Kidero 4 Others V Waititu 4 Others (Petition 1820of2014 (Consolidated) ) 2014KESC11 (KLR) (29august2014) (Judgment)

Kidero & 4 others v Waititu & 4 others (Petition 18 & 20 of 2014
(Consolidated)) [2014] KESC 11 (KLR) (29 August 2014) (Judgment)

Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others [2014] eKLR
Neutral citation: [2014] KESC 11 (KLR)
REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
PETITION 18 & 20 OF 2014 (CONSOLIDATED)
KH RAWAL, DCJ & VP, WM MUTUNGA, CJ & P, PK TUNOI,
MK IBRAHIM, JB OJWANG, SC WANJALA & N NDUNGU, SCJJ
AUGUST 29, 2014
BETWEEN
EVANS ODHIAMBO KIDERO ........................................................ 1ST APPELLANT
JONATHAN MUEKE ....................................................................... 2ND APPELLANT
THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION
(IEBC) .................................................................................................. 3RD APPELLANT
ISAAC HASSAN (RETURNING OFFICER OF THE NATIONAL TALLYING
CENTRE) ............................................................................................ 4TH APPELLANT
THE NAIROBI COUNTY RETURNING OFFICER .................... 5TH APPELLANT
AND
FERDINAND NDUNGU WAITITU ........................................... 1ST RESPONDENT
THE HONOURABLE ATTORNEY-GENERAL ........................ 2ND RESPONDENT
THE DIVISIONAL COMMANDING OFFICER (DCIO), GIGIRI POLICE
STATION ........................................................................................ 3RD RESPONDENT
THE DIVISIONAL COMMANDING OFFICER (DCIO), KAYOLE POLICE
DIVISION NAIROBI .................................................................... 4TH RESPONDENT
THE INSPECTOR-GENERAL OF THE NATIONAL POLICE
SERVICE ......................................................................................... 5TH RESPONDENT
(Being an appeal from the Judgment and Order of the Court of Appeal
sitting at Nairobi (G.B.M Kariuki, Warsame & Kiage JJ.A) delivered
on the 13th May, 2014 in Nairobi Civil Appeal No. 324 of 2013)
kenyalaw.org/caselaw/cases/view/101268/ 1
Rules on timelines of ling and determining electoral disputes are non-negotiable
Reported by Teddy Musiga and Charles Mutua
Election Law – election petitions – timeliness in filing election petitions – mandatory nature of timelines in
election petitions – claim where an election appeal was filed 72 days after the date of the judgment of the trial
court whereas electoral laws provided for filing of election appeals to the Court of Appeal within 30 days of that
judgment – whether a certificate of delay under the Court of Appeal Rules was entertained in electoral disputes
– Constitution of Kenya, 2010, article 87; Elections Act (cap 7) section 85A (a); Court of Appeal Rules (Cap 9
Sub Leg) Rule 82.
Constitutional Law - fundamental rights and freedoms - right to fair trial – remedies to breach of right to fair
trial – whether an election could be annulled on the grounds of alleged breach of right to fair trial – Constitution
of Kenya article 50.
Brief facts
The matter had its origins in the High court, where the rst respondent (Ferdinand Waititu) challenged the
election of the rst appellant (Evans Kidero). The petitioner at the High court (Ferdinand Waititu) based his
petition on the main allegation that the election of the 1st appellant herein (respondent then) had not been
conducted in accordance with the principles embodied in article 86 of the Constitution. The High court (by
majority (and Warsame, J dissenting) upheld the election of the rst appellant thereby dismissed the petition
and made the determination that the election was conducted in accordance with the electoral principles set out
in the Constitution. The petitioner being aggrieved by that decision moved to the Court of Appeal. However,
the appeal was led 72 days after the delivery of the trial court judgment notwithstanding provisions of section
85A of the Elections Act that provided that electoral appeals from the High Court to the Court of Appeal had
to be led within 30 days of the delivery of the High Court judgment.
In admitting and entertaining the appeal, the Court of Appeal opined on two major grounds that; rstly,
section 85A (a) of the Elections Act being a statutory timeline, was not as mandatory as the timelines named
in the Constitution itself; and so a court of law could extend the period within which an intending petitioner
could lodge an appeal beyond the 30 day limit prescribed in the Elections Act. According to the appellate court,
such an extension was proper in the interest of justice, especially where there had been delay in preparation for
court proceedings. The court further held that Parliament could not have intended to shut out a litigant from
ling an appeal as that would oend other constitutional provisions such as articles 10, 20 and 25(c). Secondly,
that on the strength of rule 35 of the Election (Parliamentary and County Elections) Petition Rules, the Court
of Appeal Rules were applicable in their totality to election petition appeals before the court; and so rule 82
(1) of the Court of Appeal Rules (which provided for the certicate of delay) could apply to extend the time
for ling and election petition appeal beyond the 30 day limit prescribed by section 85A of the Elections Act.
The appellants herein (then respondents) were aggrieved by that decision and moved to the Supreme Court
for a nal determination.
Issues
i. Whether the Court of Appeal acted without jurisdiction by entertaining an appeal led 72 days after
the delivery of the trial court’s decision.
ii. Whether the Court of Appeal could entertain and determine appeals led out of time where the delay
in ling those appeals emanated from judicial processes/ bureaucracies at the registries.
iii. Whether the Court of Appeal disregarded the doctrine of stare decisis, on the question of timeliness,
on the issue of scrutiny, and on the burden and standard of proof by failing to apply binding decisions
of the Supreme Court in contravention of article 163(7) of the Constitution.
iv. Whether an election could be nullied on the basis that a party did not get a fair trial before the trial
court.
Held
1. The guiding principles to be taken into account by parties who sought to predicate their appeals upon
article 163(4) (a) of the Constitution were:
a. a court’s jurisdiction was regulated by the Constitution, by statute law, and by the principles
laid out in judicial precedent;
b. the chain of courts in the constitutional set-up had the professional competence to adjudicate
upon disputes coming up before them; and only cardinal issues of law or of jurisprudential
moment deserved the further input of the Supreme Court;
c. not all categories of appeals lay from the Court of Appeal to the Supreme Court under article
163(4)(a); under that head, only those appeals from cases involving the interpretation or
application of the Constitution could be entertained by the Supreme Court;
d. and under that same head, the lower court’s determination of an issue which was the subject of
further appeal, had to have taken a trajectory of constitutional application or interpretation,
for the cause to merit hearing before the Supreme Court;
e. an appeal within the ambit of article 163(4)(a) was one founded on cogent issues of
constitutional controversy;
f. with regard to election matters, not every petition-decision by the Court of Appeal was
appealable to the Supreme Court; only those appeals arising from the decision of the Court
of Appeal, in which questions of constitutional interpretation or application were at play, lay
to the Supreme Court.
2. Article 163(4)(a) of the Constitution provided that appeals could lie from the Court of Appeal to the
Supreme Court as of right in any case involving the interpretation or application of the Constitution.
The operative words (interpretation or application) carried dierent meanings. Interpretation of the
Constitution involved revealing or clarifying the legal content, or meaning of constitutional provisions
for purposes of resolving the dispute at hand. The basic reference point in constitutional interpretation
was the text. On the other hand, application of the Constitution was a more dynamic notion. It entailed
creatively interpreting the Constitution to eliminate ambiguities, vagueness and contradictions in
furtherance of good governance. Quite often, it involved interpreting the Constitution in such a
manner as to adapt it to changing circumstances in the community, with care not to usurp the role
of the legislature.
3. The Constitution provided for the general principles of the electoral system; principles that stood
alongside prescriptive norms. Where disputes arose with regard to the interpretation and application
of such principles and norms in election petitions, the Supreme Court as the apex court could not gaze
helplessly when moved by litigants.
4. The question of timeliness in ling election petitions, and whether the Court of Appeal erred in the
interpretation of section 85A of the Elections Act vis-a-vis article 87(1) of the Constitution and the
allegation that the appellate court elevated and applied a civil litigation rule (subsidiary legislation) to
an election dispute, beyond and in breach of section 85A(a) and by extension, the Constitution itself
were all pertinent constitutional controversies that invited the Supreme Court’s jurisdiction under
article 163(4)(a) of the Constitution for a nal interpretation or application of the Constitution.
5. Under section 85A (a), the 1st respondent ought to have led an appeal within 30 days from the date
of the judgment (September12, 2013) that would have been October 10, 2013. However, the appeal
was led on 22/11/2013) 72 days from the date of the judgment of the High Court.
6. The question of timeliness in ling and determining election petitions as set by the Constitution and
the Elections Act, section 85A(a) were neither negotiable nor could they be extended by any court for
whatever reason. Section 85A of the Elections Act was neither a legislative accident nor a routine legal
prescription. It was a product of a constitutional scheme that required electoral disputes to be settled
in a timely fashion.
7. The Court of Appeal erred in law by choosing to depart from the legal principles established by itself
and armed by the Supreme Court on the timeliness in resolving electoral disputes and without
specically distinguishing the earlier cases in accordance with the normal judicial practice.
8. The Court of Appeal’s majority position even if founded upon notions of “justice and fairness” had
overlooked clear imperatives of the law that were overriding. They overlooked the law of precedent,
expressly declared in article 163(7) of the Constitution. They failed to recognize that section 85 A of
the Elections Act was directly born of article 87 of the Constitution. They had not taken into account
that the ideals of justice were by no means the preserve of the intending appellant and that they had to
apply to the electorate as a whole. They failed to recognize that the overall integrity of the democratic
system of governance was sealed on a platform of orderly process, of which the judiciary was the chief
steward and in which the course of justice already charted by the superior courts was to be methodically
nurtured.
9. The majority on the appellate bench held that rule 82(1) of the Court of Appeal Rules was applicable
to the matter before them, with the eect of setting in motion the computation of time such as would
have excluded the time taken by the High court in the preparation of the proceedings. If that rule were
to be applied to election petition appeals, as the majority appellate judges held then it meant that an
election petition appeal could be led within as much as 60 days of the ling of the notice of appeal.
10. That rule provided in addition that the time taken to prepare the proceedings be excluded from
the computation of the sixty days. That rule therefore, ousted the provisions of section 85A (a)
of the Elections Act, regarding the time within which an appeal had to be led. Such a rule if
applicable defeated the object of ecient electoral dispute settlement under the Constitution. Further,
an instrument of subsidiary legislation (Rule 82 of the Court of Appeal rules) could not override the
provisions of an Act of Parliament (section 85A of Elections Act).
11. Accordingly, the instant petition was led outside the mandatory time prescribed by section 85A of
the Elections Act. The proceedings at the High Court were ready for collection on the October 9, 2013
notwithstanding the fact that the certicate of delay was issued on October 30, 2013. The petition
of appeal ought to have been led on or before the close of day on October 10, 2013. Therefore the
appellate court erred in law by admitting and determining an incompetent appeal, the same having
been led out of the time prescribed by the peremptory provisions of section 85A (a) of the Elections
Act as read with article 87(1) of the Constitution.
12. The majority judgment of the Court of Appeal annulling the election of the rst appellant was declared
a nullity for all purposes. And since no further issues of signicant constitutional character had come
up, there was no need to render an opinion in respect of other questions, upon their merits.
Concurring Opinion, N Ndungu, SCJ
13. The aspect of time, when ling an election petition was couched in mandatory language under articles
87 and 105 of the Constitution of Kenya, 2010. After declaration of the election results, the intended
petitioner had the duty to le a petition within 28 days as required by the Constitution. Failure to
do so rendered the petition nugatory. The petitioner in such a case required neither judgment nor
proceedings from the Independent Electoral and Boundaries Commission. All the petitioner required
was the actual declaration of election results by the returning ocer (which he received on the polling
day) as such the responsibility of actualizing the right to challenge the election results rested on the
petitioner.
14. Article 50(1) of the Constitution guaranteed the right to a fair trial. The events that unfolded at the
registry and the delay in the release of proceedings should not have compromised the 1st respondent’s
inalienable right to a fair trial. Thus the Supreme Court had to respond to the constitutional command
that every person was entitled to enjoy the rights and fundamental freedoms in the Bill of Rights to
the greatest extent consistent with the nature of the right or fundamental freedom.
15. Section 59 of the Interpretation & General Provisions Act, Cap 2 provided for the construction of
power to extend time to the eect that where a statute prescribed a time for doing an act or taking a
proceeding and power was given to a court or other authority to extend that time, then unless a contrary
intention appeared, that power could be exercised by the court although the application for extension
could not be made until after the expiration of the time prescribed.
16. Rule 82 of the Court of Appeal Rules that provided for extension of time was not necessarily in conict
with, or inferior to the Elections Act (section 85A) because section 59 of the Interpretation & General
Provisions Act, Cap 2 provided a bridge between the Elections Act and the Court of Appeal Rules.
The Elections Act prescribed time for doing an act but did not expressly state that the time could not be
extended within the connes of section 59 and the Court of Appeal Rules. If Parliament had intended
for the Court of Appeal Rules not to apply, it would have stated so. Therefore the Court of Appeal
was right in admitting and hearing the 1st respondent’s appeal in the circumstances.
17. The prerequisites of article 259 of the Constitution required the Constitution to be interpreted in a
manner that permitted the development of the law. As such, regard to precedents of the Supreme Court
could not bar lower courts from adhering to those progressive requirements. As an interwoven system
of justice, the responsibility of every judge was to ensure that the mandated exercise of judicial authority
was followed and that ultimately, justice was delivered within the connes of the Constitution.
18. Judgments of a court of nal appeal stood on a dierent basis from those of subordinate courts. A
departure therefore had to be a rare phenomenon justiable only on the basis of consideration of the
deepest sentiments of justice occasioned by a complete disassociation of the factual situation between
the previous case and that being considered. It had to be apparent that the test of experience and
passage of time had rendered the rule untenable of application in the circumstances then prevailing.
The settlement of electoral law by the Supreme Court eliminated any diculty in identifying the
rationes set forth as binding precedent.
19. The Court of Appeal considered in great depth and in actual circumstance, the bounds of section 85A
of the Elections Act vis a vis the Rules governing the court. That examination was well within the
bounds of their power and the same could not be faulted for failure to abide by article 163(7) of the
Constitution.
20. Under section 83 of the Elections Act, an election could only be declared void if that election did
not substantially comply with the written law– the Constitution, the Elections Act and Regulations
made thereunder. Where there was substantial compliance with the written law in an election, the
irregularities had to indeed have aected the result of the election for that election to be invalidated.
The emphasis then was not what happened subsequent to the declaration of the results, but what
happened before and in the process of the election up and until the declaration of the result.
21. The principles to be considered before an election could be annulled were: rst, if it was demonstrated
that an election was conducted substantially in accordance with the principles of the Constitution and
the Elections Act, then such an election was not to be invalidated only on the ground of irregularities.
Secondly, where, it was shown that the irregularities were of such a magnitude that they aected the
election result, then such an election stood to be invalidated and thirdly, mere allegations of procedural
or administrative irregularities and other errors occasioned by human imperfection were not enough,
by and of themselves, to vitiate an election.
22. Under article 25(c) of the Constitution, the right to a fair trial could not be limited. However, it was
an individual’s right – a right in personam and the remedy for the violation of such a right could not
be nullication of an election since an election reected the views of the people expressed through the
vote, not just rights of individuals and therefore courts had to be careful not to exercise their power
in such a manner as to interfere with the peoples' expression in instances where the proven election
irregularities did not aect the election results. Therefore, the Court of Appeal erred in nullifying the
1st and 2nd appellant’s election as a remedy for the violation of a fair trial.
23. Article 23(3) of the Constitution, 2010 laid out the remedies available for the enforcement of the Bill
of Rights as declaratory orders, injunction, conservatory orders, declaration of invalidity of any law,
order of compensation and judicial review. On the other hand, section 21 of the Supreme Court Act
gave the Supreme Court general powers to make any orders or grant appropriate reliefs.
24. Whereas an order of retrial was the usual remedy granted for breach of fair trial, in the instant case,
an order of retrial would not have been possible since the jurisdiction of an election court to hear and
determine an election petition expired after six months of ling the petition.
25. The six months period of the High court and the Court of Appeal’s power as an election court had
expired. Under section 21 of the Supreme Court Act, the Supreme Court could remedy the denial of a
fair trial by creating a window for the cross examination of the returning ocer by the 1st respondent.
In so doing, the court would have fully remedied the 1st respondent’s denial of the right to fair hearing
since he would have been able to challenge the evidence of the returning ocer in the same way as
he would have done had he been granted an opportunity by the High Court as the most appropriate
remedy in the circumstances.
26. Costs followed the event and the awarding of costs to one successful party should not be seen as a
punitive measure.
Appeal allowed.
Orders
i. The decision of the Court of Appeal delivered on May 13, 2014 was annulled.
ii. The judgment of the High Court dated September 10, 2013 was reinstated.
iii. The Supreme Court reaffirmed the status of the 1st appellant as the duly elected Governor of Nairobi
County.
iv. Parties to bear their own costs at the High Court, Court of Appeal and Supreme Court.
Citations
Texts
Advocates Remuneration Order (2009) Paragraph 16
Statutes
Kenya
Constitution of Kenya, articles 1, 3, 25(c); 27; 38; 50(1); 81(e); 86; 87; 88(5); 163(4)(a); 163(7); 165; 180(4);
259(8) - (Interpreted)
Elections Act (cap 7) section 75, 80, 82, 83, 85A - (Interpreted)
Elections (Parliamentary and County Elections) Petition Rules, 2013 (cap 7 Sub Leg) rules 8(a); 10; 12(2)(a);
21; 33(2); 33(4); 36 - (Interpreted)
Court of Appeal Rules (2010) rule 82 - (Cited)
Interpretation and General Provisions Act (cap 2) section 31(b) - (Interpreted)
Statutory Instruments Act (Act No. 23 of 2013) section 13(a) - (Interpreted)
Cases
Kenya
1. Hassan Ali Joho & Another v. Suleiman Said Shahbal & Others Supreme Court Petition No.
10 of 2013; [2014] eKLR
2. Mary Wambui Munene v. Peter Gichuki King’ara & Others Supreme Court Petition No. 7
of 2014; [2014] eKLR
3. Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others (Munya 1 and Munya 2)
4. Raila Odinga & Others v. IEBC & Others
5. Ferdinand Waititu v. IEBC & Others
6. Wavinya Ndeti v. IEBC & Others
7. Nicholas Kiptoo Arap K. Salat v. IEBC & Others
8. Diamond Trust Kenya Ltd v. Daniel Mwema Mulwa
9. Erad Suppliers & General Contractors Limited v. National Cereals and Produce Board
10. Patrick Ngeta Kimanzi v. Marcus Mutua Muluvi & Others
11. Kakuta Maimai Hamisi v. Peris Pesi Tobiko & Others
12. Richard Ncharpi Leiyagu v. IEBC & Others
Advocates Mentioned
1. Mr. Nowrojee – Senior Counsel for the 1st and 2nd appellants
2. Prof. Tom Ojienda – Senior Counsel for the 1st and 2nd appellants
3. Mr. Oduol – Counsel for the 1st and 2nd appellants
4. Mr. Nyamodi – Counsel for the 3rd, 4th, and 5th appellants
5. Mr. Muite – Senior Counsel for the 1st respondent
6. Mr. Abdullahi – Counsel for the 1st respondent
7. Mr. Kinyanjui – Counsel for the 1st respondent
JUDGMENT
A. Introduction
1. This is an appeal against the Judgment of the Court of Appeal sitting in Nairobi, delivered on 13th May,
2014 in Civil Appeal No. 324 of 2013, overruling the decision of the High Court sitting at Nairobi
(Mwongo J.), in Election Petition No.1 of 2013.The Court of Appeal decision invalidated the election
of the 1st and 2ndappellants as the duly-elected Governor and Deputy Governor of Nairobi County.
B. Background
(a) Proceedings in the High Court

2. The 1st appellant was declared the duly-elected Governor of Nairobi County following the
gubernatorial elections held on 4th March, 2013. He received a total of 692, 483 votes. The 1st
respondent, whocamesecond with a total of 617, 839 votes,subsequently led Election Petition No.
1 of 2013 at the High Courtat Nairobi,dated 11th March, 2013,challenging the election of the 1st
appellant.
3. The petition was led before Judges of election Courts had been duly designated and gazetted;hence
it was initially heard at the Constitutional Division of the High Court. In a Ruling dated 21st March,
2013 the High Court (M. Ngugi, J.) held that the petition was led within time, and directed that
it be determined in accordance with the Elections Act,2011 (Act No. 24 of 2011) and the Elections
(Parliamentary and County Elections) Petition Rules, 2013.Upon gazettement of the Election Court
Judges (Gazette Notice No. 5381 dated 19th April, 2013),Mwongo, J. was designated to hear and
determine the matter.
4. The following issues were raised for determination by the Court:
(i) whether the election for Nairobi County Governor was conducted in accordance with the
principles laid down in the Constitution and the electoral law;
(ii) whether the results of the election for Nairobi County Governor were announced through a
valid Form 36;
(iii) whether the 1st appellant was credited with highly inated and non-existent votes;
(iv) whether the election for Nairobi County Governor was marred by electoral malpractices;
(v) whether the alleged electoral malpractices vitiated the election for Nairobi County Governor;
(vi) whetherthe 1st and 2nd appellants were validly elected as Governor and Deputy Governor
respectively; and
(vii) who was to bear the costs of this Petition, and in what proportion.
5. During the course of trial, several Rulings were made including: a Ruling dated 26th June, 2013
limiting the cross-examination of the 5th appellant, the Returning Ocer for Nairobi County; and
one dated 9th July, 2013 dismissing the 1st respondent’s request for scrutiny. In a Judgment dated 10th
September, 2013, the trial Court dismissed the petition and conrmed the 1st appellant as the duly-
elected Governor of Nairobi County.
(b) Proceedings in the Court of Appeal

6. Aggrieved by the decision of the High Court, the 1st respondent led an appeal at the Court of
Appeal.The Court of Appeal identied ve issues in the cause for resolution, namely:
(i) whether the appeal was competent, in light of Section 85A of the Elections Act;
(ii) whether the denial or curtailment of cross-examination infringed the appellant’s right to a fair
trial;
(iii) whether the rejection of the appellant’s plea for scrutiny and recount vitiated the Judgment;
(iv) whether the High Court committed errors of law; and
(v) whether an upper limit to costs should have been prescribed.
7. In its Judgment dated 13th May, 2014 the Court of Appeal, in a majority decision (G.B.M. Kariuki &
Kiage, JJ.A, with Warsame, J.A dissenting), set aside the High Court decision and annulled the election
of the 1st and 2nd appellants.
8. The Court of Appeal in its majority decision heldinter alia,that the 1st respondent herein had led
his appeal within time; and that the trial Judge improperly exercisedhis discretion when he curtailed
the cross-examination of the Returning Ocer for Nairobi County and upheld the election, despite
contrary evidence from the Court-ordered scrutiny-reports.
9. In his dissenting opinion, Warsame, J.Aheld that election petitions are causes sui generis,and Rule 82
of the Court of Appeal Rules was not applicable in electoral matters. Therefore, the appeal was ledout
of time and was incompetent. Warsame, J.A also found that,based on the scrutiny-report,there was no
evidence to invalidate the election of the 1st appellant herein.
(c) Proceedings before the Supreme Court

10. Dissatised with the said Judgment, the 1st and 2nd appellants led an appeal (Petition No. 18 of 2014)
before this Court on 14th May, 2014. Together with the petition, the 1st and 2nd appellants led Civil
Application No. 21 of 2014,this beinga Notice of Motion under certicate of urgency. On the same
date, the Court heard the matter exparte, certied it urgent and granted interim orders,staying the
Court of Appeal Judgment pendinginter partes hearing on 23rd May, 2014. On that date, the parties
consented to have theinterimorders extended, and theapplication dispensed with, so as to expedite the
hearing of the substantive appeal on 24th and 25th of June, 2014.
11. This nal appeal was premised on the grounds that:
(i) the learned Judges of the Court of Appeal, in a majority decision, acted without jurisdiction
when they entertained, heard and determined an incompetent appeal led beyond the
prescribed timelines, which was in breach of the provisions of Article 87(1) of the Constitution
of Kenya, 2010 and Section 85A of the Elections Act;
(ii) the learned Judges of Appeal acted without jurisdiction in delivering the Judgment outside the
timelines prescribed in the terms of Article 87(1) of the Constitution, and Section 85A of the
Elections Act;
(iii) the learned Judges of Appeal in their majority decision,breached the provisions of Article
163(7) of the Constitution and Section 31 of the Interpretation and General Provisions Act
(Cap.2, Laws of Kenya) in holding that Rule 82(1) of the Court of Appeal Rules, 2010, a
subsidiary legislation, conferred upon the Court jurisdiction in election petitions, to override
the Elections Act by excluding the time taken in preparing appeals from the time-allowance for
ling appeals to the Court of Appeal under Section 85A of the Elections Act - in contradiction
to the unambiguous decision of the Supreme Court in Hassan Ali Joho & Another v. Suleiman
Said Shahbal & 2 Others S.C. Petition No. 10 of 2013; [2014] eKLR; in Mary Wambui
Munene v. Peter Gichuki Kingara & 2 Others S.C. Petition No. 7 of 2014; [2014] eKLR; in
Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others S.C. Application No. 5 of 2014;
[2014] eKLR; and in In the Matter for an Application for an Advisory Opinion, Advisory
Opinion No. 2 of 2011;
(iv) the learned Judges of Appealin their majority decision, breached the provisions of Articles
81(e) and 86 of the Constitution, when they nullied the election of the 1st and 2nd appellants
on grounds that the 1st respondent had not been accorded a fair hearing in the trial Court, when
none of the grounds specied in the Constitution as grounds for nullifying elections were ever
considered, or proved, in the Court of Appeal;
(v) the learned Judges of Appeal breached the 1st and 2nd appellants’ inviolable right (Articles 50(1)
and 25(c) of the Constitution)to have a dispute that can be resolved by the application of law
decided in a fair hearing before a Court, when theyfailed to determine the 1st and 2nd appellant’s
Notice of Motion application dated 19th December, 2013 which sought to strike out the entire
appeal, or Forms 35 and 36 which constituted new evidence not contained in the Record of
Appeal, being included without leave of the Court;
(vi) the learned Judges of Appealacted in breach of their jurisdictional limits in election matters,
which subsumed matters of law, but not of fact;
(vii) the learned Judges of Appeal in their majority decision,erred in holding that the right to
scrutiny subsists as a carte blanche right, even where no basis has been established by the
1strespondent- contrary to Rules 33(2) and (4) of the Elections Petition Rules, which expressly
provides that scrutiny can only be granted where the Court is satised that there is sucient
reason for it;
(viii) the learned Judges of Appeal in their majority decision erred in law and in fact, by deviating
from the principles of the incidence of burden and standard of proof in election petitions,as
set out in Raila Odinga & Others v. IEBC & Others;S.C. Petition No. 5 of 2013 case- in breach
of the terms of Article 163(7) of the Constitution; and
(ix) the learned Judges of Appeal erred in law by considering matters of fact and evidence that were
extraneous to their jurisdiction and, as such, contrary to the provisions of Article 87(1) of the
Constitution as read with Section 85A of the Elections Act.
12. On 27th May, 2014, the 3rd appellant, the IEBC, led a cross-appeal: The Independent and Boundaries
Commission & 2 Others v. Ferdinand WaitituNdungu & 6 Others;S.C. Petition No. 20 of 2014. The
grounds of the cross- appeal were thus stated:
(i) Competency of the Appeal:that the Court of Appeal found that the appeal had been led out
of time, but extended time contrary to the law.
(ii) Fair hearing:that the Court of Appeal erred in nding that the Election Court did not accord
the 1st respondent a fair hearing.
(iii) Errors of law:that the Court of Appeal erred in law when it made ndings on Forms 35 and
36; when it gave an unconstitutional remedy by setting aside the election on the ground of
lack of fair hearing, being a ground not contemplated in law; when it disregarded the doctrine
of stare decisis, by departing from its earlier decisions; and by prescribing a low threshold for
applications for scrutiny and recount.
(iv) Costs:that by capping the costs payable to the successful parties, the learned Judges of Appeal
erred,as the ceiling of costs recoverable by the successful parties bears no relationship to the
amount actually spent by the successful parties in defending the election petition.
13. On 30th May, 2014, the IEBC led an application seeking the consolidation of Petition No. 20 of 2014
and Petition No. 18 of 2014. On 4th June, 2014, the Supreme Court heard the application, certied it
urgent and consolidated the two petitions which wereset for hearing on 24th and 25th of June, 2014.
14. Learned Senior Counsel Mr. Nowrojee and Prof. Tom Ojienda, and learned counsel Mr. Oduol
appeared for the 1st and 2nd appellants; learned counsel Mr. Nyamodi appeared for the 3rd, 4th
and 5thappellants,learned Senior Counsel Mr. Muite and Mr. Abdullahi, and learned counsel Mr.
Kinyanjui appeared for the 1st respondent.The 2nd, 3rd, 4th and 5th respondents were not represented and
did not take part in the proceedings.
C. The Parties’ Respective Cases
(i) The 1st and 2nd Appellants

15. The 1st and 2ndappellants set out the issues for determination before this Court as: whether the majority
decision of the Court of Appeal violates the provisions of Articles 1(2), 3(a), 25(c), 27, 50(1), 88(5),
180 (4), 163 (7) of the Constitution; and the provisions of Article 87(1) of the Constitution as read
together with Section 85A of the Elections Act, and Rules 33(2) and 33(4) of the Elections Petition
Rules.
(a) Jurisdiction
16. In support of his arguments, Mr. Nowrojee relied on the written submissions led on 4th June, 2014
and 25th June, 2014. Counsel invoked the jurisdiction of this Court under Article 163(4)(a) of the
Constitution, which allows for appeals as a matter of right, in cases involving the interpretation or
application of the Constitution.
17. Counsel referred to this Court’s decisions on jurisdiction, including:Hassan Ali Joho & Another v.
Suleiman Said Shahbal & Others;S.C. Petition No. 10 of 2013; [2014] eKLR, where it was held thatthe
test for evaluating the jurisdictional standing of this Court in handling an appeal, is whether the
appeal raises a question of constitutional interpretation or application (paragraph 37); Erad Suppliers
& General Contractors Limited v. National Cereals and Produce Board, S.C. Petition No. 5 of 2012;
eKLR [2012](where this Court held that a question involving the interpretation or application of the
Constitution, integrally linked to the main cause in a superior Court of rst instance, is to be resolved
in that forum in the rst place before an appeal can be entertained in this Court); Gatirau Peter Munya
v. Dickson Mwenda Kithinji& Others, S.C. Civil Application No. 5 of 2014; [2014]eKLR [Munya 1]
(for the proposition that an appellant in an electoral dispute has to show that the issue before the Court
took a trajectory of constitutional interpretation or application); and the Chief Justice’s concurring
opinion inGatirau Peter Munya v. Dickson Mwenda Kithinji & Others, S.C. Petition No. 2B of 2014;
[2014]eKLR [Munya 2](wherehe set out the guiding principles obligating a Court to determine an
appeal in terms of Article 163(4)(a) of the Constitution).
18. Learned Senior Counsel submitted that the appeal before this Court satised the parameters set
out in Munya 2,relating to Article 163(4)(a) of the Constitution.He urged that the issues in this
matter were cardinal issues of jurisprudential moment, because they involved the timely settlement
of election disputes. Further, the appeal was founded on cogent issues of constitutional controversy
which included: whether the Court of Appeal disregarded the principles of stare decisis,asset out in
Article 163(7) of the Constitution,in determining the 1st respondent’s appeal which was led outside
of the 30-day time-limit set by Section 85A of the Elections Act; and whether the Court of Appeal
could contradict itself, and depart from its own earlier decision on time-limits.
19. Mr. Nowrojeesubmitted that the petitions at the trial Court and the Court of Appeal involved issues
of interpretation and application of the Constitution. He agreed with this Court’s holding in Munya
1,that the Elections Act and the Regulations thereunderare normative derivatives of the Constitution,
and one cannot separate the two when interpreting thelatter.Mr. Nowrojee submitted that Munya
1 fell within the ambit of Article 163(4)(a) of the Constitution, and that the principles in Munya
1andMunya 2bind both the appellants and the respondents. He submitted that the eect of the
respondents’ objectionas to this Court’s jurisdiction,contradicted the principles set out in Munya
1andMunya 2, and this was an abuse of Court process. Mr. Nowrojee submitted that the only way
the 1st respondent could challenge this Court’s jurisdiction was through a cross-appeal.
20. Counsel submittedthat the election Court had both interpreted and applied the Constitution, in
instanceswhere:the 1st and 2ndappellants’election was challengedunder Articles 86,87(1) and (2), 88(5),
165(3)(a) and (e) of the Constitution and Sections 75 and 80 of the Elections Act; and where the Court
interpreted Articles 1 and 38 of the Constitution,with regard to the sovereignty of the people’s will, as
beingcritical in the determination of election petitions. Counsel submitted that the Court of Appeal
had also interpreted and applied constitutional provisions, albeit erroneously.
21. Counsel contested the 1st respondent’s submission that timelines are mere technicalities, urging that
such an argument was contrary to this Court’s decisions. He submitted that the delay in ling the 1st
respondent’s case had nullied its eect as a basis of jurisdiction for the relevant Court; andthat no
Court can consent to jurisdiction where there is none, and any assumption of jurisdiction in those
circumstances, amounted tosheer judicial innovation.
(b) Competency of the appeal

