By WAHOME THUKU

The fight to succeed retired President Kibaki as Othaya MP may have been one of the fiercest before, during and after the March 4 General Election.

Before the elections, the contest pitted Kibaki’s preferred candidate, James Gichuki Mugambi, against businesswoman (now the MP) Mary Wambui Munene. The fight was for the TNA party ticket, which was the most popular in the area. Wambui won the seat and the battle shifted to a contest between her and Nairobi lawyer Gichuki King’ara in an election petition challenging the outcome.

The seat, held by Kibaki since 1974, had eight aspirants. Wambui (TNA) won with 16,285 votes. King’ara (GNU) came second with14,218 votes while Mugambi (Saba Saba Asili) came third with 10,972 votes. He had defected after losing the TNA ticket.

On April 8, King’ara filed the petition at the High Court in Nyeri. He hired three lawyers – Kyalo Mbobu, Kithinji Marete and Carol Kimere – to represent him. He also called 21 witnesses to his side. Wambui put up a fight through three lawyers – Cecil Miller, Peter Wena and Pauline McAsila – while the Independent Electoral and Boundaries Commission and its area returning officer were represented by lawyer Peter Munge.

King’ara raised issues touching on Wambui’s eligibility as a candidate based on academic qualifications and also her integrity under Chapter Six of the Constitution. He also raised allegations of voter bribery, intimidation of agents, change of voting venues and a host of other irregularities.

But what made the petition unique was the lawyer’s allegations of Kibaki’s involvement in Othaya campaigns both as President and area MP at the time.

Erroneous

King’ara claimed during campaigns, Kibaki’s security obstructed him and his supporters from accessing the areas where he (Kibaki) visited. He told the court only one candidate accompanied Kibaki on his tour of the constituency and addressed the President’s political gatherings.

On the voting day, March 4, Kibaki toured the constituency and as a security measure, various roads leading to and out of Othaya were inaccessible to the electorate hence disenfranchising them, King’ara claimed.

“The ultimate result of Kibaki’s conduct was to tilt the electoral ground in favour of one candidate who was erroneously presented to the electorate in Othaya as the only development-minded among a host of other candidates,” he argued.

One of his witnesses, Lucy Njeri, produced video footage showing candidates, including Wambui, being barred from accessing the Othaya Boys’ High School compound where the former President was holding a public function on February 14. 

King’ara accused IEBC of failing to issue directives on how the electoral process in Othaya was to be conducted, including his access to the electorate and their access to polling stations and use of public resources in the political campaigns.

IEBC argued there was nothing unusual about Kibaki’s visits to Othaya (then the area MP) or his being accompanied by a heavy security detail on such a tour.

“The State has an obligation to ensure its President is secure at all times. The respondents acknowledge that indeed the President visited various projects in Othaya but he did so in his official capacity as area MP and also as President of Kenya,” IEBC submitted.

The commission said as an independent non-partisan constitutional body, it had nothing to do with the President’s itinerary. “In any event, if the movement of the former President in his constituency caused any inconveniences, then the third respondent (Wambui) was adversely affected as much as the petitioner because she was even at one point barred from attending a function presided over by the President at Othaya Boys’ High.”

IEBC also denied all roads leading to and out of Othaya were blocked on March 4, but maintained there was heavy security presence at Karima where Kibaki voted.

“Such presence of heavy security would be expected wherever the President was. Accordingly, his presence in his own constituency did not, in any way, disenfranchise the voters in Othaya,” IEBC lawyers argued.

Wambui denied Kibaki ever campaigned for her to succeed him. “If the President campaigned for anybody, it was for Mugambi’s benefit whom the petitioner admits was endorsed by the former President,” her lawyers told the court.

She said as the outgoing MP, Kibaki was entitled to tour Othaya and inspect development projects he had initiated. Such tours or inspections did not benefit her in any way since she was barred from attending the functions; in addition, the President was opposed to her candidature.

No merit

Wambui also denied all other claims of voter bribery against her, asking the court to dismiss the petition as she had been validly elected.

Presiding judge Ngaah Jairus analysed all the submissions made and evidence adduced in court.

On Kibaki’s visits to Othaya before the polls, the judge said the claims were too generalised to invite a finding of an election offence, malpractice or even irregularity.

“The contention that the President’s conduct prior to and during elections disadvantaged the petitioner appears to have no grounding in law,” the judge said. “The petitioner’s allegations that Kibaki’s endorsement of a particular candidate as the most suitable candidate for election as the Othaya MP tilted the electoral ground against him was not merited. The petitioner did not point out any electoral law that the former President and his entourage may have breached or infringed and neither did he demonstrate that he lodged any complaint with the first respondent against the Kibaki’s conduct in the constituency if indeed the President’s behaviour was contrary to the elections code of conduct or any other regulation,” the judge summed up.

Dismissed

He concluded, “There is nothing to suggest, as far as I can see, the election of MP for Othaya was conducted so badly that it was not substantially in accordance with the law as to elections. Instead, from the evidence presented in court, there is everything to suggest the elections for MP for Othaya were conducted in accordance with the principles of the Constitution and the electoral legal regime and any mistakes that emerged were not as material as to affect the result of the election.”

Therefore, the court declined to order a scrutiny and recount of votes. The judge ruled that Othaya parliamentary elections were free and fair and Wambui was both eligible for election and had been validly elected. With that, King’ara’s petition was dismissed and he was ordered to pay costs to all the respondents.

The writer is a court reporter with the Standard Group

– iwahome@standardmedia.co.ke