https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12186

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT HOMA BAY** **CIVIL APPEAL NO. E066 OF 2025** **BOYD WERE ONG'ONDO..............................................................................APPELLANT** **VERSUS** **INDEPENDENT ELECTORAL AND** **BOUNDARIES COMMISSION (IEBC).....................................................1ST RESPONDENT** **PHILIP AROKO......................................................................................2ND RESPONDENT** **JUDGEMENT** **Background of the Appeal** 1. The democratic process is often celebrated as a peaceful contest of ideas, but occasionally, it becomes a crucible of intense rivalry, tragic loss, and deep administrative contestation. The dispute before this Court, designated as Civil Appeal No. E066 of 2025, represents such an instance, carrying within its record the echoes of a political tragedy and the profound constitutional questions of administrative fairness and natural justice. The political contest for the parliamentary seat of Kasipul Constituency, Homa Bay County, was initiated by a dark event. On the evening of 30th April 2025, the sitting Member of Parliament, Charles Ong’ondo Were, was gunned down by assassins along Ngong Road in Nairobi, leaving a political and familial void. To fill this legislative vacancy, the 1st Respondent scheduled a highly anticipated by-election for the 27th November 2025. 2. The primary protagonists in the ensuing campaign were the Appellant, contesting on an Orange Democratic Movement party ticket, and the 2nd Respondent, running as an independent candidate. As the campaign reached its peak, the political atmosphere in Kasipul Constituency erupted into violence. On the evening of 6th November 2025, clashes occurred between supporters of the Appellant and those of the 2nd Respondent in the Opondo area within the Central Kasipul Ward. Gunshots were reported, several citizens sustained serious injuries, property was vandalized, and two individuals lost their lives. In the immediate aftermath of this confrontation, both candidates reported the events at the Oyugis Police Station on the same day, laying blame upon each other. 3. Seized of reports of the violence, the 1st Respondent’s Electoral Code of Conduct Enforcement Committee stepped in to enforce regulatory standards. The candidates lodged cross-complaints against each other: Complaint No. IEBC/ECCEC/BE/01/2025 filed by the 2nd Respondent and Complaint No. IEBC/ECCEC/BE/02/2025 filed by the Appellant. Because these complaints arose from the same factual context, they were consolidated and heard together on 17th November 2025. 4. By its consolidated decision delivered on the 19th day of November, 2025, the Committee found both candidates to be in flagrant violation of their statutory duties under the Electoral Code of Conduct. Specifically, the Committee held that both the Appellant and the 2nd Respondent had breached paragraphs 6(a), (b), (c), (e), (i), (k), (m), and (n) of the Code of Conduct set out in the Second Schedule to the Elections Act. In consequence of these findings, the Committee issued stern warnings to both candidates and imposed an identical fine of Kenya Shillings One Million (Kshs. 1,000,000) on each of them. 5. Dissatisfied with this outcome, the Appellant paid the fine under protest to preserve his candidacy and immediately filed this appeal. This Court granted an interim stay of enforcement of the fine on 23rd January 2026, and ordered the 1st Respondent to supply the Appellant with all investigative, police, and intelligence reports referenced in the impugned decision. Despite service of these orders, the 1st Respondent declined to produce the documents, citing official privilege. **The Appeal** 1. The Appellant's dissatisfaction with the decision of the Electoral Code of Conduct Enforcement Committee is detailed across nine grounds of appeal set out in the Memorandum of Appeal dated 19th November 2025. 2. **The committee carried out opaque investigations on the basis of which it convicted and sentenced the Applicant unheard.** 3. **The committee ignored and/or misapprehended the totality of the parties' evidence before it and instead relied on inconclusive investigations, police reports, statements, and intelligence reports without prior disclosure, thereby denying the Appellant transparency and procedural fairness and hence violated the Appellant’s Right to Fair Administrative Action provided under Article 47.** 4. **The committee violated the Appellant's Article 50 Right to a Fair Hearing as they relied on new evidence that was introduced for the first time in the decision. The Appellant was condemned without an opportunity of challenging, testing, or responding to the allegations before adverse findings were made.