Four Members of Parliament have survived court battles lodged by their rivals in the August 8, 2017 elections. The Court of Appeal in Mombasa and Kisumu on Thursday handed political lifeline to the four MPs after overturning a High Court ruling and upholding three others.
In Mombasa, Mr Stanley Muthama bounced back as Lamu West MP after the second highest court in the land set aside the High Court decision that quashed his win. His election had been nullified in February after a successful petition by his rival Rishad Amana (ODM). Amana claimed that the Lamu West MP election was marred with irregularities and there was inconsistency during vote tallying.
The Malindi High Court judge ruled in Amana’s favor and ordered that the election be conducted afresh within 60 days. Justice Weldon Korir further ruled that the respondent pay Ksh.3million cost to the Independent Electoral and Boundaries Commission (IEBC) and the Returning Officer. However, Muthama, who vied on a Maendelo Chap Chap ticket, sought the intervention of the Appellate Court. According to him, he was validly elected and the High Court erred in its ruling.
Judges found that irregularities and the breach of electoral laws that the High Court cited in its decision did not affect the election of Mr Muthama. In a judgment read by Justice Daniel Musinga, the court further ruled that the High Court made an error in law in failing to take into consideration the purpose of scrutiny and recount of votes.
“We agree in nullifying the election, the judge took irrelevant consideration. It is not every irregularity that is sufficient to nullify an election,” said the three judge bench.
According to the judges, the mistakes on record do not reveal a pattern in favour of any of the parties. The decision is a big blow to the petitioner, Mr Rishad Amana, who on February 21 convinced the High Court to quash Mr Muthama’s win. High Court Judge Weldon Korir had nullified the election of the first-time Maendeleo Chap Chap MP.
Mr Amana, who has since been banned from vying for any political seat for the next five years, has now lost the Sh3 million that the court ordered the Independent Electoral and Boundaries Commission (IEBC) and its returning officer to pay him in costs. Lamu Resident Magistrate Njeri Thuku on May 2 banned Mr Amana after finding him guilty of assault and causing disturbance at the Mokowe Constituency tallying centre.
In Kisumu, the appeals court upheld electoral victories of MPs Justus Kizito (Shinyalu), Bernard Shinali (Ikolomani) and Chris Omulele (Luanda). In Mr Kizito’s case, where the appellant was Sylvanus Anami, the judges said the election was done in conformity with the law.
“The appellant failed to discharge burden of proof to convince the court there was electoral fraud,” said Justice Fatuma Sichale, who read the ruling on behalf of the bench. In Mr Shinali’s case, Judge Sichale said the irregularities pointed out by appellant, Mr Butichi Khamisi, were minimal and could not invalidate the entire election.
“Anomalies in one polling station or elective position is not enough to nullify the entire election. But what happened was also human error,” she said. “Accuracy does not mean free from error. Simple arithmetic mistakes are bound to happen since electoral officials must have worked for over 24 hours.”
An appeal filed by Arthur Kibira challenging election of Luanda MP Chris Omulele was also struck out because the notice was filed out of time. There was however dissenting judgement by Judge Odek who indicated that failure to file notice in time does not make an appeal entirely incompetent
“Notice of appeal was filed erroneously at Kakamega,” said the judge.