Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR

Key Facts

Issues

• The appeal contested the learned Judge's use of a prima facie standard instead of the 'beyond reasonable doubt' standard for allegations of fraud and forgery in the appellant's academic credentials. The court examined if the Judge's approach was legally sound, considering the nature of the charges and the evidentiary burden.
• The court evaluated whether the High Court had the authority to assess the appellant's eligibility for nomination as Governor of Wajir County, particularly regarding his academic qualifications, despite the IEBC's prior clearance. This issue was central to the appeal, as the appellant argued that the IEBC's decision should have been final.

Holdings

• The Court of Appeal rejected the appellant's argument that the High Court erred in applying the burden and standard of proof, emphasizing that the legal burden remained with the petitioners while the evidential burden shifted to the appellant. The court found the High Court's conclusion that the appellant failed to prove the authenticity of his degrees was legally sound, leading to the invalidation of the election.
• The Court of Appeal upheld the High Court's jurisdiction to determine the qualification of the candidate for the governor's seat and affirmed that the learned Judge correctly found the appellant unqualified due to lack of required educational credentials. The appeal was dismissed as the High Court's factual findings were deemed valid, and the election was declared null and void because the appellant was not legally cleared to vie for the position under section 22(2) of the Elections Act.

Remedies

• The High Court, upheld by the Court of Appeal, nullified the first respondent's election as Governor of Wajir County, finding that his candidacy was invalid from the outset due to disqualification under the Elections Act and that the election process was marred by grave irregularities affecting credibility and results.
• The court held that the first respondent (appellant) did not meet the educational requirements under section 22(2) of the Elections Act, 2011, and thus was not validly cleared by the Independent Electoral and Boundaries Commission (IEBC) to contest the gubernatorial election.
• The court ordered the appellant, IEBC, and Returning Officer to jointly and severally pay costs to the 1st and 2nd respondents. The instruction fee was capped at Kshs. 2,000,000, with no further costs awarded to the petitioners beyond this amount.
• The court directed the Returning Officer (3rd respondent) to hold a fresh gubernatorial election in Wajir County, in compliance with constitutional and statutory requirements, to ensure a lawful and credible electoral process.

Legal Principles

• The decision reaffirmed that appeals in election matters are confined to legal questions under section 85A of the Elections Act. The High Court's factual determination of the appellant's qualifications could not be revisited on appeal.
• The court clarified that while allegations of fraud would require proof beyond reasonable doubt, the petitioners' burden to prove disqualification under the Elections Act only required meeting an intermediate standard of proof. The High Court's findings were upheld as meeting this threshold.
• The judgment reinforced the principle that electoral qualifications are fundamental to the legitimacy of elections. A candidate who fails to meet statutory educational requirements cannot validly hold office, regardless of electoral process irregularities.
• The court emphasized that the legal burden of proof lies with the petitioners to establish the appellant's lack of qualifications. The evidential burden shifted to the appellant once petitioners provided prima facie evidence, which he failed to rebut.

Precedent Name

• MAIREMBAM PRITHUIRAJ SINGH vs. PUKHREM SHAKATCHANDRA
• JOHO vs. NYANGE & ANOR
• JOSIAH TARAIYA KIPELIAN OLE KORES vs. DR. DAVID OLE NKEDIENYE & 3 OTHERS
• MOSES MASIKA WETANGULA vs. MUSIKARI NAZI KOMBO & 2 OTHERS
• AZHAR HUSSAIN vs. RAJIV GANDHI
• RAJA vs. VAN HOOGSTRATEN
• MERCY KIRITO MUTEGI vs. BEATRICE NKATHA NYAGA & 2 OTHERS
• GIBBS vs. REA
• RAILA ODINGA & 5 OTHERS vs. IEBC & 3 OTHERS

Cited Statute

• Election Petition Rules 2017
• Elections Act
• Elections Act 2012
• Court of Appeal, Elections Petitions Rules 2017
• Court of Appeal Rules
• Elections Act 2011

Judge Name

• P. O. Kiage
• Asike-Makhandia
• P. N. Waki

Passage Text

• As at 8th August 2017, the appellant did not have the academic qualifications for the position of governor and he was not legally cleared to vie for it as he did not satisfy the requirements of section 22(2) of the Elections Act.
• The petitioners proved this allegation to the required standard. The source and how the two degrees came into being are facts that were in the special knowledge of the 1st respondent. In view of the uncontroverted evidence on record, they are not what they purport to be.
• The consequence of that finding is obvious: the election of the appellant had to be invalidated. A person who is not qualified to vie for a particular seat cannot hold onto his false victory by pointing to the margin of his vote vis-à-vis his competitors.