Homa Bay residents are bracing themselves for another campaign roller coaster after the Court of Appeal nullified Governor Cyprian Awiti’s election on Thursday. The ruling means that, Awiti is the first Kenyan governor to loss his sit. He could soon be followed by Machakos Governor Alfred Mutua, whose fate also lies in the same court.
Justice Fatuma Sichale, who read the ruling on behalf of the three-judge bench, annulled the election for the second time after the High Court had voided it on grounds that the poll was marred by irregularities.
“Is there evidence that the tallying process was flawed? The answers to these questions are contestations of primary facts and we have no jurisdiction to delve into these issues and interfere with the Trial court’s findings of fact,”she stated.
‘We hereby find that all grounds in memoranda of appeal inviting us to re evaluate the evidence on record and determine credibility of witnesses have no merit as they are outside the jurisdiction of this court.”
Awiti was also ordered to pay the petitioner, former Kabondo Kasipul MP Oyugi Magwanga sh 4 million. He will also receive sh 2 million from The Independent Electoral and Boundaries Commission (IEBC).
In February, Magwanga’s petition against the governor’s election sailed through at the High Court with Judge Joseph Karanja ordering a by-election. That was only weeks after members of his Cabinet took oath of office. In his judgment, Justice Karanja faulted the IEBC for conducting the election shoddily. He said there were two sets of conflicting results in the governor’s election.
“There were two conflicting results presented by both the Independent Electoral and Boundaries Commission (IEBC) and the petitioner. It was the responsibility of the IEBC to distinguish the genuine one but it failed to do so,” said Karanja.
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.
The judge held that evidence adduced before the court indicated that there were unauthorized alterations of forms 37A, foreign seals on ballot boxes and a number of electoral malpractices Magwanga had emerged second during last year’s election.
An ecstatic Magwanga welcomed the ruling saying that it is only the ballot that will decide the fate of the next Homabay governor. 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.
“I want to thank the people of Homa Bay who have remained steadfast from day one up to today. Their support has been noted and is appreciated and they should continue to show that solidarity upto the time when the ballot will decide the Governor for Homa bay,” he stated
Mr. Awiti, who was hospitalized recently with an unknown illness was not available for any comment. After the ruling, his lawyers left in a huff, not giving comments to the media. Most people expect him to follow in Alfred Mutua’s shoes and file an appeal at the Supreme court.