Court of Appeal has quashed the High Court ruling that nullified the election of Lagdera MP Abdikadir Hussein Mohamed in last year's General Elections.
In a ruling on Friday, August 25, Justices K. M'inoti, H.A. Omondi and Ngenye Macharia noted that Mohamed, who contested for the position under an Orange Democratic Movement (ODM) party ticket, was fairly elected.
The Lagdera MP was declared the winner after garnering 5,939 votes in the August elections ahead of his closest rival Abdiqani Zeitun who managed 4,863 votes.
"Also impugned in the appeals are the rulings dated 26th January 2023 and 6 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," the Court of Appeal Judgement read in parts.
The main issues of Mohamed's appeal revolved around 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," the Court of Appeal justices ruled.
The three Justices explained that it is therefore clear to them that the 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 discharge, the trial court erred in invalidating the appellant's election on account of unpleaded 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," the ruling read in parts.
For the reasons advanced, the three judge bench, found merit in the appeal and allowed it with costs to the appellant and the respondents.
Lagdera MP's Lawyer, Tom Ojienda used the occasion to celebrate his achievements, especially, when representing his 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.
