High Court dismisses case challenging Nyatike MP’s win

Wednesday January 10 2018

Mr Fredrick Ogenga

Mr Fredrick Ogenga (holding papers) walks out of the High Court in Homa Bay on January 10, 2018 after the petition he had filed seeking nullification of Nyatike MP Tom Odege's victory was dismissed. He expressed his dissatisfaction with the decision. 

By BARACK ODUOR
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The High Court in Homa Bay has dismissed an election petition challenging the victory of Nyatike MP Tom Odege.

The case in which Mr Fredrick Ogenga had filed to have the court nullify Mr Odege's win was dismissed after Justice Joseph Karanja ruled Wednesday that the errors cited did not grossly affect the outcome of the election.

Justice Karanja ruled that even if the petitioner had succeeded in showing that there were some errors and irregularities in the counting and tabulating of the votes, he was unable to prove to the required standard and satisfaction that they could affect the results.

"The fact was demonstrated by the recount of votes in the disputed polling stations and was not even proved by the evidence presented by the petitioner and his witnesses even if the recount was to be extended to the polling stations not disputed," said Justice Karanja.

RECOUNT ORDER

The judge further noted that the recount order he gave provided the best opportunity for numerical analysis in establishing whether or not the errors cited by the petitioner were significant.

Last month, the judge ordered for recount and scrutiny in 53 polling stations in the constituency after lawyers in the case agreed to narrow down their requests in the case to recount and scrutiny.

In the recount, Mr Odege, a trade unionist, had 10,222 while Mr Ogenga had 9,923, creating a difference of 299 as opposed to the initial 1,002 before the recount. 

Mr Ogenga, who was present during the ruling, objected the decision and promised to appeal the judge's verdict. 

"It was a fraudulent election which everybody else should see. Before the recount, the variance was 1,002, but after it we got 299," protested Mr Ogenga.

Mr Ogenga claimed that an extension of recount and scrutiny to the remaining polling centres in the constituency would have revealed he was the winner.

'VOTES NOT COUNTED'

"In some polling stations, my votes were deliberately not counted. This is pure rigging and should not be ignored," said Mr Ogenga.

He said he is not pushing the matter for self-gain but to show the country how he was rigged. 

But according to Mr Odege's lawyer Kennedy Okong'o, the ruling was fair and indicated the will of Nyatike constituents in the August 8 election. 

"This ruling has been fair. We thank the judge for a bold decision," said lawyer Okong'o.

Judge Karanja told the parties in the case to shoulder the burden of their costs, a fact that was supported by lawyer Okong'o who said the order on costs is a reprieve to the petitioner who has lost the case. 

"It would have been bad if my client Tom Odege could demand the cost he has incurred in the case. It is a reprieve to the petitioner because I doubt if he could have afforded the cost," said Mr Okong'o.