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Supreme CourtAllowedPetition 7 & 9 of 2018 (Consolidated)

Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others

Supreme Court of Kenya
28 September 2018
David Kenani MaragaD.K. MaragaPhilomena Mbete MwiluP.M. MwiluMohammed Khadhar IbrahimM.K. IbrahimJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
10,335 words in judgment
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The bottom line

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Supreme Court allows new evidence in election appeal to ensure fair hearing on academic qualifications.

What this practically means

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The Supreme Court of Kenya ruled that it can allow new evidence in election appeals, even after lower courts have decided. This case involved a governor candidate whose election was nullified over his academic papers. The Court found he was not given a fair chance to prove his qualifications. It set out clear rules for when new evidence can be introduced, focusing on fairness and justice.

Executive summary

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This ruling by the Supreme Court of Kenya concerns an application by the Appellant, Ahmed Abdullahi Mohamad, to adduce additional evidence in his appeal against the nullification of his election as Governor of Wajir County. The High Court had nullified his election on the ground that he lacked the requisite academic qualifications, and the Court of Appeal upheld that decision. The Appellant sought to introduce additional evidence, including his degree certificates and a letter from the Commission for Higher Education, arguing that he was denied a fair hearing because a pre-trial consent had waived strict proof of documents, which he mistakenly equated to waiver of cross-examination. The 1st and 2nd Respondents opposed the application, arguing that the Supreme Court lacked jurisdiction to admit additional evidence in election appeals governed by section 85A of the Elections Act, and that the evidence was available at trial. The Court held that it has jurisdiction to admit additional evidence under Rule 18 of the Supreme Court Rules and section 21(3) of the Supreme Court Act, and that this jurisdiction is broader than that of the Court of Appeal, not limited by section 85A. The Court laid down eleven governing principles for admitting additional evidence in appellate courts, derived from comparative jurisprudence including Ladd v Marshall. Applying these principles, the Court found that the Appellant was not accorded a fair hearing on the issue of his academic qualifications, as the trial court disregarded the pre-trial consent and the Appellant misunderstood the waiver. The Court concluded that the additional evidence is directly relevant to the core issue, would likely impact the appeal, and that disallowing it would deny the Appellant a fair trial, a non-derogable right. The application was allowed, with orders for the Appellant to serve the additional evidence, the Respondents to respond, and the petition to be set down for hearing on a priority basis. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to grant leave to the Appellant to adduce additional evidence contained in his supporting affidavit
  2. 2.If (i) is answered in the affirmative, under what circumstances would this Court allow additional evidence?
  3. 3.Whether leave to admit additional evidence should be granted in this matter?

Key legal issues

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01

Whether the Supreme Court has jurisdiction to grant leave to adduce additional evidence in an election appeal governed by section 85A of the Elections Act.

Holding

The Supreme Court has jurisdiction to grant leave to adduce additional evidence, even in election appeals, because its jurisdiction under Article 163 of the Constitution is broader than that of the Court of Appeal and is not limited by section 85A.

Reasoning

The Court held that while section 85A limits appeals to the Court of Appeal to matters of law only, the Supreme Court's jurisdiction under Article 163 is broader and founded on the Constitution itself. Rule 18 of the Supreme Court Rules and section 21(3) of the Supreme Court Act empower the Court to take additional evidence for sufficient reason. The Court distinguished its earlier decision in Bichage, noting that the instant case involved evidence not already on record and that the Appellant sought to vindicate his academic credentials. The Court emphasized that it must not betray the Constitution and has a duty to do justice, especially where constitutional rights are at stake.

p. 15
02

Whether the Appellant should be granted leave to adduce additional evidence regarding his academic qualifications.

Holding

Leave to adduce additional evidence was granted because the Appellant was not accorded a fair hearing at the trial court and Court of Appeal on the issue of his academic qualifications, and the additional evidence is directly relevant to the core issue in the appeal.

Reasoning

The Court found that the trial court disregarded a pre-trial consent that documents on record would not require strict proof, and the Appellant erroneously equated 'strict proof' to 'cross-examination', leading to his inability to properly defend his academic credentials. The Court noted that the Court of Appeal had considered only one issue (academic qualifications) and shelved all other grounds. The additional evidence sought (academic, educational and employment records) is directly relevant to that single issue and would likely impact the appeal. The Court concluded that disallowing the evidence would deny the Appellant a fair trial, a non-derogable right, and that allowing it would not prejudice any party.

p. 24

Legal principles established

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  • Supreme Court has jurisdiction to admit additional evidence in election appeals under its constitutional powers.
  • Additional evidence must be directly relevant and in the interest of justice to be allowed.
  • Evidence that could not have been obtained with reasonable diligence at trial may be admitted.
  • A party denied fair hearing on a key issue may introduce evidence to correct that injustice.
  • The Court will consider proportionality and prejudice before allowing additional evidence.

