Mohamud v Kolosh & 2 others (Election Petition 26 of 2018) [2019] KESC 66 (KLR)
The bottom line
#Supreme Court ordered fresh Wajir West MP election due to irregularities that made winner unclear.
What this practically means
#The Supreme Court nullified the 2017 Wajir West MP election because at one polling station, more votes were cast than people who voted. The court could not simply discard those votes because the law only allows striking votes for specific reasons like bribery. Since the irregularities affected the outcome but no candidate clearly won, the court ordered a fresh election. The Independent Electoral and Boundaries Commission must conduct it properly.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Appellate Court erred in finding upon, and taking into consideration matters that fell outside the pleadings
- 2.whether the Appellate Court rightly found the trial Court to have erred in disregarding the vote-count for Qara polling station
- 3.whether the appellant should have been declared the winner of the Parliamentary election for Wajir West Constituency
- 4.whether the election in Wajir West Constituency was conducted in accordance with the Constitution
Key legal issues
#Whether the Court of Appeal erred in finding that the trial court could only base its determination on grounds specifically pleaded and supported by evidence, thereby excluding findings from scrutiny.
The Supreme Court held that the application for scrutiny and recount lay well within the profile of the pleading as properly lodged, and the trial judge had duly acted judiciously in relation to the findings of scrutiny and recount.
The appellant's original petition pleaded that the election was not free and fair, verifiable, or conducted in accordance with the law. The scrutiny report disclosed illegalities and irregularities at Qara Polling Station, which formed the basis of the trial court's findings. The Supreme Court found that the trial judge did not overstep the proper scope of the pleadings because the application for scrutiny and recount was within the profile of the pleading as properly lodged.
Whether the trial court had jurisdiction to disregard the votes cast at Qara Polling Station based on irregularities discovered during scrutiny.
The Supreme Court held that the trial court lacked jurisdiction to disregard the votes because the irregularities at Qara Polling Station did not fall within the categories set out in section 82(2) of the Elections Act.
Section 82(2) of the Elections Act specifies the conditions in which the trial court may strike out certain votes following scrutiny, such as votes of persons not on the register or votes procured by bribery. The irregularities at Qara—missing counterfoils, untraceable unused ballot papers, and discrepancy in ballot serial numbers—did not fall within these categories. Therefore, the Court of Appeal was correct to find that the trial court lacked jurisdiction to disregard those votes.
Whether the appellant should have been declared the winner of the election after disregarding the results from Qara and Korich Polling Stations.
The Supreme Court held that the appellant could not be declared the winner because the scrutiny process did not make any winner apparent; the position was blurred and uncertain.
The total number of votes registered at Qara was 628, out of which 458 turned out to vote, yet the votes cast rose to 590. The votes could not be attributed to candidates individually. Considering the margin of votes between the appellant and the 1st respondent in the remaining 74 polling stations, the Qara vote had the potential to shift victory to either side. Therefore, the winner was not apparent, and the court could not declare a winner under section 80(4) of the Elections Act.
Whether the election in Wajir West Constituency was conducted in accordance with the Constitution.
The Supreme Court held that the election was not conducted substantially in accordance with the Constitution, specifically articles 81, 82, and 86, and that the irregularities at Qara Polling Station affected the outcome of the election.
The irregularities at Qara Polling Station—where the number of votes cast (590) exceeded the voter turnout (458), and the origin of ballot papers could not be verified—demonstrated that the election was not free, fair, verifiable, or transparent as required by articles 81 and 86 of the Constitution. These irregularities affected the outcome of the election, justifying the nullification of the declared result and the ordering of a fresh election.
Legal principles established
#- Election courts can only strike out votes under specific categories listed in section 82(2) of the Elections Act.
- Irregularities like missing counterfoils or excess votes not in those categories cannot justify disregarding votes.
- If scrutiny reveals irregularities affecting outcome but no winner apparent, the remedy is a fresh election, not declaring a winner.
- An application for scrutiny and recount is within pleadings if the original petition alleged the election was not free and fair.
- Elections must be conducted substantially in accordance with Articles 81, 82, and 86 of the Constitution.
Court orders
#- 1.The Judgment and Decree of the Appellate Court, dated 27 July 2018 in Election Petition No 15 of 2018, is hereby set aside.
- 2.The declaration made by the 2nd and 3rd respondents on 10 August 2017, that 1st respondent is the winner of the Wajir West National Assembly election held on 8 August, 2017, is hereby declared invalid.