22. Prof.Ojienda submitted that the Court of Appeal had extended the 30-day timeline within which a
party may appeal to that Court,in violation of Section 85A of the Elections Act. He urged that in so
doing, the Appellate Court had disregarded the binding decisions of this Court; and that the Court of
Appealhad contravened Articles 87(1) and 163(7) of the Constitution.
23. Counsel submitted that as the Judgment of the election Court was delivered on 10th September, 2013,
an appeal to the Court of Appeal had to be led by 10thOctober, 2013.He submitted that the appeal
was led on 22nd November, 2013;that is72 days after the delivery of the Judgment of the election
Court.Thus the appeal, he urged, was incompetent.
24. Counsel cited this Court’s decision in Joho,whichhad armed the Court of Appeal’s Rulingin
Ferdinand Waititu v. IEBC &8 Others, Civil Application No. 137 of 2013; [2013] eKLR,that the
timelines set by the Constitution and the Elections Act were neither negotiable nor capable of being
extended by the Court.Prof. Ojienda referred to the case ofMary Wambui Munene v. Peter Gichuki
King’ara S.C. Petition No. 7 of 2014;[2014] eKLR, where this Court held that time, in principle and
applicability, is a vital element in the constitutionally-set electoral process.
25. Counsel urged that Section 85A of the Elections Act is a mandatory provision which sets out the
timelines for the exercise of the Court of Appeal’s appellate jurisdiction.He submitted that the
intention of Parliament was easily discernible from a literal reading of this statutory provision. Counsel
also referred to this Court’s decision in Munya 2,where it held that Section 85A of the Elections Act
is neither a legislative accident nor a routine legal prescription, and it is a product of a constitutional
scheme requiring electoral disputes to be settled in a timely fashion. He submitted that this provision
is not a stand-alone item, and must be read together with other relevant provisions.
26. Counsel submitted thatin the Court of Appeal Judgment,a Judge on the majority side (Kiage,J.A)
indeed, rearmed the principle of timeliness in resolving electoral disputes, and later in the
Judgmentexpressed his doubts as to whether a Court can extend timelines;but he then remarked that
a certicate of delay duly issued, is conclusive to grant an extension of time.
27. Counsel considered the majority position in the Appellate Court, with G.B.M Kariuki, J.Aholding
that it had not beenParliament’s intention to prejudice the “right of a citizen to access justice, or the
right to appeal an election decision”, where it was not through his fault that the period for appealing
ran out. The learned Judge opined that Parliament could have expressly stated,had it so intended,
that Section 85A(a) of the Elections Act overrides Rule 82 of the Court of Appeal Rules.But counsel
submitted that the learned Judgehad later held that the two provisions (of the Act and the Rules) are
symbiotic,with the Rule being applicable only where delay is attributable to the Court; and the Court
then has a discretionto accommodate a certicate of delay consistent with the Court’s time taken in
availing the proceedings.
28. Counsel submitted that the eect of applying Rule 82 of the Court of Appeal Rules to election appeals
at the Court of Appeal would be that an appellant would have 14 days from the date of the decision to
lodge a Notice of Appeal;30 days from the date of the decision to apply for proceedings;and 60 days
from the date of lodging the Notice of Appeal, to le a competent appeal. Further, the time taken
during the preparation of the proceedings would be excluded in computing the 60-day timeline within
which to lodge the appeal.
29. Counsel further submitted that the appellate Judges erred in relying on Rule 82 of the Court of Appeal
Rules,to overrule the mandatory provisions of Section 85A(a) of the Elections Act, by holding that the
time taken by the Registrar to prepare proceedings should be excluded in computing time for appealing
to the Court of Appeal in election petitions. Counsel cited the case ofWavinya Ndeti v. IEBC & 4
Others, Civil Appeal No. 323 of 2013; P[2014] eKLR, in which the Court of Appeal declared Rule
82 of the Court of Appeal Rules ultra vires Section 85A(a) of the Elections Act.
30. Counsel submitted that while the appellant was not challenging the application of the Court of Appeal
Rulesper se, the said Rules could only apply after due compliance with the Elections Act. He urged
that according to Section 31(b) of the Interpretation and General Provisions Act, subsidiary legislation
cannot confer, limit or expand a Court’s jurisdiction.
The relevant provision thus reads:
“Where an Act confers power on an authority to make subsidiary legislation, the following
provisions shall, unless a contrary intention appears, have eect with reference to the making
of the subsidiary legislation—
…
(b) no subsidiary legislation shall be inconsistent with the provisions of an Act;...”
31. Counsel submitted that Section 13(a) of the Statutory Instruments Act, 2013 (Act No. 23 of
2013)requires that statutory instruments, including Rules,shall be in accord with the provisions of the
Constitution, the Act pursuant to which they are made,or other written law. It provides that:
“The Committee shall, in carrying out its scrutiny of any statutory instrument or published
Bill be guided by the principles of good governance, rule of law and shall in particular
consider whether the statutory instrument-
(a) is in accord with the provisions of the Constitution, the Act pursuant to which
it is made or other written law…” [emphasis supplied].
32. Counsel submitted that an appeal in an election petition matter is a cause sui generis, as it is neither
civil nor criminal;and that, to regard an election appeal as an ordinary civil appeal,is to argue against
the terms of the Constitution. He urged that Article 87(1) of the Constitution mandated Parliament
to enactlegislation and rules governing the sphere of electoral disputes.
33. Learned counsel, Mr. Oduolentered upon his submissions by underlining the need for predictability
and certainty in the law,as espoused by the doctrine of stare decisis which had now been enshrined
in the Constitution. He urged that to depart from precedent without justication, would bring the
administration of justice into disrepute. Mr. Oduol submitted that to disregard a precedent set by the
Supreme Court, was a violation of the Constitution,and was an illegality and impropriety surpassing
an abuse of Court process.
34. Counsel submitted that there were contradictions between the Appellate Court’s decisions of the
past and this one, with regard to timelines; and that in the earlier cases at which Kiage, J.A in
particular had been part of the Bench, it had been held that the timelines set by the Constitution
and the Elections Act have a special materiality and are not for extending. Counsel referred to the
following cases:Patrick Ngeta Kimanzi v. Marcus Mutua Muluvi & 2 Others, Civil Appeal No. 191
of 2013; [2014] eKLR; Kakuta Maimai Hamisiv. Peris Pesi Tobiko & 2 Others Civil Appeal No.
154 of 2013; [201] eKLR;Charles Kamuren v. Grace Jelagat Kipchoim & Others, Civil Appeal No.
159 of 2013; [2013]eKLR; Ferdinand Ndungu Waititu v. IEBC & Others, Civil Application No.
137 of 2013; [2013] eKLR;Wavinya Ndeti;and Nicholas Kiptoo Arap K. Salat v. IEBC & 6 Others,
Civil Application No. 228 of 2013; [2013] eKLR.He submitted that these decisions showed that the
Court of Appeal had applied double standards in this particular case, thus denying the appellant his
legitimate expectation of equality before the law.Counsel urged that this Court, in both Joho and Mary
Wambui, had upheld the principles of predictability, certainty and uniformity in the judicial resolution
of disputes.
35. Prof. Ojiendaobserved that inKimanzi, the Court of Appeal (G.B.M Kariuki, Kiage & M’inoti
JJ.A)had been alive to the peremptory design of Section 85A of the Elections Act, and Rule 35 of
the Elections Petition Rules. He noted that in Hamisi, the Appellate Court (Karanja, Ouko & Kiage
JJ.A.) had held that it lacked jurisdiction to hear an interlocutory appeal, and declined to venture into
a consideration of merits of the appeal, since the result of such a venture would be a nullity. Counsel
cited Nicholas Salat, in which Kiage, J.A observed that an appellant could not save an incompetent
appeal, and that sympathy with an appellant on account of the importance of the subject-matter of
the appeal, could not save an incompetent appeal.
36. Counsel submitted that the proceedings in question were ready on 9thOctober, 2013,in good time
for the statutory timelines to be complied with. He argued that had the 1st respondent been prudent
in the Court of Appeal, he would have known thatproceedings-processing time, as sought, was not
necessary¾sincethe proceedings were ready.
37. Counsel requested this Court to take judicial notice of the fact that the Court of Appeal Judgment
was delivered on 13th May, 2014 and the appellant secured the Record of Appeal in one day, ling the
appeal in this Court on 14th May, 2014. Thus, he submitted, the 30-day timeline was sucient for an
appellant to get proceedings.
38. Prof. Ojienda further submitted that the Court of Appeal had delivered an incompetent Judgment,
because the Judgment of the High Court was delivered on 10th September, 2013 and the last day for
ling a competent appeal to the Court of Appeal was on 10th October, 2013; thus, by Section 85A(b)
of the Elections Act, the last day for the delivery of the Appellate Court’sJudgment ought to have
been 10th April, 2014. However, it was delivered on 13th May, 2013.In support of this argument,
counsel relied on two Nigerian cases. InSenator John Akpanudoedehe & Others v. Godswill Obot
Akpabio & Others, S.C. Nigeria Appeal No. 154 of 2012, the Supreme Court of Nigeria held that
once the prescribed 180 days lapsed, the hearing fades away along with any right to fair hearing, and
the Court had no jurisdiction to deliver the Judgment, as there is no live petition outstanding. The
same Court, inChief Doctor Felix Amadi & Anor. v. Independent National Electoral Commission
(INEC) & Others S.C. Nigeria Appeal No. 476 of 2011, held that there was no room for the exercise
of discretion on allotted time and the Judgment has to be delivered within 60 days of the delivery of
Judgment on appeal.
39. Counsel submitted that election petitions have to be determined within 6 months. He further
submitted that in both Johoand Mary Wambui,this Court dealt with the entry-timelines to be adhered
to, whereas theinstant case dealt with the exit-timelines, which must also be adhered to. Hesubmitted
that the exit-timelines refer to the period within which a Court is to determine an election dispute. It
was submitted that the High Court Judgment was delivered within the 6-month period, and the Court
of Appeal had no jurisdiction once that timeline expired.
(c) Right to a fair hearing
40. Counsel submitted that the Appellate Court Judges had misdirected themselves on issues of fact,
thereby breaching the right to a fair hearing under Articles 25(c) and 50(1) of the Constitution and,
as a result, arriving at an erroneous decision.
41. Counsel referred to two European Court of Human Rights (ECHR) cases:Ruiz Torija v. Spain,
Petition No. 18390/91; and Hiro Balani v. Spain Petition No. 18064/91, in which the ECHR held that
where a Court fails to render reasoned Judgment, or fails to take into account submissions or evidence
brought by parties, such a Court breaches the litigant’s right to a fair hearing. Counsel submitted that
the Appellate Court Judges breached the 1st and 2ndappellants’ right to fair hearing by conditioning the
Record of Appeal so as to advance the 1st respondent’s case, andby failing to determine their Notice of
Motion application of 19th December, 2013.
42. Counsel urged that the learned Appellate Court Judges had distorted the Record of Appeal when
theyremarked upon issues which had already been settled at the trial Court, within the scope of the
cross-examination of the Returning Ocer for Nairobi County (RW1), Fiona Waithaka.
43. Learned counsel further urged that the Appellate Court had misdirected itself on issues of fact, when
they dealt with the question whether Forms 35 were “led documents”, and thus, a basis upon
which cross-examination could be allowed.Counsel submitted that during the cross-examination of
FionaWaithaka,counsel for the 1st respondent sought to cross-examine the witness on constituency
Form 36, of which she wasnot the maker.The forms in question had not been led as part of the
pleadings, asrequired under the Rules 12(2) and14(3) of the Elections Petitions Rules.Rule 12(2)
providesthat:
“A Petitioner shall, at the time of ling the petition, le an adavit sworn by each witness
whom the Petitioner intends to call at the trial.
“(2) The adavit under sub-rule (1) shall—
(a) state the substance of the evidence;
(b) be served on all parties to the election petition with sucient

copies led in court; and
(c) form part of the record of the trial and a deponent may be cross-
examined by the respondents and re-examined by the petitioner
on any contested issue.”
Rule 14(3) provides that:
“A respondent who has not led a response as provided under this Rule shall not
be allowed to appear or act as a party against the petition in any proceedings.”
44. Counsel submitted that during this cross-examination at the trial Court, an objection was raised on
the grounds that the blanket reliance on documents that the IEBC deposited with the Registrar of
the High Court in accordance with Rule 21(b) of the Elections Petition Rules, neither amounted
to pleadings, nor was it part of the trial record¾and would prejudice other parties.Rule 21(b) of the
Elections Petition Rules requires the IEBC, as an administrative matter, to deliver the results of the
election in question to the Registrar of the election Court.
45. Counsel submitted that the Appellate Court Judges erred when they failed to determine the 1st
and 2nd appellants’ application dated 19th December, 2013, seeking to strike out the 1st respondent’s
appeal, or in the alternative,no claim of irregularity or electoral malpractice had been made on record;
for instance: the DVD recording of the oral version of the Judgment; and Forms 35 and 36 for
all 17 constituencies where the 1st respondent had raised no allegations of irregularities or electoral
malpractice. Counsel submitted that Kiage, J.Ahadproceeded to peruse the forms andto make factual
conclusions which,in eect, violated the 1st and 2nd appellants’ right to fair hearing.
46. Counsel submitted that Kiage, J.Ahad misdirected himself when he failed to identify the specicForms
35 and 36 that he had perused, or to state their relevance to the allegations raised by the 1st respondent
at the trial Court. Counsel agreed with the dissenting opinion ofWarsame, J.A, who held that it was
“not clear what documentswere perused by his fellow Judge”, and this indicates that there was no basis
for the Court to rely on such documents,in arriving at its decision.
47. Counsel submitted that G.B.M. Kariuki, J.A,had misdirected himself on fact, in certain instances
in which he proceeded to nd that the 5th appellant (the Returning Ocer for Nairobi County)
had made admissionsabout counterfoils, and about tampering with marked ballot papers; that St.
Martin’s Secondary school polling station was locked; that Pamela Wandeo, the election co-ordinator
at Westlands, admitted that unused ballot papers were not kept in boxes and that, after the election,
ballot papers were found in the Kitusuru and Ruai areas of Westlands; that there was evidence that
election materials were found at Kayole and taken to Kayole Police Station; and thathis own perusal of
the copy of Form 36 in the Record of Appeal showed it not to have been signed.
48. Counsel further submitted that G.B.M. Kariuki, J.Ahad placed excessive reliance on allegations
pleaded by the 1st respondent, butwhich were already controverted; and that in this respect, the
appellate Court misdirected itself, and erred in fact, when it arrived at conclusions contrary to this
Court’s prescriptions in the Munyacase.
49. Prof. Ojienda contested the 1strespondent’s argument that an election petition is an extension of the
electoral process, and that on that basis, he had been denied the right to a fair trial. Learned counsel
urged that the authorities cited by the1st respondent in support of the said argument could only apply
if there was a factual nding, and a denial of a right to a fair trial.He urged that the 1st respondent had
not been denied the right to cross-examination.
(d) Scrutiny and recount

50. Counsel submitted that the Appellate Court had misinterpreted Section 82 of the Elections Act and
Rule 33(4) of the Elections Petition Rules, when it substituted scrutiny and recount in a ‘polling
station’for scrutiny and recount in a‘constituency’. He furtherurged that the appellate Judges’ holding
that subsequent requests for scrutiny and recount should have been allowed as a matter of course was
a miscarriage of justice,as the 1st respondent had not laid a basis for such scrutiny.Learned counsel
submitted that the Appellate Court Judges erred in law,when they held that the trial Judge had
improperly exercised his discretion by not allowing scrutiny and recount in the sevenpolling stations
featuring in the 1st respondent’s pleadings.
51. Counsel submitted that the trial Judge had properly exercised his discretion under Section 82 of the
Elections Act, in restricting scrutiny and recount to the specic allegations made, and to the polling
stations in the pleadings of the 1st respondent. He submitted that Kiage, J.Awas in error, in holding that
the requirement of ‘sucient basis’ under Rule 33(2) of the Elections Petition Rules is “inconsistent
with Section 82 of the Elections Act”, for fettering the election Court’s discretion.Section 82 (1) of
the Elections Act provides that:
“(1) An election court may, on its own motion or on application by any party to the petition, during
the hearing of an election petition, order for a scrutiny of votes to be carried out in such manner
as the election court may determine.”
Rule 33 of the Elections Petitions Rules provides that:
“(2) Upon an application under sub-rule (1), the court may, if it is satised that there is sucient
reason, order for a scrutiny or recount of the votes.
…
“(4) Scrutiny shall be conned to the polling stations in which the results are disputed and shall be
limited to the examination of...”
52. Counsel submitted that at the trial Court, it was determined that parties could apply for scrutiny and
recount at any stage. However, the only application made by the 1st respondentwas the one led with
the petition.Counsel cited Munya 2, in which this Court held that Section 82(1) of the Elections Act
and Rule 33(4) of the Elections Petition Rules were not in conict. He urged that the Appellate Court
erred when it held that there wasa conict between these two provisions, contrary to this Court’s
holding in Munya 2. Further, counsel submitted that scrutiny and recount is not an automatic right,
and a party is required to apply for scrutiny for a particular polling station.He urged that the scrutiny
report was as a result of the suo motudirection of the Court.
(e) Materiality test

53. Counsel submitted thatthe Court of Appeal misinterpreted Articles 81(e) and 86 of the
Constitution,in nullifying the election of the 1st and 2nd appellants on the ground that the 1st
respondent was not accorded a fair trial at the High Court.He submitted that these constitutional
provisions clearly set out the threshold for nullifying an election.
54. It was counsel’s submission that electoral irregularities and other discrepancies which did not have an
eect on the nal result, or did not violate the principles in Articles 81(e) and 86 of the Constitution,
could not be the basis for nullifying an election.Counsel stated that, using the “magic-number test”, the
1stappellant won by a margin of 74,644 votes.Heurged that where recount and re-tally did not change
the outcome of the election, then the question of percentages had no relevance.Counsel alsosubmitted
that the Court of Appeal Judges misinterpreted Section 83 of the Elections Act,engaged in judicial
legislation, and disregarded the materiality doctrine which led them to wrong ndings. Section 83 of
the Elections Act provides that:
“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 aect the result of the election.”
55. On the issue of materiality, counsel submitted that the trial Judge discounted constituencies with
conicting results, but held that the irregularities did not aect the results.
(f ) Burden and standard of proof

56. Counsel submitted that the Court of Appeal had overlooked this Court’s decision on the burden and
standard of proof for election petitions, by engaging in judicial legislation. He submitted that the trial
Judge, unlike the Appellate Court, had been explicit in applying the burden of proof, as held in this
Court’s decisions in the Raila Odinga and the Johocases:mere allegation does not shift the burden
of proof. It was urged that Kiage, J.A incorrectly attributed to the High Courtthe charge of having
applied a “beyond-reasonable-doubt” standard in this case.
(g) Costs
57. Counsel submitted that, just as the Court of Appealhad questioned the election Court’s decision to
cap costs at 2.5 million shillings, this Court too should not limit the range of costs. Section 84 of the
Elections Act provides that:
“An election court shall award the costs of and incidental to a petition and such costs shall
follow the cause.”
58. Counsel urged that Section 84 does not provide for the capping of costs, and that the same principle
arises from Rule 36(1) of the Elections Petition Rules, which provide that:
“The court shall, at the conclusion of an election petition, make an order specifying—
(a) the total amount of costs payable; and
(b) the persons by and to whom the costs shall be paid.”
59. Counsel contended that the limitation of the scope of costs by the election Court violated the
appellants’ right to be heard on their bill of costs,as the taxing master’s unfettered discretion under
paragraph 16 of the Advocate’s Remuneration Order, 2009 was taken away.
60. Counsel submitted that Kiage, J.Ahad erred when he held that the 1st and 2nd appellants’ grievance
would only be ripe for adjudication once a bill of costs was drawn, and the same taxed in a manner that
violates the rights of the appellants. He submitted that since the capping of costs emanated from the
Judgment of the election Court, Rule 36 of the Election Petitions Ruleshad lent itself to a mode of
application that was unconstitutional.
61. Counselurged that although the capping of costs was intended to curb the practice of awarding large
sums in costs, as a deterrent against unmeritorious election petitions, it was necessary to strike a balance
with the deserts of the successful party claiming costs.
(ii) The 3rd, 4th and 5th Appellants’ Case

62. Learned counsel, Mr. Nyamodi associated himself with the submissions of the 1st and 2nd
appellants,with regard to this Court’s jurisdiction to hear and determine this matter under the
provisions of Article 163(4)(a)of the Constitution.Counsel cited the case of Lawrence Nduttu & 6000
others v. Kenya Breweries Ltd & Another,S.C.Petition No. 3 of 2012; [2012] eKLRin which this Court
held that only appeals arising from cases involving the interpretation or application of the Constitution
can be entertained by the Supreme Court.
63. Counsel further referred to this Court’s decisions in Peter Oduor Ngoge v. Hon. Ole Kaparo
& 4 OthersPetition No. 2 of 2012; [2012] eKLR(Ngoge) andMunya 2,in which the principle in
earlier decisions was armed, that an appellant should demonstrate that the Court’s reasoning and
conclusions which led to the determination of the issue, did take a trajectory of constitutional
interpretation or application.
64. Counsel presented the issues before this Court as follows: whether the appeal is competent, in light
of Section 85A of the Elections Act; whether the denial or curtailment of cross-examination infringed
the appellant’s right to a fair trial; whether the rejection of the appellant’s plea for scrutiny and recount
vitiated the Judgment; whether the High Court erred in law; and whether the costs should have been
restricted in amount.
65. Counsel submitted that the main question before the Court was whether the appeal arises from a
decision in which issues of interpretation or application of the Constitution were at play. He urged that
the rst ground of appeal entailed the application of Article 87(1) of the Constitution,because Section
85A of the Elections Act cannot be interpreted without applying this Article of the Constitution.
It was also submitted that the second ground of appeal entailed the determination of the extent
of the right to fair hearing as established by Article 50, and guaranteed by Article 25 of the
Constitution.Similarly, learned counsel submitted that the third ground of appeal required the Court
to interpret and apply the provisions of Articles 81(e) and 86 of the Constitution.
(a) Competency of the appeal

66. Learned counselsubmitted that the new constitutional dispensation had brought a paradigm-shift,
with regard to timely resolution ofelection disputes. He referred to the obligation under Article 87 (1)
of the Constitution,which gave eect to the enactment of Section 85A of the Elections Act, providing
for timelines. Counsel referred to the holding in Raila Odinga,echoed by this Court in Munya 2,on
the timely resolution of election disputes.
67. Counsel submitted that Section 85A of the Elections Act was enacted to give eect to Article 87(2) of
the Constitution, with the aim of restricting the number, length and cost of petitions,thus complying
with the constitutional command for the timely resolution of electoral disputes. He urged that since
the Court of Appeal had found that the appeal was led out of time,it ought to have vindicated the rule
of timelines, as provided in the Constitution, and Elections Act. He urged that the Court of Appeal’s
nding (Kiage, J.A) rendered the appeal a nullity. Counsel cited this Court’s decisions in: Joho which
declared Section 76 of the Elections Act (which allowed election petitions to be led in the High Court
beyond the limit set by Article 87(2) of the Constitution) a nullity;Raila Odingawherethis Court
held that parties have a duty to comply with their respective timelines;and Mary Wambui wherethis
Court, applying its decision in Joho,allowed the appeal on the grounds that the petition had been
led out of time. He also relied onthe Appellate Court’s decision in Ferdinand Ndung'u Waititu v.
Independent Electoral & Boundaries Commission, IEBC & 8 Others, Civil Application No. 137 of
2013;[2013]eKLR. Learned counsel invoked this Court’s decision in Raila Odinga, Mary Wambui,
Joho and the Court of Appeal Ruling in Ferdinand Waititu, all proclaiming the principle that timelines
as set by the Constitution and the Elections Act, are neither negotiable, nor can they be lightly extended
by any Court.
68. Counsel submitted that the foregoing decisions of this Courtare binding upon the Court of Appeal,
by dint of Article 163(7) of the Constitution and the incorporated common law principle of stare
decisis.On this basis, counsel urged that the majority decision of the Court of Appeal was misguided
and injudicious,as timelines constituted the very threshold of validity in Kenya’s current law of electoral
dispute-settlement. Electoral dispute settlement, counsel submitted, had been recognized by the Indian
Supreme Court inJyoti Basu & Others v. Debi Ghosal & Others [1982] AIR 983; [1982] SCR (3) 318,
as a special genre of contested matters within the scheme of the Constitution and the law.Heurged
that the Appellate Court had misdirected itself in hearing and determining an appeal that was led out
of time, noting that the High Court Judgment was delivered on 10th September, 2013; the Notice of
Appeal led on 12th September, 2013; and going by the provisions of Section 85A of the Elections Act,
the 1st respondent ought to have led his appeal by 10th October, 2013;yet the substantive appeal was
led on 22nd November, 2013 - [way out of time] It was counsel’s submission that such shortfalls in
adherence to required timelines could not be corrected by issuing a certicate of delay.
69. Counsel submitted that the Appellate Court had disregarded the operative hierarchy of laws, by
ranking Rule 82 of the Court of Appeal Rules above Article 87(1) of the Constitution and Section
85A(a) of the Elections Act;and he invoked the High Court decision in Diamond Trust Kenya Ltd
v. Daniel Mwema Mulwa MilimaniHCCC No. 70 of 2002,in which it was held that Kenya has a
three-tier hierarchy of laws: the Constitution which is supreme, the Acts of Parliament, followed by
subsidiary legislation at the bottom of the pile.
70. Counsel urged the Court to vindicate the established constitutional principles, by correcting such an
unmeritorious interpretation of the Constitution. He submitted that the extension of time for ling
an appeal, thereby granting the jurisdiction to entertain an election petition, amounted to ‘judicial
craft and innovation’,a designexpressly disapproved in Samuel Kamau Macharia & Another v. Kenya
Commercial Bank Limited & 2 Others,S.C.Application No. 2 of 2011;[2012] eKLR.
(b) Fair hearing

71. Counsel submitted that the Appellate Court erred in law in holding that the 1st respondent was denied
a fair hearing by the decision of the election Court to curtail his scope of cross-examination of the
County Returning Ocer. He urged that the Appellate Court had overlooked the sui generis aspect
of election petitions which justied a perception unlike that in ordinary civil proceedings.
72. Counsel submitted that it was an error for the Appellate Court to hold that the 1st respondent was
entitled to indiscriminately cross-examine the appellants herein,on the Forms 35 and 36 led under
Rule 21(b) of the Elections PetitionRules. He argued that the Appellate Court had erred in holding
theseforms to be evidence,and in placing the burden of proving the petition on the appellants, in
violation of the appellants’ right to fair hearing under Article 50(2)(a) of the Constitution, Section 107
of the Elections Act, and Rules 8(a), 10(1)(f), 10(2)(b) and 12(2)(a) of the Elections Petition Rules.
73. Counsel posited that in a criminal case, every accused person has the right to fair trial, including the
right to be informed of the charge, with sucient detail to warrant an answer, under Article 50(2)
(b) of the Constitution. And in parallel fashion, the requirements of Rules 8(a), 10(1)(f), 10(2)(b)
and 12(2)(a) of the Elections Petition Rules secure this right, by requiring a petitioner to set out in
detail all the particulars of his or her allegations, so as to accorda respondentsucient notice for an
appropriate response. Counsel referred to this Court’s decision inRaila Odinga,which recognized that
the petitioner’s pleadings should guide the conduct of an election petition, and any examination and
cross-examination therein.
74. On the basis of the foregoing principles, it was urged, the election Court had properly restricted the
1st respondent’s scope of cross-examination on the Forms 35 and 36, since it had a duty to protect
the appellants’ right to a fair hearing under Article 50(2)(c) of the Constitution. Counsel submitted
that while the 3rd appellant had led the Forms 35 and 36 in accordance with Rule 21(b) of the
Elections Petition Rules, the Court should have appreciated that these documents, which run to tens
of thousands of pages, are prepared by many dierent electoral ocers, and thus there should have been
advance notice by the petitioner in his pleadings as to which documents he would rely on, so as to give
the respondents an opportunity to le written responses upon which they could be cross-examined.
(c) Stare decisis

75. Counsel submittedthat the Appellate Court’s decision that the provisions of Rule 82 of the Court
of Appeal Rules rendered competent an appeal that had been led outside the timelines set out in
Section 85A of the Elections Act, was contrary to previous decisions of the same Court, in the cases
of Ferdinand Waititu Ndung’u,Wavinya Ndeti and Patrick Kimanzi¾which decisions the Court of
Appeal was bound to follow. The Court, therefore, erred in departing from these decisions.
76. Counsel submitted that whereas in appropriate circumstances the Court of Appeal is free to depart
from its previous decisions, such circumstances of exception had not been established. Thus, counsel
urged, the Appellate Court’sdeparture from its previous decisions was misconceived, and founded
on no justication. In support of this argument counsel cited several cases:Munya 2; Young v. Bristol
Aeroplane Co. Ltd,[1944] KB 718; AbuChiaba Mohamed v. Mohamed Bwana Bakari & 2 Others,
Civil Appeal No. 238 of 2003; [2005] eKLR;Dodhia v. National & Grindlays Bank Limited And
Another,[1970] EA 195;Jacinta Wanjala Mwatela v. I.E.B.C. & 3 Others,Election Petition No. 2 of
2013; [2013] eKLR;Cassell& Co. Ltd v. Broome & Another,[1972] AC 1072;Rift Valley Sports Club
v. Patrick James Ocholla,Civil Appeal No. 273 of 2003;[2005] eKLR; and Jasbir Singh Rai and 3
Others v. TheEstate of Tarlochan Singh Rai and 4 Others; S.C. Petition No. 4 of 2012;[2013] eKLR.

