Supreme Court of Kenya Judgment: Kombe Harrison Vs Kenga Stanley

Get a concise overview of the Supreme Court of Kenya’s landmark judgment in Kombe Harrison Vs Kenga Stanley & 3 Others (Petition No E20 Of 2023). This video breaks down the key facts, legal proceedings, and implications for election integrity in Kenya. Discover how the court’s decision upholds transparency and fairness in the electoral process. Stay informed about this significant legal development!

Facts

Kenya has long faced election integrity issues, notably highlighted by the 2017 presidential election, which was nullified by the Supreme Court due to irregularities. This landmark judgment set a precedent for assessing the fairness of elections in Kenya. The Supreme Court also upheld the decisions of the lower courts and nullified the election conducted for the seat of the member of the National Assembly for Magarini constituency. 

Kombe Harrison, Kenga Stanely, and Micheal Thoya were among the candidates who contested for the seat of the member of the National Assembly, Magarini constituency, Kilifi County in the general elections that were held on 9^th August 2022. By a narrow margin of 21 votes, Kombe Harrison was declared the winner. Kenga Stanley, his closest contender, was not content with the declaration by the Independent Electoral and Boundaries Commission and challenged the results in the High Court, which nullified the elections due to illegalities and irregularities that were committed during the electoral process. Dissatisfied with the High Court’s decision, Kombe Harrison appealed to the Court of Appeal, which also upheld the High Court’s decision. The Supreme Court subsequently entertained the appeal, and, as expected, the rule of law prevailed, and the elections were nullified. 

Proceedings Before High Court 

Kenga Stanley, being the 1^st Respondent, instituted an election petition at the High Court on the following grounds; 

1. His agents were denied access to four polling stations 
2. The statutory declaration forms in twelve polling stations were falsified
3. The number of votes cast in six electoral seats in two polling stations were different 
4. There were instances of vote padding and manipulation in four polling stations 
5. The IEBC, through its officers, committed election offences in the conduct of election. 

Kenga Stanley asked the High Court to invalidate the election of Kombe Harrison, the petitioner, as the Member of National Assembly for Magarini constituency, to declare him as the duly elected candidate, or alternatively, to issue an order for fresh elections to be conducted. He also requested the High Court to declare the non-compliance, irregularities, and improprieties in the concluded elections as significant and substantial, to order for scrutiny and recount of the ballots cast, and to report to the DPP to take actions against the electoral offences.

Kombe Harrison and the IEBC denied all the allegations by Kenga Stanleys and claimed that the elections were conducted in accordance with Articles 81 and 86 of the Constitution and Electoral Laws and Regulations. They also claimed that if there were irregularities, the irregularities did not affect the final results and that the difference in results was attributed to human error due to fatigue and no candidate benefited from the said errors. 

In the judgment delivered on 3^rd March 2023, the High Court, after considering all the five grounds presented by the petitioner, allowed the petition, declared the election null and void, and ordered the IEBC to conduct a by-election in accordance with the law. The High Court made a decision after concluding that the election done was not transparent, free and fair. 

Proceedings Before The Court Of Appeal 

Dissatisfied with the decision of the High Court, Kombe Harrison appealed to the Court of appeal on the following grounds; that the Judge

1. Reduced the standard of proof in election petitions to mere speculation.
2. Misinterpreted constitutional articles and election laws.
3. Referenced non-existent legal provisions and imposed unrecognized           obligations.
4. Made determinations on issues not pleaded by the 1st respondent.
5. Incorrectly found admissions where there were none.
6. Ignored the appellant’s evidence, testimony, and submissions.
7.  Allowed amendment of the petition beyond legal timelines.
8. Ordered vote scrutiny and recount without a basis.
9. Selectively relied on the scrutiny report in favor of the 1st respondent.
10. jConsidered irrelevant matters and ignored relevant ones in the decision.

The IEBC and Magarini Constituency Returning officer, being the 2^nd and 3^rdRespondent respectively, filed a cross-appeal premised on the following grounds; that the Judge 

1. Shifted the evidentiary burden of proof to the respondents prematurely.
2. Ignored the Registrar’s report confirming the appellant’s victory, making the recount exercise pointless.
3. Relied solely on the 1st respondent’s evidence without considering the other respondents’ evidence.
4. Ordered the 3rd respondent to personally pay the petition costs.
5. Considered issues not pleaded in the petition.
6. Allowed an amendment that expanded the scope of the petition.
7.  Found admissions where none existed.
8. Misinterpreted constitutional articles, the Elections Act, and election regulations.
9. Failed to consider the evidence, testimony, and submissions of the appellant and the 2nd and 3rd respondents.

Kenga Stanley in his defense, argued that once the appellant established evidence to warrant impugning the election result, the burden shifted to the 2nd and 3rd respondents to prove that the election was conducted in accordance with the Constitution and the law

The appellate court declared that the 3rd respondent violated the constitutional tests oftransparency and accountability. Thus, it upheld the High Court’s determination that the elections for Magarini Constituency were not conducted in accordance with the Constitution and the law and that the irregularities cited in the petition by the 1st respondent affected the result. 

Proceedings Before the Supreme Court 

Dissatisfied with the decision of the Court of Appeal, the petitioner filed a petition at the Supreme Court of Kenya seeking to overturn the appellate court’s decision, affirm the fairness of the election process, confirm the petitioner’s election victory, and ensure the necessary administrative actions are taken by the relevant authorities

Issues for determination were as follows; 

1. Whether the Supreme Court had jurisdiction to entertain the appeal;
2. Whether the Court of Appeal misapplied and misinterpreted Section 83 of the Elections Act.
3. Whether the Court of Appeal misconstrued the standard and burden of proof applicable in an election petition.
4. Who should bear the costs?

The 1^st Respondent in his defense, argued that the appeal did not meet the threshold of Article 163(4)(a) of the Constitution and stressed that not every grievance from the decision of the Court of Appeal lies to the Supreme Court. 

The Supreme Court relied on the Presidential Election Petition (Raila 2017) to determine the petition brought before it. It determined that although the election was conducted substantially in accordance with the principles laid down in the Constitution and relevantlaws, it was fraught with irregularities or illegalities that affected the result of the election. 

Ultimately, the court concluded on this ground, that the 1st respondent had established to the required standard that the documents relied upon in declaring the appellant the successful candidate were flawed. As a result, the Supreme Court, having jurisdiction to determine the matter, dismissed the appeal as it lacked merit and declared the seat for the member of National Assembly for Magarini constituency vacant. The IEBC was ordered to conduct a by-election in accordance with the constitution and the law. 

Conclusion 

Despite the disappointment felt by the affected candidates following the nullification of the election, the Supreme Court’s decision stands as a commendable affirmation of the rule of law and a significant stride towards justice. By adhering to established precedents for ensuring free, transparent, and fair elections, the Court has contributed to a positive transformation of Kenya’s electoral process. With such robust institutional frameworks in place, the future of electoral justice appears promising and assured. 

For more insights pertaining to this matter, you can reach the writer at nyala@mmsadvocates.co.ke . You can also contact us at MMS Advocates, Lower Duplex Apartments, Lower Hill Road, or email us at info@mmsadvocates.co.ke