- The tribunal faulted Midiwo for the inability to demonstrate that cases of violence reported could invalidate the results as announced by the party.
- Kut, on his part, poked holes in the nominations process that gave Atandi the certificate, saying the exercise was not transparent.
Gem MP Elisha Odhiambo and his Alego Usonga counterpart Sam Atandi on Wednesday won big after the ODM tribunal dismissed appeals against their nomination.
The tribunal sitting in Kisumu upheld nomination of the two lawmakers, saying their rivals Jalang'o Midiwo and Kut Ochogo failed to prove there were anomalies in the ODM primaries held last week.
Tribunal chairman Fredrick Orego said the appellants failed to prove that the nominations in the two constituencies were not conducted within the law and in conformity to the rules.
The tribunal said Midiwo failed to demonstrate there was widespread violence and irregularities that would invalidate the outcome of the exercise.
The tribunal further directed that the certificate be issued to Odhiambo and the judgement be served to ODM National Election Board.
"We set to establish three things. Whether the violence, as alleged, was widespread across the constituency that would affect the results," Orego said.
"We also wanted to know if there was massive irregularities during the nominations and where the lawyer on record for the petitioner was qualified to appear before the tribunal."
The tribunal faulted Midiwo for the inability to demonstrate that cases of violence reported could invalidate the results as announced by the party on Wednesday last week.
Kut suffered a similar fate as Midiwo after he failed to convince the tribunal to nullify Atandi's nomination on similar grounds.
The tribunal directed that Atandi be issued the nomination certificate.
Orego said the petitioner, Kut, failed to demonstrate the nominations were not conducted within the provisions of the law.
The tribunal, while dismissing the petition, further said the appellant did not prove that there was widespread violence and irregularities that would affect the outcome of the primaries.
In the nominations held at the Siaya Institute of Technology, Kut and Midiwo, upset by the results, moved to the party's appeals board seeking to have them nullified.
On Tuesday, Midiwo, who is Raila Odinga's cousin, asked ODM's elections board to nullify the certificate issued to Odhiambo on account that the nominations were irredeemably flawed.
Kut, on his part, poked holes in the nominations process that gave Atandi the certificate, saying the exercise was not transparent, not accountable and could not be verified.
His lawyer Leonard Okanda told the appeal board that the nominations went against the election laws that require the secrecy of the ballot to be protected.
"There were no polling booths and voters' free will to pick their leaders of choice was compromised," Okanda said.
Kut filed 32 grounds to support the appeal.
His lawyer told the tribunal his agents were denied entry into eight polling stations by supporters of the MP.
In four of them, Kut claimed his agents were thrown out.
Amongst the agents that were barred from the polling station include Dan Oyoo who was an agent at Karapul Primary School and Aggrey Onyango who was the aspirant's chief agent.
Kut said the agents were to ensure there was transparency during the exercise.
"Incidents of violence were meted in a manner that disrupted the nominations. Julius Otieno was roughed up at Rapogi polling station by supporters of the MP," Okanda said.
The petitioner also told the tribunal there was no voter register to verify the voters.
Two voters, Maurine Herin Amuom and John Ogeya, in a sworn affidavit, said they were forced to vote for a person who was not of their choice.
"It is the free will of the voter that should decide an election and not the poll clerk's like it happened," Kut said.
This, he said, substantially affected the outcome of the nominations.
In his response Atandi, through his lawyer, said the margin between him and the petitioner was an important factor in the appeal.
The MP also asked the petitioner to provide proof that there was violence during the primaries.
Atandi's case, advanced by lawyer Jackson Awele, was that there was a heavy presence of police officers in all the eight polling stations where violence is said to have happened.
" Why didn't the petitioner report these happening to the returning officer? Were the incidents escalated to the presiding officers in the eight polling stations?" Awele said.
He claimed that the issue of Siaya municipal hall could have been an erroneous mistake.
The petitioner identified the social hall as a non-existent polling station whose results were part of the outcome of the primaries.
On vote tallying, the MP's advocate said some voters may have decided not to cast their ballot in favour of an aspirant.
"There is no proof of violence or any election irregularities as claimed by the appellant. None of the evidence adduced meets the set threshold," Awele said.
"Those incidents of acts of violence, as tabled by the petitioner, didn't substantially affect the outcome of the polls," he said.
He said the race attracted three aspirants and it was strange that only the appellant was complaining that his agents were barred from the tallying centre.
"The absence of the agents could not invalidate the results as announced at the tallying centre. No cogent evidence has been provided to support the allegations of voters voting without being verified," the lawyer said.
(edited by Amol Awuor)