A Nyali constituency voter in Mombasa wants Court of Appeal to nullify the election of Mohammed Ali as the area MP.
Daniel Onyango Abwao wants Ali's election victory rescinded on grounds that he used opposition leader Raila Odinga’s photograph in his election material portrait despite being an independent candidate.
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Abwao through his lawyer Ahmed Said yesterday told Justice Alnashir Visram Justice Wanjiru Karanja and Justice Martha Koome that the decision the high court in rejecting his evidence about Mohamed Ali using Raila’s photograph in his campaign material was not right.
The use of ODM colours and its presidential candidate photographs in the campaign before the General Election gave him advantage over ODM candidate which was unfair.
Ahmed told the judges that Mohammed Ali admitted having used Raila’s photographs in the campaign material which the trial judge should have considered as a basis of nullifying the election.
“He used ODM party colours and yet he was not ODM parliamentary candidate. He used the photograph of ODM presidential candidate which made him ride on ODM’s popularity” said Ahmed
The lawyer faulted the trial judge for not taking into consideration the appellant’s evidence which showed that Mohammed Ali had advantage over his ODM parliamentary candidate Said Abdallah.
Ahmed argued that the appellant did not approach the IEBC because it was an election court to decide on issues arising from the election.
“The trial judge made a grave mistake by dismissing the evidence adduced in court by the appellant which made her up held the election of Mohammed Ali,” said Ahmed.
Ahmed urged the court to allow the appeal and nullify the election of Mohamed Ali’s election because the judge erred in law by failing to consider the evidence he gave. He also asked the court to allow the appeal with cost to Mohammed Ali to pay him
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But Ali’s lawyer Chacha Odera who opposes the appeal told the court that the appellant should blame himself for having not raised the issue with Independent Electoral and Boundaries Commission (IEBC) to form a tribunal to either fine his client and ask Ali to withdraw the election materials.
Chacha said IEBC laws says that when a candidate uses other political party’s election materials during the campaign those aggrieved should approach IEBC which the appellant did not do.
“If the appellant reported this complaint to IEBC in time we could have removed the photograph of Raila Odinga in our campaign material. If were given the opportunity in the IEBC tribunal we could have removed Raila’s photograph in the election material of Mohamed Ali” said Odera.
Abwao also accused the trial judge of failing to consider his evidence in which he had complained against Mohamed Ali of using state security to intimidate the voters during the election time.
The MP used prison officers as his security who presence during the election time in various polling stations intimidated the voters which had an impact on the election result in the area.
However Odera told the court that Mohammed Ali’s security were only guarding him and did not interfere with any voter who wanted to vote for their candidates.
The lawyer insisted these claims by Abwao were not valid because some the incidences of violence he claims were sparked by body guards of Ali took place after election time was over.
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“Those were just allegation which had no supporting evidence and is why the trial court dismissed them after it got satisfied that the evidence in question were not consistent,” said Odera.
The lawyer defended the assignment of security officers to Mohammed Ali because his life was in danger arguing the appellant did not bring any witness to say he did not vote because of the security of Mohamed Ali who intimidated them.
IEBC lawyer Tony Odera said there was no evidence to make the appeal to be allowed. He said the trial court did a perfect job. The judges said they will give their judgment on July 26.