77. Counsel submitted that the Appellate Court had erred in law by prescribing a distinctly low threshold
for grant of orders of scrutiny and recount,especially by maintaining that the trial Court should
have ordered for scrutiny on bare request by the 1st respondent,when he had laidno basis for such
an application. Counsel submitted that the grant of orders of scrutiny and recountis subject to the
discretion of the election Court. The word ‘may’ as used in Section 82 of the Elections Act, counsel
urged, connotes the discretionary element, and is to be exercised judicially;so the Court of Appeal
should not interfere with the election Court’s exercise of discretion in matters before it, especially
factual matters such as scrutiny. He relied on this Court’s decision inMunya 2,and theAppellate
Court’sown decision inRichard Ncharpi Leiyagu v. Independent Electoral Boundaries Commission
& 2 Others; Civil Appeal No. 18 of 2013; [2013]eKLR - which armed this position.
78. Counsel submitted that an application for scrutiny must have an expressed basis, though the election
Court hada discretion to order for scrutiny suo motu.Counsel exemplied this argument with the
following authorities: Philip Ogutu Osorev.Michael Oringo & 2 Others,Election Petition No.5 of
2013 [2013] eKLR;Meitamei Lempaka v. Lemanken Aramat &2 Others,Election Petition No 2. of
2013; [2013] eKLR;andMunya 2; and he urgedthat the Court is to be satised that there is sucient
cause to require an examination of the ballots.
(e) Forms 35 and 36

79. Counsel submitted that the Appellate Court erred in law by holding that the 1st respondent could use
theForms 35 and 36 provided by the IEBC to the election Court pursuant to Rule 21 of the Elections
Petition Rules, for cross- examination. He submitted that these forms are supplied to aid the election
Court in those instances in which the Court needs to exercise a discretion to order for scrutiny and
recount of votes, under Section 82 of the Elections Act.
80. Counsel submitted that,whereas the IEBC delivered the Forms 35 and 36 to the Registrar of the High
Court, pursuant to an obligation imposed under Rule 21 of the Elections Petition Rules,such materials
are not evidence for the following reasons: if it were the intention of this Rule that these materials
be evidence in the trial, then the Rule would have provided that the materials were to be delivered
to all parties to an election petition, just as Rule 9(b) as read with Rules 13(1) and (2), and Rule
15(2) of theElectionsPetition Rules imposessuch an obligation upon the appellants and respondents
in an election petition. The fact that Rule 21 of the Elections Petition Rules does not place a similar
obligation on IEBC, it was urged, proves that the IEBC’s materials are not evidence; and it is relevant
in this regard, that no fees are paid upon delivery of these materials.
81. It was submitted that if it was the intention of the 1strespondent to rely onthe said Forms in support
of his petition, then he ought to have complied with the provisions of Section 107 of the Evidence
Act (Cap. 80, Laws of Kenya),and produced these forms himself;and having failed to comply with this
requirement, the 1st respondent could not introduce the Forms during cross-examination, in support
of allegations in his Petition. Counsel submitted that the Court of Appeal erred when it considered
the contents of the said Forms, and drew adverse conclusions from their content. Counsel relied on
this Court’s decision inMunya 2,and submitted that the learned Judges of Appeal erred in law when
they drew adverse inferences from the said Forms,therebyexceeding their jurisdiction under Section
85A of the Elections Act.
(f ) Unconstitutional remedy
82. Counsel submitted that the Appellate Court had engaged in judicial legislation, contrary to Articles 81
(e) and 86 of the Constitution, by institutingnewgrounds for setting aside an election.He submitted
that the appropriate relief would have been to remit the matter back to the High Court, with such
directions as may be appropriate to render the hearing lawful.
(g) Costs
83. Counsel submitted that the Appellate Court failed to exercise its discretion judicially, by awarding
costs against a party not guilty of any misconduct, contrary to principles such as are elucidated in a
persuasive authority, Kierson v. Joseph L Thompson & Sons Ltd [1913] 1 KB 587.
84. Learned counsel urged it to be trite law that costs follow the outcome of a trial. However, in this case
in which the appeal was allowed due to a perceived “fault on the part of the election Court”, and not
of the respondents at the Appellate Court,it was urged, it was punitive for the Court to condemn the
said respondents to pay costs.
(iii) 1st Respondent’s Case
(a) Jurisdiction
85. With regard to jurisdiction, learned counsel,Mr. Abdullahisubmitted that the appellants were seeking
to re-open the entire electoral dispute in order to render constitutional the declaration of the 1st
appellant as Nairobi County Governor.It was counsel’s contention that this Court has no original
jurisdiction to hear an election dispute on appeal in gubernatorial elections, or to order scrutiny of
Forms 35and 36.
86. Learned counsel submitted that, of the nine grounds of appeal enumerated by the appellants, only two-
and-a-half meet the admissibility test set by this Court; and in his opinion,this Court had jurisdiction
to determine only the following questions:
. half of ground 3 – whether the majority decision delivered by the Court of Appeal violates
the provisions of Article 87(1) of the Constitution of Kenya as read together with the
provision of Section 85A of the Elections Act;
· ground 4 – whether the majority decision violates the provisions of Article 87(1) of the
Constitution as read together with the provision of Rule 33(2) and (4) of the Elections
Petition Rules; and
· ground 5 – whether the majority decision violates the provisions of Article 27(1) of the
Constitution.
It is only these grounds, counsel urged, that meet the admissibility test of Article 163(4)(a) of the
Constitution. He argued that the Court had no jurisdiction in respect of the rest of the grounds put
forward by the 1st appellant.
87. It was submitted that the 1st appellant’s grounds of appeal were based onSection 85A of the Elections
Act, a statutory provision,which the High Court and the Court of Appeal have the jurisdiction and
competency to decide upon. Counselcontested the 1stappellant’s claim of a breach of Article 87(1) of
the Constitution in the grounds of appeal, and submitted that such reference to Article 87(1)neither
confers jurisdiction upon this Court, nor transforms it into a constitutional question. Counsel urged
that every time the 1stappellant failed to link his grounds of appeal to the Constitution, he routinely
perceived Article 87(1) as a fall-back position.
88. Counsel submitted that by appealing the entire Judgment of the Court of Appeal, the 1st appellant
had misapprehended the restricted jurisdiction of this Court. He urged that the issues raisedeven if
weighty,did not fall under Article 163(4)(a) of the Constitution.He urged that such issues should have
come before this Court under Article 163(4)(b). He submitted that this Court should not disturb
the decision of the Court of Appeal, insofar as it determined issues pertaining to Section 85A of the
Elections Act. Mr. Abdullahiurged that by the test established inthis Court’s decision in Ngoge,this
Court had usurped the power of the Appellate Court to determine a question as to the interpretation
of the Constitution.
89. Counsel questioned the Court’s decision in Munya 1, urging that while it had fortied electoral
jurisprudence, the decision concurrently undermined the jurisprudence already laid down by the
Court. He quoted paragraph 77 of Munya1 in whichthe Court,making reference to the Elections Act
and Regulations, held these to benormative derivatives of the Constitution itself. Counsel found fault
with the concurring opinion of the Chief Justice in the Munya 2 case, in particular as regards guiding
principle (v) (paragraph 244), where the Chief Justice rearmed Munya 1’sconcept of the Elections
Act and Regulations being normative derivatives of the Constitution.
90. Learned counsel submitted that in adopting the “normative-derivative test”, this Court had created
a dierent jurisdiction with regard to elections. He contended that in practical terms, all statutesare
normative derivatives of the Constitution, and so the Court ought not to elevate election statutes to a
special status. Counsel contended that the two Munya decisions of this Court stood in conict with
our earlier decisions inNgoge and Erad.
91. Mr. Abdullahi contended thatMunya 2implied that every time a party invoked Article 87(1)(a) of the
Constitution, a constitutional issue was involved¾and therefore the Supreme Court had jurisdiction
over the matter. But in his view, it was improper to elevate Section 85A of the Elections Act into a
‘super-provision’, falling within the ambit of a constitutional question. Counsel submitted that this
Court’s ‘normative-derivative’ test had lowered the standards of access,and would open the oodgates,
allowing every matter to be admitted to this Court.
(b) Fair hearing – the right to cross-examination

92. Counsel submitted that the main question before the Court of Appeal was whether the 1st respondent
had been accorded a fair trial. He contested the 1st appellant’s submission that because ‘fair hearing’ is
not one of the grounds identied in Articles 81 or 86 of the Constitution, the Court of Appeal erred in
nullifying the election. Counsel submitted that the ‘electoral system’ referred to in Articles 81 and 86
of the Constitution is a long process that “begins with voter registration,and ends with the Judgment
of this Court.”
93. Counsel contended that the 1st respondent had been denied his right to fair hearing by the High
Court,on account of bias on the part of the trial Judge. He submitted that the trial Judge,by curtailing
the cross-examination of the 1st appellant’s star witness, Fiona Nduku Waithaka (RW1),in eect denied
the cross-examination of the witness, and thereby deprived the 1st respondent of fair trial as required
under Articles 25(c) and 50(1) of the Constitution. Counsel argued that the issue on which the case
hang in the trial Court was rendered unavailable by the trial Judge,and that this infringed on the right
to cross-examine,and was a breach of the 1st respondent’s constitutional and fundamental rights.
94. In support of his argument that the right to cross-examine is a fundamental right which cannot be
derogated from, counsel invoked Article 25(c) of the Constitution. Healso relied upon the analysis by
the Appellate Court (Kiage, J.A), and on persuasive authority from other jurisdictions to support his
argument. He cited the Supreme Court of the Philippines cases of Emilio de la Paz Jr., & Others v. Hon.
Intermediate Appellate Court & Others, G.R. No. 71537 (September 17, 1987), in which it was held
that the right to cross-examine is a fundamental right; and Harry L. Go, Tonny Ngo, Jerry Ngo and
Jane Go v. The People of the Philippines and Highdone Company Ltd. et. al, G.R. No. 185527 (July
18, 2012), in which it was held that witness testimony with the attendant face-to-face confrontation
was of special importance. It was submitted that in Crawford v. Washington, 541 U.S. 36 (2004) the
U.S. Supreme Court had held that the right to cross-examine was constitutionally enshrined as part
of fair trial; and that the Nigerian Court of Appeal,inChief Raphael Onwuka v. Lukuman Owolewa,
(CA/10/99) IIorin Division,held that denial of the right to cross-examine amounts to denial of fair
hearing. Counsel submitted that every common law jurisdiction has held that where a party is denied
the right to cross-examine, there has been a denial of fair trial.
95. Counsel referred to the majority Judgment of the Court of Appeal which faulted the trial Judge’s
perceived dividing-line between the Elections Petition Rules, on the one hand, and the Evidence Act,
on the other; and which held that the curtailment of cross-examination amounted to breach of the
right to a fair trial. Learned counsel urged that the High Court: (i) was determined to limit the scope
of cross-examination; (ii) created ‘safe zones’ of evidence which nobody could touch; (iii) did not want
evidence to be unearthed during cross-examination; and (iv) “edited” the evidence by controlling the
scope of cross-examination.
(c) Competency of the appeal

96. Counsel submitted that the majority decision of the Court of Appeal did not violate Article 87(1) of
the Constitution, as the Court of Appeal had found that when Parliament enacted Section 85A of the
Elections Act (by virtue of Article 87(1) of the Constitution)it was not with the intention of curtailing
the very right of appeal that it was providing for. Kiage, J.Ahad held that the Court should not adopt
an interpretation of the provision that would lock a party out of an appeal. Counsel urged that Article
259(8) of the Constitution places a dichotomy between timelines imposed by the Constitution itself,
and situations in which timelines are not imposed, and for which an Act is required to impose timeline.
Article 259 (8) of the Constitution provides that:
“If a particular time is not prescribed by this Constitution for performing a required act, the
act shall be done without unreasonable delay, and as often as occasion arises.”
97. Counsel submitted that the proper construction of Section 85A of the Elections Act, as adopted by
the majority decision of the Court of Appeal, was in tandem with Article 259(8) of the Constitution,
which provides that if a timeline for performing a required act is not prescribed in the Constitution,
it should be done “without unreasonable delay”. Counsel urged that Section 85A of the Elections
Act cannot override Article 259(8), regarding obligatory timelines. He submitted that Section 85A
contradicted the Constitution, and invited the Court to annul it.
98. In determining the timeliness of the 1st respondent’s appeal, the Appellate Court relied on Rule 82 of
the Court of Appeal Rules. Counsel urged this Court to adopt the majority holding of the Appellate
Court (G.B.M. Kariuki, J.A), that Parliament intended the Court of Appeal Rules to be applied in
their totality, to appeals from the election Court.In coming to this conclusion, the Court of Appeal
held that the meaning of Section 85A of the Elections Act,vis-à-vis Rule 82 of the Court Rules, should
be discerned by considering Articles 10, 20, 25(c), 38, 48, 50, 87(1)(e) and 87(1) of the Constitution
which confer rights upon litigants.
99. Learned Senior Counsel,Mr. Muite submitted that Rule 35 of the Election Petition Ruleshad
imported the Court of Appeal Rules in their entirety,for the determination of election petitions. He
submitted that it was on this basis that the majority of the Appellate Court came to the conclusion
that in prescribing the 30-day period, the drafters of Section 85A of the Elections Act “intended to
exclude the time taken to prepare the proceedings”¾and hence the relevance of a certicate of delay,
where the proceedings came forth belatedly.
100. Counsel submitted that with regard to the 30-day limit set out in Section 85A of the Elections Act,
this Court should frame two issues: whether the Supreme Court has the jurisdiction to adjudicate
upon the issue oftimely ling of a petition in the Court of Appeal; and if the Court decides that it has
jurisdiction to entertain the issue of time, whether it will exercise this jurisdiction in favour of the 1st
appellant in this matter. Counsel urged that even if this Court assumes jurisdiction on this matter,it
does not follow that it has to exercise it in favour of the 1st appellant. He further argued that this Court
hada discretion to exercise its jurisdiction in terms of Article 163(3) of the Constitution. He urged that
it was not enough to demonstrate that a matter raises a constitutional issue, to activate the Supreme
Court’s jurisdiction.
101. In support of his argument on the exercise of discretion by this Court, Mr. Muite referred tothe
Johocase, in which it was held that the determination that a particular matter bears an issue or issues
of constitutional controversy falls within the Court’s discretion (paragraph 52), and that Courts have
a discretion in ascertaining the justice of each case (paragraph 49). Counsel submitted that this Court
retains the discretion to admit a matter even where a constitutional issue is involved, and that, not every
constitutional matter requires this Court’s intervention.
102. Mr. Muite, however, was not in agreementwith his co-counsel, Mr. Abdullahi on one issue, and urged
that this Court’s decision in Munya 2 is not a reversal of the jurisprudence of theearlier Lawrence
Nduttu, Erad, Ngoge and Johocases. He submitted that inMunya 2, this Court had elucidatedits
jurisdiction in electoral matters, and rearmed the jurisprudence crystallized in Erad, Lawrence
Nduttu, Joho and S.K. Macharia.
103. With regard to the 30-day time limit, counsel submitted the issue simply involved the interpretation
of a Section in an Act of Parliament¾Section 85A of Elections Act. He submitted that this case was
dierent from earlier decisions of this Court: Joho–which was an application to strike out the petition
because it was out of time; Mary Wambui– where the appellant sought to strike out the appeal; and
Wavinya Ndeti – which was an application to strike out the appeal as having been led out of time.
Counsel submitted that in the instant case, the Court of Appeal had raised the issue of the timeliness
for appeal, and asked the parties to address the Court on the same.
104. Counsel further submitted that while Rule 84 of the Court of Appeal Rules allows a party to le an
application to strike out a notice of appeal or a petition of appeal, neither the 1st nor the 3rd appellant
led one. He urged that because they failed to raise the issue at the Court of Appeal, they waived their
right to challenge the motion, and cannot be heard on this issue at this Court. He further submitted
that no party suered any prejudice as a result of the “belated” ling.
105. Counsel submitted that the Appellate Court had correctly calculated the 30 days to exclude the time
taken by the High Court to prepare the proceedings. He urged that in this case, the 1st respondent was
relying on a third party (the High Court) to prepare the proceedings, and he should not be locked out
because of a delay occasioned not through his fault.
106. Counsel contented that Parliament did not prescribe consequences for the non-compliance with the
30-day time-frame. He posited that this meant that they left it up to the Courts’ discretion to determine
what the consequences of non-compliance would be. He submitted that the Appellate Court had relied
on appropriate cases from other jurisdictions, to support their holding that Courts should avoid a
mechanical approach as regards timelines: the English case of Soneji & Anorv. R, [2005] UKHL 49
(21 July 2005); the Ugandan case of Sitenda Sebala v. Sam K. Njuba and the Electoral Commission
(Election Petition No. 26 of 2007); and the Irish case of Gillen v. The Commissioner of and Garda
Siochana & Ors [2012] IESC 3 (26 January 2012).
107. Counsel submitted that the Appellate Court was competent to determine the issue of timeliness. He
referred to the persuasive authority inHousen v. Nikolaisen, [2002] SCC 33 where the Supreme Court
of Canada held that appellate Court Judges are not smarter than Judges of lower Courts, and therefore
a Court should uphold the decision of a lower Court unless the trial Judge has made a palpable error
leading to a wrong result. He argued that this holding is similar to this Court’s ndings in Joho and
Erad, where it was held that the hierarchy of Courts has the competency to make certain decisions;he
urged that the Court of Appeal had the competency to interpret an Act of Parliament.

108. Learned counsel, Mr. Kinyanjui submitted thatMunya 2 (paragraph 153) had succinctly laid down
the principles for scrutiny, and that the Court of Appeal did not misapply these principles in the
majority decision. He argued that the trial Judge erred in denying scrutiny, yet the 1st respondent had
laid the foundation for scrutiny: there were two diering Form 36’s; the 1st appellant’s County Form
36 “EOK7” (Petition of Appeal Vol. 1 at page 293) did not contain the number of registered voters in
Nairobi County, was not signed by the Returning Ocer, and did not show the number of registered
votes for Embakasi West. He submitted that this Court had held inJohothat such information was
essential as part of the content of Form 36, and was material to the integrity of an election. Counsel
contended that under the principles set out inJoho,the 1st appellant’s Form 36 is invalid, and so he was
not validly declared the winner of the Nairobi County gubernatorial election.
109. Counsel further submitted that although the trial Court had ordered for partial scrutiny and recount
suo motu, it could have gone further and ordered a full scrutiny and recount,because the partial
scrutiny revealed that out of seventeen counties, only four had accurate results.
110. Counsel urged that the election Court Registrar’s rst report conrmed that there was no Form 35 in
one of the boxes at the St. Mary’s Primary School Polling Station (page 53, paragraph 123). He raised
a conjecture as to how many other boxes not scrutinized would have revealed similar defects.
111. Counsel extolled the majority decision of G.B.M. Kariuki, J.Awho remarked that by declining to allow
scrutiny and recount when the 1st respondent had made a case for it, and by restricting the cross-
examination of the Returning Ocer, the trial Court was not in a position to verify whether the 1st
appellant was validly elected (paragraph 97).
(e) Burden of Proof

112. Counsel submitted that the trial Court unfairly shifted the burden of proof to the 1st respondent. He
contended that the moment the 1st respondent gave evidence that election materials were found strewn
in Kayole and Kitusuru by a nun (who was not called as a witness), the burden of proof shifted to the
IEBC. He submitted that the moment the 1st respondent impugned the 1st appellant’s Form 36, and
showed that it bore discrepancies, the burden shifted to the IEBC. He also urged that where there were
two Forms 36, the burden shifted to the IEBC to explain their existence.
(f ) Consideration of facts by the Court of Appeal

113. Mr. Kinyanjui submitted that the Court of Appeal had not delved into matters of fact, as contended by
the 1st appellant. With regard to the status of a Court- ordered scrutiny report, counsel asked whether
this is a factual document, or a document of legal character. Counsel’s position was that because a
scrutiny report is an outow of Section 82 of the Elections Act and Rule 33 of the Elections Petition
Rules, it takes on a legal character and is a judicial document. He submitted that the scrutiny reports
transmuted from factual to legal documents, and therefore when the Appellate Court dealt with them,
they were not handling issues of fact.
114. Counsel further submitted that when the Court-ordered scrutiny reports revealed errors and
discrepancies, it was not possible for the Court of Appeal to turn a blind eye to these discrepancies,
especially when the 1st scrutiny report revealed that, of the 17 constituencies, only 4 had accurate results
(page 3988 of Petition of Appeal Vol. B9). Counsel submitted that the 2nd scrutiny report revealed
discrepancies,for instance: at St. Mary’s polling station, there were more votes cast than the number
of registered voters (4510 votes cast/4059 registered voters); the number of registered voters in Ngong
Forest Primary School polling station was indicated as 2683 in one column, and then as 1837 in another
column; and polling stations Nos. 11, 12 and 14 were missing. He urged that it was incumbent upon
the Court of Appeal to make ndings based on such reports.
115. Mr. Kinyanjui submitted that the Court of Appeal, in considering the unsigned Forms 35, were not
delving into facts. He submitted that Rule 21(b) of the Elections Petition Rules requires the IEBC to
hand over Forms 35 and 36 to the election Court. These Forms, he argued, formed the basis of the
scrutiny report, and the 1st respondent was entitled to cross-examine on them, and the Court of Appeal
properly made reference to them.
116. With regard to the unsigned Forms 35, counsel argued that Rule 87(1)(k) of the Court of Appeal Rules
states that when a party les a Record of Appeal, he may le other documents as may be necessary for
the proper determination of the appeal.
Rule 87(1)(k) provides that:
“For the purpose of an appeal from a superior court in its original jurisdiction, the record
of appeal shall, subject to sub-rule (3), contain copies of the following documents—
…
(k) such other documents, if any, as may be necessary for the proper determination
of the appeal, including any interlocutory proceedings which may be directly
relevant:
Provided that the copies referred to in paragraphs (d), (e) and (f)
shall exclude copies of any documents or any parts thereof that are
not relevant to the matters in controversy on the appeal.”
117. Learned counsel argued that the Court of Appeal could not determine the appeal without making
reference to these documents. He urged that the Court of Appeal, although itlooked at the evidence,
did not recalibrate or recalculate the evidence, and therefore remained within the bounds laid out by
this Court in the Munya 2 case.
118. Counsel submitted that where Article 86 of the Constitution demands that the conduct of an election
be accurate, veriable and transparent, and where a scrutiny report reveals that this is not the case, the
Appellate Court would be within its mandate to delve into the scrutiny reports, and to making ndings
based on these reports.
D. ISSUES FOR DETERMINATION

119. From the pleadings, and the written and oral submissions of the parties, the following issues arise for
determination:
(i) whether the Supreme Court has jurisdiction to hear and determine the appeal hereinunder
Article 163(4)(a) of the Constitution;
(ii) whether the Judges of the Court of Appeal heard and determined an incompetent appeal,
contrary to Article 87(1) of the Constitution and Section 85A of the Elections Act;
(iii) whether the Judges of the Court of Appeal, in their majority decision,erred in law in
considering matters of fact and evidence contrary to Article 87(1) of the Constitution and
Section 85A of the Elections Act;
(iv) whether the Judges of the Court of Appeal, in their majority decision,disregarded the doctrine
of stare decisis, by failing to apply binding decisions of the Supreme Court in contravention
of Article 163(7) of the Constitution;
(v) whether the Judges of the Court of Appeal, in their majority decision,erred in holding that
the 1st respondent’s right to a fair trial under Articles 25(c) and 50 of the Constitutionhad
beendenied,when the High Court curtailed the cross-examination of the 5th appellant;
(vi) whether the Judges of the Court of Appeal, in their majority decision,acted contrary to Articles
81(e) and 86 of the Constitution by nullifying the 1st and 2nd appellants election on the ground
that the 1st respondent was not accorded the right to fair hearing;
(vii) whether the Court of Appealmisinterpreted and misapplied Section 82(1) of Elections Act,vis-
à-vis Rule 33(2) and (4) of the Elections Petition Rules, regarding scrutiny and recount of votes;
(viii) whether the Judges of the Court of Appeal in their majority decision, erred with regard to the
burden and standard of proof applied at the High Court;and
(ix) whether the election Court and the Court of Appeal misinterpreted Section 84 of the Elections
Act and Rule 36 of the Elections Petition Rules, in imposing an upper limit to costs.
E. ANALYSIS
(a) Whether the Court has jurisdiction to hear and determine the Appeal herein under Article 163(4)
(a) of the Constitution
120. We have, at the outset,the task of disposing of the question as to whether this Court has jurisdiction
to entertain the appeal. This task would not have been necessary, were it not for the fact that both
Senior Counsel Messrs. Muite and Abdullahi,for the rst respondent, briskly disputed the Court’s
jurisdiction to entertain the appeal. The gist of Counsel’s argument, in our perception, was that Section
85A of the Elections Act upon which the appeal is anchored, is a bare statutory provision entailing no
question of constitutional import. Mr. Abdullahi in his submissions, just fell short of asserting that
the Supreme Court of Kenya has no jurisdiction over electoral petitions, other that an election petition
challenging the election of a President;which would carry the eect that the Court of Appeal is the nal
appellate Court in election petitions, other than a Presidential-election petition. But, perhaps guided
by litigation-intuition, and being aware that he has himself urged election petitions before this Court,
Mr. Abdullahi elected to apportion the constitutional issues in this appeal. Thus, on anissues-scale of
ten, learned counsel carved out and assigned two-and-a-half issues to the Constitution. It is these two-
and-a-half that this Court was supposed to adjudicate upon, while leaving all the others untouched.
121. Article 163 (4) (a) of the Constitution provides as follows:
“Appeals shall lie from the Court of Appeal to the Supreme Court-
(a) as of right in any case involving the interpretation or application of this

Constitution; and
(b) in any other case in which the Supreme Court or the Court of Appeal certies
that a matter of general public importance is involved, subject to clause 5.”
122. Learned counsel for the 1st respondent argued robustly against the admission and determination of this
appeal, on grounds that it did not raise any issue of constitutional interpretation or application,such
as merits the exercise of this Court’s powers under Article 163(4)(a). In his view, legislation enacted by
Parliament pursuant to Article 87(1), does not confer jurisdiction upon this Court, and neither does it
transform an issue into a constitutional dispute, since there are numbers of constitutional provisions
that all confer upon Parliament the mandate to enact laws for the implementation of certain aspects of
the Constitution. He urged that a diering position would open oodgates for litigants, such as might
reverse the essence of relevant precedent, as established in recent decisions of the Court.
123. In counsel’s view, Section 85A is a barestatutory provision and the mere mention of Article 87(1) in
a petition doesn’t transmute the dispute into a constitutional issue. He urged that Article 163(7), on
proper interpretation, only provides a “regulatory scheme of operations” for the Judiciary, but does
not embody attributes of a constitutional nature.Counsel urged that even though the issues raised by
the appellant were weighty, the same could only be canvassed under Article 163(4)(b), on condition
that the Court of Appeal, or this Court has certied the matter to be oneof general public importance.
124. Counsel urged that,whether there has been a breach of Section 85A of the Elections Act, is a statutory
question pure and simple, and not a constitutional one; and that by entertaining this appeal, the Court
would be usurping the powers of the Court of Appeal to make nal determinations on a matter of
statutory interpretation, in breach of this very Court’s decision in the Ngoge case¾especially as both
the High Court and the Court of Appeal have made a determination on the same.
125. Counsel took issue with a nding of this Court in Munya 1, that the Elections Act, and the Regulations
thereunder are ‘normative derivatives’ of the Constitution,and as such, allowing no possibility for a
Court of which they are seized, to disengage from the Constitution. Learned counsel perceived it as
inconceivable that only election laws are normative derivatives of the Constitution, and not other
laws,which too have a foundation in the Constitution. Mr. Abdullahi urged that by “the normative-
derivative test”, this Court had expanded its jurisdiction beyond the constitutional scope,posing a real
danger that there will be no limit to the type and number of appeal matters owing into the Supreme
Court.
126. Learned Senior Counsel Mr. Nowrojee,by contrast, submitted that the Court has jurisdiction in this
case, as it satises the terms of Article 163(4)(a): the appeal had been brought as a matter of right,and
it involves interpretation and application of the Constitution. He submitted that issues of application
and interpretation of the Constitution were at the very core of the petition in the High Court, the
Court of Appeal, and now before this Court.
127. Learned counsel cited several decisions of this Court which have claried the frontiers of Article 163(4)
(a) of the Constitution. He referred to the case of Hassan Ali Joho & Another v. Suleiman Said
Shahbal & 2 others, S. C. Petition No. 10 of 2013(2014) eKLR (the test for admitting appeals to
the Supreme Court is whether the dispute progressed through the normal appellate processes at the
superior Courts); Erad Suppliers & General Contractors Ltd v. National Cereals and Produce Board,
S. C. Petition No. 5 of 2012 (a question integrally linked to a main cause before a superior Court is rst
to be resolved at that forum before appeal to the Supreme Court); Gatirau Peter Munya v. Dickson
Mwenda Kithinji & 2 Others,S. C. Application No. 5 of 2014(Munya 1) (all the appellant needs to
demonstrate for an appeal to be admitted under Article 163(4)(a), is that the reasoning and conclusions
of the Court took a trajectory of constitutional interpretation or application); and the concurring
opinion of Mutunga CJ in Gatirau Peter v. Dickson Mwenda Kithinji & 2 Others,S. C. Petition No.
2B of 2014(Munya 2B)¾on the emerging parameters on admission of appeals to the Supreme Court
under Article 163(4)(a).
128. Counsel submitted that the appeal merits hearing, as all the principles laid in Munya 2B had been
satised: the cause raises cardinal issues seeking the interpretation and application of Article 87(1),
in respect of timely settlement of electoral disputes; the issues bear potent jurisprudential questions
including whether all Courts are bound by the Supreme Court’s decisions under Article 163(7) of
the Constitution. Mr. Nowrojee contested Mr. Abdullahi’s argument to the eect that “all laws were
normative derivatives of the Constitution.” Mr. Nowrojee submitted that his colleague had either
taken this Court’s statement out of context, or had not appreciated its meaning. Counsel submitted
that where a specic constitutional provision sets out a general principle, and then commands
Parliament to make a law giving eect to that principle, the resultant law becomes “a normative
derivative” of that constitutional principle. It is in this context that the Court’s statement in Munya
1had to be understood.
129. Learned Senior Counsel Mr. Muite,in departure from his co-counsel, did not think that the Munya
case had in any way undermined the Court’s earlier decisions on its jurisdiction. Save, in Mr. Muite’s
submission, that not every matter in which the Constitution has been invoked, deserves the attention
of this Court: and thus, even if the Court were to nd that it had jurisdiction, then such jurisdiction
should be exercised in favour of the rst respondent, taking into account the circumstances of this
particular case.
130. Since its inception, this Court has consistently pronounced itself on the nature, scope, extent and
limits of its jurisdiction under Article 163(4)(a) of the Constitution (see Re IIEC; Peter Oduor Ngoge;
Lawrance Ndutu; Erad Suppliers; Hassan Ali Joho; Munya 1& 2). In each of those decisions, the Court
has considered dierent angles of the jurisdictional question. In his concurring opinion in Munya 2,
Mutunga, CJ& P analysed the various facets of the Court’s pronouncements into ‘guiding principles’,
to be taken into account byappellants who seek to predicate their appeals upon Article 163(4)(a) of the
Constitution. Such guiding principles are hereby restated with appropriate elaboration as is consistent
with the terms of this Court’s other decisions:
(i) a Court’s jurisdiction is regulated by the Constitution, by statute law, and by the principles
laid out in judicial precedent;
(ii) the chain of courts in the constitutional set-up have the professional competence to adjudicate
upon disputes coming up before them; and only cardinal issues of law or of jurisprudential
moment deserve the further input of the Supreme Court;
(iii) not all categories of appeals lie from the Court of Appeal to the Supreme Court under Article
163(4)(a); under this head, only those appeals from cases involving the interpretation or
application of the Constitution can be entertained by the Supreme Court;
(iv) and under that same head, the lower Court’s determination of an issue which is the subject of
further appeal, must have taken a trajectory of constitutional application or interpretation, for
the cause to merit hearing before the Supreme Court;
(v) an appeal within the ambit of Article 163(4)(a) is one founded on cogent issues of
constitutional controversy;
(vi) with regard to election matters, not every petition-decision by the Court of Appeal is
appealable to the Supreme Court;only those appeals arising from the decision of the Court of
Appeal in which questions of constitutional interpretation or application were at play, lie to
the Supreme Court.
131. We have considered Mr. Abdullahi’s submissions, and have formed certain distinct impressions. We
nd no basis of merit upon which learned counsel suggested we should depart from our decisions
in the Munyacase. To ask this Court,so nonchalantly in the course of submissions,to depart from a
statement of principle formally taken in a judicial setting, amounts, with respect, to an abuse of the
process of Court.
132. Of the principle set out in Munya 1,as to the electoral statute and regulations as direct emanations of
the relevant constitutional principle, we nd no basis to learned counsel’s dubiety. In that case we had
thus held (paragraph 77):
“While we agree with [learned counsel] regarding his contention that Section 87 of the
Elections Act cannot be equated to a constitutional provision, we must hasten to add
that the Elections Act, and the Regulations thereunder, are normative derivatives of the
principles embodied in Articles 81 and 86 of the Constitution, and that in interpreting
them, a Court of law cannot disengage from the Constitution”[emphasis supplied].
133. This crisp observation was in response to an argument by counsel, to the eect that the petition of
appeal in question did not raise any issues of constitutional controversy, since it was largely impugning
the interpretation and application of the statutory and regulatory provisions of the Elections Act.The
true constitutional signicance of the said statutory and regulatory provisions was properly set in
context in this Court’s decision (paragraph 79):
“The Court of Appeal’s decision and the appeal therefrom have raised issues of rst
impression as to the interplays in a wide range of constitutional provisions, touching
simultaneously on individual fundamental rights, and upon collective political rights and
interests of many, notably those falling under Articles 38, 81 and 182 of the Constitution.
This Court by the terms of the Constitution, and specically under the Supreme Court
Act….has the responsibility to hear the parties and to interpret the Constitution as
appropriate” [emphasis supplied].
134. Learned counsel, Mr. Abdullahi’s argument that,“all laws are normative derivatives of the
Constitution”,while by no means illogical, had in our view taken an abstract point out of the context
of the real dispute being redressed within the judicial system. If the Constitution is equated to Kelsen’s
grundnorm in the hierarchy of norms, then it follows that all laws are “normative derivatives” of the
Constitution,as they derive their validity therefrom. And since the Constitution vests the legislative
authority in Parliament, then all laws that the latter enacts “derive from the Constitution”.
135. However, the Constitution itself, for its meaningful implementation, and with denite socio-political
goods accruing to the people, has duly empowered the judicial system¾and this Supreme Court¾
to establish operational beacons. Such is the role this Court has played in settling disputes, a typical
example in this regard being,Inthe Matter of the Principle of Gender Representation in the National
Assembly and the Senate,Sup. Ct. Advisory Opinion Appl. No. 2 of 2012, in which the Court,
considering the Attorney-General’s reference on the proper eect of Article 81 (b) of the Constitution,
thus expounded the critical questions of principle which learned counsel in the instant case should
take into account (paragraph 54):
“Certain provisions of the Constitution of Kenya have to be perceived in the context of

such variable ground situations, and of such open texture in their scope for necessary
public actions. A consideration of dierent constitutions shows that they are often
written in dierent styles and modes of expression. Some constitutions are highly legalistic
and minimalist, as regards express safeguards and public commitment. But the Kenyan
Constitution fuses this approach with declarations of general principles and statements of
policy. Such principles or policy declarations signify a value system, an ethos, a culture,
or a political environment within which the citizens aspire to conduct their aairs and to
interact among themselves and with their public institutions. Where a constitution takes
such a fused form in its terms, we believe, a Court of law ought to keep an open mind
while interpreting its provisions. In such circumstances, we are inclined in favor of an
interpretation that contributes to the development of both the prescribed norm and the
declared principle or policy; and care should be taken not to substitute one for the other.
In our opinion, the norm of the kind in question herein, should be interpreted in such a
manner as to contribute to the enhancement and delineation of the relevant principle, while
a principle should be so interpreted as to contribute to the clarication of the content and
elements of the norm.”
136. The Court’s statement in Munya 1is to be perceived in the context of the foregoing passage, which
sought to unlock the frontiers of Article 81(b) of the Constitution, as read with other provisions of the
Constitution. The Court was advancing and applying the interpretative schema of the Constitution,
in the light of its transformative character. In this regard, plain abstract theory founded upon the
Kelsenian grundnorm, rested upon a secondary pedestal.
137. Chapter Seven of the Constitution is entitled “Representation of the People”and bears the sub-
title “Electoral System and Process”,with further sub-title “General Principles of the Electoral
System.”Articles 81, 82, 83, 84, 85, 86 and 87 all fall under this Chapter. It is plain to us that most of
the provisions in these Articles are rendered in the form of principles¾some general, and others not
so general. And, thus expressed, it is unavoidable that most of these principles are not self-executing:
which fact moves the judicial forum to centre-stage, as regards interpretation and application.
138. These principles cannot crystallize into deliverables of public goods, such as those in the nature of
governance and elections, without further legislative action.
Thus,Article 82 (1) (d) provides as follows:
“Parliament shall enact legislation to provide for¾

……
(c) the conduct of elections and referenda and the regulation and ecient
supervision of elections and referenda, including the nomination of candidates
for elections
(2) Legislation required by clause (1) (d) shall ensure that voting at
every election is¾
(a) simple;
(b) transparent and;
(c) takes into account the special needs of¾
(i) persons with disabilities and;
(ii) other persons or groups with special needs.”

