[151] In Kenya, Githua, J. succinctly stated the rationale for this higher
standard of proof in the case of Sarah Mwangudza Kai v. Mustafa
Idd & 2 Others72−
“[29]...it is important for this court to address its mind
to the burden and standard of proof required in election
petitions. This is because election petitions are not like
ordinary civil suits. They are unique in many ways.
Besides the fact that they are governed by a special code
of electoral laws, they concern disputes which revolve
around the conduct of elections in which voters exercise
their political rights enshrined under Article 38 of the
Constitution. This means that electoral disputes involve
not only the parties to the Petition but also the
electorate in the electoral area concerned.
It is therefore obvious that they are matters of great
public importance and the public interest in their
resolution cannot be overemphasized. And because of
this peculiar nature of election petitions, the law
requires that they be proved on a higher standard of
proof than the one required to prove ordinary civil
cases.”
[152] We maintain that, in electoral disputes, the standard of proof
remains higher than the balance of probabilities but lower than beyond
reasonable doubt and where allegations of criminal or quasi criminal
nature are made, it is proof beyond reasonable doubt. Consequently, we
dismiss the petitioners’ submissions that the Court should reconsider the
now established legal principle, as discussed above, and find that the
standard of proof in election petitions is on a balance of probabilities.
[153] We recognize that some have criticized this higher standard of proof
as unreasonable, however, as we have stated, electoral disputes are not
72
Sarah Mwangudza Kai v. Mustafa Idd & 2 Others Election Petition. No. 8 of 2013; [2013] eKLR.
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