** 5. **The committee placed reliance on unverified and unauthenticated evidence. Its conclusions were accordingly premised on materials whose accuracy, credibility, and probative value were never established as by law required.** 6. **The committee’s fine of Kshs. 1,000,000 lacked lawful basis and as a whole was unreasonable, draconian, disproportionate to the available evidence of culpability adduced by the complainant in the case.** 7. **The committee otherwise wrongly exercised its discretion in awarding punitive fines for claims not proven by evidence.** 8. **The committee wrongly exercised their discretion in holding the Appellant liable for violation of the IEBC electoral code of conduct without tangible evidence.** 9. **The committee wrongly exercised its discretion and misapprehended the applicable laws and principles and thereby reached the wrong conclusions on the liability of the Appellant.** 10. **The learned magistrate erred in law and in fact by taking into account extraneous evidence and failed to take into account relevant matters in arriving at its decision.** 11. Based on these grounds, the Appellant prays that the Court allow the appeal in its entirety, set aside the Committee's decision of 19th November 2025, declare that the 1st Respondent violated Articles 10, 47, and 50 of the Constitution, order a full refund of the paid fine, and award the costs of this appeal to the Appellant. **Summary of Appellant’s Submissions** 1. The Appellant’s written submissions, dated 20th March 2026, present a constitutional challenge to the Committee’s decision. The Appellant argues that his right to a fair hearing under Article 50 of the Constitution and his right to fair administrative action under Article 47 were compromised by the Committee’s procedural conduct. He asserts that the right to a fair hearing is an absolute, non-derogable right under Article 25(c) of the Constitution, which cannot be limited under any circumstances, including claims of administrative convenience or governmental privilege. 2. The Appellant points out that he was never supplied with the investigation reports, police files, or intelligence summaries that the Committee used to convict and sentence him. He argues that this was a trial by ambush, where he was condemned based on secret, unseen evidence that he had no opportunity to confront, test, or cross-examine. He contends that the Committee’s reliance on these undisclosed materials directly violates Article 50(2)(j) and (k), which guarantees an accused person the right to be informed in advance of the evidence to be relied upon and to have reasonable access to that evidence. 3. Furthermore, the Appellant challenges the 1st Respondent’s reliance on Section 131 of the Evidence Act to claim that the reports were privileged. He submits that Section 131 of the Evidence Act requires a formal statement on oath by a cabinet minister asserting that they have personally examined the documents and that their disclosure would be prejudicial to the public service. No such statement or affidavit was ever filed by any Minister or authorized state officer. 4. The Appellant also highlights the 1st Respondent’s failure to comply with the High Court's interlocutory order of 23rd January 2026, which directed the Commission to supply the complete investigation files and intelligence reports to the Appellant. The Appellant argues that since the 1st Respondent failed to comply with a lawful court order, the Court must draw an adverse inference that no such reports exist, or if they do, they do not contain any evidence linking the Appellant to the violence. 5. Citing the case of **Macfoy v United Africa Co. Ltd[1951] 3 All E.R. 1169**, the Appellant argues that the entire proceedings before the Committee were void ab initio, and that you cannot put something on nothing and expect it to stay there. He prays that the appeal be allowed and the fine of Kenya Shillings One Million be refunded. **Summary of the Respondent’s Submissions** 1. The 1st Respondent’s written submissions seek to defend the Committee’s decision as a lawful and proportionate exercise of its statutory powers. The 1st Respondent submits that this being a first appeal, the High Court is entitled to re-appraise the evidence and draw its own conclusions, but argues that such appraisal must be conducted on the record of the proceedings as they stood before the Committee. On that record, the 1st Respondent contends that the claim of the Appellant being condemned unheard is unsustainable. 