Article 87 (1) for its part, provides that:
“Parliament shall enact legislation to establish mechanisms for timely settling of

electoral disputes.”
Article 105 (1) of the Constitution provides that:
“The High Court shall hear and determine any question whether-
(a) a person has been validly elected as a member of Parliament…”

Sub-Article (3) of the said Article provides that:
“Parliament shall enact legislation to give full eect to this Article.”
139. Such a context of interpretation has informed the decisions of this Court. As an instance, in
Fredrick Otieno Outa v. Jared Odoyo Okello & 4 othersS.C. No. 10 of 2014,the Court stated as
follows(paragraph 55):
“In adopting this view, we would observe that the Elections Act, 2011 enacts in substantive
form the constitutional principle of securing for the Kenyan people a representative
democracy, in which the mandate of leadership is attained through popular elective
politics, based on the ideals of free and fair election. The realization of this goal is partly
attainable through universal franchise, expressed in a voting exercise guided by appropriate
legislation,that is derived from the premises and values embodied in Articles 38, 81 and
86 of the Constitution. Thus, it is for certain, that electoral contestations will involve
constitutional interpretation or application.”
140. There is yet another issue regarding the frontiers of Article 163(4) (a) of the Constitution, which has
not been accorded adequate attention by counsel,as they urge their clients’ cases on the basis of its
terms. The provision thus reads:
“Appeals shall lie from the Court of Appeal to the Supreme Court-
(a) as of right in any case involving the interpretation or application of this

Constitution...”
141. The operative words are “interpretation or application”. Do these wordshave the same meaning?
In our perception, these terms do not mean one and the same thing. Otherwise, the drafters
would have simply opted to use either of them. As it is, the Supreme Court will not
infrequently be called upon either to interpret or to apply the Constitution. It emerges from the
comparative lesson that judicial approaches in dierent jurisdictions, do not accord the expressions
“constitutionalinterpretation”,and“constitutional application”the same meaning.
142. For our purposes, interpretation of the Constitution involves revealing orclarifying the legal content,
or meaning of constitutional provisions, for purposes of resolving the dispute at hand (call it the
hermeneutic aspect).The basic reference-point in constitutional interpretation is the text. Application
of the Constitution is a more dynamic notion. It comes into play when the provision of the
Constitution remains in some vital respects (even after the jural process of content-ascertainment)
indeterminate, or ambiguous, or vague, or contradictory.In other instances, a constitutional text may
be quite clear on paper, but when applied to a dispute, it leads to absurd consequences. In such a
situation constitutional application ceases to be a simple exercise in interpretative syllogism. It takes
on the character of “creative interpretation” (see Jerey Goldsworthy,German Law Journal, Vol.14
No.08, pp. 1279-1295(August 2013)), or what some American theorists have called “constitutional
construction” (see Randy E. Barnet, Interpretation and Construction, 34 Harv. J.L and Pub. Policy65
(2010)).
143. Constitutional application, therefore, entails creatively interpreting the constitution to eliminate
ambiguities, vagueness and contradictions, in furtherance of good governance. Quite often, this
exercise involves interpreting the Constitution in such a manner as to adapt it to changing
circumstances in the community, with the care not to usurp the role of the legislature. This is what
is meant when the Constitution is said to be “a living document”. A Constitution is, thus, to be
interpreted both according to its text, and creatively as well, to breath life into it(see Jakab,“Judicial
Reasoning in Constitutional Courts”,German Law Journal; Vol.14, No. 08, pp. 1215-1272 (August
2013)).
144. It follows that Article 163(4) (a) of the Constitution confers upon the Supreme Court a role
of constitutional interpretation and application, which cannot be performed through a bare
apportionment of judicial tasks, as learned Senior Counsel, Mr. Abdullahi suggests. It is not feasible
in electoral disputes, in respect of which the Constitution dedicates a whole chapter to “general
principles” of the electoral system ¾principles thatstand alongside prescriptive norms.Where disputes
arise with regard to the interpretation and application of such principles and norms in election
petitions, this Court, Kenya’s apex Court,cannot gaze helplessly when moved by a litigant.Not so long
ago, in Aramat v. Lempaka &Others (Petition No.5 of 2014), this Court was categorical about the
nature of its jurisdiction. At paragraph 107 of the majority Judgment, the Court stated:
“The Constitution’s paradigm of democratic governance entrusts to this Court the charge
of assuring sanctity to its declared principles. The Court’s mandate in respect of such
principles cannot, by its inherent character, be dened in restrictive terms. Thus, such
questions as come up in the course of dispute settlement…, especially those related
to governance, are intrinsically issues importing the obligation to interpret or apply
the Constitution¾and consequently, issues falling squarely within the Supreme Court’s
Mandate under Article 163(4) (a), as well as within the juridical mandate of the Court as
prescribed in Article 259 (1) (c) of the Constitution, and in Section 3(c) of the Supreme
Court Act, 2011…”
145. Is the appeal before this Court grounded upon issues of cogent constitutional controversy? Is the
controversy one to be resolved through a nal interpretation or application of the Constitution by this
Court?
146. The appellants assert that the Court of Appeal acted without jurisdiction, in considering an appeal
led in breach of the mandatory timelines under Article 87(1) of the Constitution and Section 85A of
the Elections Act. It is also the appellants plea that the Court of Appeal arrived at the conclusions it
made, in disregard of the precedents already established by this Court, in violation of Article 163(7) of
the Constitution. Both in their written and oral submissions, the appellants pose the question whether
the Court of Appeal can depart from principles established in its own previous decisions. It is also
contended by the appellants, that the election of the Governor of Nairobi County was nullied by
the Court of Appeal,without specifying how the said elections were conducted in breach, if at all, of
the electoral principles enunciated in Articles 81(e) and 86 of the Constitution. In ground 5, the 1st
appellant pleads a violation by the Court of appeal of his right to a fair trial, enshrined in Articles 25(c)
and 50(1) of the Constitution. Grounds 6 and 9 of the petition of appeal are to the eect that the
Court of Appeal exceeded its jurisdiction, contrary to Section 85A of the Elections Act, which restricts
appeals to that Court to matters of law only.
147. This appeal has its origins in the High Court, where the rst respondent herein had challenged the
election of the rst appellant herein. The petitioner (rst respondent herein) based his petition on the
provisions of Articles 86, 87(2) 88(5), and 165(3) of the Constitution, and Sections 75 and 80 of the
Elections Act. The main claim in that petition was that the election of the rst appellant herein had
not been conducted in accordance with the principles embodied in Article 86 of the Constitution.
The petitioner moved to the Court of Appeal having been aggrieved by the High Court’s decision
dismissing his petition.
148. Did the Appellate Court’s determination of the issues now on appeal, take a trajectory of constitutional
application or interpretation, for the appeal to merit hearing before this Court. In Munya 1, the Court
stated that:
69. The import of the Court’s statement in the Ngoge case is that where specic
constitutional provisions cannot be identied as having formed the gist of the
cause at the Court of Appeal, the very least an appellant should demonstrate is
that the Court’s reasoning, and the conclusions which led to the determination
of the issue, put in context, can properly be said to have taken a trajectory of
constitutional interpretation or application.”
149. In Lawrence Nduttu, this Court held that under Article 163(4)(a) of the Constitution, the appeal had
to originate from a case wherein an appellant was seeking to challenge the interpretation or application
of the Constitution which the Appellate Court applied to dispose of the matter,at that forum. The
Court had this to say (paragraph 28):
“… the appeal must originate from a court of appeal case where issues of contestation
revolved around the interpretation or application of the Constitution. In other words, an
appellant must be challenging the interpretation or application of the Constitution which
the Court of Appeal used to dispose of the matter in that forum. Such a party must be
faulting the Court of Appeal on the basis of such interpretation. Where the case to be
appealed from had nothing or little to do with the interpretation of the Constitution, it
cannot support a further appeal to the Supreme Court under the provisions of Article 163
(4) (a)”
150. In Joho, this Court again claried the test to be applied in determining whether an appeal was to be
entertained under Article 163(4) (a) of the Constitution. The Court stated (paragraph 37):
“…the test that remains to evaluate the jurisdictional standing of this Court in handling
this appeal, is whether the appeal raises the question of Constitutional interpretation
or application and whether the same has been canvassed in the superior courts and has
progressed through the normal appellate mechanism so as to reach this Court by way of an
appeal a contemplated under Article 163(4)(a).”
151. Are the appellants in this case challenging the interpretation or application of the Constitution which
the Court of Appeal adopted to dispose of the matter, in annulling the Judgment and orders of the
High Court? To answer this question, one must review the Judgment of the Court of appeal which
the appellants now impugn.
152. Kiage J.A (at page 22) delineated the rst issue for determination as “Whether the appeal is competent
in light of Section 85A of the Elections Act”. At page 23 of his Judgment, the learned Judge recognizes
that Section 85A is a legislative enactment in compliance with Article 87(1) of the Constitution, on
mechanisms for timely settling of electoral disputes. The learned Judge went ahead to distinguish
between timelines in the Constitution, and in the Elections Act, holding that Section 85A had no
intention to ‘curtail or render illusory the right of appeal, an integral element of access to justice and
the right to fair hearing under our constitutional order’(page 39).
153. Furthermore, having found that the adjudication of electoral disputes bears a constitutional and
statutory provenance, the learned Judge remarked that if a Court were to carry out trial proceedings
without regard to principles of fair trial, the Judgment would be vitiated. On this precise foundation,
the majority (with Warsame, J.A dissenting) allowed the appeal, thus annulling the Judgment of the
High Court which had upheld the election of the 1st appellant, as having been conducted in accordance
with the principles laid down in the Constitution and the electoral law.
154. Also featuring in the learned Judge’s reasoning (page 65)is Article 86(a) and (b) (on principles of
electoral conduct), which the learned Judge declared to be binding upon the IEBC and its ocials.
155. In the Judgment of G.B.M Kariuki J.A, the following constitutional issues were articulated, and
ndings made. The learned Judge opines (p.12) that the Bill of Rights, especially the right of access
to justice, applies to appeals lodged at the Court of Appeal. The Judge then cites (p.13) Article 87(1),
on the mandate imposed on Parliament to enact legislation to ensure timely settlement of electoral
disputes. He nds the Elections Act and the Regulations made thereunder, as the antidote to the then
systemic lethargy in the settlement of electoral disputes. In the learned Judge’s view, Parliament could
not have intended to impede a citizen’s right of access to justice, or the right to appeal against an election
decision, where inadvertently the period for ling such an appeal had lapsed. To nd meaning for
Section 85A of the Act, the Judge held that one has to be guided by Articles 10, 20, 25(c), 38, 50, 87(e)
and (l) of the Constitution (see p. 15, page 145 of Vol. A of record of appeal).
156. The learned Judge further held that an interpretation of Section 85A(a) that disallows appeals for no
fault of the appellant, should be construed as a “violation of the Constitution and an infringement of
the Bill of Rights”; and that Rule 82 of the Court of Appeal Rules provides the cure to the potential
injustice and prejudice to constitutional rights.
157. It is clear to us that the appellants are challenging the reasoning and conclusions of the majority
decision of the Court of Appeal, regarding the question of timelines in election petitions. They come
to this Court seeking a vindication of their cause, because they believe that the appellate Court erred
in its interpretation of Section 85A of the Elections Act vis à vis Article 87(1) of the Constitution.
They believe that the timelines set out for the ling of election petitions in the Elections Act are in
accord with the constitutional command in Article 87(1). They contend that this Court has already
established binding precedent on this question. They contest the attempt by the Court of Appeal
to elevate and apply a civil-litigation rule (subsidiary legislation) to an election dispute, beyond and
in breach of Section 85A and, by extension, the Constitution itself. These are,in our view, pertinent
constitutional controversies.
158. This appeal stands on all fours with the other election-petition appeals such as Munya, Johoand
others, which this Court has admitted and determined under Article 163(4)(a) of the Constitution.
Accordingly, we have no trepidation in holding that this Court has jurisdiction to entertain it. In
broader context, our position is well depicted in the words of Chief Justice Marshall of the U.S.A, in
Cohens v. Virginia, 19 U.S. 264 (1821):
“It is most true that this Court will not take jurisdiction if it should not; but it is equally
true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may,
avoid a measure because it approaches the connes of the Constitution. We cannot pass it
by because it is doubtful. With whatever doubts, with whatever diculties, a case may be
attended, we must decide it if it be brought before us. We have no more right to decline
the exercise of jurisdiction which is given than to usurp that which is not given. The one
or the other would be treason to the Constitution. Questions may occur which we would
gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and
conscientiously perform our duty.”
159. Did the Appellate Court admit, hear and determine an incompetent appeal contrary to Section 85A(a)
of the Election Act as read with Article 87(1) of the Constitution?
160. The Judgment of the High Court was delivered on 10th September, 2013. (See page 132 Vol. B1). The
1st respondent led at the Court of Appeal a Notice of Appeal against the Judgment and orders of
Mwongo J on 12th September, 2013.
161. Under Section 85A(a), the 1st respondent ought to have led an appeal within30 days from the date
of Judgment in the High Court, that is on 10th of October, 2013. This was however not to be, as
the subsequent events now show. On 11th September, a day after the High Court’s Judgment, the
1st respondent’s advocates wrote to the Deputy Registrar of the High Court of Kenya requesting
typed proceedings in the matter. The Deputy Registrar responded the following day, informing the
1st respondent’s advocates that they would be notied to collect the proceedings once typing of the
same was completed. On 9th October, 2013, certied proceedings were ready for collection (see pages
28-30 vol. B1).
162. The 1st respondent has met the claim of belated appeal on his part by invoking a “certicate of delay”
which was in his possession. The content of the said certicate of delay runs as follows:
“1. An application for proceedings was lodged in Court on 11/9/2013;
“2. Certied copies of proceedings were not ready until 9/10/2013;
“3. Certied copies of the proceedings and ruling were ready on 9/10/2013;
“4. The certicate of delay was prepared and ready for collection on 30/10/2013;
“5. Number of days taken: 49days.”
163. Armed with a certicate of delay, the 1st respondent then lodged his memorandum of appeal at
the Court of Appeal registry on 22nd November, 2013¾being 23 days from the date of issue of the
certicate of delay.
164. Section 85A of the Elections Act, under which the 1st respondent’s appeal to the Court of Appeal was
to be admitted, provides as follows:
“An appeal from the High Court in an election petition concerning membership of the
National Assembly, Senator or the oce of county governor shall lie to the Court of Appeal
on matters of law only and shall be:
(a) led within thirty days of the decision of the High Court; and
(b) heard and determined within six months of the ling of the appeal to the Court
of Appeal.”
165. It was the appellants’ argument that the appeal was led after a record 72 days from the date of the
Judgment of the High Court. According to the appellants, the mandatory provision of Section 85A (a)
of the Elections Act was not adhered to, in contravention of the underpinning constitutional principle
of timely resolution of electoral disputes,embodied in Article 87(1). The Appeal was, therefore,
incompetent in law. It was urged that the Court of Appeal acted without jurisdiction, by determining
an incompetent appeal, the same having been led outside the mandatory statutory timeline.In
canvassing this contention, learned Senior Counsel, Prof. Ojienda submitted that this Court has held
that Courts do not have a discretion to extend mandatory timelines set out in the Elections Act.
166. Counsel cited a number of authorities including the Joho case, in which this Court armed the
Court of Appeal’s pronouncement in Ferdinand Waititu v. Independent Electoral and Boundaries
Commission & 8 OthersCivil Appeal No. 137 of 2013- that the timelines set by the Constitution and
the Elections Act are neither negotiable nor extendable by any Court; Mary Wambui Munene v. Peter
Gichuki Kingara & 2 OthersS.C Petition No. 7 of 2014- in which this Court was categorical as to the
imperatives of timelines demanded by the Constitution, in the settlement of electoral disputes; and
Munya 2- in which this Court declared the constitutional basis of Section 85A of the Elections Act,
stating that it was “neither a legislative accident nor, a routine legal prescription”. Counsel invited this
Court to consider and arm the pronouncements by Warsame J.A in his dissenting Judgment at the
Court of Appeal.
167. Learned Senior Counsel, Mr. Muite submitted that the appeal was competent, as the Court had to
take into account and exclude the time taken in the preparation of the proceedings. Counsel urged
that the rst respondent herein did not merit penalty for a delay occasionedby the High Court in
the preparation of the proceedings, as evidenced by the certicate of delay. Counsel asked the Court
to consider the provisions of Articles 50, 159 and 259 of the Constitution of Kenya,which in his
view, ruled out a strict application of Section 85A of the Elections Act ¾ as it would violate the
1strespondent’s right of access to justice under Article 25 of the Constitution.Mr. Muite urged us to
arm themajority decision which in his view, was the correct reection of the legal position.
168. There are two critical questions to be answered at this stage, namely:
(a) What is the legal eect of the provisions of Article 85A(a) of the Elections Act on election-
petition appeals?
(b) To what extent, if at all, are the Court of Appeal Rules in general, and Rule 82(1) in particular,
applicable to electoral disputes before the Court?
169. In answer to question (a), it is an eminently relevant point that, long before this Court had pronounced
itself on the question of timelines in election petitions other than in a Presidential-election petition,
the Court of Appeal had already considered the question, and delivered authoritative decisions of
merit. Two of these cases are outstanding. In an illuminating declaration of legal principle (which
found favour in this Court), the Court of Appeal in Ferdinand Waititu v. Independent Electoral and
Boundaries Commission, (IEBC) & Others, Civil Appeal No. 137 of 2013 (Mwera, Musinga and
Kiage JJA), stated as follows:
“…These timelines set by the Constitution and the Elections Act are neither negotiable nor
can they be extended by any Court for whatever reason. It is indeed the tyranny of time, if
we may call it so. That means a trial Court must manage the allocated time very well so as to
complete a hearing and determine an election petition timeously. It was therefore imperative
that the Elections Petition Rules be amended to bring about mechanisms of expediting
trials…”
170. In Patrick Ngeta Kimanzi v. Marcus Mutua Muluvi &2 Others, Nairobi C.A No.191 of 2013 [2014]
eKLR;the Court of Appeal(Kariuki, Kiage and M’Inoti JJA) was again categorical, that the provisions
of Section 85Aof the Elections Act, setting out timelines for the ling and determinationof election
petitions, were peremptory and non-negotiable.
The learned Judges of Appeal had the following to say:
“The ruling and order appealed from in Machakos Election Petition No. 8 of 2013 was
delivered on 17.6.2013. The appellant led the appeal on 12.08.2013. The period for
lodging appeal expired in July 2013 and clearly the appeal was led out of time. In Maitha
vs. Said and Another, (1999) 2 E.A 181, this Court held that s.23(4) A of the National
Assembly and Presidential Elections Act, which like s.85 A of the Elections Act stipulated
the period within which an appeal from the decision of the election court should be
led, was mandatory and that upon the lapse of the stipulated time, the right of appeal
automatically lapsed…”
171. Warsame J.A, in an extensively reasoned dissent in the matter at hand, revisited these
cases,acknowledging their merits. The learned Judge thus remarked:
“Having so found, what is the time within which an appeal from the decision of the High
Court is to be led and determined? The answer to this question is to be found at Section
85A(a) which is worded in very clear terms, that an appeal from an election petition ‘shall’
be…led within thirty days of the decision of the High Court.
“The word ‘shall’ used in Section 85A(a) of the Elections Act connotesan emphatic
intention, an expression of strong assertion or command, a duty rather than a wish, required
to perform a function in a discretionary manner. In my understanding, the use of words shall
and led within 30 days of the decision of the High Court confer a mandatory sense that
the drafters typically intended, and that courts typically must uphold. It means the ling of
an appeal from the decision of the High Court is to be done within 30 days. In other words,
the ling is to be done within the period, not exceeding or beyond the 30 days from the date
when the decisionis rendered.”
172. Such a position is entirely consistent with a number of precedents which have been laid by this Court.
In Hassan Ali Joho &Another v. Suleiman Said Shahbal &2 Others, S.C Petition No. 10 of 2013 [2014]
eKLR,this Court cited withapproval the declaration of legal principle by the Court of Appeal in the
Ferdinand Waititu case (quoted above).The Court stated that adherence to the imperatives of time,
as decreed by the Constitution, is a vital element in the operation of a democratic system based upon
electoral expression.
173. In Mary Wambui Munene v. Peter Gichuki King’ara & 2 Others SC Petition No. 7 of 2014,this Court
while annulling the proceedings of the High Court and Court of Appeal in an election petition that
had been led outside the time-frame prescribed in Article 87(2) of the Constitution, stated as follows:
“….Time as a principle, is comprehensively addressed throughthe attribute of accuracy, and

emphasized by Article 87(1) of the Constitution, as well as other provisions of the law.
Time in principle and applicability, is a vital element in the electoral process set by the
Constitution. This Court’s decision in Joho was guided by this consideration. For purposes
of this case, we apply the precedent in Joho, taking into account that the issue in question
involves imperatives of timelines demanded by the Constitution in settling electoral disputes
which involve accuracy, eciency and exactitude, limiting any other considerations, in the
exercise of our discretion.”
174. In Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others SC Petition No. 2B of 2014,this Court
clearly established the constitutional genealogy of Section 85A of the Elections Act, when it declared
that the same was “neither a legislative accident nor a routine legal prescription.”Section 85A, the
Court armed, “is a product of a constitutional scheme requiring electoral disputes to be settled in
a timely fashion.”
175. In spite of these clear and unambiguous enunciations of legal principle, by boththe Court of Appeal
and the Supreme Court, regarding the legal eect of Section 85A(a) of the Elections Act, the majority
decision of the Appellate Court in this matter not only admitted a petition of appeal whichhad been
led in contravention of the mandatory provisions of the law but, on the basis of the appeal, annulled
the election of the rst appellant herein.
176. The learned Judges on the majority side predicated their decisionon two generic inferences: rstly,
that Section 85A(a) of the Elections Act being a statutory timeline, was not as mandatory as the
timelines named in the Constitution itself; and so a Court of law could extend the period within
which an intending petitioner will lodge an appeal beyond the 30-day limit prescribed in the Act. Such
an extension, the learned Justices of Appeal reasoned, was proper in the interestsof justice, especially
where there had been delay in the preparation of Court proceedings. Parliament, the learned Justices
opined, could not have intended to shut out a litigantfrom ling an appeal, as this would oend other
provisions of the Constitution, especially Articles 10, 20 and 25(c).
177. Secondly, that on the strength of Rule 35 of the Election (Parliamentary and County Elections)
Petition Rules, the Court of Appeal Rules are applicable in their totality to election petitionappeals
before the Court;and so, Rule 82 (1) of the Court of Appeal Rules could apply to extend the time for
ling of an election petition appeal beyond the 30-day limit prescribed by section 85A of the Elections
Act.
178. In both respects, we are of the opinion that the learned Judges of Appeal, with respect, fundamentally
erred in law. In the rst instance, the learned Judges, upon unspecied grounds, chose to depart from
the legal principles established by the Appellate Court itself, and armed by this Court, regarding
timelines, and without specicallydistinguishing the earlier cases in accordance with normal judicial
practice. The declaration of legal principle in Ferdinand Waititu, for example,was dismissed out of
hand,with bare personal doubts signalled as the cause, in the following passage:
“As a declaration of principle, I believe we were correct in asserting the importance,

inviolability even, of the timelines in the Constitution and the Elections Act. As to whether
in fact, the same cannot be extended by any Court, for whatever reason as we expressed
ourselves, I must admit to some doubts upon further reection. It is to be remembered that
the view we expressed was in fact broad principle or probably orbiter since the only issue that
was for determination before us was whether we could entertain appeals from interlocutory
decisions of the High Court.”
179. Such was a fundamental departure, on the basis of mere doubt, not only from the specic enunciation
of the legal position in the case in which the learned Judge had participated, but from all the other
decisions by the Court of Appeal on a similar question. Of more concern to us is the fact that, the
principle from which the learned Judge was declaring a departure, had indeed been armed by this
Court, in Hassan Ali Joho &Another v. Suleiman Said Shahbal &2 Others, S.C Petition no. 10 of
2013 [2014] eKLR.What this Court has armed as being a settled statement of thelaw, can neither
be broadprinciple,nor orbiter,before other superior Courts. We now rearm the legal principles
established by the Court of Appeal in earlier cases, regarding the mandatory nature of the statutory
timelines.
180. It is clear to us that the Court of Appeal’s majority position, even if founded upon notions of “justice
and fairness”, had overlooked clear imperatives of the law that are overriding. The learned Judges had
overlooked the law of precedent, expressly declared in Article 163 (7) of the Constitution. They did not
recognize that Section 85A of the Elections Act is directly born of Article 87 of the Constitution. They
had not taken into account the fact that ideals of justice are by no means the preserve of the intending
appellant, and that they must enure to the electorate as a whole. The learned Judges perhaps failed to
recognize that the overall integrity of the democratic system of governance is sealed on a platform of
orderly process, of which the Judiciary is the chief steward, and in which the course of justice already
charted by the superior Courts is to be methodically nurtured.
181. The foregoing principles are well reected in still further decisionsof the Court of Appeal itself. In Basil
Criticos v. Independent Electoral and boundaries Commission &2 Others [2014] eKLR, the words of
Okwengu JA are illuminating in this regard (paragraph 12):
“Thus under section 85A of the Elections Act, the right to a hearing in regard to an
appealfrom an election petition is tied to the timelines provided in that Act. In this way the
right to a hearing is appropriately balanced withthe public interest of expeditious disposal of
electoral disputes. This is as it should be, for one party may have brought an appeal, but the
outcome aects the interest of the public whose right to representation is in limbo during
the pendency of the appeal.”
182. This leads us to the question regarding the applicability of the Court of Appeal Rules,in relation to
the election petition appeals beforethe Appellate Court. The majority on the Appellate Court Bench
held that Rule 82 (1) of the Court of Appeal Rules was applicableto the matter before them, with the
eect of setting in motion the computation of time such as would exclude the time taken by the High
Court in the preparation of the proceedings.
Rule 35 of the Election Petition Rules stipulates that:
“An appeal from the judgment and decree of the High Court shall be governed by the Court
of Appeal Rules”
Rule 82(1) of the Court of Appeal Rules stipulates that:
“Subject to rule 115, an appeal shall be instituted by lodging in the appropriate registry,
within sixty days of the date when the notice of appeal was lodged-
(a) a memorandum of appeal, in quadruplicate;
(b) the record appeal, in quadruplicate;
(c) the prescribed fee; and
(d) security for the costs of the appeal:

