A Laikipia resident who sought to have Governor Ndiritu Muriithi’s election nullified has moved to the Court of Appeal to challenge the High Court's decision to dismiss his petition.
Sammy Ndung’u Waity wants the judgment by Justice Mary Kasango set aside and the governor’s election invalidated, saying the judge made the decision against the weight of evidence produced.
Through lawyer Ramadhan Abubakar, the appellant indicated that the Nanyuki High Court judge failed to consider the massive material discrepancies, errors and irregularities in the statutory electoral forms produced in court.
He said the materials were sufficient to warrant a nullification of the gubernatorial election as he termed the judgment as an ‘erroneous decision’.
Mr Waity faulted the judge for declining his application dated October 13, 2017 seeking to file affidavit of further witnesses, saying the move adversely affected his preparation and presentation of his case.
The judge, the lawyer said, unfairly dismissed the appellant’s 'notice of motion' which sought an order for scrutiny of the votes in all polling stations in Sosian Ward for gubernatorial election.
He stated that the decisions of the judge prior to delivery of the main judgement affected the fair and transparency determination of the petition before court.
The lawyer further faulted the judge for slapping the petitioner with a legal fee of Sh8 million, saying the cost was exorbitant, excessive and was contrary to the Advocates Remuneration Order.
“The judge erred in law and fact by exhausting all the money deposited as security for costs even before commencement of trial,” he noted.
Mr Abubakar also censured the judge for dismissing two petitioner’s witnesses Peter Ngugi Ndonyo and Bildad Namawa and for declaring them as incompetent witnesses.
He said the move was unfair and unlawful for excluding part of the petitioner’s evidence.
“The judge made a mistake for expunging the report on sealing of the ballot boxes filed in court on December 15, 2017 yet she is the one who had ordered for the sealing of the ballot boxes, thereby shutting her eye to the status of electoral materials at the time the petition was being heard,” lawyer Abubakar stated.
The appeal, which is premised on 23 grounds and in a two-bundle volume document, will be heard by the Court of Appeal in Nyeri.