Law Dictionary defines it as “[t]he degree or level of proof demanded in
a specific case”64 “in order for a party to succeed.”65
[144] Various jurisdictions across the globe have adopted different
approaches on the question of the requisite standard of proof in relation to
election petitions. From many decisions, three main categories of the
standard of proof emerge: the application of the criminal standard of proof
of beyond reasonable doubt; the application of the civil case standard of
‘balance of probabilities’; and the application of an intermediate standard
of proof.66
[145] The application of the criminal standard of proof of ‘beyond
reasonable doubt’ arises when the commission of criminal or quasi criminal
acts are made in a petition. This is the standard the Supreme Court of India
employed in the case of Shiv Kirpal Singh v. Shri V. V. Giri67 where it
stated:
"Although there are inherent differences between the trial
of an election petition and that of a criminal charge in the
matter of investigation, the vital point of identity for the
two trials is that the court must be able to come to the
conclusion beyond any reasonable doubt as to the
commission of the corrupt practice."
[146] Kenya adopts this standard of proof. In the 2013 Raila Odinga
case, this Court stated that “where [there] are criminal charges linked to
an election, … the party bearing the legal burden of proof must discharge
it beyond any reasonable doubt.” Following this decision in Khatib
Black’s Law Dictionary (9th Ed, 2009) 1535.
Moses Wanjala Lukoye v. Bernard Alfred Wekesa Sambu & 3 others, Petition No. 2 of 2013; [2013]
eKLR.
66 John Hatchard, ‘Election Petitions and the Standard of Proof’, (2015) Vol. 27 Denning Law Journal 291.
67 Shiv Kirpal Singh v. Shri V. V. Giri 1971 SCR (2) 197.
64
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