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Justus Mongumbu Omiti v Walter Enock Nyambati Osebe & 2 others [2011] eKLR
be made if relevant evidence is locked out on technical grounds that the issues addressed by
such evidence were not pleaded. In any event I am required to determine this petition without
undue regard to technicalities.
In this petition, the 2 nd respondent, who was the main actor in the elections and at whose feet
the buck must stop as to whether or not the elections were properly conducted, conceded to
some irregularities. Should this court shut its eyes on such evidence and admissions of wrong
doing by the 2 nd respondent and his officers on the non-compliance or otherwise of laws
governing elections and which directly impacted on the final outcome? I do not for the
umpteenth time think so.
What was the additional facts and evidence which came through the hearing of the election
petition?
- The fact that 21 out of 29 double streams did not avail form 16A’s from the 2 nd stream.
- Five Presiding Officer’s made alterations to the form 16A’s without appending their
signatures.
- Form 16A’s not signed by agents and without statement or reasons for refusal to sign.
- Those with various unexplained cancellations and without any signatures to the alteration.
- Existence of two contradictory form 17A’s, both authenticated, and yet no form 17A was
filled at the tallying centre.
- The fact that the 1 st respondent swore an oath that he was declared a winner with 8,150
votes while the 2 nd respondent who so declared him insisted that he had won with 7,401 votes.
- The fact that a computer generated form was used to declare results while the election
regulations does not recognize any such mode.
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