Why Waibara won back his Gatundu seat

By WAHOME THUKU

The law has a principle of equity, which states that he who comes to court must come with clean hands. It means that before you accuse anyone of wrongdoing, check whether you are clean first.

In December 2007, Clement Kung’u Waibara won the Gatundu North Parliamentary seat after garnering 20,573 votes on a Pick ticket, beating 16 other candidates.

Losers included immediate former MP Patrick Muiruri who was third.

Muiruri, a former assistant minister, sponsored a voter Mr Peter Kamau Njeri to file a petition against Waibara, on January 23, 2008.

Along the way, Kamau withdrew and Muiruri financed another voter Bernard Chege Mburu to take it over. In fact, Muiruri was described by the court as the petitioner behind-the-scenes.

One allegation was that Waibara was not proficient in English and Kiswahili languages hence ineligible for nomination. He was also accused of causing violence before and during the elections and bribing voters.

On September 29, 2010, the first presiding judge Roselyn Wendoh disqualified herself on Waibara’s application. Mr Justice Fred Ochieng took over the petition. Petitioner Mburu did not testify in court but called several witnesses, including Muiruri.

The first witness was Waibara’s best friend Martin Kahura. He told the court that he had sat for language proficiency test on behalf of Waibara, enabling him to be cleared to contest.

Kahura claimed he was an electrical engineering graduate from the Kenya Polytechnic, but did not produce any certificates.

Muiruri testified at length on how Waibara had caused violence and bribed voters. He also produced copies of Form 16A and 17A bearing numerous irregularities.

On cross-examination by Waibara’s lawyer Evans Ondieki, Muiruri admitted that during the 2007 campaigns, he had given some fraudsters Sh2.1 million to print for him Sh30 million and he lost the money.

Waibara called six witnesses. One of them, an administrator from Kenya Polytechnic testified that Mr Kahura had been admitted at the institution but never completed the course hence he was not an engineer.

Transparent, free and fair

Another witness Frederick Iraya, who was a member of the Proficiency Examinations Board testified that Waibara had actually sat for the language tests and passed.

In his evidence, Waibara disowned some academic certificates produced in court by his rivals. It was, however, proved that the certificates were indeed his. The Returning Officer Charles Mararo told the court that the forms produced by Muiruri were fake. The genuine ones were locked inside the ballot boxes. Those boxes were never opened and the forms were never scrutinised.

On August 26, Justice Ochieng’ held that no acceptable and sufficient evidence had been adduced to prove that Waibara caused violence, bribed voters or even committed any other election offence. He also rejected claims that Waibara was not sufficiently proficient in English and Kiswahili.

The judge dismissed Muiruri, Kahura and Waibara as persons of doubtful integrity and unreliable witnesses. On Muiruri, he said, "A person who had been an MP for ten years, but who is ready and willing to pay Sh2.1 million as a consideration for printing of Sh30 million (counterfeit cash) cannot be deemed as a man who engenders trustworthiness in him."

The judge accepted Iraya’s evidence that Waibara sat the language test and was cleared for nomination.

Ochieng, however, turned to forms 16A and 17A. He noted that the copies had not been signed, did not have official stamp of the Electoral Commission of Kenya (ECK) or remarks by electoral officials as required. On that basis, he concluded that the election was not transparent, free and fair and nullified it.

Waibara appealed on 16 grounds. His lawyer, Ondieki, however, argued on three broad grounds, two being that forms 16A and 17A had not been raised in the petition and that the judgment had been leaked a day before it was read.

Apparently, Muiruri had addressed a gathering in Gatundu the previous day and asked them to prepare for a by-election.

Judge Ochieng’ defended himself saying he upheld integrity in his work. Waibara had Justice Ochieng’s judgment suspended. He then held onto his seat, as the Speaker could not declare it vacant before determination of the appeal.

Judge Samuel Bosire, Philip Waki and Alnashir Visram heard the appeal.

The main issues turned on the Form 16A and 17A. The judges analysed in great details how the evidence had been adduced.

It was clear that though the issue had not been formerly raised in the petition, Ondieki had not objected to their production and had even cross-examined witnesses on the forms.

ECK lawyer Ben Mukuria argued that the returning officer had explained anomalies in the forms.

The petitioner’s lawyers Emmanuel Wetangula and Muthomi Thiankolu argued that the irregularities were evidence that the election was not transparent, free and fair.

The question was whether the irregularities were grave to lead to the conclusion that the elections were not fair. That was answered by the fact that the forms in the ballot boxes were never scrutinised.

"The authenticity of the forms having been raised, it was incumbent upon the judge to order the opening of the ballot boxes," the judges held. "It’s clear to us he based his conclusion on documents whose authenticity was not clearly established."

They added, "Presently, we do not know or are we likely to know which conclusion the trial court would have reached had it examined the original copies of forms 16A and 17A, which were kept inside the ballot boxes and which in our view would have given the correct position regarding the counting process at each polling station."

The matter was worsened by the fact that judge Ochieng used Muiruri’s evidence on the forms even after discrediting him.

"He was the prime mover of the petition and if his credibility was called to question, then the trial court was obligated to test his entire evidence before acting on it," the judges said adding, "Having discredited the principal witnesses, it was not open to him (judge) to accept and act on their respective evidence without question."

With that, the Court of Appeal judges overruled Justice Ochieng’s judgement and dismissed the entire petition giving Waibara a breath of life. The judges ordered each party meets its own costs of the petition and the appeal.

Waibara said it was a rare but the best Christmas gift ever. And for the people of Gatundu North, the thought of a by-election barely a year to the main polls is now behind them.

The writer is a court reporter with the Standard Group

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