The High Court in Embu dismissed a petition challenging the outcome of the Mbeere North parliamentary by-election, affirming the election of Njeru Leo Wa Muthende as the validly elected Member of Parliament.
In a judgment delivered on Thursday, Justice Richard Mwongo ruled that the petitioner, Newton Kariuki Ndwiga, failed to prove claims of violence, voter bribery, technological failures, and other electoral irregularities to the legal standard required in election disputes.
The court found that although isolated incidents of malpractice and irregularities were established, there was insufficient evidence to show that they substantially affected the overall outcome of the by-election.
Ndwiga had alleged that violence at Gitiburi and Kaungu polling stations interfered with voting.
While the court acknowledged that violence occurred at Kaungu and contributed to a decline in voter turnout after 1 pm, Justice Mwongo held that the incidents were not widespread or systematic enough to alter the constituency-wide results.
The judge ruled that the turnout at Kaungu polling station dropped by about eight percent, translating to roughly 51 voters, but concluded that the disruption did not materially affect the election outcome.
On allegations of voter bribery, the court found that testimony from two witnesses pointed to possible criminal conduct under Section 87 of the Elections Act.
However, the judge ruled that the incidents were limited in scope and did not substantially influence the final result as contemplated under Section 83 of the Act.
The court also examined claims of interference with the voter register and established that one individual had been registered after the register had officially closed, using an open KIEMS kit.
Justice Mwongo said the incident may have amounted to a criminal offence but found it to be an isolated case that did not undermine the integrity of the election.
In addition, the court found irregularities involving the handling of election materials at two polling stations in Gitiburi, where the chain of custody appeared to have been broken.
However, no evidence was presented showing that votes were tampered with or affected.
The judgment further highlighted inconsistencies between Forms 35A and 35B, resulting in a 10-vote discrepancy. The court attributed the difference to clerical or transcription errors rather than deliberate manipulation.
Justice Mwongo also found violations involving assisted voters.
The court established that officials failed to record 1,072 assisted voters in the physical polling station register as required by Regulation 72(6) of the Elections (General) Regulations.
Six individuals were also found to have assisted more than one voter each, contrary to electoral regulations.
However, the judge ruled that those issues could not be relied upon to invalidate the election because they emerged during scrutiny proceedings and had not been specifically pleaded in the original petition.
Despite dismissing the case, the court directed that several electoral offences be forwarded to the Office of the Director of Public Prosecutions (DPP)
These include the unauthorised alteration of the voter register, unlawful double assistance of voters, and failure to record assisted voters in polling station registers.
The court also awarded costs capped at Sh4 million.
The Independent Electoral and Boundaries Commission (IEBC), returning officer John Mwii Kinyua, and Curtis Njeru Mawira will receive 70 percent of the costs, while Muthende will receive the remaining 30 percent.
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