Alfred Mutua and Wavinya Ndeti contest a supreme test for apex court

Wavinya Ndeti and Governor Alfred Mutua

As the curtains open on the battle between the Deputy Chief Justice and the Director of Public Prosecutions, another battle is shaping up in the corridors of the Supreme Court.

Governor Alfred Mutua was declared by the Independent Electoral and Boundaries Commission (IEBC) as the winner of the Machakos governor election.

His win was challenged by Wavinya Ndeti in an election petition filed at the High Court in Machakos. The petition was dismissed by the High Court. Wavinya then filed an appeal at the Court of Appeal, which reversed the judgment of the High Court and declared that Governor Alfred Mutua had not been duly elected.

Mutua has now moved to the Supreme Court to challenge the judgment by the Court of Appeal and the reversal of his election win.

In the election, Mutua garnered 249,603 out of the 461,706 valid votes cast, while Wavinya managed 209,149.  The difference between the two candidates was therefore well over 40,000 votes. Wavinya challenged Mutua’s election on a number of grounds.

One was IEBC’s use of county employees as election officers. Wavinya also accused Mutua’s political party of using county officers as its agents. County officers are public officers and it is an election offence for a public officer to engage in the activities of any political party or candidate. It is also an election offence for a public officer to act as an agent of a political party.

One Urbanus Wambua Musyoka, whose employment records allegedly show he was a Machakos County officer, was accused by Wavinya of being an agent of Governor Mutua. Musyoka’s name and signature appeared in one Form 37B as an agent of the governor. The High Court’s finding that there was no sufficient evidence to connect Urbanus Wambua Musyoka, the alleged county officer, and Urbanus Wambua Musyoka the agent, who signed the Form 37B, was reversed by the Court of Appeal. Musyoka may very well be a feature in the arguments before the Supreme Court, but he will not be the main player. The eyes of the Supreme Court will be trained on the County Returning Officer and IEBC. 

There are 1,332 polling stations in Machakos County. Each of these polling stations had a presiding officer manning them and who prepared Form 37A showing the votes of each governor candidate. The election petition before the High Court did not challenge the results in these forms. The Presiding Officers handed over these Forms 37A to the county’s eight Constituency Returning Officers. The Constituency Returning Officers used the Forms 37A to prepare eight Forms 37B. The eight Forms 37B and the 1,332 Forms 37A were then handed over to the County Returning Officer. The County Returning Officer then prepared Form 37C, whose tally showed Governor Mutua as the winning candidate.

Security features

Forms 37A, 37B and 37C are statutory forms. This simply means that their format is provided for under the law and they are required to have certain security features. The Constituency Returning Officer did not use the statutory Form 37C with the required security features. She used a Microsoft Excel sheet format to transpose, tabulate and tally the results from the eight Forms 37B to the Form 37C.

The Court of Appeal faulted the use of an Excel sheet to tally and announce the results. It also faulted the admission by the County Returning Officer that she did not personally verify the results in the 1,332 Forms 37A. Should the Supreme Court agree with the Court of Appeal, the 450,000 plus voters will have to repeat the election. 

At the same time, the Supreme Court will be grappling with the decision whether the use of a wrong form and format by one Returning Officer should render zero 450,000 plus votes. The court will be also hearing an appeal of the Embu governor election. The Court of Appeal in deciding the Machakos governor elections decided that an administrative error affected the results of the election, and the election could not be allowed to stand regardless of the margin of win. The Court of Appeal, presided over by different judges, in deciding the Embu election, went in the opposite direction.

In the Embu contest, the margin between the governor and the runner up was much closer. Governor Martin Wambora obtained 97,760 votes, while his closest challenger, Lenny Kivuti, garnered 96,775. The two candidates were separated by 985 votes. Kivuti filed an election petition in the High Court.

During the hearing of the petition, a scrutiny of Forms 37A showed that Governor Wambora and Kivuti had a margin of 518 votes. A scrutiny of Forms 37B and 37C showed a different margin of 553 votes. There were missing and illegible Forms 37A, which affected at least 10,000 votes.

There were 566 missing ballot papers. There were missing ballot paper counterfoils that affected 4,000 votes. Even though the High Court found that Governor Wambora obtained the largest number of votes, it still nullified his election because of the missing and illegible Forms 37A, the missing ballot papers, and the missing counterfoils. 

Number of votes

Governor Wambora moved to the Court of Appeal. The Court of Appeal did not agree with the findings of the High Court. According to the decision of the Court of Appeal, an election is determined on the basis of the candidates who received the greatest number of votes. The law therefore presumes that the results of an election as declared by the IEBC are correct unless the contrary is shown.  

The Supreme Court was not designed as a court to deal with election petition appeals. However, after the elections of 2013, the Supreme Court determined that it had the power to deal with election petition appeals that raised issues that required interpretation and development of the law. The Supreme Court also determined that it had the power to hear election petition appeals in which it was alleged that the decision of the Court of Appeal had violated the fundamental human rights of a party. As a result, the Supreme Court made landmark decisions that shaped the 2017 elections.

The election of a governor who won by 40,000 plus votes was nullified because of the use of the wrong form. The election of another governor who won by less than 1,000 votes was upheld by the same court in the face of errors that reduced the margin of his win and other irregularities. The intervention of the Supreme Court, as the final and apex court, is necessary to ensure there is uniformity in the interpretation and application of election laws and principles. 

-The writer is an advocate of the High Court of Kenya  

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