The Court of Appeal has ruled that Nyali MP Mohammed Ali was validly elected saying that Daniel Onyango Abwao, the voter who filed the petition, failed to prove his case. Abwao moved to the Appellant court seeking to nullify the election of Mohammed Ali as the area MP.
He accused Ali of using opposition leader Raila Odinga’s image in his campaign posters despite being an independent candidate.
“He used ODM party colours and yet he was not ODM parliamentary candidate. He used the photograph of ODM presidential candidate which made him ride on ODM’s popularity,” Abwao through his lawyer, told the judges.
This is the second time Ali, a former journalist has won an election petition with the first having being in February when the High Court found that the petition contesting his win failed for a lack of evidence.
The election of the renowned former investigative journalist Mohammed Ali as Nyali Member of Parliament was upheld initially in February. It was upheld by High Court judge Lydia Achode who found that the petition contesting his win failed for a lack of evidence. The petitioner Daniel Omondi has been ordered to pay Sh7 million in costs.
On delivery of the verdict, Ali launched into a scathing attack on his competitor in the August 2017 poll Said Abdalla Saido and his relation, Mombasa Governor Ali Hassan Joho whose election was upheld by the same judge on Thursday.
Ali and Saido both also contested for the Orange Democratic Movement’s nomination with the former accusing the latter of abusing his relationship with Joho to rig the primaries in his favour.
Abwao through his lawyer Ahmed Said earlier this month told Justice Alnashir Visram Justice Wanjiru Karanja and Justice Martha Koome that the decision the high court in rejecting his evidence about Mohamed Ali using Raila’s photograph in his campaign material was not right.
The use of ODM colours and its presidential candidate photographs in the campaign before the General Election gave him advantage over ODM candidate which was unfair. Ahmed told the judges that Mohammed Ali admitted having used Raila’s photographs in the campaign material which the trial judge should have considered as a basis of nullifying the election.
The lawyer faulted the trial judge for not taking into consideration the appellant’s evidence which showed that Mohammed Ali had advantage over his ODM parliamentary candidate Said Abdallah. Ahmed argued that the appellant did not approach the IEBC because it was an election court to decide on issues arising from the election.
“The trial judge made a grave mistake by dismissing the evidence adduced in court by the appellant which made her up held the election of Mohammed Ali,” said Ahmed. Ahmed urged the court to allow the appeal and nullify the election of Mohamed Ali’s election because the judge erred in law by failing to consider the evidence he gave. He also asked the court to allow the appeal with cost to Mohammed Ali to pay him.
But Ali’s lawyer Chacha Odera who opposes the appeal told the court that the appellant should blame himself for having not raised the issue with Independent Electoral and Boundaries Commission (IEBC) to form a tribunal to either fine his client and ask Ali to withdraw the election materials. Chacha said IEBC laws says that when a candidate uses other political party’s election materials during the campaign those aggrieved should approach IEBC which the appellant did not do.