By Wahome Thuku
Nairobi, Kenya: Appellate judges reversed a High Court ruling upholding Evans Kidero as Nairobi Governor on the grounds that his rival, Ferdinand Waititu, was not given a fair chance to challenge his defeat.
This effectively means Nairobians may yet again have to decide through the ballot who between Dr Kidero and Mr Waititu, who is the former Embakasi MP, will be their chief executive. If it goes to fresh polls, assuming Kidero fails at the Supreme Court, which he said yesterday he would turn to, then the race will be open to fresh candidates.
This could again upset the balance of power in the city between Kidero and Waititu, who was the petitioner in this case.
The Court of Appeal nullified Kidero’s election alongside that of his deputy Jonathan Mweke after two judges overturned a High Court decision that had upheld their election last year.
Judges GBM Kariuki and Patrick Kiage ruled that the High Court had denied Waititui a fair chance to challenge the outcome of the gubernatorial election. However, a third judge, Mohamed Warsame, who actually presided over the hearing, dissented and upheld the decision of the High Court as sound.
The majority decision has sent Kidero out of office only days after he lost his position as the vice chairman of the Governors’ Council.
But his lawyer, Tom Ojiambo, said they would appeal the decision in the Supreme Court. The Supreme Court will have the final say on whether Nairobi residents will go back to the polls to elect a new governor.
Court of appeal
If Kidero goes to the Supreme Court, it will be the fourth such case affecting governors to be referred to the country’s highest court, which is already hearing appeals by Peter Munya (Meru), Okoth Obado (Migori) and Nathif Jama (Garissa).
Kidero had objected to the appeal on technicalities, arguing that it was incompetent as it had been filed outside the 30-day window allowed by the Elections Act. The law requires one to file an appeal within 30 days after the judgement of the High Court and the same must be determined within six months.
However, Waititu delayed filing the appeal as he waited for the High Court to prepare the typed proceedings.
The High Court judgement was delivered on September 9 last year but the proceedings were only made available to the petitioner on October 9. He filed the appeal on November 23.
Mr Ojiambo had argued that the petitioner had one day in which he could have filed the appeal to beat the deadline. The position had been supported by the Independent Electoral and Boundaries Commission (IEBC).
However, judges Kariuki and Kiage ruled that the petition was proper, holding that the elections law was not intended to bar a litigant from accessing justice over faults that were not of his or her making. The judges agreed that the time taken by the High Court to prepare the proceedings should be deducted from the 30-day time frame.
Justice Kariuki said although the six months within which to determine the petition was cast in stone, the requirement for the 30-day period to file an appeal was not.
“Parliament did not intend to prejudice a litigant who intends to access justice,” he said, adding that the court must target the intention of the Legislature when making a statute.
The judges wrote individual judgements, each about 90 pages long. Warsame, who gave graphic descriptions to contrast the political ideologies of Waititu and Kidero, ruled that the petition was not incompetent having been filed out of time.
He said Section 85 of the Elections Act was clear that the appeal must be filed within 30 days. He said nullification had grave consequences for millions of Kenyans as well as financial implications.
After deciding on the competence of the appeal, the judges went on to determine the merits of the petition, pointing out the numerous irregularities that the High Court judge had ignored.
Judges Kariuki and Kiage took issue with the High Court judge for expressing a biased view when determining the petition and denying the petitioner an opportunity to cross examine witnesses.
The judges faulted High Court judge Richard Mwongo for dismissing the petition in strong words, saying he risked exhibiting open biases.
Justice Kariuki said an election can be an emotive exercise and a judge should avoid appearing biased and prejudiced.
The two judges concurred that by declining to grant an order for scrutiny of votes, which was critical, the High Court judge had failed to accord Waititu a fair hearing.
They said he blocked crucial evidence and had no evidential basis on which to make the findings on the electoral irregularities. The judge also denied Waititu an order to get electoral documents from IEBC.
The two judges pointed out the numerous irregularities of bribery, discrepancy between registered voters and votes cast, and filling of the electoral forms – all of which they said warranted investigation by the High Court.
Justice Kiage ruled that the allegations went to the heart of the interrogation regarding whether the election was held in accordance with the law.
“Justice should not be sacrificed on the altar of technicalities,” he ruled.
Justice Kariuki observed that the election was a matter of public interest and Mwongo should have paid attention to this when hearing and deciding the case.
The judges held that the High Court made irrelevant considerations that impaired fair hearing.
“We must settle disputes but we must also protect the Constitution as a whole,” Kariku observed.
The judges, however, faulted Waititu for filing a voluminous appeal with unnecessary material rather than restricting himself to the specific grievances. In his dissenting judgement, Warsame gave a clean bill of health to the High Court’s decision, saying there was no evidence that Waititu’s 70,000 votes had been stolen.
In a hilarious quip, the judge described Waititu as a heavyweight in Nairobi politics whose rights could not be easily trampled on.
This was the second high profile petition after the Presidential petition filed by Coalition for Reforms and Democracy leader Raila Odinga against the election of President Uhuru Kenyatta and his deputy William Ruto.
Kidero and Waititu sat together in the courtroom throughout the four-hour reading of the judgment. They were joined by CORD senators Moses Wentang’ula, James Orengo, Anyang’ Nyong’o and Johnstone Muthama among other leaders.