Cyprian Awiti has emerged two times unlucky after the appeals court on Thursday upheld High Court decision that quashed his election as Homa Bay governor.
The second highest court in the land upheld High Court decision in which it was established that the Independent Electoral and Boundaries Commission (IEBC) did not conduct a free and fair election in Homa Bay.
The case had been filed by Mr Awiti's challenger and independent candidate Oyugi Magwanga.
The Court of Appeal said it had “confirmed and upheld in its entirety” the High Court ruling which had found Mr Awiti’s election victory on August 8 last year flouted the law.
Lady Justice Fatima Sichale, in a verdict that lasted nearly two hours, said the three-judge bench agreed with the High Court and ordered the Mr Awiti to pay Sh4 million in costs, as the Independent Electoral and Boundaries Commission was fined Sh2 million.
Awiti had in his 7,000-page appeal argued that High Court Judge Joseph Karanja erred in law when on February 20 he ruled that IEBC did not conduct a free and fair election.
“The learned judge gravely erred in law and fact by ignoring the deputy registrar’s report dated November 21, 2017 to which the deputy registrar made a finding that there were no obvious defects in all inspected ballot boxes that would lead to an irrefutable presumption that there was interference after sealing of the boxes after the election,” he argued.
He also faulted the move to quash his win, saying the judge ignored scrutiny and re-count of votes that confirmed he and his deputy, Mr Hamilton Orata, were duly elected.
In the February 20 decision, the High Court ordered IEBC to conduct a repeat election that meets the threshold set in the Constitution and election laws.
The decision of the Court of Appeal is a big blow to Mr Awiti who was hospitalised recently over undisclosed illness.
Last week, though, he told the public on social media pages that he was recovering well.
After the ruling, Mr Awiti’s lawyers left in a huff, not giving comments to the media.
Perhaps they planned to appeal?
It was not immediately clear but the courtroom immediately burst into celebrations as Mr Mangwanga’s supporters exploded into scenes of vuvuzela blowing, honking motorbike horns and over-the-moon gatherings.
To Mr Mangwanga, it could be victory after what he argues were "long months of unfairness" both at the ODM party and at the hands of the IEBC.
He controversially lost in the Orange party’s primaries to Mr Awiti before he decided to run as an independent candidate.
Then he lost in the August 8, 2017 election and successfully sued at the High Court.
The Court of Appeal here refused to name him the winner of the poll as he had demanded, even though the judges agreed the vote had been conducted in contravention of the law.
According to the IEBC's results, which have been nullified by the court, Mr Awiti got 210,173 votes while Mr Magwanga came second with 189,060 votes.
Mr Tom Onyango of Jubilee Party was third with 1,432 votes while Mr Medo Misama, another independent, managed 668 votes.
But Mr Magwanga disputed the outcome, citing massive irregularities.
The former Kasipul MP said he had a parallel tallying centre whose results revealed that he garnered 224,863 votes against Awiti’s 174,235 votes.