[2014] KESC 26 (KLR)

[2014] KESC 26 (KLR)

The Supreme Court held that once the Returning Officer issues Form 38 declaring the winner of an election, both the Returning Officer and the IEBC become functus officio and lack any legal authority to cancel, alter, or re-issue the certificate. Any disputes arising after such declaration must be resolved by the Election Court, not through administrative action. The Court found that both the Form 38 issued to the 1st respondent (Steven Kariuki) and the subsequent Form 38 issued to the appellant (George Mike Wanjohi) were invalid: the first was unsupported by verifiable results, and the second was issued after the IEBC's mandate had expired. The Court emphasized that the sanctity and...

Citation
[2014] KESC 26 (KLR)
Parties
Appellant: George Mike Wanjohi; Respondent: Steven Kariuki; Respondent: The Independent Electoral and Boundaries Commission; Respondent: Millam Wanjiru Gachihi
Court
Supreme Court
Court Station
Supreme Court of Kenya
Jurisdiction
Kenya
Judgment Date
28 May 2014 28 May 2014 23 May 2014
Case Number
Petition 2A of 2014
Procedural Posture
Election Petition / Supreme Court Appeal Judgment
Outcome
Appeal dismissed; Court of Appeal decision upheld; both Form 38 certificates declared null; fresh election to be held.
Legal Topics
Electoral Disputes, Functus Officio, Declaration of Results, Stare Decisis, Costs in Election Petitions
Source Language
English
Election Petitions Constitutional Law Electoral Disputes Functus Officio Declaration of Results Stare Decisis Costs in Election Petitions

Case Brief

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Parties

George Mike Wanjohi

Appellant

Steven Kariuki

Respondent

The Independent Electoral and Boundaries Commission

Respondent

Millam Wanjiru Gachihi

Respondent

Procedural Posture

Election Petition / Supreme Court Appeal Judgment

Legal Issues

  1. 1 Whether the Court of Appeal exceeded its jurisdiction under Article 164(3) of the Constitution.
  2. 2 Whether the Court of Appeal correctly applied the doctrine of stare decisis in relation to the Joho decision.
  3. 3 Whether the IEBC and Returning Officer became functus officio after issuing Form 38.

Ratio Decidendi

The Supreme Court held that once the Returning Officer issues Form 38 declaring the winner of an election, both the Returning Officer and the IEBC become functus officio and lack any legal authority to cancel, alter, or re-issue the certificate. Any disputes arising after such declaration must be resolved by the Election Court, not through administrative action. The Court found that both the Form 38 issued to the 1st respondent (Steven Kariuki) and the subsequent Form 38 issued to the appellant (George Mike Wanjohi) were invalid: the first was unsupported by verifiable results, and the second was issued after the IEBC's mandate had expired. The Court emphasized that the sanctity and...

Court Disposition

Appeal dismissed; Court of Appeal decision upheld; both Form 38 certificates declared null; fresh election to be held.

Orders

  • The appellant's appeal is disallowed and the Court of Appeal's determination is upheld.
  • The declaration of election results in Form 38 issued to George Mike Wanjohi on 8th March, 2013 is declared null.