Court upholds the election of MP Ali Mbogo

Kisauni MP Ali Mbogo on Monday survived an election petition after the High Court upheld his August 8 victory.

While delivering the judgement, Resident Judge Erick Ogolla said there was no prove that contradicted results declared by the Independent Electoral and Boundaries Commission (IEBC).

The petition was filed by former Kisauni MP Rashid Bedzimba.

CLAIMS

The judge said that the petitioner failed to prove how the electoral malpractices cited in the suit affected the final results of the elections.

Justice Ogolla said the affidavit sworn by Mr Bedzimba and his witnesses in support of the petition were weak and failed to address how issues brought out in the petition affected the results in which his opponent was declared the winner .

“The petitioner did not show that where there were irregularities, the results declared were affected, we must emphasis that not every irregularities is enough to invalidate elections, were it to be so there would hardly be any election in the country if not the world,” he said.

“The correct approach is therefore for the court of law to not only determine whether the elections was characterized by irregularities but whether those anomalies were of such a nature or magnitude that to has either so negatively affected the integrity of the election that no reasonable tribunal will uphold it,” he added.

IEBC

He absolved IEBC of any wrong doings saying that the petitioner did not prove that the electoral agency grossly violated the principle of transparent, accurate, accountable and verifiable elections as provided for in the Elections Acts and the Constitution.

Justice Ogolla noted that according to evidence availed in court, there is no evidence to suggest that the electoral agency violated applicable laws and Election Act in their conduct of the last election in the constituency.

“The petitioner has failed to prove that the electoral body substantially violated the principles enumerated above , Section 83 of the said Act further provides that to invalidate an election m, petitioner may prove that non-compliance with the principles in the law affected the results of the election,” he said

The judge said that allegations of voter bribery , violence and intimidation , as well as biasness by IEBC officials cited in the petition were mere hearsay that were not substantiated by any documentary evidence.

He dismissed claims by the petitioners that Mr Mbogo used police to intimidate his agents and also benefited from Mombasa Governor Hassan Joho’s portrait that was in the campaign materials during his campaigns.

Mr Mbogo had argued that being a Wiper Party candidate, Mr Mbogo used orange colours bearing Joho’s portrait to gain influence during his campaigns.

"Wiper Party and ODM are parties within NASA coalition, the petitioner has not demonstrated to the court how he was negatively affected because they belong to the same outfit,” he said.

ELECTION FORMS

On unsigned Form 35As, the judge said no reason was provided why the party agents for the petitioner failed to append their signatures.

“Non-signing of forms, refusal of an agent to sign or failing to record reasons for not signing does not invalidate an election results as announced,” he added.

The judge concluded that errors noted after the recounts and scrutiny of the election materials would not have changed the final results as announced by IEBC.

Mr Mbogo won after garnering 34,898 votes against the former MP who polled 29,752.

Speaking after his win was upheld, Mr Mbogo extended an olive branch to Mr Bedzimba and asked him to join him in driving his development agenda.