George Wanjohi, the National Alliance (TNA)’s Member of the National Assembly for Mathare constituency, has lost his seat after the Court of Appeal annulled his election victory.
A three-judge bench declared the the electoral commission committed an offence and sustained an illegality when it recalled and cancelled the victory certificate it had earlier issued to Mr Wanjohi’s opponent, Stephen Kariuki who vied on an ODM ticket.
Mr Kariuki is the son of former Starehe MP Bishop Margaret Wanjiru.
The judges further ordered that fresh elections for the Mathare constituency be held.
They directed Mr Wanjohi to pay a total of Sh1.5 million arising from the litigation both at the High Court during the petition and against the appeal proceedings that ended Tuesday.
The judges criticised the recall of the certificate that had been issued to Mr Kariuki after he was announced winner saying “the moment the returning officer issued Form 38 and the accompanying certificate his powers ceased in law and in recalling the documents he had gone against the statutes of electoral provisions.”
“It was wrong for the returning officer to recall the certificate…he had no legal mandate to do so,” the judges led by Justice Steven Gatembu said.
The judges also criticised a judgement delivered on September 13 at the High Court that handed Mr Wanjohi the win saying their colleagues had “erred” in declaring that an election official had the power to cancel a certificate.
On the election D-day, and prior to the changes, Mr Kariuki had been declared ‘winner’ with 34,076 votes against Mr Wanjohi’s 32,156 votes but matters changed three days later when the IEBC, through a letter summoned the former to surrender his victory certificate for cancellation saying it had been issued “erroneously.”
“The petitioner being aggrieved by the outcome then moved to the High Court seeking to be declared validly elected and sought that IEBC be directed to gazette him as such,” the Court of Appeal judges said Tuesday.
The IEBC official results gazetted later after the returning officer detected an error showed Mr Wanjohi got 27,262 votes while his rival garnered 26,916.
However on Tuesday, the appellate court said a close scrutiny of the elections results which they conducted themselves showed glaring irregularities and “it was difficult to ascertain who indeed won the March 4 elections.”
“We have been asked to allow the appeal in terms of prayers for recount of ballot papers cast at the election, and re-tallying of total votes cast in all the polling stations and to hold that the parliamentary election held on March 4 2013 in Mathare constituency was null and void…we set aside the judgement delivered in the petition court and and hereby make an order for fresh elections,” the judges said.
The panel of judges was led by Justice Stephen Kairu Gatembu and others in the bench were Lady Justice Jamila Mohammed and David Maraga.
IEBC had sought to block the appeal through a preliminary objection on November 5, 2013, saying the court had no jurisdiction to hear and determine the appeal and grant the orders sought.
However, the judges Tuesday reaffirmed their mandate saying the constitution gave them the powers to preside the appeal.
“The issuance of the certificate marks the end of the election process and cannot be altered,” the judges said.
IEBC had contended that the results were provisional but were faulted on the finding that the details in the final outcome were not supported on Form 36 that declared Mr Wanjohi winner.
“IEBC has a duty to ensure results are openly simulated and announced and the purported recall and replacement was an nullity, it had no reason to announce half baked results,” the judges said.
“The election court erred by declaring that a returning officer had powers to overturn the results…its was clearly wrong” they went on.