High Court upholds election of Governor Ongwae

Kisii Governor and ODM luminary James Ongwae's August election victory has been upheld by the Court.

In a Judgement read by Lady Justice Hellen Omondi, the Court said the petitioner had failed to prove his case.

She said an election is a human endeavour and not carried out by programmed machines adding that one cannot quash an election where there is no malice in human errors.

Lady Omondi said that the petitioner had presented a case for determination on the basis of a number of issues including whether voters register was credible and verifiable, whether there were differences in votes cast for the six elections and whether the third (James Ongwae) and fourth respondent (Deputy Governor Joash Maangi) committed elections offences.

The Judge further ruled on whether there were inconsistencies in statutory forms used in the election of the Governor.

Justice Omondi ruled that the petitioner alleged that there were variances in votes cast in the six elections but failed to show how this advantaged the third and fourth respondents.

“It defeats logic for the petitioner to make allegations on a voters register he hasn’t seen before, during and after the poll petition. We cannot rely on an Excel Spreadsheet whose contents cannot be verified,” said Justice Omondi.

The Judge further explained that she was satisfied with the explanation by IEBC that there was a human, scientific and logical explanation to the errors because the clerks were tired and hadn’t slept.

On striking similarities in the six elective positions, the Judge ruled that it is possible that a voter can enter a polling station, be issued with all six ballot papers but only mark for their favorite candidate.

"The variances can occur at this stage and we cannot delve into these differences," she said.

The judge acknowledged that there were anomalies in some forms but that didn't affect the final tally for the position of the Governor.

Ongwae was represented in Court by Senior Counsel Okongo Omogeni and Wanyama Peter while the petitioner Joel Osando was represented by Advocate Ombati Omwanza.

The Judge said the petitioner will pay Sh5 million; Sh3 for the third, fourth and fifth respondents while the first and second respondents receive Sh2 million.