BY SAM ALFAN.
The Supreme Court has upheld the election of Okoth Obado as Migori governor, setting aside the entire decision of the Appellate Court.
“For the avoidance of doubt, the declaration of the result of the election by the Independent Electoral and Boundaries Commission in respect of the seat of Governor of Migori County is hereby restored. “Said the judges
Obado moved to the Supreme Court to challenge the decision of the Appellate court sitting at Kisumu dated 28 March 2014 which overruled the decision of the High court sitting at Homabay in an election petition.The outcome of that decision was the invalidation of the election of the Obado as the duly-elected Governor of Migori County.
The Supreme Court bench faulted the Appellate Court for failing to consider material facts in the petition and overstepping its mandate in reviewing new evidence.
“how [could] the learned Judge, having come to a categorical conclusion that the overall results were not accurate; … and in view of the uncertainties in figures … make a 3600 degree turn to find that the election was free and fair and that those irregularities did not affect the result, when the election turned on such a small margin?”Emphasizes the judgment
The justices ruled that the appellate court exceeded its jurisdiction by considering new evidence.
“An appeal from the High Court in an election petition concerning membership of the National Assembly, Senate or the office of county governor shall lie to the Court of Appeal on matters of law only “said the supreme court judges
While making the ruling in March, the Court of Appeal, sitting in Kisumu, said tallying errors compromised the quality of an election that Migori County voters deserved.
It brushed off an argument by the Independent Electoral and Boundaries Commission (IEBC) that the errors were due to human error.
During the 2013 General Election, Mr Obado was declared the winner after garnering 123,821 votes against Prof Oyugi’s 123,653.
The difference was only 163 votes, but after further scrutiny and a recount, the margin increased to 577.The Supreme Court had on 4 April 2014 stopped Independent and Electoral Commission from declaring Migpori seat vacant until the appeal lodged by former governor is heard determined.
Justice Mohamed Ibrahim directed there be no swearing in of the speaker to act governor until further orders r from the court.
The judge said the removed governor Zachary Okoth Obando has lodged an appeal challenging the decision of the court appeal to have him removed from office for allegedly being unlawfully elected.
The appellant through his lawyers Admednasir abdullahi, Okongo Omogeni and Rogers Sangana told the the IBEC is likely to declare the position vacant and call for by election.
Mr Omogeni urged the court to issue an order halting execution of the judgment.
” There is a stay of execution of the whole judgment and orders of the court of appeal sitting at Kisumu i pending hearing and determination of the appeal to the Supreme Court” he said.
The judge certified the application urgent and directed that the same be served and the matter be heard inter-parties April 8by a two judge bench.
Omogeni submitted that the three judge of court appeal in arriving on the decision to sack the applicant they made gross constitutional violation which has infringed his client fundamental right and freedoms.
The said constitutional violation made by the judges of the court of appeal remains justifiable for determination by the Supreme Court, he told the court.
He said the appeal before the Supreme Court raises arguable constitutional matters and has a high probability of success.
Omogeni further said that the effect of the judgment means the appellant’s gubernatorial seat risks being declared vacant before the appeal is heard full.