Mathira MP survives poll petition - Daily Nation

Rigathi Gachagua survives bid to nullify win

Friday February 2 2018

Rigathi Gachagua

Mathira MP Rigathi Gachagua (left) shakes hands with his lawyer Wahome Gikonyo moments after the Nyeri High Court dismissed an election petition that was challenging his victory on February 2, 2018. PHOTO | JOSEPH KANYI | NATION MEDIA GROUP 

By JOSEPH WANGUI
More by this Author

Mathira MP Rigathi Gachagua has survived an attempt to nullify his election after the High Court in Nyeri dismissed a petition challenging his August 8 victory.

Justice Jairus Ngaah dismissed the more than ten allegations of electoral malpractices and irregularities raised by the petitioner, Michael Gichuru.

Mr Gichuru wanted the court to order for a fresh election.

EVIDENCE

In the 94-page judgment, the court said the petitioner failed to give sufficient evidence adding that he only raised "wild claims" in the petition.

“I am not persuaded the petitioner has discharged the burden of proof to the required standard that the election was not in accordance with the constitution, Elections Act or the Regulations made there under,” said Justice Ngaah.

In the petition, Mr Gichuru indicated that counting and tallying of votes in the constituency was not accurate, transparent or credible and that the exercise was marred by errors, flaws, illegalities and irregularities.

He added that Forms 35A were not stamped at the polling station level and the election candidates’ agents did not sign declaration result forms as required by the Elections Regulations.

Mr Gichuru also claimed there was voter bribery, violence and intimidation of voters by agents of the MP.

The ballots, according to petitioner, were not authentic and did not have requisite security features and the statutory forms 35A and 35B did not have anti-photocopy features and barcodes.

While upholding Mr Gachagua’s election, Justice Ngaah ruled that omission to stamp the Forms 35A in the election was neither an irregularity nor an illegality and therefore the results cannot be nullified or invalidated.

Justice Ngaah said the allegations were unfounded.

“The irregularities that have been pointed out are isolated and are not of such substantial nature as to have any impact on the election result or its integrity,” said Justice Ngaah.

The petitioner’s contention was that the candidates’ agents failed to sign the election declaration forms is some polling stations.

The court found that the petitioner and his preferred candidate Wambura Maranga failed to name any agent in particular who refused to sign the said result declaration forms.

Further, the allegations of lack of signature by either the candidates’ agents or the electoral agency presiding officers were also not proved.

The judge said there was no evidence that the information entered in those forms was fraudulent.

The court also found there was no proof that the electoral agency manipulated election results in favour of Mr Gachagua before feeding them in the Kenya Integrated Elections Management System (KIEMS) kits.

“The petitioner did not name any polling station where the entry of the data in the kits was manipulated,” said the judge.

The judge further said the petitioner and his witnesses failed to name any of the 190 polling stations where the votes were counted in a shambolic and unverifiable manner.

Justice Ngaah echoed the Supreme Court’s finding that “…not every irregularity, not every infraction of the law is enough to nullify an election. Were it to be so, there would hardly be any election in this country, if not the world, that would withstand judicial scrutiny”.

After the ruling, hundreds of the MP’s supporters broke into celebrations outside the court as his lawyer Wahome Gikonyo welcomed the judgment.

In the disputed election, Mr Gachagua garnered 52,757 votes while his closest challenger Wambura Maranga got 28,893 votes.