EXPERT COMMENT: Why Wambora win was upheld by the Supreme Court

Governor Martin Wambora
Governor Martin Wambora

Embu Governor Martin Wambora has never been lucky. It is only that the law has always been interpreted in a manner that favours his actions. In the first ouster attempt, those who wanted him out were emotionally interested in removing him, but never produced concrete evidence that would have convinced the judges to nullify his victory.

In the second bid, Senator Lenny Kivuti has been busy upping emotional arguments in court without having cogent evidence to warrant a nullification. People will look at it from two angles. Is it right emotionally? It is not right. As a lawyer, the courts are courts of law and courts of evidence. But who is Governor Wambora? He was a career provincial administrator and a corporate manager. So, when he is putting his campaign machine to work, he knows, by virtue of his wide experience and that of his legal team, what constitutes an election irregularity.

It appears that Wambora prepared and foresaw that there might be an election petition. As the election was being conducted, he must have collected evidence in readiness for a challenge. The others seem to have waited and collected evidence after the election and tallying had been conducted.

The perception might be that Wambora is corrupt and that the judges have agreed with his argument and evidence. But when you look at the arguments against his election, you realise he produced real material facts to challenge the petition.

Are election battles decided in court? Well, the precedence that we have seen reveals the majority of elections nullified at the High or Appeals court have either been reversed or upheld by the Supreme Court.

Wambora’s matter and that of Governor Alfred Mutua are of great interest to any legal scholar. Emotionally, and in terms of public politics, the two looked like they would lose their seats. The Supreme Court said the material evidence produced does not meet the threshold for nullifying a governor’s election.

What most election petitioners did not understand was the danger of grounding their cases on the Nasa leader Raila Odinga vs IEBC matter. The nullification was based on electronic transmission. There is no electronic transmission of results for the other five seats. It is manual. So, most politicians went to court believing they will use that authority to nullify their opponents' election. The Supreme Court had come out very clearly that the Elections Act provides that transmission of presidential elections be electronic and the others manual. That is why many poll petitions collapsed. Other than Embakasi South and Ugenya, the new jurisprudence is very clear on this. Therefore, Wambora is a beneficiary of the law because his team read and understood what can cause an election to be nullified.