The court has dismissed a petition challenging the victory of National Assembly Chief Whip and Mumias East MP Benjamin Washiali.
David Wamatsi, who contested the seat and lost, had filed a petition challenging the victory of Mr Washiali (Jubilee) who garnered 13,849 against his 9,315 votes.
Washiali through lawyer Winfred Nyamu and IEBC’s lawyer Alex Masika had filed an application to have the petition dismissed on grounds of "defective and forged" affidavits.
Delivering the ruling, judge Jesse Njagi said the affidavits filed by the petitioner could not stand since they did not comply with the law. He dismissed the petition with costs.
“According to Rule 12 of the County and Parliamentary Election Laws of 2017, any election petition must be supported by affidavits. In my view, the petitioner failed to comply with the stipulated laws of filing affidavits, thus the petition is incompetent without proper affidavits,” said Justice Njagi.
Wamatsi through his lawyer Moses Munoko admitted the affidavits were defective but wanted the court to grant him leave to correct them and file them properly.
But Njagi held that for any petition to stand, it ought to be supported by affidavits sworn by the petitioner and the witnesses supporting the petition.
“The affidavits are forgeries, only an advocate commissioned by commission of oaths is allowed to sign the affidavits. The affidavits were not signed by a commission of oath thus cannot be considered as affidavits,” he ruled.
He added that once expunged, the petition would be devoid of witnesses hence it could not stand.
“The petitioner conceded the affidavits were not sworn by a lawyer and the person who stamped the same has been evasive, making the documents to be forgeries,” he said.
He observed the same affidavits were not independent and had been filed as annexures, which contravened the nature of the affidavits.
“The court has no discretion to add more time to file evidence after the 28 days window provided for by the law elapses. The petitioner ought to have followed the law since the court must enhance democracy and not undermine it.”
“It is unfortunate that a person who wants to be an MP approached a quack to stamp his affidavits. I sympathise with him but this petition cannot continue beyond this point as it is an abuse of the judicial process,” the judge ruled.
After the judgement, Washiali said: “I am grateful and now I welcome my opponent and his supporters to work with me for the sake of development in our constituency.”
In another petition, the court heard Likuyani parliamentary seat loser Evans Taracha pressured Constituency Returning Officer Enock Otara to declare him the winner before receiving all the results from 125 polling stations.
During cross-examination yesterday in a petition challenging the victory of Enock Kibunguchy, Mr Otara told the court he was informed by the security personnel at the tallying centre that Taracha's supporters were rowdy and uncontrollable.
“The petitioner was at the tallying centre with his supporters. His supporters demanded that I declare him winner. The security agencies further said there were rumours that the rowdy youths wanted to set the station ablaze, making the security to be beefed up further,” Otara told the court.
He refuted claims that many forms were not signed by the presiding officers of various polling stations, saying he furnished the court with the right documents.
He, however, acknowledged discrepancies in Form 35A filled at polling stations and Form 35b filled at the Constituency Tallying Centre for the parliamentary seat.
In another case, nominated MP Godfrey Osotsi testified in a case challenging the victory of Ikolomani MP Bernard Shinali.
He said the figures used to declare Shinali (Jubilee) were fabricated, denying Khamisi Butichi (ANC) victory in the August 8 polls.
