- The judge dismissed the claims after consolidating issues which were raised and presented to the court by Kidero into fifteen.
- The consolidated issues included the burden of proof where a court makes its judgment based on evidence adduced by the petitioner.
Former Nairobi Governor Evans Kidero has lost an election petition in which he was challenging the victory of Homa Bay Governor Gladys Wanga.
Kidero lost the case after presiding High Court Judge Justice Roselyn Aburili dismissed claims he levelled against Governor Wanga and her Deputy Oyugi Magwanga.
The judge dismissed the claims after consolidating issues which were raised and presented to the court by Kidero into fifteen.
The consolidated issues included the burden of proof where a court makes its judgment based on evidence adduced by the petitioner.
The second point was to determine whether the electronic evidence produced in the court by the accused parties was authentic and valid.
Others are whether there were acts of violence by the ODM party, the influence of ODM party primaries on the election, and whether there was ballot stuffing or alterations of forms 37A in the Homa Bay gubernatorial election.
Others are signing and stamping election forms denying entry of Kidero’s agents into polling stations and whether there was voter bribery and undue influence.
Also, the court was to rule whether there was violence, chaos and skirmishes in the Homa Bay gubernatorial election and whether the election was free, fair, credible and verifiable.
Aburili upheld Wanga’s victory saying that Kidero failed to adduce evidence and proof to the court reasons why the election should be nullified.
She declared that Wanga was validly elected as the governor of Homa Bay.
“I hereby certified that the election was conducted in accordance with the law and that the third and fourth respondents were validly elected. I direct IEBC to issue a certificate of determination to Wanga,” Aburili ruled.
In the case, Kidero had listed the electoral agency (IEBC) and Homa Bay IEBC returning officer Fredrick Apopa as the first and second respondents.
Wanga and Magwanga were the third and fourth respondents receptively. ODM party was the fifth respondent.
Apopa declared Wanga the winner with 244,559 votes against Kidero’s 154,182 votes. Mark Rabudi of UDA became third after getting 1,244 votes.
Kidero complained that there were glaring irregularities during the election which made him lose to Wanga.
He complained that the elections were full of voter bribery and violence meted on people he perceived as his supporters.
He also claimed that his agents were denied entry or accorded late entry at a number of polling stations on polling day.
During that time, electoral malpractices such as vote ballot stuffing in favour of Wanga who was his chief rival.
There was also a complaint of alteration of forms 37A at various polling stations.
But Aburili dismissed him saying Kidero could not prove ballot stuffing and that there was voter bribery.
“The court deputy registrar found out during scrutiny and recount of votes that there was no altercation of forms 37A and stuffing,” she said.
On the issue of ODM primaries where Kidero claimed that the party wrongly issued a direct ticket to Wanga even after paying his nomination fees, the judge said the party had its internal ways of undertaking nominations.
Kidero had also accused ODM party leader Raila Odinga of using his popularity to command voters in Homa Bay to campaign against him but in favour of Wanga and the party candidates.
Kidero sought the Homa Bay governor seat on the independent ticket after quitting ODM. He argued that the alleged electoral offences made him lose the election.
“The burden of proof lies on the petitioner and he has to prove them beyond a reasonable doubt. The petitioner has failed to prove the alleged electoral malpractices could interfere with Homa Bay gubernatorial election,” Aburili said.
She admitted that there were some minor irregularities but they were not significant for the election results.
The petition was dismissed with costs in which Kidero will pay Wanga and Magwanga Sh1.5 million. He will also pay ODM and IEBC Sh1 million each.
After the dismissal, Kidero said his lawyers were reviewing the full text of judgment before they take the next course of action.
“In the meantime, we plead with the people of Homa Bay to remain calm,” Kidero said.