A High Court sitting in Mombasa on Thursday dismissed a petition challenging the election of Kwale’s first woman governor Fatuma Achani.
Last August, two petitioners Dziwe Zuma and Suleiman Mwanguku, moved to court to challenge Achani’s victory against Hamadi Boga of ODM.
Achani, who vied for the Kwale gubernatorial seat on the United Democratic Alliance (UDA) party of President William Ruto, trounced five men in the race— Boga, Chai Lung'anzi (PAA), Chirau Mwakwere (Wiper), Gereza Dena (KANU) and Sammy Ruwa (independent).
She bagged 59,674 votes against her close competitor Boga who had 53,972 followed by Lung'anzi 47,301, Mwakwere 9,639, Ruwa 5,562 and Dena 2,310.
However, two Kwale residents- Zuma and Mwanguku, said Achani had stolen the election, therefore, the court should nullify her victory.
In their submissions before the court, the petitioners raised several issues including Achani being involved in election malpractices and the Independent Electoral and Boundaries Commission (IEBC) disregarding the Constitution and relevant electoral laws in declaring her the winner.
Among the issue they wanted the court to resolve include whether Achani was validly elected, whether there were malpractices at the polling stations and whether there was an omission of votes and alteration of the Form 34A.
The petitioners also claimed that the ODM party agents were denied access and chased away in some polling stations in Kinango and Matuga.
They also argued that the Kiems kits failed in several polling stations, some of Boga’s votes were not added in the final results and IEBC failed to secure the ballot boxes leading to discrepancies.
However, in his three-hour judgment delivered on Thursday, High Court Judge Francis Gikonyo said the petitioners failed to prove all their claims.
“The petitioners failed to call the ODM agents who were allegedly denied access to polling stations to testify before the court. The petitioners also said there were no ODM agents at Mwaluganje Primary School and Mazola Primary, but the IEBC polling station diary showed the agents actually had signed,” said Gikonyo.
In their submission, IEBC confirmed that the Kiems kit indeed failed in some schools, but the manual register was used as a backup and ICT officials were also sent to repair the Kiems kits that had failed.
“IEBC acknowledged that there were some Kiems kits that failed, but there was a backup kit provided and ICT officials were also dispersed to look at what the problem was. At Kikoneni primary school, the manual register was used after the Kiems kits failed completely,” said Gikonyo.
The petitioners also argued that IEBC had failed to seal ballot boxes.
However, the court said the petitioner's witness was inconsistent in his submission as the oral evidence differed from what was captured in his signed affidavit.
“The witness kept on blaming his advocate for the omission of evidence that was not captured in the affidavit. The petitioners also failed to provide evidence that the ballot boxes were not sealed or not secured, therefore, there was no failure by IEBC to secure election materials,” said Gikonyo.
In their evidence, the petitioners also said Boga’s results from one polling station were not added to the final results.
However, IEBC clarified saying that the presiding officer had erred by writing 113 votes for Boga instead of 013 on the IEBC form, therefore the results from that polling station were disregarded.
Gikonyo said IEBC also proved that the results that were disregarded cannot affect the margin of victory of over 5,000 votes between Achani and Boga.
“The error did not affect the margin of victory which was over 5,000 votes. I find the error not affecting the results or invalidating the victory of Achani,” he said.
On whether the election was conducted in accordance with Election Law and Constitution, Gikonyo said IEBC Kwale County Returning Officer’s submission before the court was not controverted.
“Therefore, the election was done in compliance with the Election Law and the Constitution. Achani was validly elected with 59,674, against her close challenge Boga 53, 972,” he said.
The judge directed that the petitioner pay the respondent Sh3 million as a cost for the petition.
