An omission by the High Court to consider a scrutiny of elections report has saved Homa Bay Governor Cyprian Awiti from losing his seat.
Awiti survived after the third attempt when the Supreme Court ruled that by overlooking the scrutiny results, High Court and the Court of Appeal made a mistake by overturning the will of the people of Homa Bay.
The judges’ unanimous decision, however, left many questions unanswered. The questions were regarding the integrity of the Homa Bay gubernatorial election, given that they only considered the scrutiny of votes as the basis of affirming Mr Awiti’s victory while ignoring other grounds raised at the trial.
“The trial court erred in law in failing to consider, evaluate and pronounce itself on the scrutiny report. Our systematic application of the law has led us to the conclusion that both the High Court and Court of Appeal made errors and their decision nullifying the election cannot stand,” they said.
According to the judges, the purpose of the scrutiny of votes was to enable the court to understand the vital process of election, which must be considered when making the final judgement.
Chief Justice David Maraga and judges Jackton Ojwang', Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u and Isaac Lenaola were all in agreement that by failing to refer to the scrutiny report, there was no reference point to support the decision to nullify Awiti’s election.
Justice Ojwang’, who read the judgment on behalf of the other judges, said it would be an injustice to the people of Homa Bay to subject them to another election due to omissions of the courts.
“To nullify an election in such a context will fly in the face of democracy. Election is a snapshot that reflects the will of the people... there was no cogent basis for upsetting the electorate’s choice made on election day,” said Ojwang'.
Awiti’s victory was challenged by his opponent in the August 8, 2017 election, former Kasipul MP Oyugi Magwanga.
During the trial at the High Court, Justice Joseph Karanja ordered for scrutiny of the votes in 91 polling centres and a report by the court’s deputy registrar concluded that the election was free, fair and credible.
The report also concluded that Awiti had defeated Magwanga by a margin of more than 21,000 votes. But the judge ignored it while nullifying the election.
Justice Karanja’s decision was affirmed by Appellate Judges Philip Waki, Fatuma Sichale and Otieno Odek, ruling that although the judge did not consider the scrutiny report, there were other irregularities and electoral malpractices that justified the decision to nullify the election.
But the Supreme Court agreed with Awiti’s lawyers that the Court of Appeal and High Court ignored crucial evidence of the vote recount and scrutiny by deputy registrar, which showed Awiti had fairly won.
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