Reprieve for Governor Nyong'o as Kisumu High Court dismisses election petition

Kisumu Governor Anyang Nyong'o   Photo:Courtesy

Kisumu High Court has dismissed petition challenging Governor Anyan'g Nyongo's election for lack of evidence.

The case was filed by his predecessor Jackton Nyanungo Ranguma following the August 8 general election.

At the close of pleadings, all parties agreed that IEBC should furnish the affected parties with Forms 37A for the County. The parties also agreed that the electoral commission should also provide access to all the necessary electronic information collected and stored through the Kenya Integrated Election Management System (KIEMS).

Jack Ranguma suffered another blow on November 11, 2017 after a court dismissed his application for a vote recount.

High Court Judge David Majanja, in a five-minute ruling, termed the application broad, vague and lacking specific terms.

The Judge pointed out that Ranguma’s petition challenging the election of Peter Anyang' Nyong'o was premised on the inconsistencies of the results recorded in the physical forms 37A, against those transmitted in the Kenya Integrated Electoral Management Systems (KIEMS), on which he had already granted orders for scrutiny.

No clear basis

However, the same judge who ordered  the scrutiny of the electronic voter transmission system three weeks earlier, disagreed with Ranguma on the re-opening of all the ballot boxes to have the votes recounted, arguing that no clear basis was laid for the application to warrant an order for the same.

“I have considered the submissions and the law, and I find that the petitioner’s application for scrutiny suffers a congenital birth defect, as the petition affidavit does not specify which polling stations require further scrutiny,” said Majanja, maintaining the law and precedents provided for specificity in application for scrutiny of ballot boxes.

He added: “The necessity to identify polling station is emphasised, in previous similar judgements, that application for scrutiny and recount must be carved in specific terms and clothed with particularity as to which polling stations within a constituency are to attract such scrutiny, otherwise a blanket scrutiny cannot be entertained.”

Ranguma, who wanted election of Nyong’o overturned, had in the application sought to have scrutiny of all the 1,027 ballot boxes used in the election, arguing that his agents reported widespread malpractices across the county.

He also claimed the inconsistencies witnessed in the physical result declaration forms and those transmitted through the KIEMS exposed irregularities could have cost him his win.

Through his lawyer Richard Onsongo, Ranguma had claimed the adulteration of samples of the statutory forms, backed by corroborating testimonies of the petitioner's witnesses was a clear ground to order for total scrutiny of ballots.

Majanja, however, pointed out that that the dismissal did not amount to the end of the case, as he hinted at granting an order for scrutiny of specific ballot boxes should IEBC, which is set to argue its case in a fortnight, fail to defend their numbers in areas where inconsistencies were pointed out.

“I am aware that at this stage I am not required to make a definitive determination of finding on the petitioner’s case as the respondents are yet to make their case. I am, however, not convinced that at this stage it would be appropriate to make the order sought, perhaps the examinations and cross-examinations of the respondent’s witnesses, and more particularly the returning officer may convince me to act suo moto (without further application from another party),” said Majanja.

IEBC witnesses

At least 15 IEBC witnesses, who include County Returning Officer John Cox, are set to take to the dock between November 29 and December 1, to testify in support of the declaration of Nyong’o win.

And Majanja said Ranguma counsel will have an opportunity to cross-examine the witnesses.

The judge, however, ordered Ranguma to bear the cost of the dismissed application, while hinting that the results of KIEMS scrutiny will remain as provisional, as final results remain as recorded in the original forms 37A.