DETAILS: Why Supreme Court upheld elections of Governor Mutua, Nandi Hills MP Keter

Chief Justice David Maraga. [Courtesy]
The Supreme Court upheld the election of Nandi Hills Member of Parliament (MP) Alfred Keter on Friday.

The Court found that Mr Keter was validly elected and dismissed Bernard Kibor Kitur's petition who had cited violence, intimidation of voters and agents during the campaigns and on Election Day as well as voter bribery during the polls.

The court considered Kitur's petition outlining four major grounds for determination.

The first ground looked into jurisdiction of the court to determine the matter finding that it was properly before the court and that it met the threshold in Article 163(4)(a) of the Constitution.

On the second count, the court found that the Appellate Court did not delve into matters of fact contrary to the law. It limited itself to evaluating the conclusion of the trial judge based on the evidence on record only making the relevant pronouncements to law.

On the third ground, the court agreed with the finding of the Court of Appeal that an affidavit must be confined to facts that a deponent is able of his own knowledge to prove, further, that in limiting a substituted petitioner to adopting word for word the affidavit of the original Petitioner, the Election Court erred, as doing so would amount to admitting hearsay evidence.

The final ground looked to campaigning outside of the prescribed timelines, and found that a single issue does not amount to massive or substantial non-compliance with the law or irregularities enough to dissuade from the fact that an election was conducted largely in accordance with the law.

In another ruling, Chief Justice David Maraga declared that the Court of Appeal erred by cancelling Machakos Governor Alfred Mutua's victory on grounds it failed the constitutional test of verifiability.

Mutua's final round win came after his victory was reversed after his rival, former Kathiani MP Wavinya Ndeti, convinced the Court of Appeal that the Machakos governorship results were manipulated to favour her competitor.

She had appealed after Machakos High Court Judge Aggrey Muchelule ruled that her petition lacked merit and upheld Mutua's victory.

Upon consideration of the grounds of appeal and the robust submissions made by counsel for the parties, the Supreme Court found that the main issues raised in the appeal for its determination were; whether or not the Supreme Court has jurisdiction to entertain; whether or not the Court of Appeal misapprehended the issues of burden and standard of proof in electoral disputes; and whether or not, contrary to the law, the Court of Appeal paid undue regard to procedural technicalities and nullified the election on minor and immaterial irregularities which did not affect the election result.

On whether or not the Supreme Court had jurisdiction to entertain appeals, the Court found that the issue of verifiability on the election results it had jurisdiction to hear the appeal.

The Supreme Court pointed out that another issue raised in the appeal was the allegation that the engagement of employees of Machakos County Government compromised IEBC's independence and affected the credibility of the election.

"We did not find any evidence that the said Urbanus Wambua Musyoka, was one and the same person as the Chief officer of the Machakos County Government. We also found nothing irregular in the engagement of the other employees of the County Government in the conduct of the election as there was no evidence of any partial conduct on the part of any of them," the Supreme Court ruled.

On the burden of proof, the court found that it is an election offence for any public officer to engage in partisan politics, the allegation that Urbanus Wambua Musyoka was the Chief Officer of the County Government required proof beyond reasonable doubt but the respondents failed to discharge the burden.

One of the major issues in the appeal was the legality of Form 37C used in the declaration of election results.

"After consideration of the issue, the Court found that the correct Form 37C used in the declaration of results was the one signed by the CRO and all the poll agents, including the respondents' agent appears on page 2126 of Volume 5 of the record of appeal. We also found that Regulation 87(2)(b)(iii) of the Elections (General) Regulations, 2012 which introduced a column for results from all polling stations to be transposed on that form is ultra Vires Section 39(1B) of the Elections Act," the court ruled.

The court concluded: "For these reasons we find the Court of Appeal erred in holding that the Machakos County gubernatorial election was not conducted in accordance with the Constitutional principles thus rendering it null and void. To the contrary, we find that the 1st appellant was duly elected Governor of Machakos County in a fair and free election."

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Wavinya NdetiAlfred MutuaSupreme CourtAlfred Keter