The High Court in Mombasa on Tuesday reinstated UDA's Samir Baloo as Tudor MCA.
On February 28, Mombasa principal magistrate Vincent Adet nullified Baloo’s victory, saying the election had been marred with malpractice and violence.
Baloo is among the only four UDA-elected MCAs out of 30 wards in Mombasa, which is considered an ODM zone.
UDA won in Tudor, Kongowea, Junda and Mtopanga wards.
Independent Electoral and Boundaries Commission (IEBC) declared Baloo the winner of the seat with 4,587 votes, followed by former Tudor MCA Tobias Samba (ODM) with 3,642, and David Mutua (Wiper) had 1,023 votes.
On September 7 last year, Samba moved to court to challenge Baloo’s victory, saying the election did not comply with the Constitution of Kenya, 2010, the Elections Act, 2011 and did not meet the legal threshold and was therefore illegal, null and void.
After a five-month court case, Adet nullified Baloo’s victory and ordered the IEBC to conduct fresh elections for the Tudor ward.
However, Baloo appealed against the trial court’s decision on March 23, saying the magistrate court had erred in overturning his victory.
Mombasa High Court judge Florence Wangari, who was hearing the appeal for four months, on Tuesday delivered a 58-page judgment overturning the magistrate court’s decision of February 28.
The magistrate court had ruled that the August 9 Tudor ward election was marred with violence, and destruction of voting materials, whereby Baloo was arrested and charged alongside others.
Baloo was arrested for the offence of destroying election materials, use of violence, being in possession of counterfoil ballot papers, removing election materials from polling stations and the offence of assault on one Daniel Ondoro Mochama.
However, High Court judge Wangari ruled that the trial court erred in principle when it held that the fact that the appellant had been arrested and charged by the police is prima facie evidence that he was involved in the violence that rocked Tudor Village Hall polling station.
“This goes contrary to the right to be presumed innocent until proven guilty. No judgment has been rendered in the Mombasa MCEO No 002 of 2022 to warrant the trial court’s sentiments,” she said.
According to Samba, on election day, masks containing symbols written 'Mombasa cement' were supplied to voters entering the Tudor Village polling station.
He said this was to sway voters to vote for the Baloo, thus amounting to an act of bribery.
However, Wangari said, “It is thus my findings that the allegations of bribery, inducement and influence were not proved. Indeed, the trial court appears not to have made a definitive finding on this issue.”
She finally ruled that the magistrate court sitting in Mombasa on February 28, 2023, annulling the election of Baloo as MCA for Tudor ward is quashed.
“For the avoidance of doubt, the declaration of the results of the election by the Independent Electoral and Boundaries Commission in respect for the seat of the MCA for Tudor ward is hereby restored,” she ruled.