Mahamud v Mohamad & 3 others (Election Appeal 2 of 2018) [2018] KECA 677 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a Governor's election was nullified because he lacked a degree, holding IEBC clearance cannot protect an unqualified candidate.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court had jurisdiction to enquire into the appellant's qualification (degree requirement) to be nominated as a candidate for Governor
- 2.Whether the appellant met the constitutional and statutory qualifications under section 22(2) of the Elections Act to vie for the position of Governor
- 3.Whether the appeal complied with section 85A of the Elections Act limiting appeals to questions of law only
- 4.Whether the learned Judge erred on the burden and standard of proof in the election petition
Key legal issues
#Jurisdiction of the election court over nomination/qualification matters
The High Court, as an election court, has jurisdiction to enquire into a candidate's qualification to vie where the matter has not been finally determined by any other constitutionally or statutorily mandated body. The IEBC's clearance does not bar judicial inquiry since there can be no estoppel against a statute or the Constitution.
The court held that an election is a process straddling the entire electioneering period from registration of voters to declaration of results, not merely the voting-day event. Qualifications are part of the continuum of stages making up an election, as expressed by the Supreme Court in Advisory Opinion No. 2 of 2012. The dismissal of a complaint for want of prosecution before the IEBC's Dispute Resolution Committee did not bind the petitioners, who were not parties to it, so the Jared Odoyo Okello case was properly distinguished.
Scope of appellate jurisdiction under section 85A of the Elections Act
Appeals to the Court of Appeal in election matters are limited to questions of law only; grounds alleging errors of 'fact and law' contravene section 85A and invite jurisdictional objection, and findings of fact of the trial court must be accepted unless no reasonable tribunal could have reached them.
Relying on Munya v Kithinji, the court distilled what constitutes a question of law, deprecating composite grounds. The court found it perplexing that the memorandum of appeal expressly challenged factual findings, describing such framing as 'artful dodging', and reiterated M'irungu v R on deference to factual findings of lower courts.
Whether the appellant satisfied the degree requirement under section 22(2) of the Elections Act
The appellant did not possess a recognized degree and was therefore not legally cleared to vie for the position of Governor; the learned Judge's finding that the petitioners proved this allegation to the required standard was justified.
The petitioners laid a prima facie case through the graduation booklet omitting the appellant's name, the Parliamentary Hansard record of his admission that he was yet to graduate in September 2014, and his self-declaration form listing a bachelor's degree while purporting to hold a Master's from March 2015. The evidential burden then shifted to the appellant, who neither filed a proper response nor appeared for cross-examination, leaving the petitioners' evidence uncontroverted. The case was about qualification, not fraud, so proof beyond reasonable doubt was not required.
Consequences of a candidate's failure to testify and be cross-examined
A party who deliberately and without explanation absents himself from trial and declines cross-examination on his affidavit risks adverse inferences and the acceptance of unchallenged credible evidence against him; failure to file a response under Rule 11(1) of the Election Petition Rules is a grave default entitling exclusion from the proceedings.
The court found persuasive the English authorities of Raja v Van Hoogstraten and Gibbs v Rea, holding that silence in circumstances where a party would be expected to answer may convert even slender evidence into proof. The appellant's cavalier attitude, filing a brief three-paragraph replying affidavit and skipping the witness box, robbed his affidavit of probative value and left the petitioners' evidence uncontroverted.
Legal principles established
#- An election is a process, not a single event, and an election court (the High Court) has jurisdiction to enquire into a candidate's qualification for nomination where the matter has not been dealt with finally by another mandated body.
- Appeals to the Court of Appeal in election matters lie on questions of law only; there are no 'questions of mixed law and fact' in electoral matters and composite grounds are incompetent.
- While the legal burden of proof in an election petition rests on the petitioner and never shifts, the evidential burden may shift to a respondent who would fail without further evidence once a prima facie case is established; a respondent who offers no evidence in rebuttal risks adverse findings.
- A person not qualified to vie cannot hold onto election victory by pointing to the margin of votes; an unqualified candidate's election must be invalidated regardless of electoral irregularities.
Court orders
#- 1.The appeal is dismissed with costs to the 1st and 2nd respondents
- 2.The cross-appeal by the IEBC and the Returning Officer stands dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Election Petition No. 14 of 2017
- Jurisdiction invoked
- Section 85A of the Elections Act (appeals limited to questions of law only)
Relief refused
#Upholding of the appellant's election as Governor of Wajir County
The appellant was not qualified to vie as he did not satisfy section 22(2) of the Elections Act, and the High Court's factual findings could not be disturbed on an appeal limited to questions of law
Submissions on assisted voting
Abandoned when it was objected that no ground of appeal raised that specific complaint
Costs
The appeal dismissed with costs to the 1st and 2nd respondents; the cross-appeal by the IEBC and the Returning Officer dismissed with no order as to costs.
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.
There is a substantial body of law that is quite categorical and authoritative that election is a process and not an event and that being so, the High Court, as an election court, is possessed of jurisdiction to enquire into matters nomination.
We are quite clear in our minds that in electoral matters there is no such thing as "questions of mixed law and fact" and grounds of appeal that are a composite of both are clearly inappropriate and probably incompetent.
A person who is not qualified to vie for a particular seat cannot hold onto his false victory by pointing to the margin of his vote vis-à-vis his competitors.
In the result, the appeal before us is devoid of merit and is dismissed with costs to the 1st and 2nd respondents. The cross appeal by the IEBC and the Returning Officer must also per force stand dismissed but with no order as to costs. Orders accordingly.
Issues in the judgment
#The judgment inconsistently cites the section 22(2) qualification provision as being from the 'Elections Act 2011' in places and the 'Elections Act 2012' in others (including in the appellant's affidavit).
The affidavit responding to the petition refers to 'section 2(2) of the Elections Act 2012' where section 22(2) of the Elections Act, 2011 is clearly meant.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Magaiwa v Magige & another (Environment and Land Miscellaneous Application 7 of 2020) [2026] KEELC 5368 (KLR)[2026] KEELC 5368 (KLR)12 Aug 2026applied
- Chacha & another v Getene (Environment and Land Appeal E008 of 2026) [2026] KEELC 5255 (KLR)[2026] KEELC 5255 (KLR)29 Jul 2026distinguished
- Karuu v Kitonga (Environment and Land Appeal E013 of 2025) [2026] KEELC 3533 (KLR)[2026] KEELC 3533 (KLR)11 Jun 2026applied
Cite this brief
#Cite this brief
Caselaw, "Mahamud v Mohamad & 3 others (Election Appeal 2 of 2018) [2018] KECA 677 (KLR)", Case Analysis (2018). Election Petition Appeal No. 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/677/eng@2018-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.