Mr Ngatia Monday said the judge had focused on unsubstantiated claims that the governor lacked a valid university degree.
He added that a court dealing with an election dispute could not make a determination on a criminal matter.
Mr Ngatia said Justice Mabeya had lowered the legal standard of proof in concluding that the governor’s degree was invalid.
Embattled Wajir Governor Mohamed Abdi Monday told the Court of Appeal that the High Court misinterpreted laws and ignored crucial evidence in nullifying his election.
Mr Abdi, through Senior Counsel Fred Ngatia, told Justice Philip Waki, Milton Makhandia and Patrick Kiage that Justice Alfred Mabeya misunderstood the law and bypassed key evidence before invalidating his election on January 12.
Justice Mabeya ruled that the election had not been done according to the law and that his academic papers were not complete because Mr Abdi didn’t have a genuine degree.
However, Mr Ngatia Monday said the judge had focused on unsubstantiated claims that the governor lacked a valid university degree, claiming no evidence was presented to prove it.
“The judge is alive to the fact that he was dealing with accusations of forgery. How then can the learned judge make references to such issues,” said Mr Ngatia, adding that a court dealing with an election dispute could not make a determination on a criminal matter.
Mr Ngatia said Justice Mabeya had lowered the legal standard of proof in concluding that the governor’s degree was invalid without having demanded evidence meeting the required legal threshold.
He claimed the Judge lacked jurisdiction to determine such allegations, which he said should have been dealt with by Independent Electoral and Boundaries Commission (IEBC) tribunal board.
He said the issue was extensively dealt with by the committee on Defence and Foreign relations in Parliament when it vetted the former Saudi Arabia Ambassador in 2014.
Mr Ngatia said Mr Abdi has a bachelor’s degree in business administration, a post-graduate degree in international relations from Kampala International University and a teaching certificate from Kamwenja Teachers Training College in Nyeri.
The IEBC represented by lawyers Karori Kamau and Mahat Somane said the governor had submitted certified copies of his degree certificate, transcripts and a Commission for University Education letter, confirming his papers were genuine.