Court declines to order Bomachoge vote recount - Daily Nation

Court declines to order vote recount in Bomachoge poll petition

Wednesday January 24 2018

Bomachoge Chache MP Alfah Miruka

Bomachoge Chache MP Alfah Miruka. The High Court in Kisii has dismissed an application seeking for a scrutiny and recount in the election petition challenging his victory. FILE PHOTO | NATION MEDIA GROUP 

By ELGAR MACHUKA
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The High Court in Kisii has dismissed an application seeking for a scrutiny and recount in the election petition challenging the victory of Bomachoge Chache MP Alfah Miruka.

In her 33-page ruling, Justice Winfridah Okwany said that the petitioner, Jeremiah Matoke, did not convince the court to grant scrutiny.

In his application, Mr Matoke sought for scrutiny of all election materials including all forms 35A used to declare Mr Miruka the winner.

Justice Okwany ruled that Mr Matoke, in his prayers, did not specify the polling stations he wanted scrutiny and recount done.

"The applicant failed to give sufficient grounds why he wanted scrutiny and recount," Justice Okwany said.

"The applicant equally failed to specify the polling stations he was seeking for scrutiny and recount," she added.

FORM 35A

At the same time, the judge dismissed the petitioner's allegations that forms 35A produced in court by IEBC did not have security marks and that they were not stamped.

She said that the returning officer supplied Mr Matoke with the forms after the announcement of the final results and he did not raise any complaint.

She also said stamping of the forms was not mandatory as stated in law.

"The petitioner did not state how lack of security features in the forms 35A affected results taking into consideration a wider margin of over 15,000 votes," the judge further noted.

UNAUTHENTICATED FORMS

The judge said that the petitioner should have sought for better documents from IEBC, saying that the use of unauthenticated forms to allow for scrutiny and recount will be tantamount to abuse of court process.

The final submissions for the Bomachoge Chache petitions will be made on January 30.

Elsewhere, the Court also dismissed an application for scrutiny and recount of votes by a petitioner in the case against County Women Rep Janet Ong’era.

Justice Anthony Ndung’u rejected the petitioner, Nahashon Akunga’s application on grounds that he did not give sufficient reasons in the application.

The judge also noted that Akunga did not specify the polling stations in dispute in order to grant him scrutiny and recount.

Mr Akunga had at the same time sought for scrutiny of statutory forms used in declaring Ms Ong’era the winner.

SPECIFY POLLING STATIONS

“The application for scrutiny and recount is dismissed because the applicant did not specify polling stations in dispute,” Justice Ndung’u ruled.

Mr Akunga claimed that fraudulent forms 39A, B and C were used the August 8, 2017 elections.

Ms Ong’era was represented by lawyer Okong’o Omogeni while Mr Akunga was represented by Edward Begi.

During cross examination Ms Ong’era, termed the allegations by Mr Akunga that ballot boxes for the woman rep seat were missing during the August 8 polls as laughable.

FREE AND FAIR

She told the court that IEBC conducted the elections in a free, fair and transparent manner, saying that claims by the petitioner that the polls were not credible were unfounded.

Ms Ong’era, who is also a lawyer, told the court that the petitioner was on “a fishing expedition” on his claims of missing ballot boxes, saying he did not bring any witness to court to testify on the same.

The woman rep said that Mr Akunga, who was a Jubilee Party chief agent, personally signed form 39C which county returning officer Sydney Namulungu used to declared her winner.

Justice Ndung’u set January 26 as the date for parties to give their final submissions.