The Supreme Court upheld the finding of the Court of Appeal that High Court Justice Aggrey Muchelule properly exercised his discretion when he declined to order a vote recount.
In a Judgement read by Chief Justice Willy Mutunga and Justices Njoki Ndungu and Jackton Ojwang, Lesan’s election was upheld.
“On the basis of applicable legal principles, as well a this Court’s earlier guidelines on the issue of scrutiny and recount, the Supreme Court has upheld the Court of Appeal majority decision, which itself had upheld the High Court exercise of discretion. The Appeal therefore fails on its merits,” the Judgement reads.
Salat sought to have himself declared the validly elected Senator of Bomet after a vote recount.
He alleged that the voter turnout recorded in various polling stations in Bomet East, Sotik and Chepalungu constituencies during the 2013 General Election was inflated as votes cast exceeded registered voters.
He also claimed the opposite in other polling stations saying the voter turnout was remarkably lower than the average. “Stations where his votes were exceedingly understated and those of Lesan overstated,” Muchelule recounted in his judgement.
Salat also accused the Independent Electoral and Boundaries Commission (IEBC) of failing to excecute its mandate in a fair and impartial manner.
Muchelule however declined to order a recount saying Salat had failed to demonstrate the voter bribery and coercion he claimed was behind Lesan’s eventual success.
“I understand legal sufficiency in the election to mean that an election was conducted in a free, fair and credible manner and that it accurately represented the will of the electorate. It would not necessarily mean that the election is devoid of any errors, irregularities or mistakes. It means that if there were such errors, mistakes or irregularities, they were not of such magnitude that they substantially or materially affected the result,” his Judgement reads.
Salat did however manage to open a pandora’s box in the Supreme Court through a letter his lawyer wrote to Chief Justice Willy Mutunga and the Supreme Court Registrar questioning the legitimacy of the five-judge bench that heard his appeal; Justice Philip Tunoi having been over 70 years of age at the time.
The JSC last month barred all Judges over the age of 70 from hearing cases arguing that it could have severe ramifications given the retirement age for judges, as per the Constitution, is 70.
Tunoi was however in possession of interim orders barring his retirement.
Tunoi and others have argued that they should retire at 74 given it was the retirement age when they took up office and therefore have a legitimate expectation that it should be upheld.