Governor Alfred Mutua has been dealt a major blow in the ongoing legal battle to defend his August 8 win against his fierce competitor, former Kathiani MP Wavinya Ndeti.
This follows Friday’s ruling by the High Court dismissing an application filed by the Governor seeking to dismiss an election petition filed against his victory by the former Kathiani legislator.
Justice Aggrey Muchelule ruled that the grounds cited by Dr Mutua seeking a declaration that Wavinya’s petition against his win was ‘irredeemably and fatally defective’, failed to meet the legal threshold to warrant the dismissal of the petition.
In his application Mutua had argued a vote for the governor was equally a vote for the deputy governor and therefore inseparable, which means his deputy, was elected by the voters of Machakos County in the general elections held on August 8th 2017.
“A complaint against the election of the governor is essentially against the deputy governor as the IEBC does not conduct separate election for the two positions. If the petitioner does not contest the election of the DG, the petitioner cannot sustain a petition against the Governor,” Dr Mutua had submitted through his lawyer Waweru Gatonye.
Dr Mutua had also alleged the petitioner failed to comply with the provisions of Rule 8 (5) of the Petition Rules (2017) which demands that receipt of an election petition must be acknowledged by the registrar of the court.
But Justice Muchelule in his ruling held that inclusion of the deputy governor in the petition was not a mandatory requirement by law as a condition to sustain a petition against Governor’s win.
“If the validity of the election of the governor is successfully contested in court, then both the DG and the governor will leave office. In my view the governor will be the respondent in the petition because he is the one directly elected under the constitution” said Muchelule.
The judge further emphasized that it was the governor who will cease to hold office if his election is validly successfully challenged, and his deputy will consequently suffer collateral damage.
He said the governor was the person whose election had been complained against, and made it clear the DG was still free to join the petition, or seek to be joined as an interested party.
“I consequently find that non-inclusion of the deputy governor was not offensive and did not make the petition defective in any way,” he said.
As to the question of failure by the petitioners to comply with the rules governing the filing of election petition, the court held that the principle of substantive justice will apply. “Whereas there is need for strict compliance with the rules governing resolution of electoral disputes, the courts should be mindful of the current constitutional dispensation that requires substantive justice to be done in dealing with election disputes,” said Justice Muchelule.
The ruling was welcomed by lawyer Daniel Maanzo who is representing Wavinya.
However, Dr Mutua through lawyers Ben Musau and Waweru Gatonye sought leave to appeal the court’s ruling in the court of appeal which the court granted.
