ODM yesterday declared its support for Evans Kidero, as the city Governor temporarily got his job back pending his appeal in the Supreme Court.
“We are standing with Kidero. He is our member and we will go all the way with him. This monkey business going on the Judiciary will not affect our support for Kidero.
“We believe he is the right man for the job and he was validly elected,” said ODM acting Leader Anyang’ Nyong’o.
An appeal court threw Kidero out on Wednesday, in a case brought by Ferdinand Waititu.
Two of the three judges ruled that the High Court erred in dismissing allegations of vote-stuffing without allowing cross-examination of witnesses to get to the bottom of the issues.
They also said the lower court judges’ rejection of a scrutiny of votes as demanded by Waititu had rendered his case null.
But the Supreme Court reinstated Kidero after temporarily suspending the decision by the Appeal Court.
Supreme Court judge Mohammed Ibrahim issued the order halting the appeal judgment. He also stopped the Independent Electoral and Boundaries Commission from declaring the Nairobi gubernatorial seat vacant.
Justice Ibrahim further issued an order blocking the Nairobi county assembly speaker or any other person from assuming the office of governor.
Making the orders, he said Kidero has raised weighty issues in his appeal with a high likelihood of success and in the event the relief sought is not granted his appeal will become null and void.
He also noted that the apprehension the speaker of the county assembly might be sworn in to take up the governor’s position is reasonable and therefore granting the orders sought is justified.
Certifying Kidero’s case as urgent he directed that it be heard by a bench of two Supreme Court judges.
In his appeal, Kidero said he stands to suffer if the highest court didn’t intervene.
Through lead lawyer Prof Tom Ojienda, Kidero argued that the decision by judges GBM Kariuki and Patrick Kiage sending him home is a gross injustice to him and the people of Nairobi and must not stand.
He said the judgment went against the law in allowing a case by his challenger that was filed out of time.
On Tuesday the Appeal Court declared that the High Court erred in upholding Kidero’s election without giving his challenger Waititu fair opportunity to cross-examine witnesses, hence suppressing the truth.
However, the third judge on the appeal bench, Mohammed Warsame, dissented, opting to dismiss the appeal challenging Kidero’s election. His main reason for dismissal is that the appeal was filed 22 days late, long after the deadline for lodging had passed.
Judge Warsame was of the view that Waititu just made general allegations that votes were stolen, without backing them up with any evidence.
“He did not show how the huge number of votes was stolen. The over 70,000 votes could not have been stolen and anybody saying so is daydreaming,” said Warsame in his dissenting judgment.
The other judges held that they cannot dismiss the appeal by Waititu on the basis of the technicality that it was filed out of time. “Justice cannot be sacrificed at the altar of technicalities,” they said.
Judges Kiage and Kariuki noted that Waititu requested a copy of proceedings from the High Court case on time so that he could file his appeal.
Kidero’s case brings to four the number of suits before the Supreme Court affecting governors. The other cases are appeals by Peter Munya (Meru), Okoth Obado (Migori) and Nathif Jama (Garissa).
The Kidero case will be heard on May 23.
