Supreme Court stops gubernatorial by-election in Homabay

Homa Bay County Governor Cyprian Awiti. [Maureen Odiwuor/Standard]

Homa Bay Governor Cyprian Awiti will continue discharging his duties after the Supreme Court temporarily reinstated him to office.

Mr Awiti was ousted last week after the Court of Appeal nullified his win over electoral malpractices.

But Supreme Court judges stopped any by-election until they determine the validity of the contested August 8 election.

Chief Justice David Maraga, his deputy Philomena Mwilu, judges Mohamed Ibrahim, Jackton Ojwang and Isaac Lenaola also restrained the Speaker of Homa Bay county assembly from assuming the office of governor until Awiti’s appeal is determined.

“The Independent Electoral and Boundaries Commission is restrained from declaring the gubernatorial seat of Homa Bay as vacant or proceeding to organise any election pending determination of the appeal,” ruled the judges.

Through Senior Counsel Tom Ojienda, the governor argued that the appeal court, which nullified his win last week, failed consider key evidence, including scrutiny and a recount of votes, that showed he fairly beat his opponent Oyugi Magwanga.

He argued that Awiti’s case was mishandled right from the High Court, accusing Justice Joseph Karanja of violating the governor’s fundamental rights after he applied different standards of proof.

“Both the High Court and the Court of Appeal irregularly shifted the burden of proof to the governor and the IEBC when the contestant (Magwanga) had failed to prove his allegations that there was collusion to forge Form 37As,” said Ojienda.

The High Court nullified Awiti’s win on February 20 on grounds of illegalities committed during the election, a decision that was affirmed by Court of Appeal judges Philip Waki, Fatuma Sichale and Otieno Odek, making Awiti the second governor to lose his seat after Machakos’ Alfred Mutua.

Prof Ojienda stated that it was wrong for appellate judges to rely on documents filed after the case had concluded to nullify the election.

He argued that the judges misapplied provisions of the Constitution and Elections Act based on generalised evidence.