IEBC official acquitted on grounds that he was fatigued

Tuesday December 19 2017

Nyeri Law Court Chief Magistrate Wendy Kagendo

Nyeri Law Court Chief Magistrate Wendy Kagendo, who gave the ruling on December 19, 2017. FILE PHOTO | NATION MEDIA GROUP 

By JOSEPH WANGUI
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An IEBC official who failed to present August 8 General election result forms to the returning officer has been acquitted by a Nyeri court after a finding that he was fatigued by the poll exercise.

Chief Magistrate Wendy Kagendo ruled that Patrick Mwangi, who was the presiding officer at Nyamachaki Primary school polling station, did not deliberately fail to return the statutory result forms as asserted by the prosecution since he was suffering from high blood pressure.

While acquitting him, Ms Kagendo noted that Mr Mwangi was sick and had worked for four days nonstop from August 7 to August 10.

POOR HEALTH

“I do not believe Patrick delicately failed to return the statutory forms. He may have been neglect or unreliable but that is not the same as criminally liable,” said Ms Kagendo.

She added: “This may be revisited on a civil case, where issues like whether he got the job by misrepresentation can be addressed. This is because even his doctor said that Mwangi’s condition had deteriorated around the month of August”.

Mr Mwangi was charged with omitting to present Independent Electoral and Boundaries Commission (IEBC) forms named 34A, 35A, 36A, 37A, 38A, 39A, 32, 32A and 42.

The charge sheet indicated that he also failed to present the voters’ register and polling station diary to Returning Officer Jennifer Mugambi which was in breach of his official duty.

WORK PRESSURE

However, the court noted that Mr Mwangi was on medication for high blood pressure and he skipped his dose due to the pressure of work over the election period.

The court noted that IEBC did not enquire about his medical condition during the hiring process.

Ms Kagendo heard that the poll official also did not eat well.

Through lawyer Lucy Mwai, Mr Mwangi said the electoral officials were provided with milk, soda, water and bread but he only sipped some milk and water.

“He was fatigued and lethargic. He aspired to do a good job and he could not deliberately sabotage his work. He does not know what happened to the envelope which was well labelled, inside that crowded room and he was baffled and remorseful,” said lawyer Mwai.

POOR HEALTH

Ms Mwai added that the accused lost the documents at Nyeri Technical Institute, which was the tallying centre, while handing back the poll materials.

He said handing over was a taxing exercise which went on from the night of August 8 to August 10 nonstop and that if one is not strong, both physically and mentally, they cannot cope.

Among the defence witnesses was Dickson Gikonyo a clinical officer who testified that Mr Mwangi has been a patient since 2014.

The clinician added that during the month of August 2017, Mr Mwangi presented with symptoms indicative of severe grade 3 of high blood pressure.

In the ruling, the magistrate said resonating thing that Mr Mwangi would have done was to inform IEBC and decline the job offer but he however went ahead to take up the job.

The court further observed that Mr Mwangi chose to take over the job fully aware that the job was demanding band his medical condition was not at the optimum.

“Fortunately for him he performed 99 per cent. The case investigating officer said while interviewing Mr Mwangi he looked sickly and confused. In as much as the results were available, Patrick’s omissions could have led to serious implications for IEBC especially in light of all the issues that surrounded these statutory forms soon after the general elections,” said Ms Kagendo.

She said the court’s finding is that Mr Mwangi did not return the statutory forms but gave some explanation which was plausible.

That explanation coupled with the fact that he completed most of the job shows that his failure was not without reasonable cause and accordingly the court will give him the benefit of doubt and acquit him,” said Ms Kagendo.