Governor Cyprian Awiti has bounced back in Homa Bay as Supreme Court upheld his election on Thursday.
The Supreme Court judges faulted High Court and Court of appeal for ignoring a report on scrutiny and recount of votes that put Mr Awiti ahead of his political rival Oyugi Magwanga.
Mr Awiti's lawyers told the Supreme Court that — despite acknowledging that Justice Joseph Karanja erred in law by completely failing to consider the scrutiny — the Court of Appeal still ordered the Independent Electoral and Boundaries Commission (IEBC) to conduct a fresh gubernatorial election.
“In the absence of the findings of the scrutiny report, the trial court had no reference-point in judging the magnitude of the impact of any electoral irregularity such as may have occurred, during the election,” the court said in a decision read by Justice JB Ojwang.
The court also found that it was improper that a parallel and competing sets of electoral papers were brought before the trial court and the court, without authenticating evidence, gave more weight to papers supplied by one of the parties, than the ones supplied by IEBC.
The top court aid it was not possible to sustain the findings of the two courts, without compromising the electoral rights of the voters who cast their votes on August 8, 2017.
They said a scrutiny enables, among other issues, the court to ascertain the valid votes cast in favour of each candidate and unearth new evidence to sustain the petition as well as enabling the court to verify the allegations made by the parties.
Mr Awiti argued that the scrutiny still put him ahead of his rival Joseph Oyugi Magwanga.
Arguing before the Supreme Court, Mr Awiti through Prof Tom Ojienda added that despite acknowledging that Justice Karanja erred in law by completely failing to consider the scrutiny, the Court of Appeal went ahead and dismissed the appeal and ordered that IEBC to conduct a fresh gubernatorial election.
Prof Ojienda said the scrutiny as ordered by the trial judge was part of the evidence and it was therefore wrong for the two courts to ignore the report.
Chief Justice David Maraga, Justices Mohamed Ibrahim, Justice Ojwang, Smokin Wanjala, Njoki Ndung'u and Isaac Lenaola agreed with him and set aside the decision of the Court of Appeal.
On his part, Mr Magwanga through lawyer Charles Kanjama said the scrutiny could not be relied upon because there were efforts to suppress the will of the voters. According to Mr Kanjama, there was a systematic reduction of Mr Magwanga's votes and the forms they provided to the court contained alterations.
The lawyer also said IEBC dismantled all the safeguards that would have ensured the votes remained safe because many ballots boxes did not have official IEBC seals, the counterfoils were missing and alterations without countersigning, among other irregularities.
The election was nullified in February 2018 and judges Philip Waki, Fatuma Sichale and Otieno Odek upheld the nullification on July 19, last year.