Court orders

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  1. 1.The Application by the Appellant is allowed
  2. 2.The Appellant will serve the Respondents with the additional evidence by way of affidavit
  3. 3.The Respondents will respond to the additional evidence by way of affidavit
  4. 4.The Petition will be set down for hearing on a priority basis
  5. 5.Parties shall bear their own respective costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority
Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Election Petition Appeal No. 1 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Quotable passages

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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 emerging picture therefore is that this Court does have the jurisdiction to entertain an Application for additional evidence though this remedy should not be granted hastily.
p. 16 Jurisdiction to admit additional evidence
We therefore lay down the governing principles on allowing additional evidence in appellate courts in Kenya as follows: (a) the additional evidence must be directly relevant to the matter before the court and be in the interest of justice; (b) it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive; (c) it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;
p. 22 Principles for admission of additional evidence
We are unconvinced that the Appellant was accorded a fair hearing at both the trial Court and the Appellate Court with regards to his academic qualifications.
p. 24 Fair hearing
Consequently, we make the following Orders: (i) The Application by the Appellant is allowed; (ii) The Appellant will serve the Respondents with the additional evidence by way of affidavit; (iii) The Respondents will respond to the additional evidence by way of affidavit; (iv) The Petition will be set down for hearing on a priority basis; (iv) Parties shall bear their own respective costs.
p. 24 Final orders

Key timeline

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Before trial
Pre-trial consent that documents would not require strict proof was reached.
High Court hearing
Trial court disregarded the consent; appellant mistakenly equated 'strict proof' to 'cross-examination'.
Court of Appeal
Appeal upheld High Court decision, focusing only on academic qualifications issue.
Supreme Court application
Appellant applied to adduce additional evidence including degree certificates and CHED letter.
2018
Supreme Court allowed the application, setting down petition for priority hearing.

Practical implications

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For lawyers

New pathway for additional evidence

Lawyers handling election appeals can now apply to the Supreme Court for leave to adduce additional evidence, even if the case was limited to points of law in the Court of Appeal. The ruling provides a clear checklist of 11 principles to argue, including relevance, diligence, and fairness. Use this to remedy procedural injustices from lower courts.

For businesses

Fairness in qualification disputes

Businesses involved in electoral or regulatory disputes where qualifications are challenged should note that courts may reopen evidence if a party was denied fair hearing. Ensure all relevant documents are presented early and that pre-trial agreements are respected. This ruling reinforces the importance of procedural fairness in administrative and election matters.

For individuals

Your right to prove qualifications

If you are a candidate whose academic or professional qualifications are questioned in an election petition, you have a right to present all relevant evidence. If lower courts did not give you a fair chance, the Supreme Court may allow you to introduce new documents. Act promptly and seek legal advice to preserve your rights.

Frequently asked questions

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Can the Supreme Court of Kenya allow new evidence in an election appeal?+

Yes, the Supreme Court has jurisdiction to admit additional evidence in election appeals under Article 163 of the Constitution and Rule 18 of the Supreme Court Rules. This is broader than the Court of Appeal's powers, which are limited to points of law.

What are the rules for introducing new evidence in a Kenyan election petition appeal?+

The Supreme Court set out 11 principles, including that the evidence must be directly relevant, could not have been obtained with reasonable diligence at trial, is credible, and would impact the result. The court also considers fairness and whether the party was denied a fair hearing.

What happened in the Ahmed Abdullahi Mohamad v Mohamed Abdi Mohamad case in Kenya?+

The Supreme Court allowed the appellant to introduce new evidence about his academic qualifications after his election as Wajir Governor was nullified. The Court found he was not given a fair hearing in lower courts because a pre-trial consent was disregarded.

Does the Supreme Court of Kenya have jurisdiction over election petitions beyond the Court of Appeal?+

Yes, the Supreme Court's jurisdiction under Article 163 is broader than the Court of Appeal's under Section 85A of the Elections Act. The Supreme Court can hear appeals and admit additional evidence even in election matters, as confirmed in this ruling.

Later judgments citing this (23)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others", Case Analysis (2018). Petition 7 & 9 of 2018 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/62/eng@2018-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.