Fafi MCA Kolosho Aden loses seat as court declares ODM's Feisal Gedi duly elected
Mr Mohamed Feisal Gedi. A Garissa Law Court has declared him duly elected MCA for Fafi ward after the election of Mr Kolosho Hassan Aden was invalidated.
Mr Kolosho Hassan Aden of the United Party of Independent Alliance (UPIA) has lost his seat after six months of representing Fafi ward at Garissa County Assembly.
This follows a successful petition by Mr Mohamed Feisal Gedi, who vied on an ODM party ticket, which revealed irregularities in the manner tallying was carried out in the ward.
“Following the evidence adduced by the petitioner (Mr Gedi) and his witnesses vis-à-vis the examination report of scrutiny and recount filed in court, it is quite apparent that the petitioner has plainly and concisely on the balance of probability demonstrated that at Hagadera he garnered 130 votes and not 30 votes as reflected in Form 36 by the 2nd and 3rd respondents,” said Mr Hezron Nyeberi, Garissa Chief Magistrate.
Mr Nyaberi said he was satisfied that the results contained in Form 36A for Hagadera Polling Station 2 of 2 were not properly collated into Form 36B.
“The missing of Form 36A for Diiso Polling Station did not affect the accuracy and transparency of results during the recount and scrutiny as all other accountable documents were found in the ballot box,” said Mr Nyaberi.
He observed that the 100 votes irregularly added to Mr Aden at Hagadera Polling station 2 in Form 36B if reduced from the collated tally will reduce his total tally to 702 votes.
If the same votes are added to the petitioner (Mr Gedi), his collated tally result would be 823 votes and if the 30 votes irregularly added to Mr Aden at Diiso Polling Station 2 are also deducted then his (Aden), his collated tally would further reduce to 672 votes.
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“The petitioner (Mr Gedi) apparently won the election with a margin of 151 votes and therefore carries the will of the people of Fafi ward,” he ruled.
“A declaration is hereby issued invalidating the election of Mr Aden as the Member of Assembly of Garissa County representing Fafi ward."
Mr Nyaberi ruled that the petitioner (Mr Gedi) was duly elected as the Member of County Assembly (MCA) representing Fafi ward having attained majority of valid votes.
He ordered Mr Aden and the Independent Electoral and Boundaries Commission (IEBC) to issue a certificate of election of the MCA Fafi ward to Mr Gedi within five days.
IEBC will have to also give Sh300,000 each to Mr Gedi and Mr Aden as costs for the petition.
Each of the lawyers representing the two will get Sh250,000 from the electoral body.
The petition
Mr Mohamed Feisal Gedi (Petitioner) was a candidate for the MCA Fafi ward together with others including Aden Ahmed Mohamud, Ali Mohamed Hares, Dubat Mohamed Odowa, Kediye Abdirashid Sirat, Kolosho Hassan Aden and Maalim Diriye Ibrahim.
Abdullahi Ibrahim Issack, the returning officer, declared Mr Aden elected with 802 votes.
Mr Gedi moved to court and sought a declaration that the election of MCA for Fafi ward was not conducted in accordance with the constitution and applicable laws rendering results invalid, null, and void.
He also sought a declaration invalidating the election of Mr Aden as MCA for Fafi.
In his petition, Mr Gedi alluded that there was a widespread, incorrect, unverifiable collation of results and voter results manipulation in several polling stations.
At Hagadera Community Pan polling station extra 100 votes were added to Mr Aden bringing his tally to 113 instead of 13 votes.
Form 36A clearly captured that Mr Aden had 13 votes but the tallies were manipulated in his favour and illegally awarded 113 votes in Form 36B.
He was also illegally added an extra 30 votes at Diiso Primary Polling Station 1 of 2, and at the second stream from the same station, other candidates were given extra votes.
Mr Gedi maintained that if proper, correct and accurate collation and tallying of results from all the 18 polling stations in the ward, the returning officer would have found out that he (Gedi) received majority votes of 823 votes and that he is the legitimate and bona fide winner of the elections for MCA Fafi.
He accused the returning officer of failing to accurately and properly tally all results from the various Forms 36As before announcing the results for Fafi ward.
Mr Abdi Nuro Gure, a witness, told the court during the hearing that he was an agent at Hagadera Community Water Pan polling station and that the petitioner obtained 130 votes.
He said 100 votes were deducted from Mr Gedi and that there was an overwriting by rubbing number one in Form 36A for Mr Gedi’s results.
The petitioner produced at least three witnesses to court who all confirmed anomalies in the results that were announced.
Registered refugee
In response, Mr Kolosho Hassan Adan averred that the petitioner is a registered refugee of Somali origin and was not eligible to compete in the elections.
The court dismissed the same on grounds that the issue of eligibility was a pre-election issue of nomination and eligibility to participate in an election.
“This court lacks jurisdiction to entertain the dispute of nomination to participate in an election,” Mr Nyaberi ruled.
Mr Adan argued that tallying, collation, and computing of results in Form 36B as was received from all 18 polling stations was done publicly, accurately, and verified from all 36As.
He denied increasing his total votes at Hagadera Community Pan Station from 13 to 113 votes and reduced the petitioner’s votes from 130 to 30 votes.
Mr Gedi had asked for a scrutiny and recount of votes at Hagadera Community Water Pan, Diiso and Elhumo ECD polling stations.
The court allowed that application for scrutiny and or recount, further directing that the same could be done at the tail end of the main petition.
A recount of votes at Hagadera Community Water Pan showed Mr Gedi garnered 130 votes while Mr Aden managed 13 votes.
Form 36A indicated one rejected vote but the same was not found in the ballot box during the recount.
