[130] The law places the common law principle of onus probandi on the
person who asserts a fact to prove it. Section 107 of the Evidence Act, Cap
80 of the Laws of Kenya, legislates this principle in the words: “Whoever
desires any Court to give Judgment as to any legal right or liability
dependent on the existence of facts which he asserts must prove that those
facts exist.” In election disputes, as was stated by the Canadian Supreme
Court in the case of Opitz v. Wrzesnewskyj48, an applicant who seeks to
annul an election bears the legal burden of proof throughout. This Court
reiterated that position in the 2013 Raila Odinga case, thus:
“[195] There is, apparently, a common thread
in…comparative jurisprudence on burden of proof in
election cases…that an electoral cause is established
much in the same way as a civil cause: the legal
burden rests on the petitioner….
[196] This emerges from a long-standing common law
approach in respect of alleged irregularity in the acts
of public bodies. Omnia praesumuntur rite et solemniter
esse acta: all acts are presumed to have been done
rightly and regularly. So, the petitioner must set out
by raising firm and credible evidence of the public
authority’s departures from the prescriptions of the
law.”
[131] Thus a petitioner who seeks the nullification of an election on
account of non-conformity with the law or on the basis of irregularities
must adduce cogent and credible evidence to prove those grounds49 “to the
satisfaction of the court.”50 That is fixed at the onset of the trial and unless
48
Opitz
v Wrzesnewskyj (2012) SCC 55.
Hassan Abdalla Albeity v. Abu Mohamrd Abu Chiaba & another, Petition No. 9 of 2013; [2013] eKLR.
50 Col. Dr. Kizza Besigye v. Museveni Yoweri Kaguta & Electoral Commission, Election Petition No.1 of
2001.
49
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Petition
No.
1
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2017
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