BY NT CORRESPONDENT.
West Mugirango constituency parliamentary loser Onge’ra Moturi has lost his bid for a scrutiny and recount of votes cast in 19 polling stations as he challenges the election of Steve Mogaka.
The election Court judge Kiarie wa Kiarie dismissed the application saying Moturi failed to convince him as to why the application should be allowed.
The judge said the Muturi had not met the threshold or provided sufficient evidence for the court to conduct a scrutiny and recount as pleaded.
“After analysing the evidence on record in respect of the current application, I find that the petitioner has not established a prima facie case. The application for recount is therefore, dismissed,” judge Kiarie ruled.
Mogaka is the only legislator elected on a Jubilee Party ticket and fought an ODM onslaught in the Nyaza region.
The MP through his lawyers Danstan Omari, Shadrack Wambui, Wycliffe Omayio and Samson Nyaberi had opposed the application as they maintained that the election was free and fair.
They submitted that Moturi did not specifically plead for scrutiny or recount in his Petition, adding that the process of scrutiny and recount is laborious and time-consuming.
The court heard that Moturi cannot be left at liberty to seek prayers not sought in the Petition and end up wasting the court’s precious time, scarce judicial resources and incur unnecessary costs in the process.
The MP said there is no mention of KIEMS kits in the entire petition and if the same is allowed at this juncture, then the same amounts to an amendment of the Election Petition which is inconsistent with the provisions of Article 87 (2) of the Constitution and Section 76(1) of the Elections Act, which give a clear timelines of 28 days within which a petition ought to be filed or an amendment presented.
“The prayers in the instant application are an expansion of the Petitioner’s case. It is in effect a fishing expedition or a game of lottery to procure fresh evidence not already contained in the petition. It must be rejected,” Mogaka told the election court.
They said the application was premature as the court has to hear the evidence before coming to a conclusion whether or not such a recount and scrutiny would be necessary to enable the judge to reach a just and fair determination of the petition.
“The Petitioner cannot ask this Court for an order of recount or scrutiny of votes at the same time. The outcomes of these two processes are different and it would be illogical to conduct these two processes in one petition. The Petitioner cannot have it both ways. It is either an issue of miscounted numbers or validity of votes,” Court heard.
He added that therefore cannot purport to ask for both scrutiny and recount as clearly stated above and Moturi has to differentiate between a recount, which determines the number of votes a candidate received in an election and scrutiny of votes which on the hand on the other hand determines the validity of the votes cast in an election.
