A petitioner seeking to overturn the election of Kisii Governor James Ongwae has requested the Kisumu Court of appeal to order for a fresh hearing of his petition which was dismissed by the high court.
Through his lawyer Gerishom Otachi, the petitioner, Joel Makori, urged that his petition was unfairly struck out of the high court despite having sufficient evidence.
“The Judge struck out critical evidence which had formed the basis of my client’s case. This left the case paralyzed since the critical foundation had been removed,” stated Otachi.
Governor Ongwae’s election was on February 27 upheld by Lady Justice Hellen Omondi who ruled that it was free and fair adding that the petitioner failed to demonstrate how alleged irregularities played and affected the outcome.
Among the evidence which the petitioner claims the Judge dismissed, include allegations faulting the County Returning Officer (CRO) for ignoring results and making erroneous entries in at least seven polling stations.
“Over 184 polling station had inaccurate results where the CRO made his own entries and disregarded those sent to him,” claimed Otachi.
It is in this light that the IEBC defended itself through its lawyer Isaac Odhiambo who stated that the petitioner had his case founded on hearsay and speculation.
“He even confided to the trial court that he has never set his eyes on forms 37A's. This confirms that the petitioner does not even understand what ground his case is founded,” stated Odhiambo.
Governor Ongwae, through his lawyers, Peter Wanyama and Okong’o Omogeni stated that the margin of victory between their client and the petitioner was over 94,000 thousand votes.
They added that the claimed erroneous entries culminated to very meager votes which even if considered, would still not change the outcome of the gubernatorial balloting exercise in Kisii County.
“The errors in the register were normal errors and don't add to more than 1,000 votes. The petitioner also has not questioned the integrity of the tabulation exercise.
We, therefore, find this appeal to be lacking a base,” the duo stated. On the part of a second hearing of the case in the trial court, the defence lawyers warned that it will snowball into a constitutional crisis if granted.
“The court only has six months to hear and decide on this appeal and if it is to be heard again in the high court, it will overshoot the six months period which the court has jurisdiction to hear and rule on the appeal,” stated the defence lawyers.
The petition was presided over by Justice Stephen Gatembu, Justice Kithurima M’Inoti and Justice Asike Makhandia. They ordered that the Judgement of the appeal will be given on July 26.