holding and outcome

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Parties

Arthur Kibira Apungu

Appellant

The Independent Electoral & Boundaries Commission

Respondent

The Returning Officer, Luanda Constituency

Respondent

Christopher Omulele

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the misspelling of the appellant's surname on the ballot paper materially affected the outcome of the election.
  2. 2 Whether acts of voter bribery occurred and, if so, whether they were proved to the requisite standard and affected the election result.
  3. 3 Whether discrepancies and alterations in Forms 35 and other alleged irregularities warranted nullification of the election.

Ratio Decidendi

The Court of Appeal held that the misspelling of the appellant's surname on the ballot paper did not materially affect the validity of the election or the will of the electorate, as other identifiers (photograph, party symbol, colours) were present and no empirical evidence was adduced to show significant loss of votes. Allegations of voter bribery were not proved beyond reasonable doubt; the evidence was either uncorroborated, based on hearsay, or tainted by personal animosity, and no direct link to the 3rd respondent was established. Discrepancies and alterations in Forms 35 were found to be minor, isolated, and satisfactorily explained, with no impact on the overall result. The...

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • The appellant shall bear the costs of the appeal: Kshs. 300,000 to the 1st and 2nd respondents and Kshs. 200,000 to the 3rd respondent.