NAIROBI, Kenya, Feb 15 – The Supreme Court on Friday upheld the election of Mohammed Abdi Mahamud as Wajir Governor on grounds that issues raised in the appeal emanated a from pre-election dispute conclusively dealt with by a quasi-judicial tribunal.
In a majority verdict in which Chief Justice David Maraga and Justice Isaac Lenaola dissented, the judges led by Justice Smokin Wanjala noted that the appellant did not contest Mahamud’s suitability to vie in the August 2017 Wajir gubernatorial election at the High Court.
The judges ruled that a pre-election dispute lodged at before the Independent Electoral and Boundaries Commission Dispute Resolution Committee (IEBC-DRC) had been resolved in accordance with Article 88 (4) (e) had been resolved, the petitioner – Ahmed Abdullahi – failing to escalate the same to an election court.
“Although the petitioner was not a party of the proceeding at the IEBC-DRC, it has not been shown in this court that he was unaware of the proceedings or that when he became aware he took any action,” Justice Wanjala noted.
“In any event the decision of the quasi-judicial body of the IEBC stands and it has never been overturned. The High Court and the Court of Appeal were bound by it and therefore declined to assume jurisdiction on the same,” the majority outlined.
Article 88 (4) (e) of the Constitution gives original jurisdiction on disputes arising from nomination of candidates to IEBC.
“The Commission (IEBC) is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for— (e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results,” the Article reads.
The apex court examined three main issues of determination namely jurisdiction to entertain the appeal originating from lower courts, High Court jurisdiction to hear the election dispute arising from nominations, the Supreme Court’s jurisdiction to admit new evidence.
The gubernatorial petition has recently put the Supreme Court in the limelight, with some litigants accusing one of the judges of improper conduct.
The court was on Monday forced to issues a statement refuting claims that it was orchestrating a delay in the determination of the case following an article published in the Sunday Nation alluding to a stalemate over a petition to investigate a judge accused of corruption.
The court argued that it was within the 90-day timeline within which a ruling must be rendered in accordance with Rule 20 (1) of the Supreme Court Rules having commenced the hearing of the petition on November 21.
“The Registrar conveniently refuses to address whether the CJ has commended investigations on the letter written to him by elders from Wajir that a judge of the Court took 50 million shillings DEPOSIT from one party,” Senior Counsel Ahmednassir Abdullahi tweeted in response to the statement.
The High Court on January 12 last year had nullified Governor Mahamud’s victory, prompting him to move to the Court of Appeal where Justices Philip Waki, Asike Makhandia and Patrick Kiage upheld the nullification of the gubernatorial election by the High Court in a ruling delivered on April 20.
The governor then challenged the Court of Appeal ruling at the Supreme Court on May 7.
According to the top court, Governor Mahamud filed an application on May 28 seeking to adduce more evidence, a filing the court heard and rendered a ruling on September 28.
Wajir Deputy Governor, Ahmed Ali Muktar is then said to have filed another application seeking to be enjoined, a request that was heard by the court on July 16.
A ruling allowing Ali’s request was issued on September 28.
In yet another application, the Independent Electoral and Boundaries Commission through Wajir Returning Officer Gichohi Patrick filed a separate appeal against the Court of Appeal decision of April 20.
“On 5th June 2018, IEBC and Mr Gichohi Gatuma Patrick, the Returning Officer filed Petition of Appeal No.9 of 2018 against the Court of Appeal decision. On 11th June 2018 that Petition was consolidated with Petition No.7 of 2018 but was withdrawn on 21st November 2018,” the court explained in a statement to newsrooms.
In another application on October 5, petitioner Mohamad sought leave to cross-examine Governor Abdi.
The Supreme Court said responses to Mohamud’s application were subsequently made and a ruling on the same delivered on November 12.
Lawyers defending Governor Abdi had said a degree certificate or lack of it could not have been used to invalidate the August 8, 2017 gubernatorial election in Wajir.
They accused the petitioners of mischief arguing that the suitability question ought to have been raised before the election.