The Court of Appeal on Friday, August 25, overturned a decision nullifying the election of Lagdera MP Abdikadir Hussein Mohammed, ruling that the ODM lawmaker was validly elected.
A three-judge bench of the Court of Appeal ruled that High Court Judge Thripsisa Cherere's nullification of the election in March was drastic because the elections were substantially conducted in accordance with the Constitution and the Electoral Act.
Justices Kathurima M'Inoti, Hellen Omondi and Ngenye Macharia said it could not be said that the election was so badly conducted that there was no election at all in Ladgera constituency.
"Our considered view is that the variances revealed by the scrutiny fell within the allowable discrepancies and were not of such magnitude as to warrant the nullification of the election," the judges said.
The petition was filed by Mr Abbass Ibrahim Kafow, who was a UDA chief agent, and Mohamed Ibrahim Sugow, a voter in Lagdera.
Their complaint was that there were incidents of violence at a number of polling stations, instigated by supporters of the MP who took over the polling stations and intimidated voters to vote in a way that was prejudicial to the other candidates.
They also claimed that the results in the Lagdera constituency were not transparent, accountable or verifiable.
Six candidates were vying for the position and at the end of the polling, the returning officer declared Mr Mohammed the winner with 5,929 votes. He beat his closest rival by 1,049 votes.
The returning officer, Mr Farah Ibrahim, admitted that he ejected some polling agents from the tallying centre because they were disruptive, but that the decision was taken in accordance with the law.
Justice Cherere nullified the election in March, saying that although the petitioners had failed to prove most of their allegations, an investigation showed that there was a discrepancy between the votes cast and those recorded in the electronic kits.
According to the judge, since she could not determine which votes were illegal and which were not, the only option was to invalidate the total of 1,268 votes in the challenged polling stations.
And after the number was removed, Mr Mohammed's votes were reduced to 4661 against 4681 in favour of the runners-up.
The judge then declared the second-placed candidate the winner, forcing Mr Mohammed to appeal to the Court of Appeal.
"We find that the nullification of the election was a drastic action as scrutiny should not serve the purpose of a fishing expedition particularly in matters not pleaded. For the reasons advanced, we find merit in the appeal and the same is allowed with costs to the appellant," the judges said.