Former Machakos governor aspirant Wavinya Ndeti has said the election held on August 8 in which Alfred Mutua was declared winner cannot be verified.
She appeared before the Supreme Court yesterday for the hearing of an appeal filed by Mutua to contest the decision by the Court of Appeal to nullify the election. Wavinya said until now, the people of Machakos don’t know who won the election.
Through lawyer Ahmednasir Abdulahi, Wavinya said the Machakos governor’s election cannot be verified by anyone.
“The result of the Machakos gubernatorial race is still at large and nobody can vouch for who really won the elections, including the IEBC, Mutua or even Wavinya,” Ahmednasir said.
He accused the electoral agency of cooking results, claiming, declaration of results was not done on a proper Form 37C as is stipulated by law.
Wavinya also said results of several polling stations were missing from the form that was used to declare Mutua the governor-elect. Ahmednasir said the real Form 37C used to declare the results by the returning officer was disowned by her at the trial hearing stage and in its place they produced another form which they claimed to have been used to declare the results.
Wavinya said that disowning that form and producing the other form in an excel sheet shows that the commission was trying to cover its tracks. Ahmednasir also argued the returning officer used the wrong form to declare the results by deviating from the stipulated Form 37C and instead used the excel sheet, which is not the statutory form required by law.
Ahmednasir further claimed Mutua had infiltrated IEBC by employing over 150 staff from the county to work as agents and election officials during the polls.
Mutua’s lawyers also put up a spirited fight. Lawyer Kioko Kilukumi argued the decision to nullify his win on grounds that it failed the test of constitutional verifiability was wrong.
Kilukumi said even though the form used deviated from the prescribed form used in elections, the returning officer has testified that at the time IEBC had directed them to write the results on excel sheets which was not far from the norm at the time. He further said the form in question was signed by all agents that were present including those from Wiper and Mandeleo Chap Chap and none of them was brought to testify and dispute the results in the form.
Kilukumi also dismissed claims that Mutua used his county employees to infiltrate the elections by employing them to work as agents and election officials. It was his argument that the burden of proof lies with Wavinya who should produce evidence that the employees were indeed employed by IEBC.
However, IEBC lawyer Kimani Muhoro had a hard time convincing the five judges the reason why the returning officer used the Excel sheet instead of the prescribed Form 37 C.