Kirinyaga Governor Anne Waiguru and her political archrival Martha Karua have for the first time jointly trained their guns against Kerugoya High Court Judge Lucy Gitari over alleged mishandling of the county governorship election petition.
According to documents filed at the Court of Appeal, both Ms Waiguru and Ms Karua, say the judge made legal blunders while handling the election petition.
Ms Karua, who is Narc Kenya party leader, is challenging the judge’s decision to uphold the governor’s win as she believes that the election was not fair and was marred with irregularities that worked to the advantage of Ms Waiguru.
She says Justice Gitari was biased in hearing the petition and the verdict to dismiss the case was a miscarriage of justice.
“The judge failed to adhere to the principles of a fair hearing as particularly guaranteed by Article 50 of the constitution. She exercised her judicial authourity in total disregard of Article 159 of the constitution,” said Ms Karua outside the Court of Appeal registry in Nyeri.
She filed six bundles of documents summarised to 31 grounds which she will use to convince the Appellate court judges that Ms Waiguru was not validly elected.
Ms Karua is contending that Justice Gitari summarily excluded electronic evidence tendered by her witnesses in the petition.
She said some of the evidence was supplied to her by the Independent Electoral and Boundaries Commission (IEBC).
“The judge failed to find that the electoral commission wilful refusal and failure to give me access to the Kiems Kits as ordered by the court, gravely prejudiced my case. Justice Gitari failed to appreciate the true purpose of scrutiny in the fair determination of an election petition,” argued MsKarua.
She further stated that IEBC refusal to obey the court orders amounted to criminal offence of concealment of evidence.
“Justice Gitari condoned the unlawful destruction of crucial evidence by IEBC. She excused obvious errors in copies of Form 37A without an examination of the originals,” noted the former Cabinet Minister.
On claims the Kirinyaga governorship poll did not follow the applicable laws and regulations, Ms Karua said the High Court failed to appreciate that records and data held by IEBC were a necessary tool for enabling the court to satisfy itself that the election was constitutional and followed legal procedures.
“Failure by IEBC to produce Forms 37A, B and C in court and subsequent objection to the production and reference to the certified copies of the said forms supplied to me by IEBC was prejudicial to the petition,” said Ms Karua.
She maintained that the election results were based on forged result forms.
According to her, IEBC has a duty of demonstrating the election of August 8, 2017 was free, fair, credible, transparent and verifiable as mandated by Article 86 of the constitution.
But, she said, the judge refused to make a finding that IEBC had failed to comply with Article 86 of the constitution.
Ms Karua is further contending that the court would have compelled Governor Waiguru to testify in the petition.
“The refusal to testify or offer herself for cross-examination was prejudicial to my case because her affidavit remained part of her pleadings and may have influenced the court’s dismissal of the petition,” she explained.
Justice Giatri ruled that Ms Waiguru’s failure to testify was not fatal because the deputy governor, Peter Ndambiri, testified.
She said the judge applied double standards in the trial.
“The judge misdirected herself in the evaluation of the evidence tendered by the petitioner’s witnesses, and thereby failed to find there was tampering with ballot boxes,” stated Ms Karua.
On the other side, Governor Waiguru through lawyer Paul Nyamodi in a counter, said Ms Karua’s petition was not even supposed to be heard as it was time-barred.