Wajir Governor Mohamed Abdi suffered a major setback after the court of appeal upheld High Court verdict to nullify his election.
Justice Philip Waki, Milton Makhandia and Patrick Kiage ruled that Justice Alfred Mabeya did not commit any legal error in nullifying Mr Abdi’s 2017 election.
In their verdict delivered by Justice Kathurima M’Inoti, the three appellant judges observed that Mr Abdi let Justice Mabeya disqualify his election after failing to dispel claims of lacking a valid undergraduate degree certificate.
EVIDENCE
The judges termed Mr Abdi’s action “as tragic of his own choice” when he opted “to flee from the witness box” to be either cross examined on the grave issue or file an affidavit to rebut the same.
They observed that the burden of proof laid on Mr Abdi’s shoulders when former Wajir Governor Ahmed Abdullahi had convinced the High Court that he had evidence that Mr Abdi lacked valid degree certificate to contest for the seat.
The judges observed that Mr Abdi was the only person able to clear the air on the validity of his degree certificate but was scared to be cross examined or even file a replying affidavit to respond such grave claim.
They stated that the Jubilee politician robed himself the chance to rebut claims raised by the former Governor adding that he cannot blame Justice Mabeya for invalidating his victory.
The judges further said that Mr Abdi’s failure to be cross examined before Justice Mabaye during the hearing of his appeal can only be termed as being scared to be cross examined on the validity of his degree certificate.
“The learned judge cannot be blamed because a prima facie case has been established before him. The evidential burden of proof shifted to the appellant who gave the witness box a wide berth,” ruled the judges.
The judges also raised their eyebrow with Mr Abdi’s presentation of a master’s degree certificate to the Independent Electoral and Boundaries commission when he had stated his highest education level as first degree.
They agreed with submission by senior counsel Ahmed Nassir representing Mr Ahmed that the governor ought to have explained how he acquired his education at Kampala University in 2014 while at the same time serving as the Kenyan Ambassador in Saudi Arabia.
The three added that due to the appellant inability to defend himself, Justice Mabeya was left to decide on an obvious case.
FRAUD
The also dismissed Mr Abdi’s submission that Justice Mabeya action amount to investigating a case of fraud and forgery against him.
The judges ruled that the High Court had the discretion to determine over the issue of the validity of his university degree certificate as raised by the petitioner.
The embattled governor represented by lawyers Fred Ngatia and Tom Macharia has stated his desire to move to the Supreme Court to seek redress.
Mr Macharia told the court that he be supplied with certified copy of the judgment in order for him to file notice of the appeal at the Supreme Court before end of business Friday.
The appeals court on Friday dismissed Wajir Governor Mohamed Abdi’s case against the High Court’s decision to nullify his election.
Mr Abdi’s election was nullified by Justice Alfred Mabeya on January 12 on grounds that the election had not been conducted according to the law, and that his academic papers were not proper since Mr Abdi did not have a genuine degree.
But in his appeal, Mr Abdi, who contested on a Jubilee ticket, argued that the High Court misinterpreted the law and ignored crucial evidence when nullifying his election.
Through Senior Counsel Fred Ngatia, Mr Abdi argued that Justice Mabeya misunderstood the law and had bypassed key evidence when invalidating his election.
Mr Ngatia told the Court of Appeal judges that Justice Mabeya had focused on unsubstantiated claims that the governor lacked a valid university degree, claiming no evidence was presented to prove it.