Kidero loses petition against Gladys Wanga’s gubernatorial victory

Homa Bay Governor Gladys Wanga can now breathe a sigh of relief after the High Court upheld her victory in the August 9, 2022, general election and consequently dismissed Evan's Kidero petition.

In her judgment, Justice Roselyne Aburili on Tuesday, March 7, 2023, dismissed the claims by former Nairobi Governor Evans Kidero and his running mate Elijah Odondi that the gubernatorial election was marred with irregularities.

The petition has been dismissed at a cost of Ksh 3.5 million, the cost to be paid by the petitioners.

While dismissing the petition, the judge said Governor Wanga's election was conducted according to the constitution and the election laws.

"Having found that the gubernatorial elections of Homa Bay county held on August 9, 2022, were conducted in accordance with the constitution and the law and pursuant to provisions of section 86(1) of the Election Act,l, therefore, declare that Wanga was validly elected as the governor of Homabay County. A certificate of determination is hereby issued to the IEBC and to the county government of Homabay," the judge ruled.

"In the instant case, petitioners did not adduce evidence to prove that there was malpractice to affect the outcome of the gubernatorial elections in Homabay. None of the witnesses called to testify were barred from voting as a result of the bangled nominations or they were exposed to violence during nominations and prevented from voting for petitioners. I find there are no annexes of the bangled nominations and elections, violence, intimidation as pleaded by the petitioner," Justice Aburili stated.

The judge further said although there were irregularities during the election, they were not sufficient enough to change the results used to declare Governor Wanga as the winner.

"There is no evidence table in court by the petitioners to establish their claim that forms 34 As in 30 polling stations were altered in favour of Wanga and Orange Democratic Movement (ODM) party," the judge stated.

Justice Aburili further stated that Form 34 As filed in court by the IEBC none of them lacked the signatures of the presiding officer or the deputy presiding officer or stamp.

"I find that none of the Forms 34 As lacked a signature of the presiding officer or the deputy presiding officer or stamp. The court finds that the results of the Homabay gubernatorial election were nullity on that ground. Accordingly, I find no evidence that the alleged irregularities, improprieties and omissions affected the conduct of elections and the validity of results of the Homabay gubernatorial election held on August 9, 2022, " The judge stated.

The court further noted that the forms were also signed by all candidates' agents and the report for scrutiny filed by the deputy registrar of the High Court confirmed the same position.

The judge also dismissed the bribery allegations by Kidero saying he failed to prove the allegations that Wanga, her husband and the ODM party used chiefs in the county to bribe agents and voters.

"There is no evidence to prove that Wanga and her agents moved around bribing voters to vote in her favour. This court has not persuaded the allegation of bribery was proved to the required standards beyond a reasonable doubt. I find that the Petitioners and their witnesses made allegations without providing any cogent evidence that there was bribery at the polling stations," she ruled.

Further, the judge also dismissed the allegations by Kidero that the ODM party through its leader Raila Odinga used undue influence to compel the voters to vote for Wanga.

" Hon. Raila Odinga's decision to campaign for his party candidate Wanga does not amount to undue influence. Odinga is entitled under Article 38 of the Constitution to exercise his constitutional right to campaign for his party or the candidate of his choice. In my mind l find no offence or misdemeanour for the leader of a party that sponsors a candidate and campaigns for the same candidate, " Justice Aburili stated.

Kidero had asked the court to nullify Wanga's election as Homabay Governor citing that the governorship election in the county was unfair and that there were electoral malpractices.

He had claimed that the malpractices were made possible by outright violence, which in some instances was presided over by security officers and provincial administrators.

“The petitioner submits that the flaws and irregularities that characterised the gubernatorial elections; which we particularise hereunder, unlawfully subverted the sovereign will of the Homa-Bay County electorate,” the petition read.

The ex-city boss claimed that his competitor was the beneficiary of the calculated violence and voter bribery that were allegedly masterminded and executed by ODM’s "men in black".

Kidero had also claimed that the “organized criminal gang known as the "Men-In-Black” was deployed by the Orange Democratic Movement (ODM) party to cause violence and terrorize the candidates vying as independent or other political outfits.

He claimed that reporting the violence to the police bore no fruits and that members of the gang are known across the county; “it is an open secret”.

His agents made various reports to the Police and will adduce specific OB numbers in court during the hearing of the petition. However, to date, there has been no progress in the investigations, said Kidero.

“It is our position that by virtue of this violence, which is actually an electoral offence, the elections for Governor of Homabay County as conducted by the IEBC did not meet the basic threshold under Article 81 (e)(ii) of the Constitution of Kenya 2010. The elections cannot by any means be termed to have been a free and fair election,” he stated.

Wanga was declared the winner of the gubernatorial polls after garnering 244,559 votes against Kidero’s 154,182 votes.

In the petition, Kidero claimed that the election cannot be allowed to stand “in view of the very grave possible bout of criminalities committed by or in favour of Ms Wanga and her deputy Joseph Magwanga’s candidature”.

Together with his co-petitioner Elijah Odondi Kodo, they state that the violence led to voter suppression and allowed time for the “goons” to meet violence on certain officials of the Independent Electoral and Boundaries Commission (IEBC).

“The petitioners aver that where he got the majority of votes his results were swapped with impunity by the fraudulent presiding officers and/or deputy presiding officers,” he said.