A five judge bench of Presiding Judge Philip Tunoi, Njoki Ndungu, Smokin Wanjala, Mohamed Ibrahim and Jackton Ojwang on Friday found that the Court of Appeal erred when it nullified Kidero’s election.
“For the avoidance of doubt we affirm the status of Evans Odhiambo Kidero as the duly elected governor of Nairobi County,” Tunoi declared.
Majority of the judges, excluding Ndungu, gave the reason that the Court of Appeal should not even have entertained Kidero’s challenger, Ferdinand Waititu’s appeal as it was filed well past the 30 days stipulated in the Elections Act at 72 days after the High Court rendered its judgement.
Tunoi explained that even with the High Court registrar’s delay in furnishing Waititu with the typed copies of the proceedings that upheld Kidero’s win, he still filed his appeal more than 30 days after he received them.
Ndungu disagreed with her colleagues on this count, although she agreed with their final decision, arguing that the Court of Appeal acted within its jurisdiction when it allowed Waititu’s late appeal on the grounds that he was furnished with a typed copy of the High Court proceedings that upheld Kidero’s win late.
And her conclusion that the Court of Appeal should not have nullified Kidero’s win was based on its decision having been based on the violation of Waititu’s individual rights and not a contestation of the way the public voted.
Waititu’s rights were violated, she said, when he was denied the opportunity to introduce affidavits in the course of trial and when he was denied an opportunity in the High Court to cross-examine the 2013 Nairobi County Returning Officer Fiona Nduku.
“When we disallowed affidavits in the Raila Odinga case it was because they would have been introduced at the 7 day mark and we only had 14 days to work with. Within which we would have have had to allow a response. But the High Court had six months to hear this petition,” she explained.
Kidero, flanked by his party leader Raila Odinga, welcomed the ruling of the Supreme Court and said it would now allow him to focus on his duties as Governor as he was no longer, “distracted.”
