Machakos Governor Alfred Mutua has maintained that he won the gubernatorial seat fairly and faulted the Court of Appeal for nullifying his election on a technicality.
Arguing before the Supreme Court on Wednesday, Dr Mutua through lawyer Kioko Kilukumi admitted that the returning officer made a “slight deviation” and used an excel spreadsheet to collate and announce the results.
However, he added, the deviation does not take away the constitutional test of verifiability of the results. “There was no finding by the trial court that the data was fraudulent, inflated or otherwise fictitious. All the forms were signed by among others, Wiper agents,” Mr Kilukumi.
Mr Kilukumi said the signing of the electoral forms is not an “idle exercise” but signifies adding that the returning officer only used the spreadsheet for efficiency and accuracy and that it was sanctioned by the Independent Electoral and Boundaries Commission (IEBC).
He urged Chief Justice David Maraga and Justices Mohamed Ibrahim, J.B. Ojwang, Njoki Ndung’u and Isaac Lenaola to overturn the Court of Appeal decision, which nullified Dr Mutua’s win.
Dr Mutua has faulted Justices William Ouko, Mohamed Warsame and Gatembu Kairu, saying that they erred in law by misapplying the provisions of Article 86 of the Constitution to the evidence on record, thereby reaching an erroneous verdict.
On her part, Ms Wavinya Ndeti said no one still knows who won the Machakos gubernatorial seat because the results announced by the returning officer cannot be verified.
Through Senior Counsel Ahmednasir Abdullahi, Ms Ndeti said the results announced on August 11, last years were “fake, cooked-up and there was no way that the declaration could be verified”.
He said the fact that the returning officer failed to use the prescribed form undermines the credibility of the results. “The issue of verifiability was settled in the Raila Odinga (2017) case. The system used must be simple, accurate and verifiable. The inability to verify is a weighty constitutional ground,” he said.
Dr Mutua of Maendeleo Chap Chap garnered 249,603 votes against Ms Ndeti’s 209,141 during the August 8 polls.
High Court judge Aggrey Muchelule had dismissed Ms Ndeti’s petition but on appeal, Dr Mutua’s win was nullified as three judges faulted the returning officer of using the wrong form.
The Supreme Court judges will give their decision upon notifying the parties.