- 3.The 2nd and 3rd respondents are hereby directed to conduct a fresh election for the seat of Member of Parliament for Wajir West Constituency, while ensuring due compliance with the governing terms of the Constitution.
- 4.The costs of the appellant at the High Court, the Court of Appeal and the Supreme Court shall be borne by the 2nd and 3rd respondents —the details thereof to be the subject of taxation by the Deputy Registrar.
- 5.The 1st respondent shall bear his own costs at the High Court, the Court of Appeal and the Supreme Court.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal
- Election Petition of Appeal No 15 of 2018
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that the appellant be declared the winner of the election for Member of the National Assembly, Wajir West Constituency
The process of scrutiny has not pointed to any contestant as the winner: the position is blurred and distinctly uncertain.
Costs
The costs of the appellant at the High Court, the Court of Appeal and the Supreme Court shall be borne by the 2nd and 3rd respondents —the details thereof to be the subject of taxation by the Deputy Registrar. The 1st respondent shall bear his own costs at the High Court, the Court of Appeal and the Supreme Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Judgment and Decree of the Appellate Court, dated 27 July 2018 in Election Petition No 15 of 2018, is hereby set aside.
The 2nd and 3rd respondents are hereby directed to conduct a fresh election for the seat of Member of Parliament for Wajir West Constituency, while ensuring due compliance with the governing terms of the Constitution.
We have not found the electoral irregularities that occurred at Qara Polling Station to fall within the category set out in section 82(2) of the Elections Act.
the process of scrutiny has not pointed to any contestant as the winner: the position is blurred and distinctly uncertain
It is our finding, in the circumstances, that the election for the seat of Member of Parliament for Wajir West Constituency, was not conducted substantially in accordance with the terms of the Constitution, and more specifically, those of articles 81, 82 and 86 of the Constitution, which had been transgressed.
It is clear to us that the application for scrutiny and recount of votes, lay well within the profile of the pleading as properly lodged; and consequently, the Judge had duly acted judiciously, in relation to the findings of the scrutiny and recount.
Key timeline
#Practical implications
#Plead scrutiny carefully
When drafting election petitions, ensure the pleadings explicitly allege that the election was not free, fair, or verifiable. This allows the court to order scrutiny and recount without exceeding pleadings. Also note that section 82(2) strictly limits striking out votes; irregularities like missing counterfoils won't justify discarding votes unless they fall within the listed categories.
Election stability matters
Businesses operating in constituencies with disputed elections face uncertainty. This case shows that even after a declaration, the Supreme Court can order a fresh election if irregularities affect the outcome. Companies should monitor election petitions closely and plan for potential delays in representation that could affect local legislation or government contracts.
Know your voting rights
If you witness irregularities like ballot stuffing or missing counterfoils at your polling station, report them immediately to IEBC officials and your preferred candidate's agents. Such evidence can be used in an election petition. However, the court may not automatically discard those votes unless the irregularity matches specific legal categories. A fresh election may be ordered instead.
Frequently asked questions
#What happens when votes exceed voters in a Kenyan election?+
If votes cast exceed the number of voters who turned out, as in Wajir West, the election can be nullified. The court may order a fresh election if the irregularity affects the outcome and no winner is clear. The law does not allow simply discarding those votes unless they fall under specific categories like bribery.
Can a Kenyan court declare a winner if the election is flawed?+
No, not if the winner is unclear. In this case, the Supreme Court said that when scrutiny shows irregularities but no candidate emerges as the clear winner, the court cannot declare a winner under section 80(4) of the Elections Act. Instead, it must order a fresh election.
What is section 82(2) of Kenya's Elections Act?+
Section 82(2) lists specific grounds on which an election court can strike out votes after scrutiny, such as votes of persons not on the register, votes procured by bribery, or votes cast by impersonation. Irregularities like missing counterfoils or excess votes not in this list cannot be used to disregard votes.
How do I challenge election results in Kenya?+
File an election petition at the High Court within 28 days of the declaration of results. Your petition must plead specific grounds, such as non-compliance with the Constitution or electoral laws. The court can order scrutiny and recount if the pleadings support it. If irregularities affect the outcome, the court may nullify the election and order a fresh one.
Cite this brief
#Cite this brief
Caselaw, "Mohamud v Kolosh & 2 others (Election Petition 26 of 2018) [2019] KESC 66 (KLR)", Case Analysis (2019). Election Petition 26 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/66/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.