Appellate Judges David Maraga, John Mwera and Philomena Muli sitting in Nairobi ruled that the High Court made an error when it failed to order a scrutiny of the votes cast in last year’s election.
“We find that the cumulative effect of the admitted irregularities’ rendered the election result indeterminate. Consequently we allow the appeal and set aside the judgment of High Court judge Alfred Mabeya dated September 2013 upholding his election,” they ruled.
“Since the contest was too close to call, we find that the judge erred in his exercise of judicial discretion to deny scrutiny despite the petitioners making the prayer.”
They disagreed with judge Mabeya, saying a scrutiny of the votes could have determined the true winner of the Garissa gubernatorial election.
Voters Abdi Mohammed and Abdikadir Hassan had filed the petition arguing that the election was marred with malpractices in violation of the Constitution and electoral laws.
They also pointed out that; “Voting is confined to the voting day and the people allowed to vote outside the stipulated time are those on the queue at 5pm. It follows then that votes cast on March 5 should have been excluded from the final tally.”
The petitioners had complained that the Garissa County Returning Officer failed to give a good reason why voters at the said polling centre were not allowed to vote after 10.30pm but decided to extend the voting exercise the following day.
The ousted Governor was declared winner after he garnered 37,910 votes ahead of his closest rival Ali Bunow Korane who managed to get 35,098.
The petitioners had urged the appellate court to nullify the election alleging there were breaches of the Constitution and election regulations.
However, IEBC officials who conducted the elections insisted that elections were conducted in a free and transparent manner and in compliance with the Constitution and election laws.