Provided that where an application for a copy of the proceedings in the superior court has
been made in accordance with sub-rule (2) within thirty days of the date of the decision
against which it is desired to appeal, there shall, in computing the time within which the
appeal is to be instituted, be excluded such time as may be certied by the registrar of the
superior court as having been required for the preparation and delivery to the appellant of
such copy.”
183. If this Rule were to apply to election petition appeals, as the majority decisionheld it does, it means
an election petition appealcan be led within as much as 60 days of the ling of the Notice of Appeal.
The Rule provides in addition, that the time taken to prepare the proceedings be excluded from the
computation of the sixty days. This Rule, therefore, ousts the provisions of Section 85A(a) of the
Elections Act, regarding the time within which an appeal must be led.Such a rule if applicable, it is
clear to us, would defeat the object of ecient electoral-dispute settlement under the Constitution.
184. However, the Court of Appeal concluded that Rule 82(1) of the Court of Appeal Rules was applicable
to electoral appeal matters before that Court, in the words of the learned Judge, G.B.M.Kariuki, JA:
“If Parliament intended that Rule 82 should be overriddenby S. 85 A(a), Parliament could
have expressly so stated. It did not. The Court of Appeal Rules were applied wholesale
to appeals from the Election Court. That was not purposeless. Admittedly, the Court’s
judicial function [is] to interpret the law in a manner that ensures that the intention of
the Legislature is given eect… because Parliament could never have intended a conict
between the Constitution ….and the Elections Act that regulates the conduct of the electoral
process.”
185. The same position emerges from the Judgment of Kiage, JA:
“There is neither ouster nor replacement of the Court of Appeal Rules. They certainly are
not supplanted. What we have is an armationand restatement of their application. They
are controlling.”
186. Such a position cannot, in our view, be sustained: for it ies in the face of the time-hallowed principle
of“the hierarchy of norms.” It is well recognized that an instrument of subsidiary legislation cannot
override the provisions of an Act of Parliament. This position is clear from the terms of Section 31 (b)
of the Interpretation and General Provisions Act(Cap. 2, Laws of Kenya), which provides:
“Where an Act of parliament confers power on an authority to make subsidiary legislation,

the following provisions shall, unless a contrary intentionappears, have eect with reference
to the making of the subsidiary legislation-
(c) no subsidiary legislation shall be inconsistent with the provisions of an Act.”
187. Indeed, judicially, the special status of the divers elements of the electoral law had already been armed
by the Court of Appeal in the Ferdinand Waititucase (cited above), as follows:
“The Elections Act and the Rules made thereunder constitute a complete code thatgoverns
the ling, prosecution and the determinationof election petitions in Kenya. That being
the case, any statutory provision or rule of procedure that contradicts or detracts from the
expressed spirit of Article 87 (1) and 105(2) and (3) of the Constitution is null and void.”
188. This Court incorporated precisely such a perception in its recent Judgment in Fredrick Otieno Outa
v. Jared Odoyo Okello & 4 OthersS.C. No. 10 of 2014,when it thus held (paragraph 77):
“On this account, it makes in our perception, eminent sense that the ordinary rules of
procedure, in their full tenor and eect, tend to be ill-suited to theeectuation of substantive
aspects of the Elections Act and the Rules made thereunder.It is clear to us, for instance,
that Rule 35 of the Elections Petition Rules, in so far as it makes the Court of Appeal Rules
applicableto appeals in election-dispute matters, is to be construed only as a supplement
to¾and not a substitute to- the provisions of the Elections Act. We would state, for the
avoidance of doubt, that the importation of the Court of Appeal Rules into the conduct of
electoral appeals via Rule 35 of the Election Petition Rules, cannot oust the clear provisions
of Section 85A of the Elections Act.”
189. We would agree with the perception of Warsame JA, regarding the applicability or otherwise of Rule
82 of the Court of Appeal Rules, to election-petition appeals. The learned Judge in his opinion, thus
stated (pp. 29-30 of the Judgment):
“Can Rule 82 of the Court of Appeal Rules, 2010 whichprovides for the certicate of delay,
defeat the statutory provisions contained in section 85A of the Elections Act? The answer
to this question must be in the negative…Section 85 is the legal foundation and all the rules
must be interpreted in a manner that will not displace it….Therefore the Elections Act is the
parent Act. It has all the and structures for the ling of the petition which is provided for in
the Constitution….The time for lodging and determination of appeals in election disputes
is found at section 85A of the Constitution, and a party who (sic) does not comply cannot
nd refuge in therules of this Court. It is not tenable to elevate the rules of procedure of the
Court above a statutory provision…”
190. The interplay between electoral dispute-settlement timelines, and other types of dispute-settlement
procedures, is a jurisprudential issue that has been experienced in other jurisdictions as well. In
Ferdinand Frampton and Others v. Ian Pinard and Others Claim Nos. DOMHCV 2005/0149, the
High Court in of the Commonwealth of Dominica held that a petitionermust do everything to lodge
his or her petition within the stipulated time, and that an election Court has no power to extend the
time prescribed by statute unless such power is expressly conferred upon it. The Court pronounced
itself as follows:
“The rationale…is that provisions for the litigation of election petitions are a matter of
substantive law, and, like the Statute of Limitation, cannot be dispensed withby the Court.
The statutory time limits provide a rigid time table to ensure that everything that is necessary
is done, in a timely manner, to bring these petitions to trial because of the public interest
requires it…”
191. In Ezechiel Joseph v. Alvina Reynolds HCVAP2012/0014 the Caribbean Court of Appeal at St. Lucia
was faced withseveral questions,inter alia: whether the Civil Procedure Rules 2000 of 1967 applied
in part, or as a whole, to proceedings under the Elections Act; and whether a petitioner, upon giving
good reason, could rely on any provision of the Civil Procedure Rules, 2000 to move the Courtfor an
extension of the time prescribed for doing specic acts. The learned Judge, Sir Hugh Rawlins stated
as follows:
“In keeping with the strict approach, our Courts have generally insisted that the provisions
in elections legislation must be strictly complied withbecause the paramount public interest
is that election challenges should be determinedas quickly as possible so that the assembly
and the electors should know their rights at the earliest possible time…The election Court
has no power to extend time or allow amendments led out of time unless election
legislation so provides” (emphasis supplied).
192. In the matter before us, it is for certain that the petition of appeal before the Court of Appeal was
led well outside the mandatory time prescribed by Section 85A of the Elections Act. It is also an
established fact that the proceedings at the High Court were ready for collection on 9thof October 2013.
A certicate of delay was issued on 30thOctober 2013notwithstanding the fact that the proceedings had
been ready for collection on 9thof October. The petition of appeal ought to have been led on or before
the close of day on 10thOctober 2013.Instead, the appeal was not led untilthe 22nd of November 2013.
193. The rst respondent herein has been portrayed as an innocent man in this entire saga. The Court was
invited to regard him as a victim of the High Court’s lethargy or ineciency; an intending appellant
without fault, who would otherwise have lodged his appeal within the timelines prescribed by Section
85A (a) of the Elections Act. Other than the letter written to the Deputy Registrar of the High Court
by 1st respondent’s counsel, inquiring about the proceedings, we were not informed of what else the
respondent did to follow up on the same. The proceedings were ready on 9th October 2013. Yet the
respondent collected the same on 30th of October 2013. Was the respondent conscious about the
provisions of Section 85A of the Elections Act?
194. Let us assume, for purposes of argument, that all along, the respondent was intent on beating the
statutory deadline. Towards this end, he would have diligently collected the proceedings on the 9th of
October 2013, and proceeded to prepare and lodge his appeal in the Court of Appeal, before close
of day on 10th of October 2013. It was robustly submitted by Senior Counsel Mr. Muite, that the
delay in the preparation of the proceedings ought to be taken into account in the computation of time.
But even if the Court were to accede to such a request, the latest the respondent ought to have led
the appeal would have been the 10th of November 2013, being the thirtieth day as from the date the
proceedings were available. What did the respondent do? He led his appeal on the 22nd of November
2013. So all along, the respondent’s conscience does not appear to have been pricked by the provisions
of Section 85A of the Elections Act.
195. Was it impossible for the rst respondent herein, through counsel, to take all initiatives to lodge an
appeal in the Court of Appeal before close of day on 10thOctober 2013? We don’t think so, given the
high stakes involved in the matter.
196. Consequently, and in view of our appraisal of the law, we hold that the learned Judges of Appeal
erred in law by admitting, and determining an incompetent appeal- the same having been led out
of the time prescribed by the peremptory provisions of Section 85A (a) of the Elections Act as read
withArticle 87 (1) of the Constitution. In so doing, the Court of Appeal acted withoutjurisdiction.
In the circumstances, the majority Judgment annulling the election of the rst appellant herein is a
nullity for all purposes.
197. This Court has noted the occurrence of delay in the preparation of proceedings at the High Court,
and would restate the position it has taken in election cases.Courts of law should not be the ones to
stand in the way of the expeditious disposal of electoral disputes,in a manner that gives fullment to
the terms of the Constitution and the law. We hereby direct the Chief Registrar of the Judiciary to
take appropriate action within her mandate under the Constitution, to ensure that inordinate delays
do not occur.
198. As the threshold question of jurisdiction disposes of this matter, and no further issues of signicant
constitutional character have come up, we see no need to render an opinion in respect of other
questions, upon their merits.
F. THE CONCURRING OPINION OF NJOKI NDUNGU, SCJ

199. I have read the decision of the majority and while I concur with the nal decision and orders in
this matter, I am of a dierent opinion from that of the majority particularly regarding the issue of
incompetence of the case before the Court of Appeal. While my view on this issue mirrors that of
the Court of Appeal in its majority decision, I employ a dierent analysis informed by the attendant
circumstances, exceptional to the case before the Court.
200. The substance of this concurring opinion is threefold: rst, to enrich the issue as to whether the
Supreme Court had jurisdiction to hear and determine the appeal herein under Article 163(4)(a) of
the Constitution. Whereas I largely concur with the majority that indeed this Court has jurisdiction
to determine this appeal, I wish distinguish my reasoning in addressing the important argument by
senior Counsel Ahmednassir Abdullahi contesting the holding that “the Elections Act, 2011 and the
regulations thereunder are normative constitutional derivatives.” Counsel’s argument was that this
Court could not isolate the Elections Act, 2011 and the regulations thereunder because “all laws
are normative constitutional derivatives.” The second premise will be to address the question as to
whether the Judges of the Court of Appeal heard and determined an incompetent appeal contrary to
Article 87(1) of the Constitution and Section 85A of the Elections Act, 2011. Finally, I will address
the following four issues which in my opinion, go to the heart of the appeal: whether the Judges of
the Court of Appeal, in the majority decision (G.B.M Kariuki, P.O Kiage JJA, with M. Warsame JA,
dissenting):
i) disregarded the doctrine of stare decisis, by failing to apply binding decisions of the Supreme
Court in Contravention of Article 163(7) of the Constitution;
ii) erred in holding that the 1st respondent’s right to a fair trial, under Article 25(c) and 50 of the
Constitution had been denied when the High Court curtailed the cross-examination of the
5th appellant;
iii) acted contrary to Articles 81(e) and 86 of the Constitution by nullifying the 1st and 2nd
appellants election on the ground that the 1st respondent was not accorded the right to a fair
hearing;
iv) erred in capping of costs in election petition matters.
I. Whether the Supreme Court had jurisdiction to hear and determine the appeal herein under
Article 163(4)(a) of the Constitution.
201. Senior counsel Ahmednassir faulted the Court’s nding in the Munya 1 case declaring the Elections
Act, 2011 and the regulations thereunder as ‘normative derivatives’ of the Constitution. Counsel’s
contention was that this was akin to elevating election laws above other laws in the country, despite
the fact, that all other laws are rooted in the Constitution. Counsel went further and questioned the
Court’s decision to hear election appeals as an unfounded expansion of its jurisdiction.
202. Indeed, all statutes revolve around constitutional law and any law, as declared under Article 2(4) of
the Constitution, is subject to the Constitution's legal force and must be consistent with it, or be at
risk of invalidation. In dealing with issues of constitutional signicance, the approach cannot be to
focus on the substantive provisions of the Constitution while disregarding the statutes that esh the
constitutional skeleton. The Fifth Schedule to the Constitution lays out the legislation to be enacted
by Parliament within ve years of its promulgation. Section 7 of the Sixth Schedule in turn provides
that all law in force immediately before the eective date continues to be in force and shall be construed
with the alterations, adaptations, qualications and exceptions necessary to bring it into conformity
with the Constitution. In essence, the Constitution mandates the purication of all pre-constitutional
laws as well as the enactment of laws requisite to ensure that its proper enforcement is realized. In turn,
the direct call to every entity or individual not to disengage from the Constitution is to be found in
Article 2(1) and further elaborated under Article 10(1) of the Constitution, which state as follows:
Article 2(1)
“This Constitution is the supreme law of the Republic and binds all persons and all State
organs at both levels of government.”
Article 10(1)
“The national values and principles of governance in this Article bind all State organs, State
ocers, public ocers and all persons whenever any of them—
(a) applies or interprets this Constitution;
(b) enacts, applies or interprets any law; or
(c) makes or implements public policy decisions”
203. The Constitution dictates the parameters of the formation of government. This call is drawn
systematically from the opening provisions of the Constitution under Article 1, and expounded under
Chapter Seven (The Representation of the People), Chapter Eight (The Legislature), Chapter Nine
(The Executive) and Chapter Ten (The Judiciary). The proper establishment of government and the
interlocking functions of each structure to check the powers of the other ensure that the sovereignty of
the people is properly guarded and that power and authority are constitutionally exercised. This view
was aptly captured by this Court in Aramat v. Lempaka and Others, Sup. Ct, Petition No. 5 of 2014,
at paragraphs 74 and 75:
“Ecient and dependable plays and interplays of governance entities, is a fundamental

principle underlying Kenya’s democratic Constitution of 2010. The vital primary agencies
of discharge of the public mandate, must each function within a disciplined time-frame,
if they are not to hold up the functioning of a dierent public agency, with the eect of
occasioning immobility in one or more of the governance-units. Only through ecient and
responsive functioning, can these agencies operate in synergy, so as to bear out the people’s
sovereign expression as declared in Article 1(1) and (2), thus:
“(1) All sovereign power belongs to the people of Kenya….
“(2) The people may exercise their sovereign power either directly or through their
democratically elected representatives.”
“From the principle set out in the foregoing paragraph, the legitimacy of a challenge to
electoral outcomes speaks for itself: it is an avenue for ascertaining the mode of conveying
the people’s expression of their right of franchise.”
204. Conventional legal orientation continues to insist that the Constitution of Kenya be interpreted
in a way that constrains its actual enforcement. While embracing the transformational aspect of
constitutional governance may take some time, it is vital to understand that the engagement of the
Constitution in the Kenyan State as now constituted with the people at the centre of power, can only be
anything but conventional. The principles and values in the Constitution expand the Constitution’s
texture and illustrate the innate spirit of constitutional democratic governance covering not just
one aspect of the State (such as elections) but every bre of its composition, including the body
politic. Upon this realization, the task of the Judiciary is to respond to the realities of constitutional
change and to interpret that which the Constitution and legislation requires to be interpreted.
Certain laws such as the Elections Act, 2011 aect the very foundation of our republican-democratic
functionality, engaging various principles of democratic governance under the Constitution - in
particular Articles 81 and 86 - and in this respect, may attract the Supreme Court’s broader powers
of settlement of constitutional controversies. Similarly, there are many other laws such as the Public
Finance Management Act – a legislative ospring of Articles 201, 225, 226 and 227 - or the County
Government Act - which derives its legitimacy from Article 200, whose application may involve an
interpretation of the Constitution as envisaged under Article 163(4)(a). The determination as to
whether the interpretation of a provision in any law meets the criteria set, hence bringing it under
the jurisdiction of this Court, is to be made on a case-by-case basis. I, however, nd it imperative to
emphasize that all laws legislated by Parliament operate on the same scale, with none being superior
to the other and none assuming a sub-constitutional status giving it a superior status. The Elections
Act therefore cannot be said to have a higher standing or constitutional relationship, than other statute
enacted by the Legislature.
205. Senior Counsel Ahmednassir’s fear in the seeming sub-constitutionalisation of the Elections Act,
2011 and the regulations thereunder cannot be termed as unfounded. Counsel’s view has found
great argument in the world of constitutional law scholarship, [see: (Ira C. Lupu, Statutes Revolving
In Constitutional Law Orbits, Virginia Law Review, 1993, Volume 79), (Ernest A. Young, The
Constitution Outside The Constitution, Yale Law Journal, 2007-2008) and Frank Michelman,
Constitutional Authorship By The People, Notre Dame Law Review, 1998-1999)]. It is apparent,
that discourse concerning the exceptionality of the Kenyan Constitution as far its scope and grip is
concerned, is necessary. As elaborated by the majority, any legislation enacted by Parliament pursuant
to Articles 82 and 87 of the Constitution must transform the principles therein into concrete
normative goods for the realization of the aspirations therein. Perhaps Senior Counsel’s discomfort
is borne out of the fact that since Article 10 infuses the national values and principles into the
entire spectrum of constitutional engagement: legislative, judicial and public policy (namely, by
the executive), then all laws passed by Parliament ought to adhere and concretize these principles.
That indeed is the position. The realisation that the Constitution is the supreme law ought to be
accompanied by the recognition that the people’s right to franchise and every other practice touching
on this process ought not to disengage from the Constitution. As a consequence, this Court’s duty in
hearing election appeals is to ensure that this command is not negated. More directly, election causes
are, although not singularly so, causes of a specialized-constitutional nature but equally so all Acts of
Parliament are- in the sense of Article 10, the Fifth Schedule and section 7 of the Sixth Schedule to the
Constitution - normative constitutional derivatives.
II. Whether the Judges of the Court of Appeal, heard and determined an incompetent appeal contrary
to Article 87(1) of the Constitution and Section 85A of the Elections Act.
206. Let me clarify from the outset, that I am of the opinion that the principle of timeliness is critical to the
process of electoral dispute settlement. I am fully convinced and in no way deviate from the principles
laid by this Court in the Joho, Mary Wambui, Lisamula and Aramat decisions. These considered
and conscientious decisions of this Court elaborated the central aspect of time in electoral dispute
settlement. However, none of these cases bore the special circumstance of the exterior factors’ eect
upon a litigant’s ability to lodge an election claim or appeal on time: certainly not when the exterior
factor is the judicial process itself. This single exceptional circumstance distinguishes the instant case
from others and is the basis upon which my consideration of this issue is anchored.
207. Section 85A of the Elections Act, 2011 provides:
“An appeal from the High Court in an election petition concerning membership of the
National Assembly, Senate or the oce of county governor shall lie to the Court of Appeal
on matters of law only and shall be–
(a) led within thirty days of the decision of the High Court; and
(b) heard and determined within six months of the ling of the appeal.”
208. It is clear from the record, that M/S J. Harrison Kinyanjui Advocates representing the 1st respondent,
sought proceedings from the Deputy Registrar of the High Court by a letter dated 11th September,
2013. This letter was sent a day after the delivery of the judgment of the High Court on 10th September,
2013. It is obvious from the letter that the proceedings were required for the purposes of lodging an
appeal before the Court of Appeal. In the letter requesting proceedings, Counsel indicated that the
requisite fee for preparing them had already been paid. By a letter dated 12th September, 2013, the
Deputy Registrar responded, notifying Counsel that a certied copy of the judgment would be issued
upon payment of the requisite fee of Kshs. 3, 180 and that the typed proceedings would follow by
way of notication. This letter was received by M/S Kinyanjui on 16th September, 2013. The last page
of the typed proceedings indicates that they were ready on 9th October, 2013, but there is no written
notication or communication, on record, from the Deputy Registrar’s oce to the Advocate stating
that the documents were ready and asking for the documents to be collected.
209. This set of occurrences raises some red ags: rst, the fact that even within the strict requirements
of the post-constitutional electoral dispute settlement scheme, the intended appellant had to prompt
the Court for the certied copy of the judgment and the typed proceedings. Secondly, that the
typed proceedings were to be issued at the convenience of the registry with no specic reference to a
timeframe. Bearing in mind the statutory imperatives laid out by Section 85A of the Elections Act,
2011, the judicial process ought to have been aligned to facilitate the lodging of the appeal within
the mandated timelines. In this instance however, the delay was caused by bureaucracy in the registry
process. The fact that any delay was caused by an entity beyond the litigant’s control, warrants further
consideration.
210. The electoral dispute resolution mechanism calls for institutionalized eciency, an aspect which was
clearly absent during the period between the delivery of judgment by the High Court and the ling of
the appeal in this matter. The Constitution signals the need to reform the electoral dispute litigation
approach - it addresses the time taken to hear and determine election disputes by requiring that
causes be led within a specied timeframe and determined within another specied timeframe. The
strictness of timely settlement of electoral disputes required by the Constitution and by Statute was
severely compromised by lethargy in judicial procedure in this case.
211. Registry ineptitude and procrastination is a colossal impediment to justice, an aspect which ought to
have been cured by the reforms in the Judiciary following the adoption of the Constitution of Kenya,
2010. This ineciency sadly, is still at large, and in this instance compromised the competence of
the appeal. I agree with the majority decision in the Court of Appeal, when they state that the time
taken to prepare the proceedings, in fact, terminated the appeal before it was even lodged; the judicial
system ate into the grace period aorded to the concerned litigant to prepare and lodge an appeal. Such
injustice should not be tolerated. Indeed, this Court has previously intervened to correct such injustice
under similar circumstances, in the matter of Hassan Nyanje Charo v. Katib Mwashetani Sup. Ct.
Application No. 15 of 2014, (the Charo case).
212. In the Charo case, this Court considered an application to le an appeal beyond the time prescribed
under Rule 33(1) of the Supreme Court Rules, 2012. The Court (Ibrahim, Ojwang, SCJJ) took a
position that where an applicant seeks to le his appeal after the lapse of time provided in the Rules,
the Court has to balance the public interest consideration of timeliness in electoral dispute resolution
and the individual right of access to justice. The Charo case bears some subtle similarity to the 1st
respondent’s predicament before the Court of Appeal. Hassan Nyanje Charo led an election petition
at the Election Court in Mombasa, contesting the elections results for Lunga Lunga constituency.
The Election Court nullied the election of Khatib Mwashetani, the 1st respondent as Member of
National Assembly, and ordered a fresh election. The 1st respondent appealed to the Court of Appeal
in Malindi seeking to have the Judgment of the Election Court set aside.On 27th November 2013,
the Court of Appeal allowed the appeal thus overturning the judgment of the Election Court. The
Court reserved the reasons for its decision to 27th December, 2013 which however were not given till the
23rd January, 2014. Being aggrieved by the appellate Court’s decision, Mr. Nyanje led an application
under certicate of urgency in the Court of Appeal dated 2nd December, 2013 seeking certication of
the matter as one involving issues of general public importance. On 20th December, 2013 the Court
of Appeal certied the application urgent, and xed it for hearing on 30th January, 2014. The matter
proceeded by way of written submissions. The ruling scheduled for 4th March, 2014 was not delivered.
As a result, the applicant led an application for extension of time to le an appeal under Article 163(4)
(a) of the Constitution before this Court. This Court was informed that a request for judgment, Order
and proceedings had been made to the Court of Appeal to enable the applicant lodge the appeal but
those proceedings were not ready by the time this Court gave its ruling on the application for extension
of time. Since the judgment of the Court of Appeal had been deferred, the 30 day period to le an
appeal to this Court had lapsed at no fault of the applicant by the time the same was delivery on 23rd
January, 2014.
213. This Court was cognizant of the fact that the delay in the prosecution of the case prejudiced the
certainty of political representation of the people of Lunga Lunga Constituency; however the blame
for the delay was attributable to the Court processes of generating proceedings, which prejudiced the
applicant’s right of access to justice. The Court noted from the record that the Applicant had written
to the Court of Appeal requesting proceedings on 29th January, 2014, a fact that could have cast doubt
as to whether the intended appellant had exercised any due diligence owing to the fact that there was
nothing on record to show that the applicant had done any further follow-up. This notwithstanding,
the Court ruled that the applicant had exercised the requisite due diligence. At paragraph 28, the Court
held:
“Would it be in the interests of justice then to turn away an applicant who has, prima facie,
exercised all due diligence in pursuit of his cause, but is impeded by the slow-turning wheels
of the Court’s administrative machinery? We think not. We nd that though prejudice to
the representation of the people of Lunga Lunga Constituency will persist, it is due to no
fault on the part of the applicant.” [Emphasis added]
214. At paragraphs 33 and 34, the Court went further:
“Here is a case in which an applicant has exercised all due diligence, so as to move a Court of
justice, in a situation of grievance on electoral issues. But the mechanisms of the Judiciary
itself have shut the door to his knocks thereon. Today he comes before this Court, praying
for an open window through which he can lodge his complaint, in the shape of enlarged
time, during which one of the superior Courts will have availed to him the requisite appeal
papers.” [Emphasis added]
“As the sluggish motion of the judicial machinery enjoys no constitutional privilege, as
against the specic guarantees of the Bill of Rights, the inevitable decision in this matter, is
one that favours the suitor’s claim.” [Emphasis added]
215. The aspect of time, when ling an election petition, is couched in mandatory language as the same
goes to the jurisdiction of the Court to entertain a claim. The same is also based on a constitutional
timeline under Articles 87 and 105. After the declaration of the election results, the intended petitioner
has a duty to le a petition within the strict 28 days required by the Constitution. Failure to do so
renders the petition nugatory. The petitioner in such a case requires neither judgment nor proceedings
from the Independent Electoral and Boundaries Commission. All the petitioner requires is the actual
declaration of the election results by the returning ocer (which he receives on the polling day) and the
issuance of the winner with a certicate in Form 38. As such, the responsibility of actualizing the right
to challenge the election results rests on the petitioner. This was captured quite aptly by the Court in
the Aramat case, at paragraph 76:
“The Court, as a device of sanctication of the people’s electoral determination, is not

an unregulated forum, where so critical a dispute can linger for indeterminate periods of
time. Thus, the Supreme Court, in asserting the authority of the Constitution, underlines
the element of the immanent time-constraint, in the resolution of electoral disputes,
throughout the judicial system. The ultimate principle is: while citizens are at liberty to
contest electoral outcomes, they will proceed within prescribed timelines, and in this way
help to sustain the due functioning of other constitutional processes”.
216. However, if the litigant’s right to the judicial process in the framework of the right of access to justice
is in any way compromised, the entire Constitution is in turn compromised. In the matter currently
before us, as was the case in Lunga Lunga, the right of access to justice, extends beyond the parties in this
case unto the electorate of Nairobi County. The examination of their right to vote by the Court, with
tremendous respect, ought not to be hinged on the administrative turns of the judicial process. The
administrative judicial system must ensure that the proceedings, judgment and any other requirements
that an intended appellant may need to lodge their claim within the strictest timelines is provided
to them and in the most ecient way. Courts of law cannot be the guardians of the Constitution
and at the same time stand in the way of the realization of the fundamental rights of the individual,
particularly that of access to justice. Had the proceedings in this matter been issued by the Deputy
Registrar of the High Court immediately after delivery of judgment, my mind would have been settled
with the way of the majority decision in this matter. The lapse in the registry process however does
not allow me to agree. With profound respect to my brothers and sister Judges, I do believe that
responsibility of this Court is to set straight the processes that guarantee the rights of litigants to enable
them to approach our judicial institutions unhindered, albeit regulated, and in a way that does not
compromise any of their rights; the matter that is before us today, requires such an intervention.
217. Is this Court powerless, as suggested by counsel for the Appellant, in the exceptional circumstances
where a litigant is disadvantaged by factors outside his or her control? The history of electoral
dispute settlement in Kenya negates any argument that the Court is powerless in such circumstances.
For many years, the courts were part of the problems impeding electoral justice, where potential
petitioners were unable to serve their powerful opponents, or where they did, les would mysteriously
disappear or reappear after the required ling deadlines had already passed. These issues are well
documented in several reports by the International Commission of Jurists (Kenya) and other election
monitoring groups, where they list the judicial system in this country, in the past, as having committed
several electoral injustices including “courts insisting that Petitions must be personally signed by the
Petitioner; where the Court held that a petition must be served personally upon the Respondent, such
as the controversial case of Mwai Kibaki v. Daniel Toroitich Arap Moi, Civil Appeal No. 172 of 1999
as consolidated with Civil Appeal No. 173 of 1999; or courts requiring high security for costs to the
detriment of those who are unable to raise this amount; or courts taking inordinate amount of time to
dispose Petitions; or unreasonable delays, resulting in ineectual decisions and dismissal of petitions
on grounds of technicality”.
218. And therefore a case such as the one before us, begs the question, are these misadventures and
misapplications in our past - eradicated by our transformative Constitution, or are they still lurking
menacingly, within the corridors of justice? If the latter is the case, then should a judicial ocer down
his or her tools mechanically, citing procedural technicality in the face of administrative unfairness?
I respectfully think not. The entire judicial machinery including its administrative arm ought to
respond to the impetus of judicial authority, which, aside from emanating from the people of Kenya,
imposes certain guiding principles, under Article 159 (2): that justice shall be done to all, irrespective
of status; justice shall not be delayed, justice shall be administered without undue regard to procedural
technicalities and the purpose and principles of the Constitution shall be protected and promoted.
These principles manage the exercise of judicial authority and indeed call upon all Judges to exercise
managerial judging to suit the demands of Kenya’s transforming charter. This duty is exercised in
the discretionary powers of the Court to extend statutory timelines where a convincing case, geared
towards the protection of fundamental rights and freedoms is made out.
219. The concept of managerial judging has been employed in other jurisdictions including India and the
United States [see: (Robert Moog, Delays in the Indian Courts: Why the Judges Don’t Take Control,
The Justice System Journal, Vol. 16, No. 1 (1992), pp. 19-36)]. This concept allowed Justices in the
United States to apply the doctrine of unique (exceptional) circumstances which had been applied to
accord litigants the full protection of the law for many years, until its controversial reversal recently
by the US Supreme Court. I am aware that the statutory timelines provided by statute are critical,
however where vital aspects of the Bill of Rights including the constitutional rights of access to justice
and fair hearing as embodied in our Constitution are compromised, then a Court ought to give these
aspects full consideration. In other jurisdictions, the Courts over the years have not ignored the eect
of intervening circumstances upon a litigant’s right of access to justice and fair hearing.
220. This regulatory role was recognised by Rawal, DCJ and Vice President in her concurring opinion in
Anami Silverse Lisamula v. The Independent Electoral and Boundaries Commission and Two Others,
Sup. Ct. Petition No. 9 of 2014, (the Lisamula case) at paragraph 137:
“The special nature of the Supreme Court has been succinctly elaborated by Harry H.
Wellington in his book, Interpreting the Constitution (Universal Law Publishing Co. 2008)
(at page 144). The Supreme Court adjudicates disputes, but it is the regulatory eect of
its adjudication that is the Court’s raison d’etre. This Court’s highest duty to interpret
the Constitution, as demanded by the Constitution itself, must be taken as a mechanism
to crystallize the law, and set the Republic, through the Constitution, on the path of
maturation. Justice Cardozo in his book, The Nature of the Judicial Process (Universal
Law Publishing Co., 2011) (at page 14), elaborates the attendant features to interpretation.
He recognizes that “codes and statutes do not render the Judge superuous, nor his work
perfunctory and mechanical”. Rather, interpretation means that there are doubts and
ambiguities to be cleared. There are hardships and wrongs to be mitigated, if not avoided.
Interpretation, and especially one undertaken by a Court in its appellate form, and steered
towards constitutional application and interpretation, is not just a search for meaning. It is
an exercise requisite to completing the anchoring pillars of constitutional governance………”
221. The more imperative consideration is that of the Bill of Rights under the Constitution. Articles 19
and 20 of the Constitution are instructive. Article 19(1) and (2) provides:
(1) The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social,
economic and cultural policies.
(2) The purpose of recognizing and protecting human rights and fundamental freedoms is to
preserve the dignity of individuals and communities and to promote social justice and the
realization of the potential of all human beings.
Article 20 (3) and (4) provides:
“(3) In applying a provision of the Bill of Rights, a court shall:
(a) develop the law to the extent that it does not give eect to a right or fundamental
freedom; and
(b) adopt the interpretation that most favours the enforcement of a right or fundamental
freedom.” [Emphasis added]
“(4) In interpreting the Bill of Rights, a court, tribunal or other authority shall promote:
(a) the values that underlie an open and democratic society based on human dignity,
equality, equity and freedom; and
(b) the spirit, purport and objects of the Bill of Rights.”

Article 50(1) guarantees every citizen the right to have any dispute that can be resolved
by the application of law decided in a fair and public hearing before a court or, if
appropriate, another independent and impartial tribunal or body. The right to fair
hearing encompasses that of fair trial, which is a non-derogable right protected under
Article 25(c): the enjoyment of this right cannot be curtailed by any other Article
in the Constitution. The events unfolding at the registry and the delay in the release
of proceedings should not compromise the 1st respondent’s inalienable right to fair
hearing. Thus this Court ought to respond to the constitutional command that every
person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the
greatest extent consistent with the nature of the right or fundamental freedom [Article.
20(2)] in allowing the 1st respondent the opportunity to realize his unlimited right to
fair hearing.
222. At this juncture it is important to dierentiate a timeline that is spelt out within the Constitution
and one that is based on statutory at as elaborately argued by senior Counsel Paul Muite. An
interpretation of Statute, unlike that of the Constitution, calls for an assessment of the intention of
Parliament when making a particular law or regulation. In the instant matter, it is incomprehensible
to me that Parliament could have intended to lock out a litigant from the right to appeal, merely
on the basis of inability to le an appeal on time due to the late receipt of vital court documents,
such as proceedings, from a third party. Indeed, the provision in the Elections Act, 2011 signies the
intention of Parliament to facilitate the right of appeal, which right had not been provided for in the
Constitution. The construction and meaning of that intention of the Legislature must therefore be
read into the words of the relevant law.
223. Section 85A of the Elections Act, 2011 is a statutory provision unlike Articles 25, 50 and 87(2) of
the Constitution. Section 85 requires that an appeal from the High Court in an election petition
concerning membership of the National Assembly, Senate or the oce of county governor be led
within thirty days of the decision of the High Court. I am of the considered opinion, that the
construction of the term “decision” must be facilitative in order to assist the aected party, and ought
to encapsulate all the prerequisite documents, emanating from the High Court necessary for lodging
an appeal before the Court of Appeal. Proceedings ought, in the circumstances, to be construed as
forming part of the decision of the High Court, such that time starts running from when the Petitioner
has all tools necessary to le his appeal. This interpretation allows every party an opportunity to present
their case (to be heard) and therefore guided by the Constitution under Articles 19 and 20. In this
instance, even after the High Court delivered its Judgment, this singular document was not enough to
satisfy the requirements of lodging an appeal. As is common practice, the letter requesting proceedings
was done on time and the certicate of delay was thereafter issued as the sanitiser, as it is customary, of
the time lapse between the delivery of Judgment and the ling of the appeal. The same must have been
pegged upon the instruction of Rule 82(1) of the Court of Appeal Rules. I would agree with Kiage, J.A
for the majority that the certicate of delay issued by the High Court legitimized the 1st respondent’s
calm and eventual decision to lodge the appeal after the release of the proceedings.
224. Can this Court, the ultimate custodian of the Constitution and the aspirations of the Kenyan people,
abdicate its mandate as commanded by Article 19 and 20? Article 85A of the Elections Act, 2011
cannot be applied in a manner to negate a litigant’s unlimited right to fair trial. Certainly, the provisions
of the Constitution in Articles 25 and 50 are superior to the provisions of the Elections Act, 2011
which Act therefore must conform to the dictates of the Constitution. This Court ought to adopt an
interpretation that promotes the spirit and purport of the Bill of Rights as well as that which most
favours the 1st respondent’s right to fair hearing.
225. In concluding this issue, I am of the opinion that the Court of Appeal Rules [rule 82] relied on in the
Majority decision are not necessarily in conict with, or inferior to, Elections Act, 2011. The provisions
of the Interpretation and General Provisions Act, CAP 2 which is dened as an ‘Act of Parliament
to make the provision in regard to the construction, application and interpretation of written law,
to make certain general provisions with regard to such law and for other like purpose. [excepting the
Constitution]’, reads as follows:
“Section 59. Construction of power to extend time.

