Abdirahman Ibrahim Mohamud v Mohamed Ahmed Kolosh & 2 others [2018] KECA 436 (KLR)
The bottom line
#Kenya's Court of Appeal restored the Wajir West MP's election, ruling that a High Court judge wrongly nullified votes he had no legal power to disregard.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial judge could determine the petition on unpleaded matters (voter turnout and ballot stuffing at Qara polling station)
He could not; the Supreme Court's RAILA 2017 decision binds all subordinate courts and requires election disputes to be decided on the pleaded case. The parties never consented to leave the unpleaded issues to the court, distinguishing Leiyagu.
Article 163(7) entrenches stare decisis, so the judge could not prefer the earlier Court of Appeal position in Leiyagu over the Supreme Court's ruling. The respondents strenuously opposed the unpleaded matters, so there was no consensus that the court decide them. Specificity in pleading complaints is mandatory under Rules 8(1)(e) and 11(5) of the Election (Parliamentary and County Elections Petitions) Rules, 2017, and evidence outside the pleadings is inadmissible as held in Ndolo v Wathika.
Whether the election court could disregard the Qara polling station results under regulation 83(1)
It could not. The power to disregard results at the tallying centre belongs to the returning officer; the election court may only strike off votes in the six categories in section 82(2) of the Elections Act.
The judge expressly acknowledged his powers were narrowly constricted under section 82 yet proceeded to arrogate the returning officer's regulatory power to himself on the belief that it should belong to the court. Jurisdiction is everything; a court lacking jurisdiction must down its tools and cannot expand it by judicial craft. The disregard of the Qara votes was therefore a nullity without legal force or effect.
Whether the petitioner should have been declared winner after the partial recount
No. Section 80(4) permits declaration of a winner only upon a recount of all ballots cast; a piecemeal recount cannot determine the electorate's will. The petitioner also bore the burden of proof, which was not discharged.
The power to declare a person elected other than the one declared on election day is so great it must be exercised with circumspection. A winner is one who gains the most votes overall; a selective recount of a few polling stations could absurdly declare a victor who garnered fewer votes in totality. Opore and Mailachami, relied on by the parties, both involved recounts covering all polling stations.
Whether the capping of instruction fees at Kshs. 1.5 million was erroneous
No. Costs are discretionary and the appellate court interferes only where the quantum is a wholly erroneous estimate; the cap accorded with recent decisions of the Court following the 2017 general election.
Costs must compensate the successful party without becoming a windfall turning electoral litigation into lucrative business, yet not so high as to become a punitive burden impeding access to justice. The decisions cited by the appellant, including Ranguma and Muroko, did not persuade the Court to interfere, and the cap was consistent with Kaloki, Ibren and Wario.
Legal principles established
#- All courts other than the Supreme Court are bound by that Court's decisions under Article 163(7), and a High Court judge may not prefer an earlier Court of Appeal decision at variance with a binding Supreme Court ruling on pleadings in election petitions.
- Election courts must determine petitions strictly on the pleaded issues; unpleaded complaints such as voter turnout versus votes cast may not be entertained, and election petitions cannot be amended.
- An election court has no power to disregard or strike out votes except in the categories specified in section 82(2) of the Elections Act; the power to disregard results under regulation 83(1) vests in the returning officer, and a court purporting to exercise it acts without jurisdiction.
- A court cannot expand its jurisdiction through judicial craft or innovation and must operate within constitutional and statutory limits.
- A declaration under section 80(4) of the Elections Act that a candidate is elected requires a recount of all the ballots cast in the election, not a partial or selective recount.
Court orders
#- 1.The appeal is dismissed with costs.
- 2.The cross-appeal succeeds and the judgment and decree of the High Court nullifying the election for Wajir West Constituency is set aside.
- 3.The petition dated 4th September 2017 is dismissed with costs capped at Kshs. 1.5 million and Kshs. 500,000 instructions fees payable to the 1st respondent and to the 2nd and 3rd respondents respectively.
- 4.No order as to costs on the cross-appeal.
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 4 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act, appeals in election petitions confined to matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdirahman Ibrahim Mohamud v Mohamed Ahmed Kolosh & 2 others [2018] KECA 436 (KLR)", Case Analysis (2018). Election Petition Appeal No. 15 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/436/eng@2018-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.