Waititu in fresh bid to oust Kidero
A fresh bid to unseat Dr Evans Kidero from the Nairobi county governorship was lodged at the court of appeal on Thursday.
Lawyer Harrison Kinyanjui has laid out 39 grounds in a memorandum of appeal seeking to convince the court to reverse the September 10, 2013 election petition judgment that handed Dr Kidero victory.
He says the judge erred in law when orally said he found the contested election to have been unconstitutional and in violation of electoral law yet a written version said the opposite.
“The learned judge of the election court rendered a final written judgment that differed from what he read in open court on September 10 2013 in violation of article 48,159(1)(a) and (e) of the constitution of Kenya and which showed his hasty, undecided, unconsidered and wavering determination of the election petition,” the lawyer said.
According to him, the oral version of the judgment made reference to a finding that indeed he had found the impugned election to have been unconstitutional and in violation of the electoral law.
“By reason of this and other violations, the learned judge did not render a just or a lawful decision and the appellant’s right to justice was impaired as to render the verdict a nullity in law,” the lawyer added.
Dr Kidero survived the first election petition last year to retain the governor’s seat after his rival Mr Waititu’s petition was dismissed with a cost of Sh5million. (READ: Waititu loses poll case, gets Sh5 million bill)
Mr Waititu had moved to court saying the polls were fraught with electoral crimes and that double voting buoyed the governor to victory.
He claimed there were irregularities in Lang’ata, Mathare Westlands and Kayole where electoral materials were not secured and wanted IEBC officials held criminally liable.
However, Justice Richard Mwongo dismissed the petition saying the petitioner had failed to prove his case and the errors cited ”may occur in an election, but may not automatically lead to an entire nullification.”
The judge also said he had found no evidence of manipulation to prejudice Mr Waititu and invoked the ruling of the Supreme Court that floored former prime minister Raila Odinga against President Uhuru Kenyatta on similar technicalities.
On Wednesday, Mr Kinyanjui said the learned judge deviated from the law and shunned a doctrine which bound him to uphold similar facts and decisions. He said the judge arrived at a “variant “ decision.
TYRANNY OF TIME
He also said the judge erred when he fixed the burden of proof squarely on Mr Waititu throughout the trial in spite of him demonstrating that the burden of proving that the contested election had failed to adhere to Article 86(d).
“The appellants right to equal treatment before the law was violated in an unfair and illegal judgment…the appellant was treated with bias resulting in a biased judgment that lacked his material input and hence an unjust decision,” Mr Kinyanjui said.
He added that the election court failed to objectively assess the merits of Mr Waititu’s case and denied him an opportunity to prove that a substantial number Form 35 and 36 were neither dated nor signed thus rendering them invalid and the data contained “totally conflicted.”
Mr Waititu is said to have been denied a chance to cross examine the witnesses, IEBC and Dr Kidero lined up during the due to “the tyranny of time.”
The case will be heard on Tuesday January 14.-nation.co.ke