The fate of Machakos Governor Alfred Mutua now lies with the Supreme Court after his lawyers and that of his challenger former Kathiani MP Wavinya Ndeti made final submissions.
Wavinya, yesterday said documentary evidence was non-existent to prove the election victory by Mutua.
The politician told the Supreme Court it was impossible to authoritatively confirm from the Independent Electoral and Boundaries Commission (IEBC) that Mutua decisively defeated her during the General Election last year.
Wavinya, through Senior Counsel Ahmednassir Abdullahi, argued that the Machakos County Returning Officer deliberately failed to include results from all 1,332 polling stations in eight constituencies in the Form 37C results declaration form as required by law.
“The Returning Officer had no idea what was contained in the primary Forms 37As results forms. She disowned two sets of results forms where 145 polling stations were missing. It was a fundamental breach of the Elections Act and Regulations,” Ahmednassir submitted before Chief Justice David Maraga sitting with Justices Mohamed Ibrahim, Jackton Ojwang, Njoki Ndung’u and Isaac Lenaola.
However, lawyer Kioko Kilukumi representing Mutua said the Court of Appeal erred in nullifying Mutua’s election on June 8 on grounds that the election results failed the verifiability test. “Election results can only be quashed where substantial violations of the Constitution and the Elections Act have been proved,” he said.
Kilukumi, who was assisted by lawyers Waweru Gatonye, Ben Musau and Nyamu Mati, said the outcome of the polls demonstrated the will of Machakos residents, who gave a resounding victory to Mutua, who vied on a Maendeleo Chap Chap ticket, with 249,954 votes against Wavinya’s 209,233 votes. She and running mate Peter Mathuki were sponsored by the Wiper Party.
Lawyer Kimani Muhoro, who represented the national elections agency and the Returning Officer, dismissed as speculation assertions by Wavinya that the results declaration forms were doctored in favour of Mutua.
He said the Wiper Party had agents in all polling stations and none of them was called to testify about any irregularities during the hearing of the petition in the High Court.
However, the lawyer was hard put to explain to the five-judge Bench whether the Returning Officer complied strictly with the legal requirements of filing the election results in statutory forms. He said the results declaration forms were intact and Wavinya had abandoned her application for scrutiny.
The Supreme Court will deliver the judgment by notifying the parties in advance.