Court of Appeal overturns nullification of Lagdera MP Abdikadir Mohamed’s election
By K24 Editorial, August 25, 2023The Court of Appeal has overturned a decision of the High Court to nullify the election of Lagdera MP Abdikadir Hussein Mohamed.
The three-judge bench composed of justices Kathurima M’Inoti, Hellen Omondi and Ngenye Machari said the ODM party MP was validly elected and that the High Court erred in quashing his victory.
“It is clear to this court that petitioners Abass Ibrahim Kafow and Mohamed Ibrahim Sugow did not discharge the legal burden of proof to the required standard to prove alleged irregularities. The burden having not been discharged, the trial court erred in invalidating Hussein’s election on account of un-pleaded matters,” the judges ruled.
While overturning the High Court Judge Thripsisa Cherere’s decision that had annulled the election of MP Hussein, the appellate court judges held that none of the six allegations raised in the petition including that the Parliament elections were marred with irregularities was proven beyond reasonable doubt by the petitioners.
“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 judges ruled.
“For the reasons advanced, we find merit in the appeal by Hussein and the same is allowed with cost to MP Hussein and Independent Electoral and Boundaries Commission (IEBC) and Farah Ibrahim. It is so ordered,” they added.
The decision by the court of appeal comes after Hussein through lawyer Tom Ojienda challenged the decision by Justice Cherere of March 3, 2023, that nullified his victory.
Ojienda argued that the High Court judge erred in invalidating Hussein’s election since no evidence was adduced to prove the election of his client was flawed.
He urged the court to set aside and uphold the IEBC decision that declared Hussein won the Parliament set in a free and fair election.
Hussein, who contested for the position under an ODM party ticket was declared the winner after garnering 5,939 votes in the August 2022 elections ahead of his closest rival Abdiqani Zeitun who managed 4,863 votes.