2. The 1st Respondent argues that the Appellant was served with a charge sheet, appeared with counsel of his choice, participated in the trial, cross-examined the 2nd Respondent, and made a direct, voluntary admission that he had departed from the harmonized campaign schedule to hold a rally in the Opondo area on the day the violence occurred. The 1st Respondent submits that this admission, coupled with the sworn oral evidence of the 2nd Respondent and the verification of the schedule with the Deputy Returning Officer on speakerphone, provided an independent factual basis for the conviction, entirely independent of the undisclosed investigative reports. 3. Regarding the undisclosed investigation and intelligence reports, the 1st Respondent argues that the Commission possesses a wide constitutional mandate under Article 252(1)(a) of the Constitution to conduct investigations on its own initiative, a position affirmed by the Supreme Court in ***Independent Electoral and Boundaries Commission vs Chege* [2023] KESC 74 (KLR)**. The 1st Respondent submits that these reports were purely contextual, used to evaluate the overall security situation in Kasipul Constituency, and were protected by official privilege due to their sensitive security nature. 4. The 1st Respondent further argues that this Court, sitting as an appellate court, is not the proper forum to address issues of non-compliance with interlocutory orders, which should instead be dealt with through contempt proceedings. Citing **Mbogo v Shah[1968] EA 93**, the 1st Respondent maintains that the Committee exercised its statutory discretion lawfully and proportionately in imposing a fine rather than disqualifying the candidate, and urges this Court to dismiss the appeal with costs. **Issues for Determination** 1. Having carefully examined the Record of Appeal, the trial proceedings, the impugned decision as well as the comprehensive submissions of both the Appellant and the Respondents, the Court has identified the issues for determination to be: - 2. **Whether the 1st Respondent’s Electoral Code of Conduct Enforcement Committee had jurisdiction to entertain, try, and penalize infractions of the Electoral Code of Conduct?** 3. **Only if the answer to the above be in the negative, whether the 1st Respondent’s failure to supply the undisclosed investigative and intelligence reports violated the appellant’s right to fair hearing and thus vitiated the decision of the Committee?** 4. **What was the appropriateness of the Committee’s decision and what consequential orders should follow?** 5. **What orders should be made as to costs?** **Analysis and Determination** **Whether the 1st Respondent’s Electoral Code of Conduct Enforcement Committee had jurisdiction to entertain, infractions of the Electoral Code of Conduct?** 1. The Appellant’s grounds of appeal challenge the legality of the Committee’s actions, while the 1st Respondent asserts that the Committee is a legally sound statutory body. To resolve this, this Court must look to the constitutional architecture of the Republic. Under Article 88(4)(j) of the Constitution, the IEBC is mandated to develop a code of conduct for candidates and parties contesting elections. Article 84 places an obligation on all candidates and political parties to comply with this code. 2. The Electoral Code of Conduct is set out in the Second Schedule to the Elections Act, Cap 7, and Section 110 of the Act binds all candidates and parties to its terms. Paragraph 15 of the Second Schedule establishes the Electoral Code of Conduct Enforcement Committee, vesting it with the statutory power to hear and determine cases of breach and to impose sanctions. 3. For a considerable period, the jurisdiction of this Committee was the subject of intense litigation and conflicting decisions in the superior courts. This conflict was conclusively laid to rest by the Supreme Court in **Independent Electoral and Boundaries Commission v Sabina Chege(SC Petition No. 23 (E026) of 2022) [2023] KESC 74 (KLR)**. The Court held that the Commission is fully empowered under Article 88(4)(e) and (j) of the Constitution, read together with Article 252, to summon candidates, conduct trial proceedings, and enforce the Electoral Code of Conduct. It observed that the settling of pre-electoral disputes is an exclusive constitutional mandate of the Commission, and that this mandate carries with it all necessary attendant powers, including conducting investigations, summoning witnesses, and making determinations. 4. The Court further clarified that while this represents an overlapping of mandates where the Commission acts as investigator, prosecutor, and judge, such an arrangement is constitutionally sound and does not violate the principle of *nemo judex in causa sua* because it is expressly authorized by the Constitution and statute. Consequently, this Court finds that the Electoral Code of Conduct Enforcement Committee possessed the full constitutional and statutory jurisdiction to entertain the complaints, issue summonses, and hear the parties. **Whether the 1st Respondent’s failure to supply the undisclosed investigative and intelligence reports vitiates the decision of the Committee?