NAIROBI, Kenya May 21 – The United Democratic Alliance (UDA) has scored a major legal victory after the High Court in Embu upheld the election of Njeru Leo Wa Muthende as the validly elected Member of Parliament for Mbeere North, dismissing a petition challenging his by-election victory.
In a judgment delivered on Thursday, Justice R. Mwongo ruled that the petition filed by DP’s Newton Kariuki Ndwiga failed to meet the legal threshold required to overturn the election, despite findings of isolated electoral irregularities and possible criminal malpractices.
The court affirmed Wamuthende’s election, bringing to a close months of legal contestation over the Mbeere North parliamentary by-election.
Ndwiga had sought to nullify the election, arguing that the poll was marred by violence, failures in election technology, irregular handling of election materials and procedural breaches that allegedly undermined the integrity of the process.
He asked the court to declare the election unconstitutional, illegal and invalid and to overturn the declaration of Wamuthende as winner.
However, the court found that while some incidents and procedural lapses had been established, they were not widespread or substantial enough to affect the outcome of the election.
On allegations of irregular appointment and dismissal of election officials, the judge held that the petitioner failed to identify the affected IEBC officers, the alleged unlawful actions, or the specific legal provisions said to have been breached.
“The Court found that the evidence of the petitioner did not list the IEBC officers in issue, did not identify which of the officers were opaquely or irregularly appointed and or deployed or dismissed, and did not specify which provisions of any law were violated,” the judgment states.
Claims that voters had been disenfranchised due to failure to deploy printed voter registers were also dismissed.
The court found that every polling station had a physical voter register available, although sealed in plastic envelopes, and noted that no evidence had been presented showing that any voter was denied the right to vote.
“The case law on use of physical registers is that such register is only to be used in instances where biometric or alphanumeric identification fails. There was no evidence of such failure of identification,” the court said.
Justice Mwongo further examined claims of interference with voter registration data and acknowledged that one case of unlawful alteration of the voters’ register had been established after the register freeze period.
Even so, the court ruled that the incident involved only one individual and was not shown to be widespread, intentional or capable of altering the will of the electorate.
“It was not proved that the admitted interference with the register was either widespread, systemic or intended. In substance there was no proof of the fact that the sole instance of interference with the register affected the will of the people,” the court ruled.
The petition also cited violence and intimidation during polling day, particularly at Gitiburi and Kaungu polling stations.
The court confirmed that violence occurred at the two stations, with Kaungu recording the more serious incidents. It further noted that voter turnout at Kaungu dropped after the disturbances, theoretically translating to about 51 voters or roughly eight per cent below the constituency average.
“Taken as a whole, the court was not able to find that such violence was widespread, systematic or pervasive within the electoral area, or that the proved violence substantially affected the overall result of the elections,” Justice Mwongo held.
Despite this, the judge held that the violence was not systematic, pervasive or extensive enough across the constituency to substantially influence the final result.
The court similarly addressed allegations of bribery and undue influence, finding that evidence from two witnesses pointed to possible electoral bribery.
Justice Mwongo observed that an electoral malpractice of a criminal nature may have occurred under Section 87 of the Elections Act. However, the court concluded there was insufficient proof linking the alleged misconduct to the final outcome of the election.
“Court found there was bribery on evidence of two witnesses, and determined that an electoral malpractice of a criminal nature may have occurred,” the ruling said, adding, however, that “there was no evidence that the scope and prevalence of the malpractice substantially affected the result of the election.”
On vote tallying and election documentation, the court identified unexplained inconsistencies between Forms 35A and 35B amounting to a 10-vote discrepancy.
But scrutiny of the records found no evidence of deliberate manipulation, with the inconsistencies attributed to clerical or translocation errors during tallying.
“Scrutiny did not find anything to suggest any irregularity in the inconsistencies, but rather careless mistake in translocation from the vote tally column of the Form,” the judgment states.
The court also found isolated irregularities involving election materials, including a broken chain of custody at two polling stations, but ruled that there was no evidence the votes themselves had been compromised.
“Out of 134 polling stations, there was broken chain of custody, possible unlawful handling of voting material but no violation of poll closing procedure at Gitiburi 1 and 2 polling stations,” the court said, adding that there was “no basis for a finding that the irregularities or non-compliance were substantial, pervasive or widespread, or affected the election outcome.”
Although the petition was dismissed, the judgment flagged several electoral malpractices for further investigation.
The court directed that a report be forwarded to the Director of Public Prosecutions (DPP) over suspected offences, including unlawful alteration of the voters’ register, improper handling of assisted voters and failure by election officials to properly record assisted voting as required by law.
“The court finds that the following were malpractices of a criminal nature and directs that the same be transmitted to the DPP,” the ruling states, citing “admitted alteration of register without authority,” “double assistance of voters,” and “failure to record in the polling station register against the name of the voter the fact that the voter was assisted.”
Justice Mwongo noted that scrutiny had uncovered violations involving assisted voters, including six individuals who assisted more than one voter each, contrary to electoral regulations. However, the court said those issues could not be relied upon in determining the petition because they had not been pleaded in the original case.
“This evidence on assisted voters arose from scrutiny but had not been pleaded in the petition. The court cannot rely on this evidence in proof of the petition,” the judge held.
The judge dismissed the petition with costs capped at Sh4 million, with 70 per cent awarded to the IEBC and the other respondents, and 30 per cent to Wamuthende.
In the final certification issued under the Elections Act, the court declared that Wamuthende remains the duly elected Member of Parliament for Mbeere North, with the decision to be transmitted to the Speaker of the National Assembly.
“Having concluded the hearing of the election petition, I certify that the petition was dismissed and the 4th Respondent remains the duly elected Member of Parliament for Mbeere North constituency,” the court declared.