Where in a written law a time is prescribed for doing an act or taking a proceeding and power
is given to a court or other authority to extend that time, then unless a contrary intention
appears, the power may be exercised by the court of other authority although the application
for extension is not made until after the expiration of the time prescribed.”
Section 59, therefore, provides a bridge between the Elections Act and the Court of Appeal
Rules. The Elections Act prescribes a time for doing an act but does not expressly state that
that time may not be extended within the connes of Section 59 and the Court of Appeal
Rules. This lends credence to the words of GBM Kariuki JA, where in the Majority of the
Court of Appeal, he stated that if Parliament had intended for the Court of Appeal Rules
not to apply, it would have stated so. I agree with his nding.
226. In light of the foregoing, I am of the opinion that it was proper for the Court of Appeal to admit
and hear the 1st respondent’s appeal in the circumstances. It is clear that the Court of Appeal was in
furtherance of the constitutional imperatives of access to justice and fair hearing when it opened its
doors to the 1st respondent. Prior to the passing of the Constitution in the year 2010, the problem
of delay in concluding election matters was facilitated by the rules of service, proceedings and the
duration taken to deliver the judgments. While most of these impediments have now been cleared,
the registry processes with respect to proceedings remain unaddressed. There is urgent need to reform
these administrative processes, including the application of appropriate sanctions upon errant ocers
working in the Registry, where need be, to respond to the dictates of Articles 25, 50, 87(2) of the
Constitution and Section 85A of the Elections Act, 2011. This is a matter of utmost urgency.
III. Whether the Court of Appeal disregarded the doctrine of stare decisis, by failing to apply binding
decisions of the Supreme Court in Contravention of Article 163(7) of the Constitution;
227. Counsel for the Appellant submitted that in arriving at its determination, the Court of Appeal
breached the doctrine of precedent in three instances: on the question of timelines, on the issue of
scrutiny, and on the burden and standard of proof.
(a) Timelines
228. It was submitted that the Court of Appeal, in its majority decision breached the provisions of Article
163(7) of the Constitution and Section 31 of the Interpretation and General Provisions Act (Cap 2)
of the Laws of Kenya in holding that Rule 82(1) of the Court of Appeal Rules, 2010 conferred upon
the Court of Appeal jurisdiction to hear an election appeal led beyond the requisite timelines as per
Section 85A of the Elections Act, 2011. Counsel argued that this holding elevated Rule 82(1) of the
Court of Appeal Rules beyond Section 85A of the Elections Act, 2011. In addition, it was argued that
this holding was in contrast with the unambiguous holdings of the Supreme Court with regard to
timelines in: Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, Sup Ct. Petition No.
10 of 2013 (the Joho case) (at paragraph 75); Mary Wambui Munene v. Peter Gichuki King’ara & 2
Others, Sup Ct. Petition No. 7 of 2013 (the Mary Wambui case) (at paragraphs 87 and 88); Gatirau
Peter Munya v. Dickson Mwenda Kithinji& 2 others, Sup Ct. Application No 5 of 2014 (at paragraph
77) and Re the Speaker of the Senate & Another v. Attorney General & 4 Others, Sup Ct. Advisory
Opinion No. 2 of 2013; [2013] eKLR, (the Senate case) (at paragraph 30).
229. It was argued that in the cited cases, the Supreme Court made a number of binding principles: The
Court - described the complete code governing the ling, prosecution and determination of election
petitions in Kenya to be the Constitution, the Elections Act and the Rules made pursuant to the Act;
armed that “time” was a vital element in the electoral process limiting the jurisdiction of the Court
to its connes; held that any statutory provision or rule of procedure contradicting or detracting from
the expressed spirit of time in accordance with Article 87(1)of the Constitution is null and void. Lastly,
that the Supreme Court dissuaded lower Courts from being ingenious or crafty in interpreting the
intention of parliament where the wording of legislation was clear and devoid of ambiguity.
230. Counsel pointed out that Kiage JA, in his lead opinion determined that the Court of Appeal had
discretion to extend the time set out in Section 85A of the Elections Act, 2011 departing from the
holding of this Court in relation to timelines in election petitions. It was argued that this holding
eectively endorsed a distinct jurisdiction from that conferred by Section 85A of the Elections Act,
2011 to be conferred on the Court of Appeal by way of subsidiary legislation. In this respect, Kiage
JA, in his separate but leading opinion held:
The Elections Act itself does not provide for the procedure and manner in which such
appeals are to be led, however. I do not see this as an accidental slip or omission, less still as
an invitation to some kind of procedural free-for-all. One cannot, for example, write a letter
to the Court stating his grievances against the High Court judgment and so view himself
an appellant. He cannot le a Petition of Appeal or a bare Memorandum of Appeal and
consider himself compliant with Section 85A of the Elections Act. He must perforce le
his appeal by lodging all the items requisite under Rule 81 of the Court of Appeal Rules.
Nothing less will do. This perfectly reasonable conclusion nds expression in Rule 35 of the
Elections Petition Rules, 2013 which I see as a wholesale and necessary importation of the
Court of Appeal Rules without qualication and without the faintest suggestion that the
Rules of Court have been ousted or modied………
It seems to me that the thirty-day period is premised on an assumption that an appellant
will not be hindered or prevented by factors outside his control in obtaining the documents
requisite for his ling of the appeal, particularly the documents that constitute a record of
appeal …
It seems clear to me that so long as proceedings are bespoken by an appellant within the
time specied by this Rule and the request is in writing and duly copied to the opposite
side, a certicate of delay duly issued is conclusive. It ensures that when reckoning the days,
be they the sixty past notice of appeal for all appeals generally, or any shorter period as may
be specied by a special Act of Parliament, the days so certied are excluded, as indeed they
must…..”
231. Counsel cited the case of Ferdinand Waititu v. Independent Electoral and Boundaries Commission
(IEBC) & 8 Others, Civil Appeal No. 137 of 2013 (the Ferdinand Waititu case), armed by this Court
in the Joho case to underline that the Court of Appeal should not have moved away from the holding
of this Court with regard to timelines. In this case, the Court of Appeal held that:
“To meet that constitutional requirement, parliament enacted the Elections Act….
These timelines set by the Constitution and the Elections Act are neither negotiable nor can
they be extended by any Court for whatever reason. It is indeed the tyranny of time, if we
may call it so. That means a trial Court must manage the allocated time very well so as to
that the Election Petition Rules be amended to bring about mechanisms of expediting trials.
The Elections Act and the Rules made there under constitute a complete code that governs
the ling, prosecution and determination of election petitions in Kenya……”
232. Counsel further cited the case of Gatirau Peter Munya v. Dickson Mwenda Kithinji & Others Sup
Ct. Petition No. 2B of 2014, (the Munya case) to emphasize the signicance of Section 85A of the
Elections Act. In this case, it was held (at paragraph 64):
“Section 85 A of the Elections Act is, therefore, neither a legislative accident nor a routine
legal prescription. It is a product of a constitutional scheme requiring electoral disputes to
be settled in a timely fashion...”
(b) Scrutiny
233. It was also argued that the learned Judges of the Court of Appeal concluded that scrutiny is an
automatic right that ought to be granted to any litigant even in the absence of a proper basis. It was
counsel’s contention that this holding also fundamentally contrasted the nding of this Court in the
Raila Odinga case.
(c) Burden and standard of proof

234. It was also submitted that the learned Judges of the Court of Appeal deviated from the principles of
the incidence of burden and standard of proof in election matters in contrast to the holding of this
Court in the case of Raila Odinga & Others v. Independent Electoral and Boundaries Commission &
Others, Sup Ct. Petition No. 5 of 2013 (the Raila Odinga case).
The doctrine of Stare decisis in Kenya

235. Article 163(7) of the Constitution constitutionalizes the dual doctrine of stare decisis: vertical
precedent which is mandatory and horizontal precedent (at the Supreme Court) which is
distinguishable. This provision provides that:
“All Courts, other than the Supreme Court are bound by the decisions of the Supreme
Court.”
236. The principle of stare decisis in Kenya unlike other jurisdictions is a constitutional requirement
aimed at enhancing certainty and predictability in the legal system. The Articles of establishment and
jurisdiction reveal the Court’s vital essence and the decisions of this Court protect settled anticipations
by ensuring that the Constitution is upheld and enforced and that the aspirations of the Kenyan people
embodied in a system of constitutional governance are legitimized. The constitutional contours of
Article 163(7) oblige this Court to settle complex issues of constitutional and legal controversy and to
give jurisprudential guidance to the lower Courts. In the exercise of our mandate, we determine the
constitutional legality of statutes and other political acts to produce judicially-settled principles that
consolidate the rule of law and the operation of government and political-disposition particularly in
the settlement of electoral disputes. As a Court entrusted with the nal onus of settling constitutional
controversies, one of our principal duties is the enforcement of constitutional norms.
237. The principle of Article 163(7) of the Constitution is further reinforced by Section 3 of the Supreme
Court Act, 2011 mandating the Supreme Court to develop the law. Section 3 provides:
“The object of this Act is to make further provisions with respect to the operation of the
Supreme Court as a court of nal authority to, among other things-
a. …
b. …
c. develop rich jurisprudence that respects Kenya’s history and traditions and
facilitates its social, economic and political growth;……”[Emphasis added]
238. Article 163(7) of the Constitution serves as a form of hierarchical control in respect to constitutional
interpretation and the same is indefeasible and absolute. I must however emphasize the prerequisites of
Article 259 of the Constitution requiring the Constitution to be interpreted in a manner that permits
the development of the law [Article 259(1)(c)] and advances the rule of law, human rights and the
fundamental freedoms in the Bill of Rights [Article 159(1)(b)]. As such, regard to the precedents of this
Court does not bar lower Courts from adhering to these progressive requirements. As an interwoven
system of justice, the responsibility of every judge is to ensure that the mandated exercise of judicial
authority is followed and that ultimately, justice is delivered within the connes of the Constitution.
Only then can the Judiciary deliver itself as a custodian of the sovereignty of the people.
239. The ecacy of precedent to promote the rule of law is of vital signicance. The rule of law as a
principle of democratic governance, requires a dened system of legal operation that is both certain
and predictable aiding the seamless functioning of the political institutions in Kenya in the interwoven
system of governance. Being the Court at the apex of the judicial system, this Court has to guide the
lower Courts in rendering decisions that are principled and consistent. We have acknowledged that
every Court in our hierarchical ordering has the professional competence to deal with issues presented
before it [see: Peter Oduor Ngoge v. Francis Ole Kaparo & others Sup Ct. Petition No. 2 of 2012 and
Erad Suppliers & General Contractors Limited v. National Cereals & Produce Board Sup Ct. Petition
No. 5 of 2012].
240. As already noted, the signicance of Article 163(7) is to regulate the development and settlement
of our jurisprudence through the Supreme Court as the forum entrusted with the nal mandate
to interpret Kenya’s transformative charter. This Court for instance bears the nal responsibility of
interpreting the constitutional propriety of Acts of Parliament as demonstrated in the Joho case.
Constitutional interpretation allows the country’s constitutive charter to eectively guide the conduct
of activities within the Republic. Therefore binding precedent ensures that arbitrary discretion by
lower courts resulting into jurisprudential incoherence is avoided. This doctrine of precedent liberates
Courts from considering every disputable issue as if it were being raised for the rst time. This Court
constantly examines its own previous decisions where similar facts abide as can be demonstrated in our
consideration of election appeals. Under our mandate to develop the law, we endeavour to expand pre-
set principles when the circumstances of the case permit.
241. We have discernibly pronounced ourselves on the value of precedent set by this Court [see: the Munya
case at paragraphs 196 and 197; Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai and 4 Others Sup
Ct Petition No 4 of 2012 at paragraphs 39, 40, 42, 50 and 60; George Mike Wanjohi v. Steven Kariuki
& Others Petition No. 2A of 2014 at paragraphs 79, 82, 83 and 86; Frederick Otieno Outa v. Jared
Odoyo Okello & 3 Others, Sup. Ct. Petition 10 of 2014 at paragraph 57 and Zacharia Okoth Obado
v. Edward Akong’o Oyugi & 2 Others, Sup Ct. Petition No 4 of 2014, at paragraph 122].
242. The appropriate application of judicial precedent in consonance with the Constitution is a judicial
norm and the fact that a Court may distinguish a case on the factual composition does not give it power
to deviate from the ratio. The key utility of precedent is to ensure the protection of the fundamental
utility of uniformity [Sir Frederick Pollock, Essays in Jurisprudence and Ethics, (MacMillan Company,
1882) at page 237]. The system of judicial precedent kept uniform by a Supreme Court (of appeal) as a
chosen means of keeping up the assumption of uniformity is an indispensable auxiliary (ibid, p. 243).
In applying case-law, one must consider the material conditions of the issue in question. One must
then assign the question to its proper class or consideration and observe the right points of likeliness
in the cases under consideration (ibid, p. 249).
243. It is to be noted that the judgments of a Court of nal appeal stand on a dierent basis from those of
subordinate courts. A departure therefore should be a rare phenomenon justiable only on the basis of
consideration of the deepest sentiments of justice occasioned by a complete dissociation of the factual
situation between the previous case and that being considered. It must be apparent that the test of
experience and the passage of time have rendered the rule untenable of application in the circumstances
then prevailing. The settlement of electoral law by this Court eliminates any diculty in identifying
the rationes set forth as binding precedent.
244. The constitutional adoption of this doctrine of stare decisis in our jurisdiction is dierent from the
common law position in England. Article 163(7) of the Constitution is express that the decisions of
this Court are not binding on it. The outlines of distinguishing were laid down in the Rai case as
elaborately highlighted. In the House of Lords prior to 1966, the decisions of the House of Lords
were binding on the Court itself. Although as argued, this requirement was an insistence by the
House of Lords itself and not one of absolute requirement (Neil Duxbury, The Nature and Authority
of Precedent (Cambridge University Press, 2008) page. 103). The Court (Lord Gardiner L.C, Lord
Viscount Dilhorne, Lord Reid, Lord Denning, Lord Parker of Waddington, Lord Morris of Borth-Y-
Gest, Lord Hodson, Lord Pearce, Lord Upjohn and Lord Wilberforce) distinguished the application
of the principle at the House of Lords and other Courts in England in the Practice Statement (Judicial
Precedent) [1966]1 WLR 1234as follows:
As delivered by Lord Gardiner L.C.:
Their Lordships regard the use of precedent as an indispensable foundation upon

which to decide what is the law and its application to individual cases. It provides
at least some degree of certainty upon which individuals can rely in the conduct
of their aairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper development of the law. They
propose, therefore, to modify their present practice and, while treating former decisions of
this House as normally binding, to depart from a previous decision when it appears right
to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis
on which contracts, settlements of property and scal arrangements have been entered into
and also the especial need for certainty as to the criminal law.
This announcement is not intended to aect the use of precedent elsewhere than in this
House. [Emphasis added]
245. Noting the laid down guidelines regarding the essence and application of the principle of stare decisis
in our judicial system, I now analyse the issue: whether the Court of Appeal in its majority decision,
(exhibited in the lead judgment of Kiage JA, with G.B.M Kariuki JA, concurring) disregarded the
decisions of this Court as far as the principles of time, scrutiny and burden of proof were concerned.
246. Counsel contended the majority holding (exhibited in the lead judgment of Kiage JA,) regarding the
competency of the Appeal. In recognition of the principle of time and the question of jurisdiction, the
Court of Appeal on its own motion invited the parties to comment on the competence of the appeal
as it went to the very foundation of the appeal. Kiage JA, expressed doubt in a previous decision of the
Court of Appeal in the Ferdinand Waititu case when the Court held:
“These timelines set by the Constitution and the Elections Act are neither negotiable nor
can they be extended by any Court for whatever reason. It is indeed the tyranny of time, if
we may call it so. That means a trial court must manage the allocated time very well so as to
that the Election Petition Rules be amended to bring about mechanisms of expediting trials.
“The Elections Act and the Rules made there under constitute a complete code
that governs the ling, prosecution and determination of election petitions in
Kenya. That being the case, any statutory provision or rule of procedure that
contradicts or detracts from the expressed spirit of Article 87(1), and 105(2) and
(3) of the Constitution is null and void. The Constitution is the Supreme law of
the land and all statutes, Rules and Regulations must conform to the dictates of
the Constitution.”
Kiage JA, was hesitant to apply this holding and indeed regarded it as possibly obiter. He
applied the guidepost by this Court in the Joho and Senate cases leading other Courts
towards upholding justice at all times. At paragraph 48, Kiage JA, held:
“While the principle of timely disposal of election petitions armed by the Court
of Appeal, must be steadfastly protected by any Court hearing election disputes,
or applications arising from those disputes, the interests of justice and rule of law
must be constantly held paramount.”
The judge evaluated the applicability of the Court of Appeal Rules to the entire realm of
electoral law and noted that there was no inconsistency between the Rules and the electoral
law (see page 33 of J. Kiage’s Judgment). The judge did not go beyond the principles of this
Court as enumerated in the Joho case. Rather, he applied the principles laid down by this
Court against the special circumstances of the matter before him. I cannot fault his analysis
on this issue as being a departure from the cited decisions of this Court, to do so would be to
conne the Court of Appeal to a rigid application of the decisions of this Court even where
the circumstances and the applicable law is well varied.
247. This Court has considered the principle of time at great length in its previous judgments, in particular,
demonstrating the link between time and the jurisdiction of the Election court as well as the Court of
Appeal. There is a nexus between Article 87(1) of the Constitution and Section 85A of the Elections
Act, 2011 which in the Munya case (delivered 17 days after the Court Appeal’s judgment in this matter)
we stated to be as follows, (at paragraphs 62 and 63):
“Article 87 (1) grants Parliament the latitude to enact legislation to provide for“timely
resolution of electoral disputes.” This provision must be viewed against the country’s
electoral history. Fresh in the memories of the electorate are those times of the past, when
election petitions took as long as ve years to resolve, making a complete mockery of the
people’s franchise, not to mention the entire democratic experiment. The Constitutional
sensitivity about “timelines and timeliness”, was intended to redress this aberration in the
democratic process. The country’s electoral cycle is ve years. It is now a constitutional
imperative that the electorate should know with nality, and within reasonable time, who
their representatives are. The people’s will, in name of which elections are decreed and
conducted, should not be held captive to endless litigation.”
“Herein lies the nexus between Article 87 (1) of the Constitution and Section 85A of
the Elections Act. Election petitions, not surprisingly, come up for special legislation that
prescribes the procedures and scope within which Courts of law have to resolve disputes.
Thus, judicial resources should be utilized eciently, eectively and prudently. By limiting
the scope of appeals to the Court of Appeal to matters of law only, Section 85A restricts the
number, length and cost of petitions and, by so doing, meets the constitutional command
in Article 87, for timely resolution of electoral disputes.”[Emphasis added]
248. In the preceding paragraphs of this Judgement, I have analysed the actual time implications of
Section 85A and its intersection with the Court of Appeal Rules in the settlement of election appeals
particularly in instances where immoderate delay stems from the administrative arm of the Court. In
the appeal before the Court, the honourable Judges of the Court of Appeal considered in great depth
and in actual circumstance, the bounds of Section 85A of the Elections Act, 2011 vis a vis the Rules
governing the Court. This examination was well within the bounds of their power and the same cannot
be faulted for failure to abide by Article 163(7).
249. On scrutiny, Kiage JA, held that there were no condition precedents imposed by the Elections Act,
2011 to the grant of an Order for scrutiny (p. 56 of the lead judgment). This Court has now settled the
law in this regard and held that scrutiny is not an automatic right and that sucient basis is a requisite
condition where such an Order is sought. In the Munya case, this Court endorsed the decision of
the Court of Appeal on this issue in Nicholas Salat v. Wilfred Rotich Lesan & Others, Civil Appeal
No. 228 of 2013 (Gatembu & M’Inoti, JJA, with Kiage JA, dissenting). At the time of the Court of
Appeal’s decision in this matter, the Supreme Court had not delivered the Munya case and I therefore
do not nd that the Judges of Appeal (in the majority) disregarded it.
250. On the question of burden of proof, I nd that the lead Judgement of the Court of Appeal, did not
disregard the precedent laid down by this Court in the Raila Odinga case. Kiage JA., only presented
an analysis of the trial Judge’s application of the holding in Mbowe v. Eliufo [1967] E.A 240. In that
regard, there is no merit in the allegation of departure on this issue.
IV. Whether the judges of the Court of Appeal, in the majority decision (G.B.M Kariuki & P.O Kiage,
with M. Warsame J.A dissenting) erred in holding that the 1st respondent’s right to a fair
trial, under Article 25(c) and 50 of the Constitution had been denied when the High Court
curtailed the cross-examination of the 5th appellant;
251. The Court of Appeal, in its majority decision (G.B.M. Kariuki J.A) found that the trial Judge wrongly
exercised his discretion with regards to: the 1strespondent’s application for scrutiny and recount;
the application to tender additional evidence; and the curtailment of cross-examination of the 5th
appellant, Fiona Waithaka who was the Nairobi County Returning Ocer and therefore deprived the
1st respondent the right to a fair hearing which is guaranteed under Article 50 of the Constitution and
which cannot be limited by virtue of Article 25.G.B.M. Kariuki, J.A in the majority opinion stated
that (paragraph 104):
“…the trial should have been conducted in a manner that would have facilitated
ascertainment of the accuracy of votes, but instead the trial court stied the adduction of
evidence…the eect of this was to deny the appellant a fair hearing.”
252. Arising from rival contentions from Counsel for the appellant and respondent on this question, it is
my perception that the following issues arise for determination: (i) what is the scope of the right to
a fair hearing or a fair trial?; (ii) Did the trial Judge deny the 1st respondent the right to a fair trial by
denying the request for scrutiny and recount, curtailing the extent of cross-examination of witnesses
and on the scrutiny report, and denying the application to introduce new evidence?; and (iii) What
remedies are available if the trial Court infringed the right to a fair trial?
The scope of the right to a fair hearing

253. It is apt, rst, in examination of the question before us to determine whether the Judges of the High
Court and Court of Appeal in any way, at any stage of trial of this matter, violated the right to a ‘fair
hearing.’ Consequently therefore it is important to understand the distinctive meaning, scope and
implication of this right.
254. This right is clearly spelt out in the Constitution. Article 50(1) of the Constitution provides that:
“Every person has the right to have any dispute that can be resolved by the application of law
decided in a fair and public hearing before a court or, if appropriate, another independent
and impartial tribunal or body.”
Article 25 of the Constitution stipulates that:
“Despite any other provision in this Constitution, the following rights and fundamental
freedoms shall not be limited –
(a) freedom from torture and cruel, inhuman or degrading treatment or

punishment;
(b) freedom from slavery or servitude;
(c) the right to a fair trial;
(d) the right to an order of habeas corpus.”
255. Article 50(1) refers to the right to a fair hearing for all persons, while Article 50(2) accords all accused
persons the right to a fair trial. Article 25(c) lists the right to a fair trial as a non-derogable fundamental
right and freedom that may not be limited. Often the terms ‘fair hearing’ and ‘fair trial’ are used
interchangeably, sometimes to dene the same concept, and other times to connote a minor dierence.
Although the right to a fair trial is encompassed in the right to a fair hearing in our Constitution, a
literal construction of these two provisions may be misconstrued in some quarters to mean that Article
50(1) deals with the right to fair hearing in any disputes including those of a civil, criminal or quasi
criminal nature whereas Article 50(2) is limited to accused persons thereby arguing that the protection
of such right only relates to criminal matters. This is not an acceptable interpretation or construction
within the parameters of Articles 19 and 20 of the Bill of Rights, which calls for an expansive and
inclusive construction to give a right its full eect.
256. Indeed, the African Commission on Human and People’s Rights established general principles to all
legal proceedings applicable by Member States, of which Kenya is one. Therefore the principles are
binding under Article 2(5) and (6) of the Constitution, and include the following:
“General Principles Applicable to all Legal Proceedings:
1. Fair and Public Hearing

In the determination of any criminal charge against a person, or of a person’s
rights and obligations, everyone shall be entitled to a fair and public hearing
by a legally constituted competent, independent and impartial judicial body.
2. Fair Hearing
The essential elements of a fair hearing include:
…
(e) adequate opportunity to prepare a case, present arguments and evidence and
to challenge or respond to opposing arguments or evidence;
(f) an entitlement to consult and be represented by a legal representative or other

qualied persons chosen by the party at all stages of the proceedings;
…
(i) an entitlement to a determination of their rights and obligations without

undue delay and with adequate notice of and reasons for the decisions; and
(j) an entitlement to an appeal to a higher judicial body.”
257. Fair hearing, in principle incorporates the rules of natural justice, which includes the concept of audi
alteram partem(hear the other side or no one is to be condemned unheard) and nemo judex in causa sua
(no man shall judge his own case) otherwise referred to as the rule against bias. Peter Kaluma, Judicial
Review: Law, Procedure and Practice 2nd Edition (Nairobi: 2009) at page 195, notes that the rules of
natural justice generally refer to procedural fairness in decision making. Further he analyses the two
mentioned concepts of the rules of natural justice and states [at pages 176 and 177] that it is the duty of
the courts, when dealing with individual cases, to determine whether indeed the rules of natural justice
have been violated and noting that “although the necessity of hearing is well established, its scope and
contents remain unsettled.”
258. What then are the norms or components of a fair hearing? The Supreme Court of India, in Indru
Ramchand Bharvani & Others v. Union of India & Others, 1988 SCR Supl. (1) 544, 555 found that
a fair hearing has two justiciable elements:
(i) an opportunity of hearing must be given; and
(ii) that opportunity must be reasonable (citing Bal Kissen Kejriwal v. Collector of Customs,
Calcutta & Others, AIR 1962 Cal. 460).
259. That Court in Union of India v. J.N. Sinha & Another, 1971 SCR (1) 791 and C.B. Boarding &
Lodging v. State of Mysore, 1970 SCR (2) 600 held that with regards to fair hearing, each case has to be
decided on its own merits. In Mineral Development Ltd. v. State of Bihar, 1960 AIR 468, 160 SCR (2)
909 the Court further observed that the concept of fair hearing is an elastic one and “is not susceptible
of easy and precise denition.”
260. The Court of Appeal at Kampala in Uganda in Obiga v. Electoral Commission & Anor., Election
Petition Appeal No. 4 of 2011 [2012] UGCA 29 (Obiga) held that in order to determine whether a
party received a fair hearing, the Court has to look to the statutes, case laws, and regulations that govern
the decisions that the Court made.
261. It is important to restate that a literal reading of the provisions of the Constitution show that the right
to a fair hearing is broad and includes the concept of the right to a fair trial as it deals with any dispute
whether they arise in a judicial or an administrative context. Comparative experience shows that the
European Court has elaborated on the question regarding the scope of the right to fair trial applying
the right in both civil and in criminal matters. The European Court of Human Rights (European
Court) has severally explained that: “it is central to the concept of a fair trial, in civil as in criminal
proceedings, that a litigant is not denied the opportunity to present his or her case eectively before
the court.” (See Steel and Morris v. United Kingdom, [2005] ECHR 103, paragraph 59).
262. Counsel for the 1st appellant cited as persuasive authority the cases of Ruiz Torija v. Spain, Application
No. 18390/91 and Hiro Balani v. Spain, Application No. 18064/91 in which the European Court
of Human Rights applied Article 6-1 of the European Convention on Human Rights (ECHR)
which, like Article 50(1) of the Constitution of Kenya, entitles an individual to a fair hearing by an
independent and impartial tribunal. The right to a fair trial in Article 6-1 in the ECHR refers to both
criminal and civil cases.
263. It is, therefore, trite law that all persons who come to the Court are entitled to a fair hearing whether
the matter instituted is criminal or civil in nature. In this context, the drafters of the Constitution 2010
in Article 25(c) placed a bar on limitation of the right to a fair trial, in civil and criminal matters alike.
Denial of the request to tender additional evidence

264. In a ruling dated 10th June, 2013, the trial Judge dismissed the 1st respondent’s motion seeking
admission of additional evidence in support of the petition through the adavits of seven proposed
witnesses. Counsel for the 1st respondent contended that this ruling infringed upon his right to a fair
trial.
265. Counsel for the 1st and 2nd appellants argued that the 1st respondent was seeking to redraft the petition
and introduce additional evidence after the expiry of the 28 day period, within which to le an election
Petition and this was contrary to Article 87(2) of the Constitution and Section 76(4) of the Elections
Act. Further, he contended that the trial Judge held that the evidence would amount to speculative
evidence. Section 76(4) of the Elections Act provides that:
“A petition led in time may, for the purpose of questioning a return or an election upon
an allegation of an election oence, be amended with the leave of the election court within
the time within which the petition questioning the return or the election upon that ground
may be presented.”
266. Kiage J.A in his lead judgement found that the 1st respondent had made a sound and compelling case
for the admission of the evidence. He stated that the trial Judge locked out the adavits on technical
grounds as opposed to on a meritorious basis. G.B.M. Kariuki J.A also in the majority, opined that
the trial Judge was not alive to the need to have this evidence before him to facilitate the adjudication
of the dispute. He insinuated that the trial Judge was biased and showed improper exercise of judicial
discretion.
267. Warsame JA, in his dissenting opinion took a dierent view to that of the majority decision stating (at
pages 45 and 46):
“…Timeliness of ling of the petition and the witness statement and adavits is an
imperative constitutional obligation of the parties to put forward what they think their
cause of action, or their complaint is.
“The refusal by the learned judge of the application to allow these adavits cannot be
equated to shutting out evidence. If the appellant knew that the discovery of the truth
and proof of his cause would require those witnesses, then he ought to have made the
necessary attempts to secure them within reasonable time and in any event, before the close
of pleadings. The appellant did not show that what he attempted to introduce was evidence,
or was material discovered at a later date which he could not reasonably have been found
earlier. And as already stated, election disputes have been accorded strict timelines by the
Constitution and statute, and they must be adhered to.” [Emphasis added]
268. I am of the view that the decision whether to admit additional evidence in the course of a trial is a
discretionary power that the Court enjoys. A Court must however exercise this discretion judiciously
taking into account the particular facts at hand. This is the view that this Court expressed in Raila
Odinga where we held that:
“The other issue the Court must consider when exercising its discretion to allow a further
adavit is the nature, context and extent of the new material intended to be produced and
relied upon. If it is small or limited so that the other party is able to respond to it, then the
Court ought to be considerate, taking into account all aspects of the matter. However, if the
new material is so substantial involving not only a further adavit but massive additional
evidence, so as to make it dicult or impossible for the other party to respond eectively,
the Court must act with abundant caution and care in the exercise of its discretion to grant
leave for the ling of further adavits and/or admission of additional evidence.”
269. The Elections Petitions Rules have a similar provision to that of Rule 10 (f) of the Presidential Petition
Rules. Rule 17 (1) of the Elections Petitions Rules provides that:
“Pre-trial conferencing and prohibition of delayed interlocutory applications.
17.
(1) Within seven days after the receipt of the last response to a
petition, the court shall schedule a pre-trial conference with the
parties in which it shall—
…
(i) give directions as to the ling and serving of

any further adavits or the giving of additional
evidence; …”
270. The main question therefore is whether the 1st respondent’s right to a fair hearing and trial were
infringed upon by the denial of admission of new evidence. This Court in the Ruling in Raila Odinga
set out the guidelines with regards to admission of additional evidence.
271. In that ruling, this Court, denied the admission of a nearly 900 page adavit and set out guidelines for
the admission of additional evidence. This Court held that: the admission of additional evidence is not
an automatic right and that a court can exercise its discretion on whether or not to admit the evidence;
that further adavits must not seek to introduce massive evidence which will, in eect, change the
nature of the petition and also aect the respondent’s duty to respond to the said evidence; and that,
parties need to adhere to the strict timelines set out for the ling of petitions. This Court also found that
all parties are at a level playing eld and the addition of new evidence must not unfairly disadvantage
the other party who has to respond to the additional evidence.
272. I am of the view that the decision of this Court in the Raila Odinga Ruling, commonly cited in most
of the cases in which an application for additional evidence is considered by the court, was not meant
to prohibit the ling of any further adavit in all election petitions. That case must be distinguished
from others by the single fact that the presidential election petition had a constitutional timeline of
only 14 days within which it was to be heard and determined. The central challenge, inter alia, that
faced the Supreme Court then, was whether there was sucient time to accept the Petitioners adavit
led on the 7th day of the 14 day period, and allow responses through replying adavits, from the
other parties; which by right and to meet the requirements of fair hearing they were entitled to, and
still complete the hearing of the petition within the stipulated time set out by the Constitution. Given
the circumstances including the time left, the Court was unable to admit the adavit. This is dierent
from a matter before the High Court in which the Court has 6 months within which to hear and
determine an election petition.
273. The application in the current matter was made at the preliminary stages of the proceedings at the
High Court which meant the Court had sucient time to hear the matter and determine it even
after admitting the additional evidence by adavit. Likewise, the rest of the parties would have had
sucient time to respond to the additional evidence/adavits without being prejudiced in any way.
It is clear that the adavits did not in any way allude to issues that had not already been pleaded in
the petition. For this reason, I nd that the trial Judge erroneously disallowed the admission of the
additional adavits and in doing so violated the 1st respondent’s right to fair hearing.
Curtailing the extent of cross-examination of witnesses

