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Supreme CourtDismissedPetition 7 & 9 of 2018 (Consolidated)

Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others

Supreme Court of Kenya
12 November 2018
David Kenani MaragaD.K. MaragaMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
2,413 words in judgment
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·~10 min to read original · ~4 min brief

The bottom line

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Supreme Court dismisses bid to re-open election evidence, citing strict time limits.

What this practically means

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The Supreme Court of Kenya dismissed an application to have additional evidence taken orally before the trial court in an election petition appeal. The Court ruled that once an Election Court decides a petition, it becomes functus officio—meaning it has no further authority—due to strict constitutional and statutory deadlines. Therefore, the rule allowing trial courts to take additional evidence does not apply to election disputes. The Court also refused cross-examination of affidavit deponents, stating all necessary material was already on record.

Executive summary

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This ruling arises from a Notice of Motion dated 4th October 2018, filed by the Applicants (Ahmed Abdullahi Mohamad & 2 Others) in an election petition appeal pending before the Supreme Court. The Applicants sought two main orders: first, that the additional evidence, which the Court had previously granted the Appellant (Mohamed Abdi Mohamed) leave to adduce, be taken viva voce and by affidavit before the trial Election Court, and second, that they be allowed to cross-examine all deponents of the affidavits containing that additional evidence. The Applicants argued that the trial court, having heard the original testimony, was best placed to assess credibility and that cross-examination was essential to their right to a fair trial under Article 50 of the Constitution. The Appellant opposed the motion, contending it was an improper attempt to review the Court's earlier ruling of 28th September 2018, which had directed that additional evidence be by way of affidavit, and that the motion was barred by res judicata. The Supreme Court dismissed the application in its entirety. On the first issue, the Court held that Rule 18(5) of the Supreme Court Rules, which allows the trial court to take additional evidence, cannot apply to election petitions because the designated Election Court becomes functus officio upon determining the dispute, due to the strict time limits in Article 105(2) of the Constitution and Section 75(2) of the Elections Act. On the second issue, the Court found no need for cross-examination, as all necessary material was already on record, and allowing it would unreasonably extend the principle that additional evidence is granted sparingly. The Court further held that the motion was an impermissible attempt to review its earlier ruling without meeting the exceptional circumstances required under Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others. Costs were ordered to abide the determination of the main appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court should direct the trial Court to take the additional evidence viva voce and by affidavit in accordance with Rule 18 (4) and (5) of the Supreme Court Rules, 2012
  2. 2.Whether the Applicants should be allowed to cross-examine all the deponent(s) of the affidavit(s) to be filed by the Petitioner bearing additional evidence

Key legal issues

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01

Whether the Supreme Court can direct the trial Election Court to take additional evidence viva voce under Rule 18(5) of the Supreme Court Rules, 2012.

Holding

The Supreme Court cannot direct the trial Election Court to take additional evidence because the trial court becomes functus officio after determining the election petition, and Rule 18(5) does not apply to election disputes due to constitutional and statutory time constraints.

Reasoning

The Court reasoned that election petitions are subject to strict time limits under Article 105(2) of the Constitution and Section 75(2) of the Elections Act. Once the designated Election Court hears and determines the dispute, it becomes functus officio. Therefore, Rule 18(5), which contemplates the trial court taking additional evidence and certifying it to the appellate court, cannot apply to election petitions that begin and end in the High Court and are appealed to the Supreme Court. The Court distinguished regular appeals from election petitions in this regard.

p. 6
02

Whether the Applicants should be allowed to cross-examine deponents of affidavits filed as additional evidence.

Holding

The Court disallowed cross-examination, holding that there was no need for it as all necessary material was already on record, and allowing it would unreasonably extend the principle that additional evidence is granted sparingly.

Reasoning

The Court noted that it had already directed that additional evidence be by way of affidavits and responses by affidavit. It found that no party would be prejudiced because all necessary material to hear and determine the appeal was already on record. The Court emphasized that the grant of an order to adduce additional evidence is not routine and is done sparingly with abundant caution, and allowing cross-examination would stretch that holding to unreasonable levels.

p. 6
03

Whether the Applicants' motion was an attempt to review the Court's earlier ruling of 28th September 2018, and if so, whether it met the conditions for review.

Holding

The motion was an attempt to review the earlier ruling, and the Applicants failed to meet the exceptional circumstances required for review as set out in Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others.

Reasoning

The Court found that the Applicants were essentially asking the Court to vary its earlier order that additional evidence be by way of affidavit. The Court applied the test from Outa, which limits review to exceptional circumstances such as fraud, nullity, mistaken belief of consent, or reliance on a repealed law. The Applicants did not demonstrate any of these circumstances. The Court also cited Robert Tom Martins Kibisu v Republic, where a similar attempt to review was dismissed for failing to meet the Outa criteria.

p. 7

Legal principles established

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  • Election Courts become functus officio after determining a petition, barring them from taking additional evidence under Rule 18(5) of the Supreme Court Rules.
  • Strict time limits in Article 105(2) of the Constitution and Section 75(2) of the Elections Act prevent applying Rule 18(5) to election appeals.
  • Cross-examination of deponents in additional evidence is not automatic; it is disallowed if all necessary material is already on record.
  • Review of a Supreme Court ruling requires exceptional circumstances like fraud, nullity, or reliance on a repealed law, as per Fredrick Otieno Outa v Jared Odoyo Okello.
  • Additional evidence in election appeals is granted sparingly and cautiously, not as a routine procedure.
  • An application seeking to vary a prior ruling without meeting the Outa criteria will be dismissed as an improper review attempt.

