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MagistratePartially AllowedElection Petition (Fafi Ward MCA) — Garissa Law Court, 2022· [2023] KEMC 2 (KLR)

Gedi v Aden & 2 others (Election Petition E001 of 2022) [2023] KEMC 2 (KLR)

Chief Magistrate's Court at Garissa
24 February 2023
8,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out an MCA's election win after a recount showed tallying errors had handed him 130 phantom votes.

What this practically means

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Executive summary

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This is a first-instance election petition by Mohamed Feisal Gedi challenging the declaration of Kolosho Hassan Aden as elected Member of County Assembly for Fafi Ward, Garissa County, in the 9 August 2022 elections, on the basis that Form 36B mis-collated results from the 18 polling stations. The court first declined jurisdiction over the 1st Respondent's allegation that the Petitioner was a refugee, holding eligibility a pre-election dispute for IEBC or the PPDT. It restated the burden of proof (cogent and credible evidence on a standard above balance of probabilities but below beyond reasonable doubt) per the Supreme Court's 2022 Odinga v Ruto decision. At the hearing the Petitioner abandoned all but two contested stations. A court-administered scrutiny and recount of Hagadera Community Water Pan Polling Station 2 of 2 and Diiso Primary School Polling Station 2 confirmed that at Hagadera the Petitioner received 130 votes (not 30) and the 1st Respondent 13 (not 113), and at Diiso the 1st Respondent received 144 votes (not 174); Form 36A for Diiso was missing from the ballot box but the court held this did not substantially affect the result since all other accountable documents were present. Correcting the collated tallies, the Petitioner emerged the apparent winner with 823 votes against 672, a margin of 151. Applying section 80(4) of the Election Act and the Supreme Court's Abdirahman Ibrahim Mohamud decision, the court invalidated the 1st Respondent's election, declared the Petitioner duly elected, and directed issuance of a certificate of election within five days. The 3rd Respondent bore the costs, capped as specified, and the security deposit was released.

Key legal issues

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01

Eligibility of the Petitioner to participate in the election

Holding

The court declined jurisdiction over eligibility, holding it a pre-election dispute for IEBC or PPDT; the Returning Officer had cleared the Petitioner with ID and voter card and no objection was raised.

Reasoning

Applying Mohamed Abdi v Ahmed Abdullahi Mohamed, the court held that pre-election disputes including nominations must first go to IEBC or PPDT, and once cleared, such issues cannot be relitigated in an election petition. The 1st Respondent never objected to the Petitioner's clearance; the allegation was also overtaken by events.

p. 9
02

Standard and burden of proof in an election petition

Holding

A petitioner bears the burden of offering cogent and credible evidence on a standard higher than balance of probabilities but lower than beyond reasonable doubt, shifting to the respondent once discharged.

Reasoning

Guided by the Supreme Court in Odinga v Ruto (2022) and the 2017 Raila Odinga decision, the court restated that a petitioner seeking nullification must prove alleged non-conformity with the Constitution or law; the evidentiary burden then shifts to the respondent to rebut.

p. 10
03

Whether the election was free and fair

Holding

Yes — voting at the two contested stations was smooth and peaceful, satisfying Article 81(e)(i), (ii) and (iii).

Reasoning

All witnesses from both sides confirmed there was no bribery, violence or intimidation at Hagadera and Diiso polling stations. The dispute concerned collation and tallying of results, not the conduct of voting itself.

p. 10
04

Whether tallying and collation at Hagadera Station 2 and Diiso Station 2 was accurate and accountable

Holding

No — the scrutiny and recount showed the Petitioner got 130 votes (not 30) and the 1st Respondent 13 votes (not 113) at Hagadera, and 144 votes (not 174) at Diiso; Form 36B was improperly collated.

Reasoning

The court-administered recount confirmed Form 36A figures for Hagadera matched recounted ballots with no discrepancy. At Diiso, Form 36A was missing from the box, but all other accountable documents were present. The mis-collation added 100 votes to the 1st Respondent at Hagadera and 30 at Diiso, materially changing the outcome.

p. 17
05

Whether to annul the election and declare the Petitioner the winner

Holding

The election of the 1st Respondent was invalidated; rather than annulling only, the court declared the Petitioner duly elected with a 151-vote margin under section 80(4) of the Election Act.

Reasoning

Corrected tallies gave the Petitioner 823 votes against the 1st Respondent's 672. Relying on Abdirahman Ibrahim Mohamud (Supreme Court), the court held a winner may be declared without a fresh election where, upon recount, the winner is apparent and has committed no election offence.

p. 18

Legal principles established

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  • The standard of proof in election petitions is above a balance of probabilities but below the criminal standard of beyond reasonable doubt.
  • Non-compliance affects an election result in a substantial manner if the votes obtained would have been different in a substantial manner but for the non-compliance; it is sufficient to prove the winning majority would have been reduced such that the victory is put in doubt.
  • An election court may declare a winner under section 80(4) of the Election Act upon recount without ordering a fresh election.
  • Missing Form 36A does not substantially affect the result where all other accountable documents (PSD, counterfoils, ballot papers) were found in the ballot box.

Court orders

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  1. 1.A declaration invalidating the election of the 1st Respondent as the Member of County Assembly of Garissa County representing Fafi Ward
  2. 2.A declaration that the Petitioner was duly elected as the Member of County Assembly representing Fafi Ward having attained majority valid votes
  3. 3.Direction that the 2nd and 3rd Respondents and/or their agents issue a certificate of election for Fafi Ward to the Petitioner within five days
  4. 4.Costs: Petitioner full costs capped at Kshs. 300,000/=; Mr. Kolosho Hassan Aden full costs capped at Kshs. 300,000/=; Mr. Akello's and Mr. Nyaga's costs each capped at Kshs. 250,000/=; all costs borne by the 3rd Respondent
  5. 5.Deposit paid into Court as security to be released to the depositor forthwith
Jurisdiction invoked
Constitution and Election Act — election court jurisdiction over a Member of County Assembly election (Sections 80 and 83, Election Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gedi v Aden & 2 others (Election Petition E001 of 2022) [2023] KEMC 2 (KLR)", Case Analysis (2023). Election Petition (Fafi Ward MCA) — Garissa Law Court, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/2/eng@2023-02-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.