Machakos Governor Alfred Mutua could be forced to go back to the voters to seek their validation after the Court of Appeal Friday nullified his election. The court at the same time upheld the election of Embakasi East MP Babu Owino.
Dr Mutua, however, dismissed the ruling as a “small hurdle” and vowed to contest the decision in the Supreme Court.
“Mutua was not validly declared as the Governor of Machakos county. The Independent Electoral and Boundaries Commission is hereby directed to organise and conduct a fresh election for the position in conformity with the Constitution, the Elections Act and the relevant regulations,” said Appellate judges William Ouko, Mohamed Warsame and Gatemu Kairu.
“The Machakos county gubernatorial election was not conducted in accordance with the constitutional principles thereby rendering the election void,” they declared.
The judges overturned the February 9 decision by High Court judge Aggrey Muchelule, who dismissed the petition by Mutua’s political rival Wavinya Ndeti and her running mate Peter Mathuki. The results declared by the IEBC Returning Officer failed the constitutional test, they said.
The judges ordered Mutua of Maendeleo Chap Chap party and IEBC to pay the costs incurred by Wavinya and Mathuki. But the governor said he had filed a notice of appeal Friday at the Supreme Court.
“I respect the decision of the court. We are not worried at all. We know we were validly elected,” he told journalists after the judgment read by Justice Ouko.
“We are still in office until the Supreme Court declares otherwise because from my reading, they have actually gone against what the Supreme Court itself stands for and some of these will actually be shown not to be accurate.”
The governor reiterated his ambition to become Kenya’s fifth President in 2022. Wavinya celebrated the ruling, saying:”Let Mutua swallow his pride like I have done in the past. The ruling has been made, the judges have done their work… The truth has come out and I am putting my trust in God.” In Babu Owino’s case, the Court of Appeal dismissed his March ouster by the High Court.
“We are not satisfied that the irregularities and non-compliance with the electoral law affected the result of the election of Babu Owino as member of the National Assembly for Embakasi East constituency,” Appellate judges Mohamed Warsame, Daniel Musinga and Kathurima M’Inoti declared.
They overturned the nullification of his election on the basis there were no complaints regarding the results in Forms 35A. The errors in Forms 35B were purely arithmetical and did not affect the results obtained by either Owino or his political rival Francis Wambugu Mureithi, they observed.
“The Returning Officer told the trial court that the arithmetical errors were occasioned by human errors due to fatigue. No interference or manipulation of the ballots and the results were proved,” said Appellate judges.
“By nullifying the election on account of the arithmetical irregularities, we think the trial judge gave very little regard to the results of the scrutiny and recount exercise.”
The recount had revealed that Babu garnered 46,817 votes, 230 more than the 46,587 as shown in Form 35B, while the Wambugu had 42,501, an increase of 248 votes compared to the 42,253 that were shown in Form 35B.
Meanwhile, Appellate judges Warsame, Patrick Kiage and James Odek threw out an appeal by Prof Philip Kaloki challenging the dismissal of his election petition by Justice Charles Kariuki on March 2.
He had unsuccessfully sought the nullification of Kibwezi East MP Jessica Mbalu, who he had accused of colluding with IEBC officials to deny his agents access to some polling stations.