Nairobi governor Evans Kidero and his deputy are the latest casualties of a wave of poll petitions following the March 3, 2013 General Election.
The two lost their seats yesterday after the Court of Appeal set aside a judgment that had initially declared them validly elected.
Two judges ruled that the elections that ushered Dr Kidero in as governor and his deputy, Mr Jonathan Mweke, did not meet the constitutional threshold of free and fair polls and that the polls were marred by electoral crimes and irregularities that should have attracted investigations with possible penalties.
The judges upheld the appeal Mr Ferdinand Waititu filed seeking a reversal of the petition judgement, but Dr Kidero promised to move to the Supreme Court to lodge an appeal.
Judges GBM Kariuki and Patrick Kiage declared that the two leaders were not validly elected and quashed the decision that initially declared them winners. However, judge Mohammed Warsame, sitting on the same bench, dissented and upheld the High Court decision, saying, the trial court did a thorough job.
There was tension both inside the packed courtroom and outside as supporters of the politicians gathered to hear the judgement.
Supporters of Mr Waititu, who was found unfit to hold public office by a separate court in February, took to the streets in celebration after the ruling.
Judge Kariuki was the first to declare that there had been a “miscarriage of justice” in the hearing and determination handed to Mr Waititu late last year that saw his petition thrown out with costs.
“The outcome of the judgement was a result of suppressed evidence,” the judge said.
He took issue with the partial scrutiny of votes that had been ordered by the petition court, saying, it only amounted to further suppression of evidence and that even the “outcome disclosed various irregularities and disrespect of the law.”
“The decision appeared to trash the petition since it was held that they did not affect the overall outcome,” judges Kariuki and Kiage said.
“The trial judge did not give the appellant a fair hearing,” judge Kiage said, adding, the High Court judgement was shrouded by “bias and seemed to outrightly deny the petitioner’s prayers from the outset.”
Mr Waitutu pegged his petition on grounds that the constitutional threshold of a free and fair election was not met in the elections. His lawyers, Senior Counsel Paul Muite and Harrison Kinyanjui, had laid 39 grounds of appeal.
They said the poll results had been compromised and were not reflective of the true picture on the ground.
The judges said that the fact that ballot papers were found strewn in various parts of the city was a clear testimony that the IEBC failed to secure the polls as required of election rules.
But Justice Warsame, dissenting, said the appeal smirked of indolence. The judge feared that a nullification had far-reaching consequences especially on finances.
He said Mr Waititu may have filed his appeal based on the opinion polls that put him ahead of his opponent and questioned why he went to the appeal court with additional evidence that he should have presented during the initial litigation.
In his opinion, the appeal “was crafty and was not clear on what it was meant to achieve.”
He said Dr Kidero gave Mr Waititu a wide margin in the vote count and that considering the political clout he enjoyed in the city “it was impossible to steal from him over 70,000 votes as he alleged.”
“It would be naturally difficult to compromise his rights considering the grassroots support he enjoys in Nairobi,” the judge said.
Justice Kiage said the fact that Mr Waititu was denied a chance to cross-examine some witnesses was a fundamental error by the trial judge.
Grounds of Appeal
Suppression of evidence: the judges said the petition court only ordered a partial scrutiny of votes.
Noncompliance with law” poll material was not secured, found strewn in parts of city.
Evidence of double-voting
Validity of votes cast: Election material not signed, altered and undated.
Denied cross-examination amounted to unfair trial.