I.E.B.C loses landmark tallying case


Earlier today the Court of Appeal held in a judgment that presidential results tallied at constituency level are final.

The appellants, the I.E.B.C in their appeal brought up several issues including:

  1. Res Judicata: This doctrine implies that once a matter involving the same parties has been tried to finality by a competent Court, it cannot return to the same court again. The I.E.B.C quoted the case of Ngugi v. Kinyanjui & 3 Others. But as to whether the matter was Res Judicata, Justice Kiage responded “The answer to that question is a straight No!”.

Maina Kiai’s name came up and the I.E.B.C contended that he was involved in the 2013 case of  Africog v Ahmed Hussein and Anor . But the Court held that Kiai is a distinct party from Africog stating that “Mere association as a basis for raising res judicata is extrapolation”. The Court stated that Res Judicata is a matter to be handled In  limine (at the very outset).

The I.E.BC also contended that the present case was already heard in 2013 (Raila Odinga & 2 others v I.E.BC. & 3 others). The Court disagreed stating that the 2013 case “dealt with a straightforward question as to whether the presidency had been validly elected.”

2. The Interpretation of the Constitution: The landmark Australian case of Chu Kheng Lim v Minister for Immigration was quoted by the judge in support of a purposive interpretation of the constitution to avoid ambiguity in meaning. The Court also quoted an advisory opinion of a Kenyan Supreme Court case involving the Human Rights Commission wherein a Holistic Interpretation of the Constitution was espoused, holistic meaning the constitution ought to be interpreted in context. The bench also quoted the Namibian case of State v. Hutchinson where it was stated that the constitution is a mirror reflecting the national soul. The court disagreed with the attorney general that the interpretation should be formalistic.

3. Powers of I.E.B.C Chair: The Court stated that having the chair of the I.E.BC. varying the tally would introduce arbitrariness and opaqueness.  The I.E.BC. cannot contend to hire people it does not trust, staff on the ground should therefore be properly vetted.


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