All eyes On Speaker, As Court order Mutonguni Ward by-election

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By county diary

The legal battle for the mutonguni ward in Kitui west sub-county has come to an end with the supreme court making the final ruling and ordering for fresh by election of Member of County Assembly) seat Mutonguni Ward in Kitui West Constituency.

A legal battle which has lasted for nearly two years has seen hon Felix baridi lose with costs (thereinafter) referred as the petitioner claims to have won the elections held on 8/8/2017 but the second respondent denied him victory after he awarded the certificate of an elected member of County Assembly to the 1st Respondent Baridi Felix Mbevo on 9/08/2017.

The petitioner on realizing he had been denied victory immediately lodged a complaint with the 2nd respondent who agreed to a re-tallying after notifying all the candidates and their agents.

The re-tallying exercise was conducted on 11/08/2017 in the presence of all candidates and the results that came out showed the petitioner had the following votes contrary to the entry in the form 36B’s.

Polling Station 1 votes shown in 36B Actual votes in 36B

Kutha Primary school 1 17

Kyambiwa Primary School 0 53

Uvaani Primary ‘’ 30 40

Kakani Primary 85 87

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Kwa Ndondo 10 58

Katine 0 124

The petitioner, therefore, states that with the re-tallying results showing he had garnered 3,330 votes against the first respondent 3,319, he ought to have been declared the winner and the results announcing the 1st petitioner as the MCA elect nullified.

The petitioner maintains that the second respondent refused to nullify the results even after realizing the certificate had been issued to the first respondent erroneously as he had not won the elections.

The petitioner, therefore, prayed for the following orders:-A determination that the first (1st) respondent Felix Baridi Mbevo was not duly and validly declared elected winner of Mutonguni Ward West constituency. Which the supreme court granded.

A determination that the petitioner herein Musee Mati was the duly and validly winner of the elections of Mutonguni Ward in Kitui West Constituency held on 8/08/2017

A determination declaring the certificate of an elected member of County Assembly for Mutonguni Ward No. 150700346-1 issued to the 1st respondent null and/or as canceled, the fresh election will be repeated court rules.

A determination that the petitioner herein Musee Mati be issued with a certificate of an elected member of County Assembly for Mutonguni Ward in Kitui Ward Constituency was ruled out

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On 4.09.2017, the first respondent Baridi Felix Mbevo filed a response in which he maintained the petition was bad in law and defective for failing to comply with mandatory requirements of the law by failing to set out the results for each candidate.

The first respondent went on to plead that the results announced showing the 1st respondent as the winner captured the will of the people of Mutonguni.

The first respondent denies any irregularities in the tallying of results, that no complaint was ever lodged after the announcement. The claims that the other candidates were informed of the re-tallying exercise was denied.

Further, it was pleaded by the 1st respondent that election ended with the issuance of the certificate to the 1st respondent as there is no law that allows a Returning Officer to recall a certificate/declaration of results or to issue another certificate lastly the first respondent pleaded that the re-tallying results showed the results were tampered with during that exercise and what was done amounted to an election offense which would disentitle the petitioner from being a candidate.

The first respondent, therefore, prayed for the dismissal of the petition with costs to the respondents and the 1st respondent to be declared duly and validly elected as the MCA of Mutonguni Ward

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When he was questioned about a letter dated 11/08/2017 (Document no. 7 (a)) of the petitioner’s document) he stated that the letter was drafted by his Deputy and handed to him to sign. He states he refused to sign it since it’s English was not flowing.

During cross-examination by petitioner counsel, the second respondent admitted IEBC had a public portal where the public could access information on what was happening on elections.

After some time, the Returning officer and his deputy entered the re-tallying room where the Returning Officer read 3(three) Form,but the Deputy Returning Officer insisted that the re-tallying must go on.

The answer is in the affirmative, IEBC was under an obligation to file these results because it had filed a response claiming the re-tallying was not official. The people of mutonguni are waiting for the county speaker to declare the position vacant in accordance to the court ruling

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