Embakasi East Member of Parliament Babu Owino is skeptic about going back to the ballot, he wants a high court decision sending him back to voters overturned.
Babu moved to the Court of Appeal seeking orders to have the decision delivered on March 2, 2018 annulling his election victory vacated or set aside.
Babu could be the first political casualty following a fallout in the NASA coalition.
In an application filed by lawyer Jackson Awele, he is seeking that the Appeal be allowed.
He also wants the decision nullifying his election be substituted with an order dismissing Election Petition number 8 of 2017 with costs.
“We pray that the Court be pleased to declare that the Hon. Owino Paul Ongili Babu was duly elected as the Member of the National Assembly, Embakasi East Constituency in accordance with the Constitution and the Elections Act”, Awele.
Owino says he was not satisfied with the decision by Justice Sergon as he erred in law in nullifying the election without sufficient evidence.
He avers that the Judge ignored relevant and binding legal standards for the evaluation of evidence in election petitions and in so doing ascribed excessive weight to irrelevant and/or otherwise weak evidence hence reaching a wrong decision.
“The Learned Judge made a fundamental error of law in ascribing excessive or weight to the uncorroborated evidence of the Petitioner’s witnesses or to evidence whose veracity was questionable in material respects,” he says in documents filed at the court.
The Learned Judge erred in law in his finding that the results of the election were not verifiable on the basis of a sample of administrative errors in only 2 out of 208 polling stations in Embakasi East Constituency.
He further states that Justice Sergon failed to holistically apply the general principles of Kenya’s electoral system in determining the Election Petition and thereby made a decision that effectively undermined and violated the popular will of a majority the people of Embakasi East Constituency as expressed through the ballot.
“The Judge erred in basing his findings of coercion and intimidation solely on the uncorroborated allegations of Nicholas Buttuk (the Returning officer), without a proper evaluation of the applicable law to determine whether the returning officer’s assertions amounted to coercion and in fact the same was expressly attributed to Owino’s agents and supporters by the relevant presiding officer,” they said.
Babu also accused the judge for basing his decision on “trivial arithmetic errors that the recount exercise reconciled and which did not materially affect the outcome of the election.”
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