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Why Governor Awiti lost poll petition appeal

By Harold Odhiambo | Jul 20th 2018 | 3 min read
Former Kasipul MP Oyugi Magwanga addresses the Press at the Court of Appeal in Kisumu yesterday. [Denish Ochieng, Standard]

Residents of Homa Bay County could be headed back to the ballot after Governor Cyprian Awiti lost an appeal to have his election upheld.

The Court of Appeal in Kisumu yesterday dealt Mr Awiti a heavy political blow after it upheld a High Court ruling nullifying his August, 2017 election victory against his opponent, former Kasipul MP Oyugi Magwanga.

This means the voters could be headed for a by-election should the county chief fail to lodge another appeal at the Supreme Court.

Mr Magwanga and his running mate in last year's election, Joshua Orero, praised the judgement as supporters celebrated in Kisumu, Homa Bay and Oyugis town.

"The court has spoken. The judges have confirmed that the people of Homa Bay wanted Magwanga to be their governor. They will do the same during the by-election," said  Mr Orero.

Awiti became the first governor in the region to lose his seat.

The governor, who was not in court, suffered an additional blow after he was ordered to pay Sh5 million, for cost of the suit, after the grounds of his appeal were rejected.

There was commotion outside the court before and during the judgement, which temporarily halted proceedings as dozens of supporters tried to force their way into the court.

They were, however, kept at bay police officers and court orderlies who also locked entrances to control the huge crowd.

Dance outside

And when Lady Justice Fatuma Sichale started reading the 120-page decision of a three-judge bench, supporters from both sides broke into song and dance outside the court.

In his appeal, Awiti had listed several grounds and criticised the trial judge, saying he erred in concluding that he was not validly elected.

Through lawyers Tom Ojienda, Otiende Amollo and James Orengo, the governor had dismissed the judgement, saying the trial court disregarded his evidence including that of the court’s deputy registrar.

Prof Ojienda said the judge relied on a report by Magwanga’s advocate that results were altered to dismiss the case and ignored a scrutiny report done by the deputy registrar at the High Court in Homa Bay.

He said the grounds the petitioner listed that led to the nullification of results were not proven, with the judge also admitting the election was done in line with the Constitution.

“The judge erred in law and relied on a report by the petitioner at the High Court to reach his conclusion that we totally disagree with,” said Ojienda.

Awiti had also questioned the authenticity of the set of results that  Magwanga had produced.

In their judgement, however, Justices Phillip Waki, Sichale and Otieno Odek, ruled there was sufficient evidence to prove the documents that were produced before the court originated from the electoral commission.

They also noted there was evidence the results declared at the polling stations were inconsistent with what was declared at the tallying centre.

The judges, however, ruled the judge erred when he ruled that there had been two sets of results, adding the laws recognises only the results declared by the electoral commission.

Awiti had claimed the High Court judgement demonstrated bias and made contradictory statements in his decision which had fundamental errors.

Justice Sichale said the judges considered whether the judgement at the lower court was inconsistent.

They ruled the trial judge by failing to mention the scrutiny and recount report and ignoring its contents.

“The trial court was faced with the issues of qualitative and quantitative aspects of the electoral process and the trial judge considered whether the irregularities affected results,” said the judge.

Lower court

In his appeal, Awiti had also argued that the Sh6 million costs he was ordered to pay by the lower court was high and asked the court to review it.

In their judgement, Sichale said they agreed the costs were high and reduced it to Sh5 million.

Following the judgement, Magwanga challenged Awiti to meet him at the ballot.

Meanwhile in the same court, three legislators, Justus Kizito (Shinyalu), Christopher Omulele (Luanda) and Benard Shinali (Ikolomani) were handed a lifeline after appeals challenging the lower court's move to uphold their election were dismissed.

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