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Panic in petitioners as Mutua loses seat and Babu win upheld

Saturday June 9 2018

Babu Owino

Embakasi East MP Babu Owino celebrates with his supporters outside the Supreme Court of Kenya on June 8, 2018 after his election victory was upheld by the court. PHOTO | FRANCIS MUREITHI | NATION MEDIA GROUP 

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Politicians with election petitions dragging on in the Court of Appeal are sweating on the outcome of the cases after the court overruled the High Court in two of the three judgments delivered on Friday.

In separate sittings, the bench ordered a fresh election for the Machakos governors position by granting Wavinya Ndeti’s appeal against the election of Alfred Mutua.

In another case’, the court ruled in favour of Embakasi East MP Babu Owino whose win had been nullified by the lower court. In the only instance where the Court of Appeal backed the view of the High court, the judges threw out a petition by Prof Philip Kaloki against the election of Jessica Mbalu as Kibwezi East MP.

The grounds upon which the cases were won or lost tend to be very similar in election petitions and those who challenged the election’s court’s decision will be going through the three judgment with a fine toothcomb.


In Dr Mutua’s case, judges  William Ouko, Mohamed Warsame and Gatembu Kairu said they were satisfied with Ms Ndeti’s complaints over the validity of Form 37C after the returning officer used an Excel sheet to enter the results.


This anomaly had been noted by Justice Aggrey Muchelule of the High Court but he went on to uphold Dr Mutua’s win on the premise this was a minor technicality.

The three judges based their finding on the “test of verifiability” where elections should  be declared in the manner provided by the Elections  Act and its rules.

The use of county officials as polling officers also weighed in Ms Ndeti’s favour.


The court established that Mr Urbanus Wambua Musyoka was Dr Mutua’s agent in Mavoko Constituency during the election yet he was the County’s Chief Officer for Public Works. Ms Ndeti had said there were 300 such cases, constituting a conflict of interest which is a breach of the public officers code of conduct.

“We direct IEBC to organise and conduct a fresh gubernatorial election for Machakos County in conformity with the Constitution, the Elections Act and the Regulations,” they said. The verdict no doubt emboldens those challenging High Court decisions on the basis of documentation, one of the reasons the August 8 Presidential election was also annulled by the Supreme Court.

In Mr Owino’s case, Justices Mohamed Warsame, Daniel Musinga and Kathurima M’Inoti dismissed complaints of irregularities and violence that were raised by Francis Wambugu Mureithi. Justice Joseph Sergon of the High Court had found that violence, intimidation and irregularities affected the final outcome.


In contrast, the judges, however, said the irregularities and violence were not so widespread as to affect the outcome of the election. They said the High Court had relied on summation errors in form 35B that affected only four fringe candidates to nullify Mr Owino’s win. They also said Mr Mureithi did not prove that Mr Owino was complicit in the violence.  

The judges said the court should not chart an easy course of nullifying an election or invalidating it under the slightest pretext.

“There must be sufficient reasons supported by evidence,” added the judges.

A similar rationale was used by judges Mohamed Warsame, Patrick Kiage and Otieno Odek in dismissing Prof. Kaloki’s appeal.


They said the “minor errors” that occurred in the course of the election did not impact the  outcome of the election.

“The judgment of the election court was therefore properly grounded in the evidence placed before it,” the judges ruled.

Dr Mutua vowed to contest the Court of Appeal’s decision in the Supreme Court where it would take 30 days for a determination to be made. He said without giving any details that the judges had disregarded or misinterpreted some facts.

Four other governors including Embu’s Martin Wambora, Okoth Obado (Migori) Cyprian Awiti (Homa Bay) and Wajir’s Mohamed Abdi lost their seat following successful petitions. They, however, filed appeals and the cases are pending before the Court of Appeal.


Mr Abdi’s case was decided as judges of the Court of Appeal upheld the nullification of his victory. But the Wajir County boss moved to the Supreme Court and the case is yet to be heard.

Mr Wambora’s case at the Court of Appeal was deferred to next month after a judge said one of the parties had tried to compromise him.

In winning the High Court verdict against Mr Wambora, former Embu Senator Lenny Kivuti had based his case on documentation errors which saw him come second to Mr Wambora by less than 1,000 votes.