274. One of the grounds upon which the majority decision of the Court of Appeal overturned the High
Court’s judgment was that the trial Judge (Mwongo J,) denied the 1st respondent a right to a fair
hearing by curtailing his right to cross-examine the 5th appellant, Fiona Waithaka, the Returning Ocer
for Nairobi County. Counsel for the appellants submitted that that trial Court correctly curtailed
such examination and provided the parameters of cross-examination and in so doing preserved the 1st
appellant’s right to a fair hearing. Counsel for the 1st respondent however disagreed with the appellants’
contention and submitted that the right to cross-examine is at the very core of a person’s right to a fair
hearing.
275. The genesis of this issue is the trial Judge’s ruling dated 26th June, 2013 [page 54 vol. B1 of the Record]
where he held:
“Accordingly, and for the above reasons, I am not inclined to allow the documents led by
the IEBC to be used in wide and general manner for cross-examination which may amount
to mere shing for information.”
276. By way of background, Fiona Nduku Waithaka was the 3rd, 4th and 5th appellants’ witness in the High
Court. She is also the 5th appellant herein by virtue of her position as the Nairobi County Returning
Ocer during the general elections held on 4th March, 2013. In compliance with Rule 15 of the
Elections (Parliamentary and County Elections) Petition Rules, 2013, she had led an adavit in
response to the allegations raised in the petition. Rule 15 provides:
(1) A Respondent shall at the time of ling a response to the petition, le an adavit sworn by
a witness whom the Respondent intends to call at the trial, which adavit shall set out the
substance of the evidence. [Emphasis added]
277. In compliance with Rule 21, the 3rd appellant (IEBC) had delivered ballot boxes and the results of the
Nairobi County gubernatorial election to the Registrar of the Court. Rule 21 provides:
21. The Commission shall deliver to the Registrar—
(a) the ballot boxes in respect of that election not less than forty-eight hours before the date xed
by the court for the trial; and
(b) the results of the relevant election within fourteen days of being served with the petition.
[Emphasis added]
278. The ruling of the trial Judge setting out the parameters of cross-examination stated as follows:
“During cross-examination of Fiona Nduku Waithaika RW1, by Mr. Kinyanjui for the
petitioner, she was shown Form 36 for Embakasi Constituency. She had given evidence that
she had looked at all forms 36 for all 17 Nairobi Constituencies before she compiled the
Form 36 for Nairobi County. Mr. Ojienda for the 4th and 5th Respondent and Mr. Okonjo
for the 1st, 2nd, & 3rd respondents objected to the line of questioning of counsel for the
petitioner on several grounds.”
279. Fiona Nduku Waithaka acknowledged the following in her evidence-in-chief as contained in her
adavit in response, at paragraph 7:
I. upon the completion of the tallying of results from all 17 constituencies in

Nairobi County for the gubernatorial election, completed and signed a Form
36 as by law required in respect of the said election. A true copy of the Form 36
dated and duly signed by myself is annexed to the 4th Respondents Replying
Adavit…” [Emphasis added]
280. What necessitated the objection by Counsel for the appellants was the production of Form 36 for
Embakasi Constituency by Counsel for the 1st respondent for authentication by the witness. Counsel
for the 1st and 2nd appellants contended that the documents that the 1st respondent sought to cross-
examine on, were neither made by the witness nor led as part of the pleadings. Counsel for the 3rd,
4th and 5th appellants also raised objections on the basis that the documents were not led as part of
the pleadings but were provided to the Registrar pursuant to Rule 21 of the Election Petition Rules.
Counsel for the 1stand 2nd appellants also noted that they had not been served with the said documents.
281. Counsel for the 1st respondent submitted that he applied for copies of all the forms led by the
IEBC and was duly furnished with them before trial. He argued that during the pre-trial proceedings,
Counsel for the IEBC stated that they would be relying on all Forms 35 and 36 led before the trial
Court in furtherance of Rule 21. The relevant connotation is contained at pg. 143 V.B1 of the record
of appeal where Mr. Nyamodi, Counsel for the 1st, 2nd& 3rd respondents at the High Court stated as
follows:
“Our response is yet to be served. To be done today. We have also led a Bundle of
Documents in accordance with the Rules. These are the Results of all 17 Constituencies i.e.
Form 35(each polling station) and Form 36 (each Constituency).” [Emphasis added]
282. By that statement, Counsel submitted that the IEBC intended to rely on the Forms 35 and 36 that
it had led in Court pursuant to Rule 21. He therefore argued that the said documents constituted
and formed part of the IEBC’s and the County Returning Ocer’s evidence of its conduct in the
impugned election.
283. Rule 21 provides inter alia that the IEBC shall deliver to the Registrar of the Court results of the
relevant election within 14 days of being served with the petition. The question then is whether the
County Returning Ocer can be cross-examined on the documents led pursuant to Rule 21 of the
Election Petition Rules.
284. As stated earlier, one of the grounds upon which the appellants objected to cross-examination of
the witness was that cross-examination ought to be permitted on contested issues and documents or
adavits properly led and served. The Elections Act and the Rules and Regulations made thereunder
govern the conduct of election petitions. Specically, Rule 12 provides for the process and manner for
the ling of petitions as follows:
(1) A Petitioner shall, at the time of ling the petition, le an adavit sworn by each witness whom
the Petitioner intends to call at the trial.
(2) The adavit under sub-rule (1) shall—
(a) …
(b) …
(c) form part of the record of the trial and a deponent may be cross-examined by the Respondents
and re-examined by the Petitioner on any contested issue. PARA Emphasis added.
285. Flowing from the above excerpt, the pertinent requirement is, at the time of ling of the petition, the
petitioner must le an adavit sworn by each witness he intends to call detailing the content of the
evidence which the witness will adduce.
286. In the same light, Rule 15 provides that:
(1) A Respondent shall at the time of ling a response to the petition, le an adavit sworn by
a witness whom the Respondent intends to call at the trial, which adavit shall set out the
substance of the evidence.
(2) …
(3) The adavit shall form part of the record of the trial and a deponent may be cross-examined
by the Petitioners and re-examined by the Respondent.
(4) Subject to sub-rule (5), a witness shall not give evidence for the Respondent unless an adavit
sworn by the witness, setting out the substance of the evidence, in sucient copies for the use
of the court and the Petitioner, is led with the response as required by this rule. [Emphasis
added]
287. These two Rules (R. 12 & 15) underscore the importance of one party suciently and timeously
making their case known to the opposite party so that they can adequately prepare their case. Indeed,
both rules are categorical that a witness cannot be allowed to give evidence unless they le a sworn
adavit in accordance with the Rules. In essence, the examination-in-chief in election petition disputes
is by way of an adavit. This is in line with the overriding objective of the Election Petition Rules which
includes facilitating the just and expeditious resolutions of election disputes and further in congruence
with the strict constitutional timelines with regard to the conduct of electoral disputes. This explains
the admission of adavit evidence as the basis upon which a party may be cross-examined.
288. The trial judge in his ruling on cross-examination stated as follows:
“The implication here is that the cross-examination relates to and concerns matters deposed
to in the adavit which mandatorily and automatically became part of the trial record. To
my mind, therefore, cross-examination of a deponent in respect of an election petition must
relate to the substance of the evidence of that witness. But it must also be relevant and
material to the scope of that witness’s deposed role, actions and involvement in the subject
matter as circumscribed by the issues in contention and the party’s pleadings.” [Emphasis
added]
289. Is this the correct legal position with regard to cross-examination on adavit evidence? Kiage JA, in
his judgment, questioned the manner in which the trial Judge in his ruling distinguished the Evidence
Act and the Election Petition Rules when the Judge held as follows (at page 44):
“Fourthly, and this is another distinction of election procedure and practice as against
that under the Evidence Act in Section 146(2)….The implication here is that the cross-
examination relates to and concerns matters deposed to in the adavit which mandatorily
and automatically became part of the record.”
290. Justice Kiage JA, in reference to the above proposition by the trial Judge stated that the Election
Petition Rules do not in any manner dilute, limit or denigrate the salutary place of cross-examination in
the adjudicative process. I agree with Justice Kiage in this respect. The Election Petition Rules ought to
complement and not diminish the substance of the Evidence Act. There is no contradiction between
the Election Petition Rules and the Evidence Act. The Rules only specify the mode of presenting
evidence-in-chief which is by way of an adavit and thereafter general rules of cross-examination
would normally apply.
291. A similar position was held in the Madurai bench of Madras High Court in India in the case of P.
Janakumar v. G. Pandiyaraj (2009) (1) CTC 763 where Section 145 of the Negotiable Instruments Act
allowed adducing of evidence by way of an adavit. The Court in stating that the 2002 amendment
was only meant to save time held as follows:
“… the complainant would otherwise have been bound to give his chief-examination on
oath, but he is given the option to decide whether he would enter the witness box for his
chief- examination or whether he would give his evidence on adavit. This provision has
been introduced only to reduce the time factor, considering the pile-up of cheque cases.”
292. Further, with regard to the standard of adducing adavit evidence, the Court was categorical that:
“We make it clear that all the rules which apply to oral evidence equally apply to the evidence
given on adavit and merely because a person gives evidence on adavit, the witnesses
cannot think that they can stray from the standard of truth or that they can produce
documents which are not admissible in evidence.”
293. Section 146(2) of the Evidence Act, Chapter 80 of the Laws of Kenya provides that:
(2) Subject to the following provisions of this Act, the examination-in-chief and cross-examination
must relate to relevant facts, but the cross-examination need not be conned to the facts to
which the witness testied in his examination-in-chief. [Emphasis added]
294. In essence, cross-examination need not be conned to the witness’s evidence-in-chief as long as it relates
to relevant facts. In the present case, cross-examination need not be restrained by the substance of the
adavit as long as it is an examination on relevant facts. Justice Kiage JA, therefore rightly held that
there was no basis for the trial Judge’s holding that Rule 15(3) connes or limits cross-examination to
issues only deposed in the witness adavit.
295. Generally, the purpose of cross-examination as elucidated in Cross & Tapper on Evidence, (Oxford
University Press, 12thed, 2010, page 313), is: rst, to elicit information concerning the facts in issue or
relevant to the issue that is favourable to the party on whose behalf the cross-examination is conducted;
and second, to cast doubt upon the accuracy of the evidence-in-chief given against such party.
296. The issue therefore is whether cross-examination by Counsel for the 1st respondent related to relevant
facts in issue since it need not be conned to what was deposed in the witness’s adavit. What then
is a ‘relevant fact’?
297. In the Indian High Court decision of Delhi R. K. Chandolia v. Cbi & Ors, 225/2012 the Court held
that:
“The "relevant facts" in cross examination of course have a wider meaning than the term
when applied to examination-in-chief. For instance, facts though otherwise irrelevant may
involve questions aecting the credit of a witness, and such questions are permissible in the
cross examination as per Section 146 and 153 but, questions manifestly irrelevant or not
intended to contradict or qualify the statements in examination-in-chief, or, which do not
impeach the credit of a witness, cannot be allowed in cross examination. It is well- established
rule of evidence that a party should put to each of a witness so much of a case as concerns
that particular witness. …While allowing latitude in the cross examination, court has to see
that the questions are directed towards the facts which are deposed in chief, the credibility
of the witness, and the facts to which the witness was not to depose, but, to which the
cross examiner thinks, is able to depose. It is also well-established that a witness cannot be
contradicted on matters not relevant to the issue. He cannot be interrogated in the irrelevant
matters merely for the purpose of contradicting him by other evidence. If it appears to the
Judge that the question is vexatious and not relevant to any matter, he must disallow such a
question. Even for the purpose of impeaching his credit by contradicting him, the witness
cannot be put to an irrelevant question in the cross examination.
However, if the question is relevant to the issue, the witness is bound to answer the same
and cannot take an excuse of such a question to be criminating. That being so, it can be said
that a witness is always not compellable to answer all the questions in cross examination.
The court has ample power to disallow such questions, which are not relevant to the issue
or the witness had no opportunity to know and on which, he is not competent to speak.
This is in consonance with the well-established norm that a witness must be put that much
of a case as concerns that particular witness.” [Emphasis added]
298. Counsel for the 1st respondent argued that the trial Judge’s denial of cross-examination infringed on
his right to a fair hearing enshrined in Article 25(c) and 50(1) of the Constitution. Counsel relied on
several cases to the eect that denial or curtailment of a right to cross-examination is tantamount to
infringement of his right to a fair hearing. I am in agreement with Counsel that cross-examination
holds a sacrosanct place in fortifying the right to a fair trial. Indeed Article 25(c) of the Constitution
arms that the right to a fair trial cannot be limited.
299. As guided by the law, cross-examination must be undertaken within certain parameters akin to the
right to a fair hearing bestowed on all parties to a suit. The Supreme Court of India in the case of
M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen & Ors. AIR 1972 SC 330, had occasion to
pronounce itself on the correlation between aording a party the opportunity to cross-examine and
the right to a fair hearing when it held:
"The application of the principle of natural justice does not imply that what is not evidence
can be acted upon. On the other hand what it means is that no materials can be relied upon
to establish a contested fact which are not spoken to by persons who are competent to speak
about them and are subjected to cross-examination by the party against whom they are
sought to be used.” [Emphasis added]
300. Further in the case of Union of India v Varma (1958) SCR 499, the Supreme Court of India held:
“When a document is produced in a Court or a Tribunal, the question that naturally

arises is: is it a genuine document, what are its contents and are the statements contained
therein true...... If a letter or other document is produced to establish some fact which
is relevant to the inquiry, the writer must be produced or his adavit in respect thereof
be led and opportunity aorded to the opposite party who challenges this fact. This is
both in accordance with the principles of natural justice as also according to the procedure
under O.19 of the Code and the Evidence Act, both of which incorporate the general
principles." [Emphasis added]
301. In the present case, a Form 36 for Embakasi Constituency was shown to the Nairobi County Returning
Ocer. Before that, she had testied that she had looked at all Forms 36 before she constituted a
Nairobi County Form 36. Counsel for the 1st respondent submitted that had he been allowed to
cross-examine the County Returning Ocer, he would have shown discrepancies between the various
Constituencies’ Forms 36 and the Nairobi County Form 36 as identied in the two scrutiny reports
which the Court ordered suo moto.
302. What ought to be the scope of cross-examination with regard to a County Returning Ocer in
an election petition? G.B.M Kariuki JA, in his judgment stated the following with regard to cross-
examination:
“The trial Judge also disallowed cross-examination of the returning ocer of the County
of Nairobi, Fiona Nduku Waithaka, by the appellant when objection was taken by the
respondents during her cross-examination. This was the single most important witness in
the trial as she co-ordinated the electoral exercise and was in charge and therefore the person
accountable. The appellant’s counsel had the right to cross-examine her on the conduct of
the election and in particular the voting exercise and the electoral documents to enable the
Court to make its evaluation about the accuracy of the exercise and whether the will of the
voters prevailed.” [Emphasis added]
303. He further stated that:
“The trial Judge was correct in stating that the documents were not part of the trial record
and he rightly acknowledged that he had discretionary power to grant leave for their use and
inclusion in the trial. But he declined to do so and reasoned that they were relayed to Court
pursuant to rule 21 of the Elections Petition Rules for the purpose of scrutiny, tallying or
recounting of votes!” [Emphasis added]
304. I note the observations and nding by the trial Judge in his ruling that:
“I have carefully perused the Petitioner’s pleadings. As a party, he is bound by them. A party
is also bound by the depositions of his or her witnesses. Thus, where the Petitioner or his
witnesses have deposed to a specic Form 35 or 36 of IEBC in respect of or alleging an
irregularity, malpractice or otherwise this court shall grant leave to the Petitioner to cross-
examine a witness using the specied form contained in the Forms 35 & 36 led under rule
21. The Court shall grant leave on a case to case basis to ensure that the rights of all parties
are duly protected, to guard against the enlargement or stiing of a party’s case, and so as to
bring onto the trial record only such matters in respect of which the pleadings specically
relate.”
305. Indeed, it is incumbent upon the petitioner to suciently state his case when ling pleadings so
that the respondents can adequately prepare their case. The respondent on the other hand ought
to satisfactorily answer all allegations raised in the petition. In doing so, the respondent relies on
sworn adavits of relevant witnesses who will give competent and sucient evidence to answer the
petitioner’s case. However, as stipulated in Section 146(2) of the Evidence Act read together with Rules
12 and 15 of the Election Petitions Rules cross-examination need not be conned to the statements
made by the witness in his examination-in-chief as long as it relates to relevant facts and is based on
contested issues.
306. It is clear from the trial C0urt’s record that accuracy of transposition of results was one of the issues
raised by the Petitioner. Therefore, cross-examination of the Returning Ocer who transposed the
results from the constituency Forms 36 to the County Form 36 was well within the dictates of Rules
12 and 15 which permit cross-examination on “contested issues”. With respect, I am not convinced
that sucient reasons were given by the trial judge for denial of the 1st respondent of his right to cross-
examine the Returning Ocer who testied that she saw all the Forms 36 in Nairobi County and had
transposed the results therein to the County Form 36.
307. Further I ndit was inappropriate for the trial judge to anticipate the kind of questions that the 1st
respondent would pose to the Returning Ocer and conclude that they would not be within the
“contested issues” as required by Rules 12 and 15 of the Election Petition Rules. The Rules, however,
do not in any way oust the provisions of the Section 146 of the Evidence Act, which allows cross-
examination to be conducted on relevant facts without restricting it to the examination-in-chief of
the witness being cross-examined. It was therefore improper for him to curtail cross-examination on
the basis that the documents relied upon by the 1st respondent for that purpose, were not part of the
evidence before the Court.
308. Article 50 as read together with Article 25 signal the profound importance of the right to a fair
trial within our jurisprudence to the extent that, unlike other constitutional rights and fundamental
freedoms in our Bill of Rights, it cannot be limited. The right to a fair trial requires that no person
should be deprived of their rights, without rst having the opportunity to test the allegations and
supporting evidence in a Court of law. Therefore, Courts ought to strike a suitable balance between
upholding the constitutional right to a fair trial and the need to enforce statutory provisions on
timelines, without oending our unique legal framework.
309. According to Tanford AJ, in The Trial Process: Law, Tactics and Ethics (2009) LexisNexis, 4th Ed. (page
283):
“In civil cases, cross-examination is also a fundamental right. While a judge has more
discretion to limit cross-examination in civil cases, the judge may do so only after a party has
had a fair and substantial opportunity to exercise the right.
The right of cross-examination encompasses not merely the right to ask questions, but also
the right to elicit testimony. A witness can and should be compelled by the judge to answer
proper questions. Continued refusal to answer may subject the witness to punishment for
contempt. In extreme cases, where cross-examination is eectively denied, the court may
strike out all or part of the direct examination or grant a mistrial — even if the denial of
an opportunity for full cross-examination is no one’s fault. Whether the direct examination
must be stricken because of the witness’s failure to submit to cross-examination is largely a
discretionary decision for the trial judge. It depends not on whether the witness was justied
in not answering, but on whether it is fair to permit the direct to stand unchallenged.”
310. It can, therefore, be accurately said that if a party is denied an opportunity to cross-examine a witness,
a Court may strike out all or part of the evidence adduced during examination-in-chief or declare the
process a mistrial. The Court exercises its discretion in determining which of these two recourses it will
have based on whether it would be fair to allow the testimony of that witness to remain unchallenged.
311. Miller M, in his article “Completed cross-examination - A pre-requisite for a fair trial?" DR, November
2013:28 [2013] De Rebus 220 which discusses at length the right to cross-examine a witness as a pre-
requisite for a fair trial, propounds particularly in respect of incomplete cross-examination that:
“A party has a right to adduce and challenge evidence. It is unknown what the result of
a complete cross-examination may have been or how it may have aected the outcome of
the case. Whether it is because of the right of an accused person to adduce and challenge
evidence in terms of s 35(3)(i) of the Constitution, or the right of a litigant in a civil case
to a fair public hearing in terms of s 34 of the Constitution or whether it is because of the
audi alteram partem rule, a party has the right to be aorded an opportunity to complete
cross-examination of a witness called by the other party whose evidence is prejudicial or
potentially prejudicial to him or her. Without that it cannot be said that there was a fair trial.
It follows from this that there can be no discretion to admit such evidence and that its
exclusion has nothing to do with the probative value thereof. It is a guaranteed right. I am
of the opinion that where cross-examination has not been completed such evidence should
simply be excluded and treated as inadmissible and pro non scripto.”
312. In the present circumstances the testimony of the county Returning Ocer remained unchallenged
at the behest of the trial Judge for reasons that are not legally justiable to curtail the right of the 1st
respondent to cross-examine that witness. Therefore, this Court ought to determine what the proper
recourse under these circumstances would be – to strike out the direct examination of the county
Returning Ocer or declare the entire process a mistrial. I am persuaded that the proper recourse
considering that the county Returning Ocer was a key witness for the 1st appellant would be to strike
out the direct examination of the county Returning Ocer, otherwise the 1st respondent cannot be
said to have had a fair trial.
Curtailment of cross-examination on a scrutiny report particularly if the order is suo moto.
313. In addressing this issue, it is important to determine, rstly, the purpose of a scrutiny report and
secondly, the consequences of such a report. The leading case on the issue of scrutiny is the case of Raila
Odinga when this Court made a suo motu order of scrutiny of various forms used in the conduct of
presidential election petition. At paragraph 169 of its judgment the Court held thus:
“The purpose of the scrutiny was to understand the vital details of the electoral process, and
to gain impressions on the integrity thereof.”
314. The above object of scrutiny was further re-emphasized in Munya, when this Court held as follows
[paragraph 153]:
(b) “The trial Court is vested with discretion under Section 82(1) of the Elections Act to make an
order on its own motion for a recount or scrutiny of votes as it may specify, if it considers that
such scrutiny or recount is necessary to enable it to arrive at a just and fair determination of
the petition. In exercising this discretion, the Court is to have sucient reasons in the context
of the pleadings or the evidence or both. It is appropriate that the Court should record the
reasons for the order for scrutiny or recount.”
315. From the foregoing, it is clear that scrutiny is aimed at giving the Court a fair impression of how that
particular election was conducted for the purposes of nding out whether indeed the election was
conducted in accordance with the law, particularly Articles 81 and 86 of the Constitution. The report
of the scrutiny cannot be ignored. Scrutiny is a necessary tool in assessing the credibility of the election
and the Court must take it into consideration in arriving at its determination.
316. A scrutiny report is prepared by the Registrar as directed by the Court. The Election Courts have
contended with the issue as to what status to accord a scrutiny report and especially on the issue
whether parties may ‘cross-examine’ relevant witnesses’ on it.
317. In this case cross-examination was denied purely on the basis that the petitioner sought to introduce
new evidence. Though I nd merit in the Judge’s fear that the petitioner would indeed expand the
scope of the petition through reliance on the scrutiny report, I do not think that such a preposition
provides sucient reasons for denial of the right to cross-examine. I shall be expounding on this in
subsequent paragraphs.
318. The trial Judge, (Odunga J) in the case of Nuh Nassir Abdi v Ali Wario & 2 others, Mombasa High
Court Petition No. 6 of 2013, [2013] eKLR, however had a contrary view on the issue as to whether
cross-examination ought to be allowed on the scrutiny report, particularly the Polling Day Diaries
which had been presented to Court by order of the Court. In this case, as in the present case scrutiny
and recount had been ordered by the Court suo moto. The Court in allowing cross-examination held
as follows:
“In the course of cross-examination of the petitioner, the result of the said scrutiny as well
as the Polling Day Diary in particular that of Bilbil Primary School were clearly dwelt on by
the respondents. To now submit that the same cannot be subject of any examination is in
my respectful view an attempt to lock the stable door after the horse has bolted.
In the instant case, a scrutiny has been ordered albeit on the Court’s own motion and the
report therefrom has been the subject of cross examination in this case. During the scrutiny
the subject Polling Day Diaries were some of the materials which were directed by the
Court to be availed. When this Court directed that the Polling Day Diaries be availed, the
parties were put on notice that issues arising therefrom might possibly arise in the course of
the hearing and determination of this petition. This Court ordered that copies of the said
Diaries be made and served on all the parties and this was done.
Therefore it is my view that mere reference to the said Polling Day Diaries in cross examining
a witness with a view to conrming what actually took place on the polling day would not
necessarily be prejudicial to a party. To the contrary it may assist the Court in determining
the question whether or not the principles under Article 81 of the Constitution were
adhered to. However, the petitioner is put on notice that he should avoid the temptation to
enlarge his case outside the scope of his pleadings since it is trite that a party is bound by his
pleadings despite the evidence.”[Emphasis added]
319. In allowing cross-examination of the Polling Day Diaries the Court considered the fact that the
respondents had actually made reference to those diaries during cross-examination of the Petitioner.
The respondents therefore could not object to the same reference being made when their witness was
on the stand. Further, the Court considered that all parties had been put on notice that issues may arise
during the hearing based on the scrutiny report particularly with respect to Polling Day Diaries.
320. The consequence of this was that parties were free to prepare their case with regard to questions that
may arise therein. The Judge however was categorical that the petitioner could not use that as a leeway
to enlarge his case. I entirely agree with the trial judge in the Nuh Abdi case since the Court should at
all times seek to meet the ends of justice by exhibiting fairness to all parties in a suit. The right to cross-
examine a witness should not be restricted except as provided for by law – in this case by the Evidence
Act and the Election Petition Rules. At the same time the right of the other party to be given a fair
opportunity to reply to the claim made should also not be impeded.
321. This Court in Obado has given some direction as to the status of a scrutiny report. The relevant passage
provides as follows:
153. “We hold it to be improper that, when re-tally is conducted, a party should take this as an
opportunity to introduce new spheres of disputes, which had not been signalled in his or her
original pleadings. It is vital, in election disputes, that the respondent should know the case
that faces him or her. Hence the petitioner ought to have indicated in his or her pleadings the
disputed matters, with clarity and specicity, as a basis for being allowed to urge that there
were irregularities in those spheres, after re-tally has been conducted. However, where a trial
Court exercises its discretion and, suo motu, orders a scrutiny, recount or re-tally, revealing
irregularities other than those that were pleaded, then there is a proper basis for any party to
pose questions upon such new ndings; and the Court then will make ndings on the eect
of those irregularities on the declared results.” [Emphasis added]
322. This Court held that parties can be allowed to ‘pose questions’ on a scrutiny report where new
irregularities emerge hence granting an opportunity for parties to make submissions on the new
issues. For instance the petitioners would be allowed to submit on the newly discovered irregularities
directing the Court to all the discrepancies or irregularities manifest in the report and show how those
irregularities aect the results. The respondents would on the other hand, particularly the IEBC, use
that opportunity to explain the cause and eect of the alleged irregularities. If by any chance, the IEBC
chose to explain the discrepancies by way of bringing in rebuttal or any evidence including relevant
witnesses, then in that case, the opponent would be entitled to cross-examine that witness. Therefore,
parties ought to be given an opportunity to submit on the scrutiny report and the Court must take the
parties’ submissions into considerations in arriving at its determination.
323. When scrutiny is carried out before close of a party’s case, it would be prudent for the Court to allow
cross-examination where there is an appropriate witness capable of carrying the burden of a scrutiny
report. In the present case, the objection on the line of questioning was raised when the witness was
shown the Form 36 for Embakasi Constituency.
324. The appellants’ submitted that the witness was not the maker of the constituencies Forms 36 hence she
was incapable of answering any questions pertaining to them. The 1st respondent on the other hand
submitted that had he been allowed to cross-examine, he would shown that the witness transposed
wrong gures from the 14 out of 17 Constituency Forms 36 to the Nairobi County Form 36.
325. Unfortunately, the trial Judge prevented any further cross-examination before the 1st respondent
could show the tread of his line of thought. Indeed the Returning Ocer was not the maker of the
constituency Forms 36 but she was denitely the maker of the county Form 36 and could therefore be
cross-examined on the accuracy of the transposition of the results from the former to the latter. The
trial Court, in denying the 1st respondent the opportunity to cross-examine on the transposition of the
results, deprived the 1st respondent of his constitutional right to a fair trial.
326. I reiterate that under Section 146(2) of the Evidence Act, the only necessary consideration in cross-
examination is that the questions directed to the witness must relate to relevant facts. The purpose of
cross-examination is to elicit as much information as possible from the opponent’s witness necessary
to advance one’s case. Consequently, if in the course of cross-examination new facts emerge, then the
Court would have no option but to consider that new evidence particularly if it relates to facts already
pleaded.
327. The Court cannot close its mind to the existence of important evidence if it is to make a just
determination. This is in line with Article 159 of the Constitution on the guiding principles for the
exercise of judicial authority which includes protection and promotion of the purpose and principles
of the Constitution. Some of these principles include integrity, transparency, rule of law and the
aspiration of people of Kenya to social justice. How else will justice be seen to be done if not through
conceptualizing the idea of justice as close as possible within the lens of the common ‘mwanainchi’?
328. The trial Judge in his ruling on cross-examination of the Returning Ocer stated that he would
allow cross-examination on a case-by-case basis. The relevant passage from the trial Judge’s ruling is
as follows:
“I have carefully perused the Petitioner’s pleadings. As a party, he is bound by them. A party
is also bound by the depositions of his or her witnesses. Thus, where the Petitioner or his
witnesses have deposed to a specic Form 35 or 36 of IEBC in respect of or alleging an
irregularity, malpractice or otherwise this court shall grant leave to the Petitioner to cross-
examine a witness using the specied form contained in the Forms 35 & 36 led under rule
21. The Court shall grant leave on a case to case basis to ensure that the rights of all parties
are duly protected, to guard against the enlargement or stiing of a party’s case, and so as to
bring onto the trial record only such matters in respect of which the pleadings specically
relate.” [Emphasis added]
329. The reasoning of the Judge was that a party cannot be allowed to expand his case by relying on
discrepancies not originally pleaded but subsequently revealed in the scrutiny report. The Judge was
of the view that doing so would prejudice the rights of the other party who had no prior notice of the
‘new’ issues raised by the petitioner.
330. I do not agree with the trial Judge’s conclusion that cross-examination be allowed only on a case-by-
case basis since this goes against the grain of Section 146(2) of the Evidence Act and Rules 12 and 15
of the Election Petition Rules. It was incumbent upon the trial Judge to apply these provisions of the
law during cross-examination since they are very clear and unambiguous. There is no doubt as to their
application in practical situations therefore I nd that the trial Judge had no legal justication to allow
cross-examination on a case-by-case basis.
V. Whether the Court of Appeal acted contrary to Articles 81(e) and 86 of the Constitution by
nullifying the 1st and 2nd appellants election on the ground that the 1st respondent was not
accorded the right to a fair hearing.
What remedies are available if the trial Court infringed the right to a fair trial?
331. In view of the foregoing, it is my considered opinion, that the trial judge in this matter curtailed the
right to fair hearing of the 1st respondent contrary to the dictates of the Constitution. What remedy,
then, lies to the aggrieved party – the Respondent - in this case?
332. I am of the view that this Court, as the nal arbiter of constitutional controversy needs to settle the
question regarding the remedies available in instances when the right to a fair hearing or a fair trial is
infringed in electoral disputes. Indeed, as the Chief Justice Willy Mutunga in his concurring opinion
in the Jasbir case stated at paragraph 81:
“81 …it will be good practice for this Court to take every opportunity a matter aords it,
to pronounce [ itself] on the interpretation of a constitutional issue that is argued either
substantively or tangentially by parties before it.”
333. The Court of Appeal having found that the trial court had violated the right of the 1st Respondent,
determined that the violation of the right to a fair trial could only be addressed by the nullication of
the gubernatorial election for the Governor of the County of Nairobi. Is this the appropriate remedy
that should be applied in this matter? Can an election be nullied on the basis that a party did not
get a fair trial?
334. On the one hand, Counsel for the appellants led by senior Counsel Pheroz Nowrojee, argued that
the Court of Appeal erred in nullifying the election on the basis that the right to a fair hearing was
infringed upon. They argued that an election can only be nullied based on the grounds provided
under Articles 81 and 86 of the Constitution. On the other hand, Counsel for the 1st respondent led
by senior Counsel Paul Muite, argued that the ‘electoral system’ referred to in Articles 81 and 86 of the
Constitution is a long process that begins with voter registration and ends with the judgment of this
Court. They submitted that if a court cannot verify the electoral results in a fair manner, the election
must be nullied.
335. A court when faced with a question as to whether or not to nullify an election has to be alive to the fact
that an election is a direct expression of the sovereign will of the people and as such that will should not
be interfered with whimsically or arbitrarily. These sentiments are fortied in the Kenyan context by
Article 1(1) of the Constitution which decrees that all sovereign power belongs to the people of Kenya.
336. Article 81 provides the general principles for the electoral system thus:
“The electoral system shall comply with the following principles-
(a) freedom of citizens to exercise their political rights under Article 38;
(b) not more than two-thirds of the members of the elective public bodies shall be
of the same gender;
(c) fair representation of persons with disabilities;
(d) universal surage based on the aspiration for the fair representation and
equality of vote; and
(e) free and fair elections, which are-
(i) by secret ballot
(ii) free from violence, intimidation, improper inuence or

corruption;
(iii) conducted by an independent body;
(iv) transparent; and
(v) administered in an impartial, neutral, ecient, accurate and

accountable manner.
337. Article 86 addresses the voting process thus:

