Reprieve for MP Jessica Mbalu as court upholds her election

By Daily Nation

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The Court of Appeal has upheld the outcome of the August 8 election where Jessica Mbalu was election as Kibwezi East MP.

The appeals court ruled that the minor errors raised by Ms Mbalu rival, Prof Philip Kaloki, did not affect the outcome of the poll.

Justices Mohamed Warsame, Patrick Kiage and Otieno Odek said that while it clearly was a breach of the regulations, they also do not think it was enough to nullify an entire election.

ERRORS

The judges said Prof Kaloki did not show how the breaches was either as a result of other malpractices, or how they errors went to the root of the election.

“While there are several minor errors that occurred in the course of the election, these were not in any way shown to have had any impact on the outcome of the election.

“The judgment of the election court was therefore properly grounded in the evidence placed before it,” the judges said.

Prof Kaloki was among the five candidates who contested the election and came second to Ms Mbalu.

He complained of various malpractices and irregularities that occurred in the course of the election as well as during the vote counting stage that tarnished the election. He also faulted the Independent Electoral and Boundaries Commission, saying it abdicated its responsibility during the exercise.

Prof Kaloki also alleged that his agents were not allowed to sign the statutory forms in 34 polling stations, and thus, the total number of votes in those stations, which amount to a total of 8900 votes ought to have been excluded.

“We have carefully considered the record with respect to this evidence. It is clear that the election court analysed and considered the evidence led before it with respect to the allegations of bribery that had been made and found that the appellant had not presented cogent evidence to establish the same,” the judges said.

The three Judges said the election court made the correct findings and Prof Kaloki’s assertions were, therefore misplaced.

They said elections are conducted by humans of whom none are infallible. And as such, errors will always occur in the course of the election and the question that an election court must ask itself is not whether these errors and mistakes would occur.

According to the court, the proper question is how the errors affected the outcome in a substantial, material and decisive manner.

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