Court orders

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  1. 1.The Application by the Applicants that the additional evidence be taken viva voce and by affidavit expeditiously before the trial Court is hereby dismissed.
  2. 2.The Application by the Applicants to cross-examine all the deponent (s) of the affidavit (s) bearing additional evidence is hereby disallowed.
  3. 3.Costs shall abide the determination of the appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
High Court of Kenya (Election Court)
Jurisdiction invoked
Articles 22, 25, 27, 48, 50 and 159 of the Constitution 2010, Rules 18 and 26 of the Supreme Court Rules, 2012

Relief refused

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Order that additional evidence be taken viva voce and by affidavit before the trial Court

The trial Court is functus officio after determining the election dispute, and Rule 18(5) cannot apply to election petitions due to constitutional and statutory time strictures.

p. 6

Order to cross-examine all deponents of affidavits bearing additional evidence

The Court found no need for cross-examination as all necessary material was already on record, and allowing it would unreasonably stretch the holding that additional evidence is allowed sparingly.

p. 6

Costs

Costs shall abide the determination of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Once the designated Election Courts have heard and determined the election disputes, they become functus officio . As such, Rule 18 (5) of the Supreme Court Rules 2012, cannot possibly apply to election disputes that begin at the High Court and end up in this Court because of the strictures of time embedded in the Constitution and statute
p. 6 Functus officio of Election Courts and inapplicability of Rule 18(5) to election petitions
we are not convinced in the circumstances that there is any need to allow cross-examination by or of any party in this Court and in any event, no party will be prejudiced by such an action as all necessary material to enable us hear and determine the appeal is already on the record
p. 6 Discretion to disallow cross-examination on additional evidence
the Applicants in the instant matter have not met the conditions precedent set out in Outa to persuade us that we ought to review or vary our Ruling of 28th September, 2018
p. 7 Conditions for review of Supreme Court rulings
The Application by the Applicants that the additional evidence be taken viva voce and by affidavit expeditiously before the trial Court is hereby dismissed.
p. 7 Final order dismissing the application
The Application by the Applicants to cross-examine all the deponent (s) of the affidavit (s) bearing additional evidence is hereby disallowed.
p. 7 Final order disallowing cross-examination

Key timeline

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2018-09-28
Supreme Court grants leave to adduce additional evidence by affidavit in election petition appeal.
2018-10-04
Applicants file motion seeking viva voce evidence and cross-examination before trial court.
Ruling date not specified
Supreme Court dismisses the motion, holding trial court functus officio and cross-examination unnecessary.

Practical implications

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For lawyers

Limit election evidence strategies

When handling election appeals to the Supreme Court, do not rely on Rule 18(5) to request trial court involvement for additional evidence. The trial Election Court is functus officio after its decision. Instead, prepare all additional evidence by affidavit at the Supreme Court stage. Also, avoid seeking cross-examination unless you can show prejudice from incomplete records, as the Court disallows it when material is sufficient.

For businesses

Understand election dispute finality

If your business is involved in an election petition as a party or witness, note that once the High Court (Election Court) rules, it cannot revisit the case for further evidence. The Supreme Court handles appeals with strict deadlines. This means you must present all key evidence early. Any attempt to re-open evidence after the trial court's decision is unlikely to succeed, saving you time and legal costs.

For individuals

Know your rights in election cases

If you are a party in an election petition, you cannot ask the trial court to take new evidence after it has made its decision. The Supreme Court will only accept additional evidence by written affidavits, not oral testimony. Also, you generally cannot cross-examine those who swear these affidavits unless you prove the court lacks enough material. This ruling protects the speed of election dispute resolution.

Frequently asked questions

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Can the trial court take additional evidence in a Kenyan election petition appeal?+

No. The Supreme Court ruled that once the Election Court decides a petition, it becomes functus officio (no further authority). Rule 18(5) of the Supreme Court Rules does not apply to election disputes due to strict constitutional and statutory time limits. Additional evidence must be by affidavit at the Supreme Court level.

What is functus officio in Kenyan election law?+

Functus officio means a court or official has completed its task and has no further legal authority. In election petitions, the trial Election Court becomes functus officio after determining the dispute. This prevents it from taking additional evidence later, ensuring election cases are resolved quickly as required by Kenya's Constitution and Elections Act.

Can I cross-examine affidavit deponents in a Kenyan Supreme Court election appeal?+

Generally, no. The Supreme Court disallowed cross-examination of deponents in additional evidence affidavits, stating all necessary material was already on record. The Court emphasized that additional evidence is granted sparingly, and allowing cross-examination would unreasonably extend that principle. You must show prejudice to succeed.

How can I review a Supreme Court ruling in Kenya?+

Review is limited to exceptional circumstances as set in Fredrick Otieno Outa v Jared Odoyo Okello. You must prove the ruling was obtained by fraud or deceit, is a nullity, the court was misled under mistaken belief of consent, or it relied on a repealed or concealed law. Simply disagreeing with the ruling is not enough.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others", Case Analysis (2018). Petition 7 & 9 of 2018 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/71/eng@2018-11-12

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