The nullification of Alfred Mutua’s election victory opens a fresh battle between him and Wiper leader Kalonzo Musyoka for Kamba leadership supremacy.
In case he loses an appeal he plans to lodge at the Supreme Court, the Machakos governor who has set his eyes on the 2022 presidential race will have to fight tooth and nail to win back his seat and prove that he is the better option than Kalonzo.
The Maendeleo Chap Chap party leader is serving his second and last term as governor. He had started visiting various counties to market himself ahead of 2022.
But on Friday, he was dealt a severe blow after the Court of Appeal held that the election results as declared in the August 8, 2017 polls failed the constitutional test of verifiability and thus had no legal basis.
The Electoral Commission’s decision to use an excel sheet to declare Mutua the winner in the Machakos governor’s poll cost him the seat.
Justices William Ouko, Mohamed Warsame and Gatembu Kairu said the governor was not validly elected. The court was satisfied with the complaints raised by his rival, former Kathiani MP Wavinya Ndeti.
In the judgment read by Ouko, the three-judge bench faulted the returning officer for using an excel spreadsheet to announce the results instead of the required Form 37C.
Ndeti had raised issues regarding the validity of Form 37C used to declare the results.
“The law provides that the results of the election shall be declared in the manner provided by the Act or the rules made thereunder, and the declaration should be made in that manner,” the Court of Appeal held.
The judges further said the presence of one of Mutua’s employees at the counting hall went against election rules.
They said Urbanus Wambua Mutisya, a chief officer at Machakos county, acted as an agent and even signed Form 37B for Mavoko constituency, a move that Ndeti said was a conflict of interest.
“The existence of Wambua as an agent was established by Ndeti and the burden shifted to Mutua to rebut that evidence, which he did not” the court said.
Ndeti and her running mate Peter Mathuki had complained that over 300 employees of the county were engaged as returning officers, presiding officers and polling clerks .
“Although the particulars of county employees given by the appellants relate to 167 as opposed to 300 employees, we are satisfied that there was sufficient evidence before the election court to demonstrate that IEBC used county staff in the conduct of the election,” they judges said.
The judges found that the election was not conducted properly and directed IEBC to conduct fresh polls in accordance with the Elections Act and the relevant regulations .
As Mutua announced his plan to move to the Supreme Court other Ukambani politicians were quick to declare his 2022 presidential ambitions dead in the water.
Wiper organising secretary and Kathiani MP Robert Mbui said Mutua should forget his 2022 presidential ambition, saying “this is actually the end of Mutua”.
“Today’s (Friday) ruling has nothing to do with 2022, in fact according to me, his 2022 presidential bid is a pipe dream. What is there is that he stole an election and it has been nullified. The people of Machakos now have an opportunity to prove that they did not elect him,” Mbui said.
He added, “Instead of bringing in non-issues, he should prepare to meet us in the by-election. We will now guard our votes very well. What Mutua is doing now is just playing diversionary tactics to seek sympathy”.
Wiper vice chairman and Makueni senator Mutula Kilonzo Jr said Mutua should forget his bid for the presidency for now, adding Ndeti’s victory is a victory for the Constitution that guarantees free, fair and transparent election.
“I do not think the two have any relation. Mutua should now focus on winning the seat of the governor again and not over-dramatise his quest for president. There will be time for that,” he said.
Makueni MP Dan Maanzo said even if Mutua moves to Supreme Court, his victory will still be nullified.
He promised a tough legal battle at the highest court in the land.
“There are certain parameters in law which cannot be changed. I am sure the Supreme Court will uphold the Court of Appeal’s decision and we will go back for a by-election. Right now he is not a governor, unless he gets some stay orders,” he said.
The second-term legislator who is a close ally of Kalonzo said even if Mutua is to run for president in 2022, he will only manage 1,000 votes hence he should stop pretending that he has what it takes to get the big seat.
“There is no one against his bid. He will be free to run and he will see what he will get. There are serious presidential candidates and Mutua is not one of them. In fact his candidature is a calculation made to spoil for Kalonzo,” he said.
Ndeti on her part was overjoyed by the court decision which she termed a reflection of what Machakos people wanted.
“It has come to pass what Machakos people did. Machakos people voted for me. I won and the victory was stolen from me. I thank God. I thank Jesus,” Ndeti said.
High Court Judge Aggrey Muchelule in February gave the Machakos polls a clean bill of health, saying electoral offences cited by Ndeti had not been proved. He ruled that Ndeti’s petition lacked merit.
Wavinya who had been slapped with Sh12 million in costs by the High Court went home smiling as the Court of Appeal said both Mutua and IEBC should pay the cost she incurred.