Kisumu Court of Appeal Upholds Governor Nyaribo’s Election Victory
The Mt Kenya Times 
Nyamira gubernatorial Amos Nyaribo
By: Elizabeth Angira
Worth Noting:
- Thereafter, on 9th September, 2022, he filed an Amended Petition and contended that the gubernatorial election was not conducted in compliance with Articles 81 and 86 of the Constitution, the Elections Act and the Election (General)Regulations, 2012 (Regulations); and that IEBC did not conduct a transparent, impartial, neutral, efficient, accurate and verifiable election.
- The court stated that having considered the appeal on this issue, it is important to recall the limited remit of the appellate court on factual matters: Its engagement with the facts should be limited to satisfying itself.
- “Whether the conclusions of the trial judge are based on the evidence on record or whether they are so perverse that no reasonable tribunal would have arrived on them.”
Kisumu Court of appeal has upheld Nyamira gubernatorial Amos Nyaribo’s election victory.
Dennis Omwenga Ayiera, petitioner, challenged the declaration of the Nyaribo and James Gesami as the duly elected Governor and Deputy Governor for Nyamira County, respectively.
The petitioner was the Nyamira County Elections Manager for the United Democratic Alliance Party (UDA Party) and the Chief Agent for one of the gubernatorial candidates, Walter Osebe Nyambati .
Nyaribo was duly elected governor with 81,980 votes while Nyambati, his closest challenger, garnered 49,339 votes, as per the declared results by IEBC.
The petitioner was aggrieved by the declaration of the Nyaribo governor and his deputy governor and filed, at the High Court, a petition dated 7th September, 2022 challenging that declaration.
The petitioner claimed that Nyaribo’s election was not conducted in accordance with the law and the IEBC did not conduct free fair and transparent election.
Thereafter, on 9th September, 2022, he filed an Amended Petition and contended that the gubernatorial election was not conducted in compliance with Articles 81 and 86 of the Constitution, the Elections Act and the Election (General)Regulations, 2012 (Regulations); and that IEBC did not conduct a transparent, impartial, neutral, efficient, accurate and verifiable election.
The court stated that having considered the appeal on this issue, it is important to recall the limited remit of the appellate court on factual matters: Its engagement with the facts should be limited to satisfying itself.
“Whether the conclusions of the trial judge are based on the evidence on record or whether they are so perverse that no reasonable tribunal would have arrived on them.”
The court further stated that they have reproduced at length the careful, thorough, detailed, and candid findings of fact by the learned judge on the allegations of irregularities and transpositional errors alleged by the petitioner.
The learned judge drew from the evidence of the pleadings, the evidence of the parties and the scrutiny report and the documentary evidence produced at trial to reach the careful conclusion that the errors and irregularities in the electoral forms were inadvertent (and certainly not intentional or reverse-engineered); in context immaterial and insubstantial; and did not, overall, affect the outcome or substance of the elections.
In particular, the learned judge worked from the original Forms 37As and 37Bsdeposited in court and reached the conclusion that despite the transpositional errors when moving the figures to Form 37C, the numbers of votes garnered by each candidate as well as the number of rejected votes were, generally, accurate.
The learned judge also concluded that there was no systematic failure of process or advertent scheme to transfer votes from one candidate to another or otherwise thwart the will of the people of Nyamira County in the elections. In doing the former, the learned judge was eminently applying the quantitative test in59Section 83 of the Elections Act while in doing the latter the judge was applying the qualitative test of the same section.
No crime offence
Joel Ngugi judge stated that having independently looked at the record and these documents and aware of the limited remit of this Court in reviewing the factual findings of an election court, we are simply unable to say that the analysis and conclusions of fact by the learned judge were in any way perverse and unsupported by evidence to warrant a review and reversal by this Court.
To the contrary, as stated above, we find the learned judge’s analysis and conclusions measured and judicious. The irregularities, discrepancies, and transpositional errors did not, quantitatively, affect the results of the elections.
The discrepancies were arithmetical in nature and not such as to change the results of the elections. Neither did they, qualitatively, reach the threshold where this Court can, in context, conclude that the election was conducted so badly that it was not substantially in accordance with the law as to elections.
Consequently, the grounds of appeal hinged on the argument that the elections were not conducted in substantial compliance with the law; or that the judge failed to apply a qualitative test in the disputed election fail as well.
It is obvious, from the parts of the judgment extracted above, that the learned judge considered both the quantitative and the qualitative tests as he was required by section 83 of the Elections Act. Both tests failed in the instant case, and correctly so.
The court therefore ruled that the appeal as a whole lacks merit and accordingly dismissed with costs.
In his speech Nyaribo said that the ruling by the Court of appeal is clear confirmation that we built and ran a clean popular peaceful campaign during the 2022 electioneering period.
He asked his opponents to forget about the elections and cone so that they work together to make Nyamira a better place.
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