** 1. The 1st Respondent argues that because the Appellant was served with a charge sheet, appeared with counsel, and cross-examined the complainant, the requirements of a fair hearing were fully met. In the court’s view, this is but such a narrow, purely procedural definition of fairness. The right to a fair hearing is not a hollow, mechanical ritual of physical attendance and cross-examination; it is a substantive guarantee that lies at the very heart of the rule of law. 2. Under Article 25(c) of the Constitution, the right to a fair trial is one of the select few fundamental rights that is absolute and cannot be limited under any circumstances. Article 50(2)(j) and (k) explicitly guarantees every accused person the right to be informed in advance of the evidence the prosecution intends to rely upon, to have reasonable access to that evidence, and to challenge it. 3. In the circumstances, the Committee in its decision openly admits that it relied on internal investigative reports, police files from Oyugis Police Station, and security intelligence reports to reach its adverse findings against the Appellant. These documents were never supplied to the Appellant before or during the hearing of 17th November 2025. He was kept in complete ignorance of their contents and was only made aware of their existence when the final decision was delivered. 4. To the court, this was the very definition of a trial by ambush. To allow a public tribunal to convict a citizen of serious, quasi-criminal electoral offenses on the basis of secret, undisclosed evidence is to invite administrative overreach back into our legal system. As was observed in **Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others [2014] eKLR**, a fair hearing requires that a party be given a reasonable opportunity to be heard before an impartial arbiter, which necessarily includes the right to know and confront the evidence against them. 5. The 1st Respondent attempts to cloak this failure in the language of security and governmental privilege. However, the law does not permit public bodies to casually invoke the word *privilege* as a shield to defeat constitutional rights. Section 131 of the Evidence Act, Cap 80, governs privilege relating to unpublished official records. It states that such privilege can only be claimed if a Cabinet Minister states on oath, by way of an affidavit, that they have examined the contents of the documents and are of the opinion that their production would be prejudicial to the public service. No such affidavit or statement from a Minister was ever presented to the Committee or to this Court. 6. The Secretary or Commissioners of the IEBC cannot assume the statutory powers of a cabinet minister to assert privilege under Section 131. Furthermore, while Article 252(1)(a) allows the Commission to conduct investigations on its own initiative, those investigative powers are subservient to, and must be exercised in strict harmony with, the Bill of Rights. The Commission cannot use its investigative powers to gather secret evidence and then use that evidence to convict a candidate without disclosure. 7. To hold otherwise would be to place the Commission above the Constitution. Public bodies must learn that the Bill of Rights is not a set of polite suggestions that can be ignored in the name of administrative speed or political expediency; it is the supreme law of the land, and any action taken in violation of its terms is incurably null and void. Accordingly, the Court finds that the Appellant’s constitutional rights under Articles 47 and 50 were violated by the Committee’s reliance on undisclosed evidence. 8. Notwithstanding the outright violation during trial proceedings, this court on the 23rd January 2026, issued an order directing the 1st Respondent to supply the Appellant with the complete investigation reports, statements, and intelligence files referenced in the impugned decision. It is undisputed that these orders were formally served on the Commission but were ignored. It is the 1st Respondent argues that this Court, sitting as an appellate court, cannot deal with issues of non-compliance with interlocutory orders, which should instead be prosecuted through contempt proceedings. 