George Odiwuor and Baraka Karama @PeopleDailyKe
Homa Bay could be headed for a by-election if Governor Cyprian Awiti’s appeal challenging High Court’s ruling that nullified his August 8 election win flops. His legal team last evening filed a notice of appeal, a few hours a citing electoral irregularities.
Lead counsel Tom Ojienda successfully obtained an order mandating Awiti to stay in office until the appeal is heard and determined. “We have decided to appeal the ruling and that means Awiti will still remain the governor until the case is heard and determined,” he said.
Earlier, the court dismissed the Awiti’s re-election and ordered for a fresh election within a date to be set by Independent Electoral and Boundaries Commission. Justice Joseph Karanja found out that Awiti and his deputy Hamilton Orata were not fairly elected. He ruled that IEBC did not conduct a free and fair election, which resulted in the election of Awiti and Orata.
The court also ordered IEBC and Awiti to pay Sh4 million and Sh2 million fine, respectively. However, Awiti argued that the judge never considered the outcome of scrutiny and recounts of votes he ordered. “We will appeal the case so that even if we lose, it must be fair for all,” said Awiti.
The Homa Bay governor becomes the second to lose his seat after Wajir’s Ahmed Mohammed Abdi Mahamud, whose election was nullified following a successful petition on January 12.
Awiti’s victory was challenged by former Kasipul MP Oyugi Magwanga and his running mate Joshua Orero who lost to Awiti and Orata, according to the results announced by IEBC after the August 8 election. Awiti, vying on the ODM ticket, garnered 210,173 votes against Magwanga’s 189,060. However, Magwanga claimed IEBC failed to conduct a fair poll.
He accused the commission of colluding with the governor to manipulate the results declared in August. The two had initially locked horns in ODM primaries, with Awiti carrying the day but Magwanga rejected the results and, in a protest, decided to run an independent.
Magwanga told the court that he had set up two parallel tallying centres whose results indicate he won the election. According to him, he was supposed to be declared the winner with 224,863 votes against Awiti’s 174,235.
In the August contest, Tom Onyango of Jubilee Party came third with 1,432 votes while Medo Misama, another independent, managed 668 votes. Magwanga also acussed Awiti of voter bribery. In his ruling, Karanja said the court relied on Form 37A as the basis for nullifying the governor’s victory.
“This court has found out that the first and second respondents (Awiti and Orata) were not validly elected. IEBC failed to exercise its role of conducting a transparent poll,” he said.
He said electoral forms used in determining the winner had raised a lot of audit queries. “The court found out that a number of Forms 37A were not signed. Some had nothing written in them, meaning they could not be relied on by the electoral commission to announce the winner. They lacked consistency and are the basis that are supposed to be used to declare the winner,” said Karanja.
During cross-examination of witnesses, IEBC accused Magwanga of using forged forms to file the petition. However, the court dismissed the argument, saying the commission did not prove the forms were a forgery.
The judge added that a number of results that were declared at different polling stations were different from those that were used to announce the gubernatorial winner at the constituency tallying centre.
“The court has established that there were two sets of results from IEBC. Tallying, re-count and declaration of results was a sham exercise conducted by IEBC,” said Justice Karanja, adding that irregularities were witnessed immediately after the voting.
After the dismissal of Awiti’s victory, Magwanga and his supporters took to the streets to celebrate the court’s decision. He expressed hope that IEBC will be fair in the by-election. Magwanga led his supporters in celebrating the ruling. “The will of the people of Homa Bay must be respected and we must win,” he declared.