The Court of Appeal on Wednesday upheld the election of Dr Alfred Mutua as Machakos Governor.
Justice Daniel Musinga - who delivered the judgment on behalf of the three bench comprising of judges Erastus Githinji, Roselyne Nambuye and Kathurima M’inoti - for the second time dismissed former assistant minister Wavinya Ndeti’s appeal case challenging Dr Mutua’s triumph in the 2013 General Election.
It was a double on Ms Wavinya when the court ruled that she filed her election appeal case out of the required time frame which is within 30 days after delivery of the High Court ruling.
The judge attributed Ms Wavinya’s loss to not being vigilant enough to pursue the case as she moved to the Court of Appeal two months after the delivery of a judgment by High Court judge David Majanja on September 17 last year.
The judge upheld the fact that Dr Mutua and his deputy Mr Bernard Muia Kiala through lawyer Mutula Junior Kilonzo had opposed the manner in which the case had been moved to that court and hence struck out the case with costs.
“Without going to the merits of the case, the preliminary objection of Dr Mutua and Mr Katiku is upheld and therefore the appeal is struck out with costs to the respondents,” said Justice Musinga.
In the ruling, the judge said that the proceedings were ready to be collected and had been certified by the deputy registrar yet Ms Wavinya collected and filed her petition on November 22, 2013 at the Court of Appeal.
The legal battles between Dr Mutua, who garnered 257,607 votes and Ms Wavinya who got 92,644, kicked off on March 26, 2013.
Ms Wavinya alleged that alleged that the County Returning Officer never declared the gubernatorial election results as required by law by reading them out in public and hence accused Dr Mutua of declaring himself the duly elected Governor at the Machakos Bus Park contrary to the provisions of the Elections Act, 2011.
She had also alleged that Dr Mutua committed several election offences including bribery, voter intimidation, violence and undue influence of voters, ballot stuffing, and illegal voter lists all of which amount to breach of the electoral code of conduct.
Through lawyer Harrison Kinyanjui, she argued that election was not carried out in a free and fair manner since Forms 35 and 36 had discrepancies which meant that the entire election ought to be cancelled besides 17 witnesses testifying.
While addressing the media after the ruling, Mutua said he was pleased with the outcome of the case and the fact that court had held that he was validly elected.
He also said that he would now use lost time to focus more on development issues for his county.
“I am happy with the ruling. We have more work now,” he said while accompanied by over five members of parliament from the Eastern region as well as Machakos County Assembly officials.