9. This Court must disagree with such contention. The disobedience of a court order by a constitutional commission is an assault on the rule of law and the administration of justice. As a first Appellate court, this Court is legally bound to conduct a fresh re-appraisal of the entire trial record, as established in **China Zhongxin Construction Company Ltd v Ann Akuru Sophia [2020] eKLR**. The question then is how this court is expected to fulfill its appellate duty to re-appraise the evidence when the most critical evidence used to convict the Appellant is withheld by the Respondent in defiance of a court order. By withholding these reports, the 1st Respondent has actively obstructed this Court from performing its constitutional duty. 10. The court holds that when a party possesses vital documents but refuses to produce them despite a clear court order, the court is entitled to draw an adverse inference. That inference is that either no such reports actually exist, or if they do, their contents would completely exonerate the Appellant and fail to support the Committee’s findings. In this case, this Court draws the adverse inference that there was no credible, legally admissible evidence within those undisclosed reports that linked the Appellant to the violence. 11. The court proceeds to evaluate whether the substantive findings of the Committee were supported by legally admissible evidence, and whether the penalty was lawful and proportionate. The 1st Respondent argues that the conviction must stand because the Appellant admitted he was in the Opondo area outside his harmonized campaign schedule on the day of the violence. While the Appellant’s admission establishes a technical infraction of the campaign schedule, this Court must ask a fundamental question: does a technical schedule infraction automatically make a candidate legally liable for double homicide, physical violence, and property damage? The answer must be no. 12. To hold a candidate liable for violent electoral offenses under the Code of Conduct, there must be a clear, direct, and demonstrable causal nexus between the candidate’s actions and the violence. There must be evidence of incitement, organization, or active participation. Under the principle established in **Bernard Kibor Kitur v Alfred Kiptoo Keter [2018] eKLR**, allegations of electoral malpractices of a criminal nature carry grave consequences, including potential disenfranchisement and disqualification from future voter registration under Article 83(1)(c) of the Constitution. Therefore, the standard of proof required to establish such gravity of culpability is high and must be supported by cogent, authenticated, and direct evidence. 13. Herein, the Complainant’s oral evidence consisted of uncorroborated hearsay and unauthenticated photos of questionable origin. The Committee’s leap from a simple schedule infraction to full, quasi-criminal liability for a double-fatality riot is a misdirection. The Committee relied on the undisclosed intelligence and police reports to bridge this massive evidentiary gap, which, as already analysed, was unconstitutional procedurally invalid and fatally untenable. 14. As to the penalty, the Committee imposed a fine of Kenya Shillings One Million (Kshs. 1,000,000) under the threat of immediate disqualification. Against the backdrop of the absolute lack of admissible evidence linking the Appellant to the violence, this fine was draconian and punitive, and entirely lacked any lawful basis. It was a disproportionate and unreasonable exercise of administrative discretion that cannot be allowed to stand. Under the principles of **Macfoy v United Africa Co. Ltd [1961] 3 ALL E.R. 1169**, since the entire decision-making process was infected by a fundamental constitutional illegality, the reliance on secret evidence, the final outcome is nullity ab initio. You cannot build a valid administrative penalty on a foundation of constitutional error. 15. In the upshot, the Court finds that while the 1st Respondent’s Committee possessed the undoubted original jurisdiction to enforce the Electoral Code of Conduct, it conducted its proceedings in disregard of the constitutional guardrails of fair administrative action and fair trial. The administration of justice cannot allow its processes to be compromised by the introduction of secret, undisclosed evidence under the vague banner of intelligence. 16. Accordingly, the Court finds and holds that the instant appeal has every merit and is thus hereby allowed in its entirety. The entire decision of the 1st respondent is set aside in whole that 1st Respondent is hereby ordered and directed to refund the fine of Kenya Shillings One Million (Kshs. 1,000,000) paid by the Appellant under protest on 21st November 2025 forthwith. 17. Because the appellant has succeeded and since costs follow the event of that success the costs of this Appeal are awarded to the appellant to be paid by the respondents jointly and severally. 18. It is so ordered. Dated, signed and delivered virtually this 31st day of July, 2026. Patrick J O Otieno Judge