Court Of Appeal Dismisses Ruling That Made ODM MP Lose Seat

The Court of Appeal has quashed a ruling by the High Court in Garissa which nullified the election of Lagdera MP Abdikadir Hussein Mohamed during the 2022 general elections.

In the ruling on Friday, August 25, Justices K. M'inoti, H.A. Omondi and Ngenye Macharia noted that Mohamed was fairly elected to the 13th Parliament, having run for the seat on an Orange Democratic Movement (ODM) party ticket.

"Also impugned in the appeals are the rulings dated 26th January 2023 and 6th February 2023 on interlocutory applications. At the stage of pre-trial directions, the parties were disinclined to consolidation of the appeals, preferring that they be heard concurrently.

Lagdera MP, Abdikadir Hussein Mohamed. /THE STAR

"It was also agreed that as regards appeal against the interlocutory applications, the main issues revolved around the process of scrutiny; the outcome of scrutiny and whether the noted variances met the threshold to warrant nullifying the election," read the Court of Appeal's statement in part.

Mohamed's appeal highlighted the main issues surrounding the process of scrutiny, the outcome of scrutiny and whether the noted variances met the threshold to warrant nullifying the election.

"Our considered view is that the 1st and 2nd respondents failed to discharge this burden, the reason being that all the six complaints raised in the petition before the trial court were found to have no substance and were dismissed," added the ruling.

The Appellate Court was made to understand in clarity that Mohamed's rival, Zeitun did not discharge the legal burden of proof to the required standard to prove the alleged irregularities.

"The burden having not been discharged, the trial court erred in invalidating the appellant's election on account of un-pleaded matters.

"We find that the nullification of the election was a drastic action as scrutiny should not serve the purpose of a fishing expedition, particularly in matters not pleaded," it added.

For the reasons advanced, the Court of Appeal found merit in the appeal and the same is allowed with costs to the appellant and the respondents.

Celebrating the ruling, Lagdera MP's Lawyer, Tom Ojienda termed it another personal win in the space of a week, given that he was representing the ODM party.

"I have this morning won for ODM Election Appeal no E004 of 2023 for Lagdera Constituency. I have done this for my Party. 

"I deserve Congratulations. The party had lost the seat at the High Court," Professor Tom Ojienda who represented Mohammed stated. 

According to the election results declared by the Independent Electoral and Boundaries Commission (IEBC), Hussein garnered 5,939 votes in the parliamentary race, beating United Democratic Alliance- UDA's Abdiqani Zeitun who had 4,863 votes.

Hussein's competitor in the August 2022 polls- Zeitun had moved to the Court to challenge Hussein's win in the hotly contested race. 

The verdict on the Lagdera Constituency election came days after four voters moved to court claiming that Abdikadir Hussein was not a Kenyan citizen and thus was not eligible for election. 

Abdikadir Hussein being handed a victory certificate after being declared the winner. /NTV KENYA.FACEBOOK