Why court ruled against Mbugua in Kamukunji

By WAHOME THUKU

Kamukunji MP Simon Mbugua has lost his seat after the High Court established that the results used to declare him winner were compromised.

Lady Justice Mary Ang'awa on Thursday ruled that the results were irregularly obtained, and were compiled from electoral documents collected from polling stations long after the December 27, 2007 elections.

Interestingly, it was another High Court Judge, Justice Joseph Nyamu, now Court of Appeal judge, who had forced the defunct Electoral Commission of Kenya (ECK) to declare a winner in the constituency, even after the electoral body had cancelled the polls saying that electoral documents had been destroyed in chaos that erupted at the polling centres as vote tallying was continuing. On Thursday, Justice Ang’awa said the declaration of Mbugua, as the winner in the election was invalid.

Kamukunji parliamentary aspirant Ibrahim Ahmed (centre) is joined in celebration by former Makadara MP Reuben Ndolo (left) and Nairobi Mayor George Aladwa at the Nairobi High Court, on Thursday. The court ruled in his favour in an election petition against the election of Simon Mbugua as Kamukunji MP in 2007. [PHOTO: BONIFACE OKENDO/STANDARD]

"I declare the election null and void and order that a certificate to that effect be given to the National Assembly Speaker," she said at the end of the ruling that took her two hours to read.

Mbugua’s arguments that he had won could not also fly in the face of evidence adduced by Joseph Kortom who was the deputy returning officer during the elections. Kortom, who testified in the case, enumerated various irregularities during the voting itself and at the tallying centre.

Another witness, Sammy Wachira, who was President Kibaki’s chief agent in Kamukunji, also supported the petition that was filed by Ahmed Ibrahim (Johnnie) who contested on an ODM ticket. He said he decided to spill the beans after witnessing the post-election violence.

Lacked Integrity

"The results announced could not be credible as the method of obtaining them was compromised," judge Ang’awa held on Thursday. The results were compromised, wanting and lacked integrity," she said.

"This cannot be termed as a transparent, free and fair election, and I declare the first respondent was not validly elected," said the judge.

The decision brings to an end the most controversial petition filed after the 2007 polls. Two other judges who handled the case withdrew as Mbugua tried to stall the case. Lady Kalpana Rawal dropped the case after she received threatening messages, which she believed were linked to the petition while Justice Fred Ochieng excused himself in a similar manner over comments made about him.

Now the Interim Independent Electoral Commission will have to conduct a by-election to allow Kamukunji voters pick a new MP, bringing to nine the number of by-elections to be held after the 2007 polls.

Others who lost their seats include Cabinet minister Chirau Ali Mwakwere (Matuga), Bishop Margaret Wanjiru (Starehe), Dick Wathika (Makadara), George Thuo (Juja), Abdirahman Hassan (Wajir South) and Joel Onyancha (Bomachoge), Omingo Magara (South Mugirango). Of these, Mwakwere and Wanjiru retained their seats in the by-elections.

Kamukunji becomes the third constituency in Nairobi to go for a by-election.

On Thursday, Ibrahim’s supporters jammed the Nairobi Law Courts as Justice Ang’awa ready her ruling for two hours. After the judge had nullified Mbugua’s election, Ibrahim’s supporters poured onto the streets with song and dance. Ahmed rode on a camel’s back escorted by his chanting supporters.

But strangely, and as if anticipating the nullification of his election, Mbugua, who made numerous attempts to stall the petition, did not turn up to listen to the ruling.

More ballot boxes

During the 2007 polls, the Kamukunji elections proceeded well until the tallying stage at Shauri Moyo Social Hall. Protests broke out after election officials brought in more ballot boxes into the hall, which they said had been left out in the rain.

Returning officer Pricyllar Wamiru announced preliminary results, and Mbugua was in the lead when she had counted 135 out of 157 ballot boxes. Chaos ensued the announcements of the results. In the ensuing chaos, ballot boxes were broken and election material spilled all over the premises and other documents destroyed.

As the situation went out of hand, police intervened and ordered the closure of the tallying centre. The ECK then called off the election as the returning officer declared she had no results to announce since all the material had been destroyed.

Mbugua moved to court and obtained orders compelling the ECK to complete the process. While that case was going on, the ECK chairman Samuel Kivuitu instructed the presiding officers to go to all polling stations and compile results from the Form16As pinned on classroom doors, and also pluck others glued on ballot boxes. ECK used the salvaged results to declare Mbugua winner with 22,614 votes while Ahmed garnered 16,604 votes. The third candidate Abdi Yusuf Hassan got 7,663. Results from many polling stations were still missing.

Officials role in rigging

Ahmed filed the petition through lawyer Stephen Owino against Mbugua, the returning officer and the ECK. He claimed the electoral officials were used to rig the polls.

Justice Ang’awa said the returning officer erred by proceeding to tally the votes before all the boxes had arrived in the hall.

The court, however, exonerated Mbugua from any electoral offences that would have barred him from contesting in the by-election. But she ordered Mbugua, the ECK (now IIEC) and the Returning Officer to pay the cost of the petition jointly and individually to the petitioner.

She said if the ECK and the returning officer acted purely on the court orders in releasing the results, they should not have challenged the petition.

The petition has been characterised by drama and controversies. But when Ang’awa took over the case in October, she assumed a no-nonsense stand, compelling the advocates and their clients to stick to the rules. She ordered that the case must be heard on a daily basis to conclusion.

Throughout the petition, Mbugua made numerous, but fruitless, applications through his lawyer Kibe Mungai to have the petition struck out.