At every election, the Independent Electoral and Boundaries Commission shall ensure that-
(a) whatever voting method is used, the system is simple. Accurate, veriable, secure, accountable
and transparent;
(b) the votes cast are counted, tabulated and the results announced promptly by the presiding
ocer at each polling station;
(c) the results from the polling stations are openly and accurately collated and promptly
announced by the returning ocer; and
(d) appropriate structures and mechanisms to eliminate electoral malpractice are put in place,
including the safekeeping of election materials.
338. These are the constitutional principles which an electoral body should strive to achieve when
conducting an election or a referendum. In a nutshell, only where an election falls short of these
principles is it invalid and thereby nullied.
339. The Elections Act, 2011 is an Act of parliament to inter alia provide for the conduct of elections. It
cannot be gainsaid that this is the operation manual or code to the conduct of elections in Kenya. It
lays the rules and regulations spanning a bookend timeframe from the registration of voters, until the
resolution of any election dispute. Notably enough, the entire Act does not specically address itself on
when an election can be nullied. Part VI deals with election oences from section 56 to 73. However,
none of these oences calls for the nullication of an election. The oences being of a criminal nature
are directed personally to specic individuals and/or political parties and they attract criminal sanctions
in persona such as nes and imprisonment.
340. However, section 83 deals with non-compliance with the law during an election. It states:
“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 aect the result of the election.”
341. From this section and with a specic bias on when an election can be declared invalid, it is discernible
that: generally, an election can only be declared void if that election did not substantially comply
with the written law to that election – in this regard, the Constitution, the Elections Act, and the
Regulations made thereunder, and any other relevant law; and, where there is substantial compliance
with the written law in an election the irregularities must indeed have aected the result of the election
for that election to be invalidated.
342. One can rightly state that for an election to be nullied, that election should have failed to meet the
threshold set by the written law particularly with regard to how that election should be conducted.
The emphasis then when considering whether or not to invalidate an election is not what happened
subsequent to the declaration of the results, but what happened before and in the process of the
election up until the declaration of the result.
343. The written law governing elections in Kenya has now been summarised in what is called the electoral
code. In Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others, Civil Application No. 5 of
2014, (Munya) this Court demystied what the laws governing elections are in Kenya: (at paragraph
60)
“Pursuant to this provision, Parliament has enacted a raft of legislation to regulate the
conduct of election disputes, including election petitions at all levels of the Court system.
In what is increasingly being referred to as the “Electoral Code”, we now have, inter alia: the
Elections Act 2011, the Elections (General) Regulations 2012, the Elections (Parliamentary
and County Elections) Petition Rules, 2013 and the Supreme Court (Presidential Election
Petition) Rules 2013.
344. The courts have had occasion to rule on when an election can be nullied. In the Raila Odinga decision
this Court cited with approval the jurisprudence in Morgan and Others v. Simpson and Another
[1974] 3 All ER 722 (Morgan case) where it was held:
“…an election court was required to declare an election invalid (a) if irregularities in the
conduct of elections had been such that it could not be said that the election had been
conducted as to be substantially in accordance with the law as to election, or (b) if the
irregularities had aected the results. Accordingly, where breaches of the election rules,
although trivial, had aected the results, that by itself was enough to compel the Court to
declare the election void even though it had been conducted substantially in accordance with
the law as to elections. Conversely, if the election had been conducted so badly that it was
not substantially in accordance with the law, it was vitiated irrespective of whether or not
the result of the election had been aected…”
345. The Supreme Court, drawing from the Morgan case and having examined other jurisdictions, held
with regard to invalidation of an election thus:
196. We nd merit in such a judicial approach, as is well exemplied in the several
cases from Nigeria. Where a party alleges non-conformity with the electoral
law, the petitioner must not only prove that there has been non-compliance
with the law, but that such failure of compliance did aect the validity of the
elections. It is on that basis that the respondent bears the burden of proving the
contrary. This emerges from a long-standing common law approach in respect
of alleged irregularity in the acts of public bodies. Omnia praesumuntur
rite etsolemniteresseacta: all acts are presumed to have been done rightly
and regularly. So, the petitioner must set out by raising rm and credible
evidence of the public authority’s departures from the prescriptions of the
law.” (Emphasis provided)
346. Considering the above test, this Court in reaching its determination as whether or not to invalidate
the presidential election, observed:
303. We came to the conclusion that, by no means can the conduct of this election
be said to have been perfect, even though, quite clearly, the election had been
of the greatest interest to the Kenyan people, and they had voluntarily come
out into the polling stations, for the purpose of electing the occupant of the
Presidential oce.
304. Did the Petitioner clearly and decisively show the conduct of the election to have been so devoid of
merits, and so distorted, as not to reect the expression of the people’s electoral intent? It is this broad
test that should guide us in this kind of case, in deciding whether we should disturb the outcome of
the Presidential election.” (Emphasis provided)
347. It then proceeded to declare and hold that the election though not perfect, the errors did not aect the
result so as to warrant the cancellation of the election. The decision in RailaOdinga set the tone on how
the courts below would approach the question of nullication of an election, and setting the criteria
on when an election is to be nullied. This standard has been carried on by this Court in its subsequent
decisions inter alia, Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 others, Petition No. 2B of
2014 and Nathif Jama Adan v. Abdikhaim Osman Mohamed & 3 others, Petition No. 13 of 2014.
348. Having examined the electoral code, and the emerging jurisprudence on elections, it is my considered
opinion that when a court of law is faced with the question whether or not to annul an election the
following are the fundamentals as can be deduced from Munya:
1. If it is demonstrated that an election was conducted substantially in accordance with the

principles of the Constitution and the Election Act, then such an election is not to be
invalidated only on ground of irregularities.
2. Where, however, it is shown that the irregularities were of such magnitude that they aected
the election result, then such an election stands to be invalidated.
3. Mere allegations of procedural or administrative irregularities and other errors occasioned by

human imperfection are not enough, by and of themselves, to vitiate an election.
349. Does the instant case meet this test? The Appellants argue that it does not. There is insucient
evidence to show that there were any irregularities that were grave enough to aect the outcome. The
Respondent’s case, on the other hand, is that if he had been allowed a fair trial in which he submitted
his adavit with additional evidence and was allowed cross-examination as requested, then he would
have met the threshold to have the election nullied.
350. As I have stated earlier, under Article 25(c) of the Constitution, the right to a fair trial is a right that
cannot be limited. However, it is an individual’s right, that is a right in personam and the remedy
for the violation of such a right cannot be the nullication of an election. The Raila Odinga case
reiterated that an election reects the views of the people expressed through the vote, not just rights of
individuals, and therefore, courts of law must be careful not to exercise their power in such a manner
as to interfere with the people’s expression in instances where the proven election irregularities do not
aect the election results. Since the Respondent’s case remains speculative until such time the case is
reopened for examination of evidence, it is premature to oer as a remedial measure, the nullication
of the election at the center of the controversy.
351. As such, I nd that the Court of Appeal erred in nullifying the 1st and 2nd appellants’ election as a
remedy for the violation of a fair hearing or trial. The Court of Appeal ought to have considered
other reliefs for breach or infringement of fundamental rights provided under Article 23(3) of
the Constitution. The Constitution clearly stipulates remedial measures for vindicating rights of
individuals who may petition a court for redress. The annulment of elections on the sole basis of denial
of a right to a fair trial, is not a ground for so doing, under Articles 81 and 86 or Section 83 of the
Elections Act.____
352. Article 23(3) of the Constitution lays out the remedies available to a trial Judge hearing a case led for
the enforcement of the Bill of Rights. This section provides:
In any proceedings brought under Article 22, a Court may grant appropriate relief, including-
(a) A declaration of rights;
(b) An injunction;
(c) A conservatory order;
(d) A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or
fundamental freedom in the Bill of Rights and is not justied under Article 24;
(e) An order for compensation; and
(f) An order of judicial review.” [Emphasis added]
353. While these remedies are available to the High Court in determining matters of enforcement of the
bill of rights, Section 21 of the Supreme Court Act, 2011 gives this Court general power to make any
Orders, or grant any relief that could have been made or granted by a Court from where an appeal
emanates. In addition, election appeals are determined by this Court in exercise of its jurisdiction under
Article 163(4)(a). As such, while interpreting the Constitution, this Court bears all the powers to grant
constitutional remedies on appeal.
354. Several observations are imperative: rst, that the determination of the violation of rights was an
ancillary cause to the matter before the Court, that the remedies available in the main cause (electoral
remedies) are not sucient to address this violation. In that regard and in full consideration of the
sanctity of rights, I nd myself unable to merely declare the violation and move no further. That indeed
would not be in consonance with my duty as a bearer of justice.
355. Remedies in human rights violations exist as an aid to the vindication of the fundamental right itself so
as to promote the values of an open and democratic society based on freedom and equality and respect
for human rights. In this regard, and in granting an appropriate remedy, I am empowered by Articles 10
and 23(4)(a) of the Constitution; to promote the national values and principles of governance as well
as develop the law to give eect to rights and fundamental freedoms. Both of these empowering clauses
decry a situation where any right goes without a remedy. As observed by the Constitutional Court in
South Africa in the case of Fose v. Minister of Safety and Security (CCT 14/96) [1997] ZACC 6:
“Appropriate relief will in essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances of each particular case the relief may be
a declaration of rights, an interdict, a mandamus or such other relief as may be required
to ensure that the rights enshrined in the Constitution are protected and enforced. If it is
necessary to do so, the courts may even have to fashion new remedies to secure the protection
and enforcement of these all important rights.”
356. Due to the contributory role of the judiciary’s administrative system in delaying proceedings and failure
to allow the cross-examination of the crucial scrutiny report, it would appear to me that the institution
ought to have been asked to bear the 1st respondent’s legal costs as a measure of compensation for
the infringement of his right to fair hearing capped at a certain amount. This would have illustrated
the importance of a fundamental right. This matter is however hinged on elections and the citizen’s
right to franchise. As such, the circumstances demand a more inclusive mode encompassing the rights
of Nairobi’s electorate to vote under Article 38(3)(b) of the Constitution. This would be actualized
through the power of remission pursuant to Section 22 of the Supreme Court Act, 2011. Section 22
provides that “the Supreme Court may remit any proceedings that began in a court or tribunal to any
court that has jurisdiction to deal with the matter.” [Emphasis added]
357. In addition, this power is reinforced by Section 21(3) of the Supreme Court act, 2011 as follows:
“The Supreme Court may make any order necessary for determining the real question in
issue in the appeal, and may amend any defect or error in the record of appeal, and may direct
the court below to inquire into and certify its ndings on any question which the Supreme
Court thinks t to determine before nal judgement in the appeal.” [Emphasis added]
358. In Serah Njeri Mwobi v. John Kimani Njoroge, Court of Appeal at Mombasa, Civil Appeal No. 314
of 2009, [2013] eKLR, the Court in nding that the appellant was denied her right to a fair trial when
the trial judge failed to disqualify herself, observed that “it is a tenet of a fair trial that all parties to a
dispute must have the right to due process of law in order to resolve the dispute.” The Court allowed
the appeal, set aside the judgement of the trial Judge and issued an order for a re-trial before any other
competent judge of the High Court other than the one who had conducted the initial trial.
359. In the instant case, however, an order for re-trial would not be possible since the jurisdiction of the
election Court to hear and determine an election petition expires after six months of the ling the
petition. Article 105 of the Constitution stipulates that:
(1) The High Court shall hear and determine any question whether-
(a) A person has been validly elected as a member of Parliament; or
(b) The seat of a member has become vacant.
(2) A question under clause (1) shall be heard and determined within six months of the date of
lodging the petition.
360. This means that the length of time that the Constitution has allocated for every petition to be heard
and determined by the trial Court is conned only to six months from the date of ling. The import
of this provision is that an Election Petition is only alive for six months; a retrial is only available where
there is a live case. In the current matter the petition at the High Court was led on 13th March, 2013
hence initializing the six-month period for the election Court to make a determination, which period
inevitably expired at midnight on 12th September, 2013. This is a constitutional imperative which, as
explicated in the Joho decision, is cast in stone and cannot be altered. Therefore, it cannot be gainsaid
that at present neither the trial Judge nor any other Judge of the High Court has jurisdiction to conduct
a re-trial in this matter.
361. The constitutional timelines in hearing and determining electoral disputes are however set by the
Constitution and statute and this Court has settled the same in various cases. It is a fact that the six
month period of the High Court’s power as an election Court in this case have lapsed. The time set
by Section 85A of the Elections Act for the Court of Appeal has also lapsed meaning that the Court
of Appeal also bears no such power.
Power of the Supreme Court to retry the issue

362. This Court could also remedy the denial of fair trial by creating a window for the cross-examination
of the Returning Ocer by the 1st respondent. In doing this the Court will have fully remedied the
1st respondent’s denial of the right to fair hearing since he will be able to challenge the evidence of the
returning ocer in the same way as he would have done had the opportunity been granted by the High
Court.
363. The right to a fair hearing as guaranteed by the Constitution is so vital that the Constitution itself
expresses it as a non-derogable right. I am persuaded that the weight attached to this right by the
Constitution itself warrants the exercise by this Court of its inherent powers and conduct a limited
evidentiary hearing in which a witness who was not cross-examined will be cross-examined before this
Court.
364. Article 163(4) of the Constitution bestows on this Court the power to make the nal pronouncement
on any matter involving constitutional interpretation and application. Article 159(2)(e) of the
Constitution requires the courts to protect and promote the purposes and principles of the
Constitution when exercising judicial authority.
365. Articles 10, 19, 20, 23(3), 25(c), 38(3)(b), 50(1), and 50(4) of the Constitution also empower this
Court to make an Order that will guarantee the enforcement of the Bill of Rights in the circumstances
and that power of remission must then be taken to mean that the Supreme Court can in very clear
and distinguishable cases, remit a matter to itself. This power must however be made in the clearest
constitutional considerations. Pursuant to Section 21(1)(a) of the Supreme Court Act, this Court
bears the power to conduct the cross-examination sought and denied at the High Court as a cause
necessary to the proper determination of this matter.
366. Section 21 of the Supreme Court Act, 2011 provides that:
(1) On an appeal in proceedings heard in any court or tribunal, the Supreme Court-
(a) may make any order, or grant any relief, that could have been made or granted by that court
or tribunal; and
(b) may exercise the appellate jurisdiction of the Court of Appeal according to Article 163(4) (b)
of the Constitution.
(2) In any proceedings, the Supreme Court may make any ancillary or interlocutory orders,
including any orders as to costs that it thinks t to award.
(3) The Supreme Court may make any order necessary for determining the real question in issue
in the appeal, and may amend any defect or error in the record of appeal, and may direct the
court below to inquire into and certify its ndings on any question which the Supreme Court
thinks t to determine before nal judgment in the appeal.
367. The Supreme Court Rules, 2012 stipulate in Rule 3, that:
(5) Nothing in these Rules shall be deemed to limit or otherwise aect the inherent powers of the
Court to make such orders or give such directions as may be necessary for the ends of justice
or to prevent abuse of the process of the Court.
368. The upshot of this is that this Court may make the same kind of orders that the High Court is
empowered to make under Articles 22 and 165, when the matter comes to the Supreme Court on
appeal, as the Court would nd t. As alluded to earlier on these remedies include declarations of
rights, injunctions, conservatory orders, declaration of invalidity of any law, orders for compensation,
orders for judicial review or any other appropriate relief where rights and fundamental freedoms have
been denied, violated or are threatened.
369. Taking all these legal provisions into consideration, it is manifest that this Court may make any order
that the High Court has jurisdiction to make in the enforcement of rights and fundamental freedoms.
This Court also has the latitude to make any order that would be necessary for determining the real
question in issue in this appeal and to ensure that the principles of the Constitution are promoted -
including an order for a witness to be cross-examined. I am alive to the fact that this is not a remedy
that this Court would hastily grant but in light of the violation of constitutional rights that occurred
it is the most appropriate remedy under the circumstances.
V. Whether the Court of Appeal erred in capping of costs in election petition matters?
370. Counsel for the 1st and 2nd appellants submitted that at the Court of Appeal, they challenged the
decision of the election Court to cap their costs at 2.5 million shillings. He urged that Section 84 of the
Elections Act does not provide for the capping of costs and that such capping arose from Rule 36(1)
of the Elections Petition Rules. Counsel contended that the capping of costs by the election Court
violated the appellants’ right to be heard on their Bill of Costs since it is the taxing master’s unfettered
discretion to cap costs. He questioned the constitutionality of Rule 36 of the Election Petitions Rules
and submitted that the capping of costs, having been borne out of the judgement of the election Court
involved the principle of taxation.
371. Counsel requested this Court to strike a balance when issuing costs, between deterring people from
ling election petitions and the interests of the successful party in recovering costs. Counsel thus
submitted that costs follow the event and he had incurred costs as a result of the application to tender
additional evidence, application for stay proceedings, application to determine sequence of witnesses
and application regarding on-going scrutiny of votes which were all dismissed with costs.
372. On the other hand, counsel for the 3rd, 4th and 5th appellants submitted that the Court of Appeal erred in
failing to exercise its discretion judicially by awarding costs against a party not guilty of any misconduct
contrary to the well-established precedent established in Kierson v. Joseph L Thompson & Sons Ltd
[1913] 1 KB 587. It was counsel’s submission that the appeal was allowed due to a perceived fault on
the part of the election Court and not to the fault of any of the 3rd, 4th and 5th appellants at the Court
of Appeal, thus, it was punitive for the Court to condemn the said respondents to pay costs
373. At the trial Court, the Judge granted the 1st to 5th appellants costs as the successful parties. However,
he capped the costs of the 1st and 2nd appellants owing to the excessive photocopying of documents,
such as legislation, which he observed were readily available. Mwongo J, further set a ceiling on costs
as follows:
“150. I have, however, noted that the 4-5th Respondents had a penchant for making voluminous
photocopies, in particular of statutes a number of which were repeated, yet are readily available.
I will cap their recoverable photocopying costs to 60% of their total photocopying costs.
____
“151. I will also set a ceiling on costs. In accordance to Rule 36 (1)(a), I hereby cap the costs payable
to the 1st - 3rd respondent jointly at Kshs. 2,500,000, and to both the 4th and 5th respondents
jointly at Kshs. 2,500,000. Accordingly, the total costs to be paid by the Petitioner to all the
respondents shall not exceed Kshs 5,000,000. As this court has not made a determination of the
actual costs, the Registrar of the Court shall pursuant to Rule 37 tax such costs under separate
bills of costs.”
374. At the Court of Appeal, the issue of capping of costs was noted as the basis for the 1st and 2nd appellants’
cross appeal. In the majority decision, which armed the capping of costs as per Rule 36 (1) of the
Elections Petitions Rules, Kiage JA, recognised that the 1st and 2nd appellants indeed had a complex and
enormous task of defending the matter. However he also acknowledged that run-away costs awarded
against Petitioners could have an eect of hindering a party’s exploration of truth for fear of paying
enormous costs.
375. He held as follows (at page 117):
“the view I would take for meeting the 4th and 5th respondents concerns is that only once
they prepare their Bill of Costs and the same gets taxed in a manner that is violative of
their rights can their complaint be ripe for adjudication. As things now stand, without such
bill having been prepared and taxed, I would hold that the argument is pre-mature and
essentially speculative and would therefore dismiss the cross-appeal.” [Emphasis added].
376. Section 84 of the Elections Act provides for costs and states that:
“An election court shall award the costs of and incidental to a petition and such costs shall
follow the cause.”
Further, Rule 36 of the Elections Petitions Rules provides for the manner in which Courts shall be
guided when issuing costs. It provides that:
(1) The court shall, at the conclusion of an election petition, make an order specifying—
(a) the total amount of costs payable; and
(b) the persons by and to whom the costs shall be paid. [Emphasis added].
377. This Rule has prompted counsel for the 1st and 2nd appellants to argue that the purpose of Section
84 of the Elections Act was not to cap the costs; thereby Rule 36 violated the appellants’ right to be
heard on their Bill of Costs since it usurped the taxing master’s unfettered discretion. To this regard,
Order 16 of the Advocate’s Remuneration Order, 2009 provides for the taxing masters discretion in
awarding costs as follows:
Notwithstanding anything contained in this Order, on every taxation the taxing ocer may
allow all such costs, charges and expenses as authorized in this Order as appear to him to
have been necessary or proper for the attainment of justice or for defending the rights of
any party, but, save as against the party who incurred the same, no costs shall be allowed
which appear to the taxing ocer to have been incurred or increased through over-caution,
negligence or mistake, or by payment of special charges or expenses to witnesses or other
person, or by other unusual expenses. (Emphasis added).
378. In the George Mike Wanjohi v. Steven Kariuki and 2 Others Petition 2A of 2014; [2014] eKLR case
(the Wanjohi case) This court armed its decision on costs in the Jasbir case, that is, costs follow the
event and the Court has the discretion in awarding costs. The Wanjohi case went further to elaborate
the unique nature of awarding costs in electoral disputes and relating it to Section 84 of the Elections
Act and Rule 36 of the Elections Petition Rules. This Court held that Section 84 and Rule 36 limits the
manner in which election Courts award costs in contrast to the award of costs in ordinary civil cases.
We held the following at paragraph 116:
“From the above statutory provisions and excerpts from case law, we are of the view that
in election petition matters, Courts are under the obligation to award costs following the
event. In instances where there is a vexatious claim brought about by the petitioner or the
respondents then it is up to the Court to determine whether a party will be disallowed costs
or an imposition of the burden of paying costs will be placed on such a party. This means
that the wording in Section 84 of the Elections Act and Rule 36 of the Election Petition
Rules is indeed rigid with regards to the manner in which Courts will award costs. These
provisions provide a dierent application with regard to costs in that election Courts do
not have discretion in awarding costs as they ordinarily have under civil procedure. This
provision is not punitive in nature but seeks to compensate the successful litigant for the
expenses they incurred as a result of the case.” (Emphasis added).
379. Prior to the Wanjohi case, the Court of Appeal had arrived at a similar decision in the case of Joseph
Amisi Omukanda v. Independent Electoral and Boundaries Commission & 2 others Civil Appeal No.
45 of 2013; [2014] eKLR in which it held that the wording of Section 84 of the Elections Act and Rule
36 of the Elections Petition Rules is dierent from the wording in Section 27 of the Civil Procedure
Act, which gives the Courts the discretion when awarding costs.
The Court pronounced that:
“…In our view, the legislature clearly intended to depart from the provisions regarding costs obtaining
in Section 27 of the Civil Procedure Act to the provisions in Section 84 of the Elections Act which
exclude discretion on the part of the court.” [Emphasis added].
380. The issue thus is whether the trial Court infringed the rights of the 1st and 2nd appellants when it
capped the costs thereby infringing their right to be heard before the taxing master. The above excerpts
from legislation and case law illustrate that the Elections Act and regulations thereunder govern the
resolution of election disputes. It is clear that the High Court, the Court of Appeal and the Supreme
Court will not hesitate to adopt the principle that costs follow the event.
381. In addition, these Courts have discretion and the mandate to award the amount of costs payable. Costs
arising from complex electoral issues can be enormous and result in hindering future litigants from
challenging election petitions for fear of paying costs. This is the reason behind Courts being entrusted
with the discretion to cap costs in electoral disputes. Every Kenyan has the civil and political right to
institute any electoral dispute and nancial diculties should not act as and be a hindrance for ling
such suits which seek to question whether an electoral process was conducted in accordance with the
constitutional provision.
382. Kiage JA, was therefore correct in holding that only once the appellants had prepared their Bill of
Costs and the same gets taxed in a manner that violates their rights can their complaint be ripe for
adjudication. Further he observed that as things now stand, without such a Bill having been prepared
and taxed, the appellants’ argument was pre-mature and essentially speculative. I am of the same
opinion as Kiage JA, in this regard.
383. Counsel for the 3rd, 4th and 5th appellants submitted that, the appeal was allowed due to a perceived
fault on the part of the election Court and not on the fault of any of the 3rd, 4th and 5th appellants thus
it was punitive for the Court of Appeal to condemn them to pay costs.
384. In the Jasbir case, this Court dealt with the issue of costs and held as follows at paragraph 18:
“It emerges that the award of costs would normally be guided by the principle that “costs
follow the event”: the eect being that the party who calls forth the event by instituting suit,
will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful
suit, then the defendant or respondent will bear the costs…..”
385. In considering whether the Court of Appeal’s order on costs were discriminatory and punitive, I am
persuaded by R. Kuloba in Judicial Hints on Civil Procedure 2nd Ed Law Africa, Nairobi 2011 at page
94 which states that:
“the object of ordering a party to pay costs is to reimburse the successful party for amounts
expended on the case. It must not be made merely as a penal measure…Costs are a means
by which a successful litigant is recouped for expenses to which he has been put in ghting
an action.” [Emphasis added].
386. Comparative case law also illustrates that awarding costs should not be used as a punitive measure but
used to reimburse the successful party to a claim. In the Ugandan case of Col (RTD) Besigye Kizza
v. Museveni Yoweri Kaguta and Electoral Commission Presidential Election Petition No. 1 of 2001,
Odoki CJ, (as he then was) ordered that each party should bear its own costs and stated as follows:
“… Costs are not intended to be punitive but a successful litigant may be deprived of his
costs only exceptional circumstances. See Wambugu vs. Public Service Commission (1972)
E.A. 296.”
387. In addition, in the Indian case of Manindra Chandra Nandi v. Aswini Kumar Acharjya, [ILR (1921)
48 Ca. 427], the principle underlying the awarding of costs was stated as follows:
“...We must remember that whatever the origin of costs might have been, they are now
awarded, not as a punishment of the defeated party but as recompense to the successful party
for the expenses to which he had been subjected…” [Emphasis added].
388. The excerpts above illustrate that costs follow the event and the awarding of costs to one successful
party must not be seen as a punitive measure. Thus the 3rd, 4th and 5th appellants’ argument in this
regard cannot stand.
Conclusion
389. Having considered the process, the shortfalls and the constitutional call in this matter, I would have
made the following Orders:
(a) As the evidence obtained as a result of the scrutiny exercise fails the test of Article 50(1) and
(4) of the Constitution; the same is hereby excluded and subject to fresh procedural treatment
to bring it into conformity with the prerequisites of fair hearing.
(b) The Returning Ocer, Nairobi gubernatorial elections be cross-examined on the scrutiny
report and re-examined according to the law to allow this Court an opportunity to make the
proper determination of the appeal according to the law.
(c) The Judgement of the Court in the appeal shall be rendered upon the completion of this
exercise and upon satisfactory examination of the ndings by the Court.
390. However, in light of the decision taken by the majority, this proposal for the Court to remit the
matter to itself, cannot be eected. As the case stands, no evidence has been adduced to warrant
the nullication of the gubernatorial election of the Nairobi County held on 4th March, 2013. I am
therefore in agreement with the nal orders in the majority decision.
G. Orders
391. Upon considering the arguments and submissions of counsel, as well as the relevant material, works
and precedents, we have come to our conclusion which takes the form of specic orders as follows:
(a) The decision of the Court of Appeal delivered on 13th May, 2014 is hereby annulled.
(b) The Judgment of the High Court dated 10th September, 2013 is hereby reinstated.
(c) For the avoidance of doubt, we rearm the status of the 1st appellant herein as the duly-
elected Governor of Nairobi County as declared by the Independent Electoral and Boundaries
Commission (IEBC) on 7th March, 2013, and as published in Kenya Gazette No. 3155 of 13th
March, 2013.
(d) Parties shall bear their own respective costs at the High Court, the Court of Appeal and the
Supreme Court.
DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF AUGUST, 2014.
……………………………………………
W. M. MUTUNGA
CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT
……………………………………………
K.H. RAWAL
DEPUTY CHIEF JUSTICE & VICE-PRESIDENT OF THE SUPREME COURT
……………………………………………
P. K. TUNOI
JUSTICE OF THE SUPREME COURT
……………………………………………
M. K. IBRAHIM
……………………………………………
J.B. OJWANG
……………………………………………
S. C. WANJALA
……………………………………………
S. N. NDUNGU
I certify that this is a true copy of the original
REGISTRAR, SUPREME COURT

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Kidero & 4 others v Waititu & 4 others (Petition 18 & 20 of 2014

(Consolidated)) [2014] KESC 11 (KLR) (29 August 2014) (Judgment)

(a) Proceedings in the High Court

4. The following issues were raised for determination by the Court:

(b) Proceedings in the Court of Appeal

(iv) whether the High Court committed errors of law; and

(v) whether an upper limit to costs should have been prescribed.

(c) Proceedings before the Supreme Court

11. This nal appeal was premised on the grounds that:

C. The Parties’ Respective Cases

(i) The 1st and 2nd Appellants

(b) Competency of the appeal

(b) no subsidiary legislation shall be inconsistent with the provisions of an Act;...”

“(2) The adavit under sub-rule (1) shall—

(a) state the substance of the evidence;

(b) be served on all parties to the election petition with sucient

(d) Scrutiny and recount

(e) Materiality test

(f ) Burden and standard of proof

(a) the total amount of costs payable; and

(b) the persons by and to whom the costs shall be paid.”

(ii) The 3rd, 4th and 5th Appellants’ Case

(a) Competency of the appeal

(b) Fair hearing

(c) Stare decisis

(d) Scrutiny and recount

(e) Forms 35 and 36

(iii) 1st Respondent’s Case

(b) Fair hearing – the right to cross-examination

(c) Competency of the appeal

(d) Scrutiny and recount

(e) Burden of Proof

(f ) Consideration of facts by the Court of Appeal

D. ISSUES FOR DETERMINATION

121. Article 163 (4) (a) of the Constitution provides as follows:

(a) as of right in any case involving the interpretation or application of this

“Certain provisions of the Constitution of Kenya have to be perceived in the context of

“Parliament shall enact legislation to provide for¾

(b) transparent and;

(c) takes into account the special needs of¾

(i) persons with disabilities and;

(ii) other persons or groups with special needs.”

“Parliament shall enact legislation to establish mechanisms for timely settling of

Article 105 (1) of the Constitution provides that:

(a) a person has been validly elected as a member of Parliament…”

“Parliament shall enact legislation to give full eect to this Article.”

(a) as of right in any case involving the interpretation or application of this

“1. An application for proceedings was lodged in Court on 11/9/2013;

“2. Certied copies of proceedings were not ready until 9/10/2013;

“5. Number of days taken: 49days.”

“….Time as a principle, is comprehensively addressed throughthe attribute of accuracy, and

“As a declaration of principle, I believe we were correct in asserting the importance,

Rule 82(1) of the Court of Appeal Rules stipulates that:

(a) a memorandum of appeal, in quadruplicate;

(b) the record appeal, in quadruplicate;

(c) the prescribed fee; and

(d) security for the costs of the appeal:

“Where an Act of parliament confers power on an authority to make subsidiary legislation,

(c) no subsidiary legislation shall be inconsistent with the provisions of an Act.”