A High Court in Kericho has condemned the Independent Electoral Boundaries Commission (IEBC) to pay Sh2.5 million legal costs after it failed to secure polling materials in the Kilgoris parliamentary elections.
Justice Martin Muya however dismissed the petition filed by former MP Julius Sunkuli and ruled in favour of his competitor Gideon Konchellah who was declared winner in the August 2017 polls.
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In his hour long judgement Justice Muya said though some of Sunkuli’s election allegations had been proved, they could not amount to a nullification of the election.
“The effect of the irregularities allegations and indeed some of which have been proved. I find do not by themselves amount for a declaration that the election was so badly conducted that there is a need for court intervention,” said Justice Muya.
The judge added though where there were isolated cases of irregularities, they were not sufficient to alter the results of the election.
“The court's jurisdiction to initiate an election is provided for in section 83 of the elections Act no 24 of 2011. The Supreme Court did pronounce itself as to the meaning as the import of Section 83 of the Elections Act and from the foregoing it’s my considered view and humble finding the petitioner in this case dithered on the two limbs stated in section 83 of the Elections Act,” said Justice Muya.
He added: “It is noted however that Independent Electoral and Boundaries Commission responsibility to secure electoral materials when ballot papers were diverted to Eldonyo-ngoipit polling station to private residence were not factored in counting and tallying of all the results of candidates across the board. It’s my considered view that it did not substantially affect the election results.”
Justice Muya however added that polling agency should be condemned for the action and should bear the cost of the petition.
“The third respondent should be condemned to pay for the cost of this petition to the first respondent (Gideon Konchela) and the petitioner (Julius Sunkuli) Sh.2.5M for each,” he said.
Justice Muya, also dismissed claims against Konchela that he had misused the Constituency Development Fund (CDF) by issuing cheques of various amounts during campaign period.
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“In the present petition the petitioner was obligated to adduce evidence on how, when and where the Constituency Development Fund cheques were issued and proceed to show how the alleged acts of issuing cheques influenced the voters. It is instructive to note that the petitioner did not report the issue to the relevant authorities,” he said.
He also pointed out the Supreme Court had noted that the issuance of CDF cheques by a sitting Member of Parliament is a matter that should be evaluated on case by case basis.
“The CDF otherwise present special problems as regards its disbursement of money during election periods as it’s clear that the kitty is a potent political campaign reference point especially for sitting parliamentarians. It presents a double edge sword for the political campaign process where funds have not been disbursed,” said Justice Muya.
Speaking outside the Kericho Law courts a dejected Sunkuli faulted the judgment adding that he will be moving to the Court of Appeal to challenge the High Court decision.
“Though the judge did his job. I find fault in his interpretation of many issues. We are moving to the court of Appeal for a three judge bench to hear the matter afresh,” he said.
The former MP however lauded Justice Muya for determining that IEBC violated Article 86 of the constitution.
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“We are also happy for the courts to order the electoral body to bear the cost of the petition for violating election laws. The judge should have been bold enough to declare that since Konchellah had benefited from the violation of the laws he should have also been compelled to meet the cost of the petition and fresh elections be ordered,” said Sunkuli.
But on his part, Konchellah said the judgment had validated his election as the Kilogoris MP a position he has held for the past three terms of 15 years.
“I welcome the judgement which declared that the election was free, fair, credible and verifiable because not an iota of prove was brought forth to justify the nullification of my election,” he said.