Homa Bay County Governor Cyprian Awiti will on Thursday afternoon know whether he will finish his second term in peace or if his political nemesis Oyugi Magwanga will get another chance to wrestle the seat from him.
Mr Awiti lost both at the High Court and Court of Appeal but moved to the apex court arguing that it was wrong for the judge who nullified his election to ignore scrutiny and recount of votes, which still put him ahead of Magwanga.
Arguing before the Supreme Court, Mr Awiti through Prof Tom Ojienda said the judges — despite acknowledging that Justice Joseph Karanja erred in law by completely failing to consider the scrutiny — still dismissed the appeal and ordered the Independent Electoral and Boundaries Commission (IEBC) to conduct a fresh governor’s election.
Mr 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. He told Chief Justice David Maraga, Justices Mohamed Ibrahim, JB Ojwang, Smokin Wanjala, Njoki Ndung'u and Isaac Lenaola that had the two courts considered the report, the outcome would not have been nullified.
He said all the allegations made by Mr Magwanga in his petition were discounted in the scrutiny yet the court chose to believe the evidence of one witness, who testified that there were alterations.
Mr Ojienda said a summary presented in court clearly discounted the narrative that there was deliberate alteration of between 100-200 votes, which were allegedly taken from Mr Magwanga and transferred to Mr Awiti.
“There was not a single polling station that was scrutinised that proved the lie fabricated by the respondents. In fact, if at all there was any error in counting, it was an error of either one or two votes. More importantly, all the counterfoils were traceable to the ballot papers,” he said.
IEBC also supported the argument, saying the forms supplied by Mr Magwagwa, which showed alterations, did not originate from the poll agency.
The Commission defended the outcome saying the ballot boxes were safely secured and claims that they were tampered with after the polls, were false.
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 Magwagwa's votes and the forms they provided to the court showed the 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 made without countersigning, among other irregularities.
Thursday’s judgment will either bring to an end or extend the anxiety and uncertainty that has gripped the county residents for almost a year following the long-drawn tussle between Mr Awiti and his political nemesis, the former Kasipul MP.
The election was nullified on February 2018 and judges Philip Waki, Fatuma Sichale and Otieno Odek upheld the nullification on July 19.
Authorities said security has been bolstered to avert potential ugly scenes by opposing camps.
Homa Bay County Commissioner Irungu Macharia and police commander Esther Seroney said security officials have heightened surveillance in major towns in the county.
Mr Macharia said his office is collaborating with the National Intelligence Service to get information on groups who may cause chaos.
“Youths are warned not to engage in any activity that is likely to cause violence. They should remain peaceful at all times during and after the ruling,” he said during a security meeting at his office on Wednesday.
Residents have for the past year raised concerns that the petition as well as other legal tussles facing other county officials and ward representatives have hindered delivery of services to the public in the south Nyanza county.
But Deputy Governor Hamilton Orata insists everything is in control.
“The county is not at a standstill as some people may think. We are doing a lot of projects including roads, water and even putting up toilets in markets. We are optimistic we won in the last election and this will be proven,” Mr Orata said.
Mr Magwanga, on the other hand, appealed for calm ahead of the court verdict on Thursday.
“I will accept whatever the court says. Whether it orders for a re-election or whether it says that Mr Awiti should proceed with his duty of serving Homa Bay residents,” the former MP said.