Gedi v Aden & 2 others (Election Petition E001 of 2022) [2023] KEMC 2 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Eligibility of the Petitioner to participate in the election
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.
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.
Standard and burden of proof in an election petition
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.
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.
Whether the election was free and fair
Yes — voting at the two contested stations was smooth and peaceful, satisfying Article 81(e)(i), (ii) and (iii).
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.
Whether tallying and collation at Hagadera Station 2 and Diiso Station 2 was accurate and accountable
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.
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.
Whether to annul the election and declare the Petitioner the winner
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.
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.
Legal principles established
#- 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
#- 1.A declaration invalidating the election of the 1st Respondent as the Member of County Assembly of Garissa County representing Fafi Ward
- 2.A declaration that the Petitioner was duly elected as the Member of County Assembly representing Fafi Ward having attained majority valid votes
- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.