Governor Alfred Mutual dealt blow as election is nullified
Machakos Governor Alfred Mutua has been dethroned.
The Court of Appeal on Friday nullified his election after his arch-rival Wavinya Ndeti appealed High Court ruling that had upheld his August 8, 2017 election win.
While quashing the win, the judges said the election results declared by the county returning officer for Machakos County failed the constitutional test of verifiability, and that the declaration made announcing Dr Mutua the winner, had no legal basis.
Dr Mutua said he will appeal the decision before the Supreme Court, claiming the judges made errors in their decision.
If he moves to the apex court, he will have an automatic stay of 30 days.
Justices William Ouko, Mohamed Warsame and Gatembu Kairu said they were satisfied that the complaints regarding the validity of Form 37C and the declaration of results were anchored in the petition and the respondents had due notice of the grievances.
The judges said it may well be that IEBC opted to use the Excel forms on account of convenience it might offer in terms of ease of entering, calculating and analysing the data, but it is not for the court to speculate.
They added that the law provides that the results of the election shall be declared in the manner provided by the Act or the rules made thereunder, and the declaration should be made in that manner.
The judges said forms are an integral part of an election and the outcome will depend largely on the information contained in those documents.
“We direct IEBC to organise and conduct a fresh gubernatorial election for Machakos County in conformity with the Constitution, the Elections Act and the Regulations,” they said.
Ms Wavinya Ndeti had also complained that the Independent Electoral and Boundaries Commission (IEBC) engaged county officials during the elections.
She had complained that over 300 employees of Machakos county government were engaged as returning officers, presiding officers and polling clerks.
“Although the particulars of county employees given by the appellants relate to 167 as opposed to 300 employees, we are satisfied that there was sufficient evidence before the election court to demonstrate that IEBC used county staff in the conduct of the election,” they said.
They said the existence of Mr Urbanus Wambua Musyoka as an agent was established and the burden shifted to the Dr Mutua.
Mr Musyoka was the chief officer, Public Works, in Dr Mutua’s government.
The court, however, absolved Dr Mutua of any blame or responsibility for the anomalies.
Dr Mutua, the leader of Maendeleo Chap Chap party which worked with President Kenyatta’s Jubilee Party in 2017, described the nullification as “a small hurdle” and he will overcome it and get an even a bigger office.
He said he would file a notice of appeal on Friday as he take the battle for Machakos to the Supreme Court.
Accompanied by his lawyer Wilfred Nyamu, he said his dream of becoming the fifth president of Kenya is still valid.
On her part, Ms Ndeti, who ran for the seat on Wiper Party ticket, thanked and praised the court for delivering justice.
She said the judge’s decision was “a victory for the people of Machakos”.
“He can go to the Supreme Court, I am going to Heaven,” Wavinya said.
She moved to the appeals court after the High Court dismissed her case with costs and upheld Dr Mutua’s win.