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Court takes custody of Mbeere North by-election materials
The order was issued during a pre-trial conference at the High Court in Embu.
The High Court on Thursday ordered the electoral commission to surrender all materials used in the Mbeere North parliamentary by-election and place them under court custody, tightening judicial control over evidence at the heart of two petitions challenging the poll results.
The order was issued during a pre-trial conference at the High Court in Embu.
The court directed that all election materials, including Kenya Integrated Electoral Management System (Kiems) kits and the boxes containing ballot papers, be stored in a secure room under round-the-clock armed police guard.
Each of the five parties in the case will hold a key, and no access will be allowed without the presence of all sides—a safeguard the court said was necessary to preserve integrity and transparency.
“All election materials shall be kept in the custody of the court, and each of the parties will be given a key. Nobody will be able to access the store without the presence of the other parties. The room will be under 24-hour guard by armed police officers,” said Justice Richard Mwongo.
He added that the court’s deputy registrar will prepare a full inventory and document where every item is kept, a move the judge said was necessary because scrutiny and transparency must be guaranteed.
The order followed an application by the petitioners seeking scrutiny of the materials used in the by-election conducted on November 27, 2025.
The legal dispute relates to the Independent Electoral and Boundaries Commission’s (IEBC) declaration of Leonard Wa Muthende as the winner with 15,802 votes, narrowly beating Newton Kariuki Ndwiga, who garnered 15,308 votes.
Two separate petitions are now before the court seeking nullification of that declaration. The first was filed by Julieta Karigi Kithumbu and Patrick Gitonga Gichoni, while the second was by Mr Ndwiga—all naming IEBC, Wa Muthende, and the constituency election returning officer John Mwii Kinyua as respondents.
Both petitions question the legality and integrity of the election, with allegations touching on Mr Wa Muthende’s identity, voter registration details, nomination processes, and the conduct of polling.
However, Mr Wa Muthende has since come out swinging in his defense, maintaining that he was validly elected.
Through his lawyer, Dr Adrian Kamotho Njenga, the MP has urged the court to dismiss both petitions, insisting the by-election was conducted “in substantial and strict compliance with the Constitution and the law” and that the will of the electorate prevailed.
Dr Kamotho has taken a particularly hard line against the first petition by Kithumbu and Gichoni, asking the court to strike it out for failure to meet a basic statutory requirement.
He argues that the petitioners did not deposit the mandatory Sh500,000 security for costs within ten days of filing the petition, as required under Section 78 of the Elections Act, 2011.
“An election petition is deemed to be properly filed only if the security deposit is made within ten days,” Dr Kamotho submitted. “Any failure is incurable. If a petitioner does not deposit security for costs, no further proceedings should be taken.”
The petitioners countered that their case was initially framed as a constitutional petition because it was filed before the election court was gazetted and that no invoice for security was raised by the Judiciary at the time.
Justice Mwongo granted parties seven days to explore a settlement of the issue. For now, he said the two cases will not be consolidated.
IEBC and its officials have also rejected the allegations leveled against them. In their responses filed through lawyer Charles Mwongela, they maintain that Mr Wa Muthende was lawfully cleared and registered as a candidate.
They state that any discrepancies relating to his name arose because the register of voters had been frozen ahead of the by-election, making alterations impossible. They insist this did not prejudice voters or affect the poll outcome.
Mr Wamuthende was elected in the United Democratic Alliance (UDA) party ticket while Mr Ndwiga was in the Democratic Party (DP).
The pre-trial conference itself was marked by heightened security and intense public interest.
The judge said security had been enhanced around the court precincts due to the large number of residents eager to follow the proceedings, prompting arrangements to live-stream the sessions to ease pressure on the courtroom.
Private law firm
There were also procedural skirmishes. Petitioners questioned whether IEBC could continue to be represented by a private law firm following recent court orders restricting public bodies from engaging external counsel.
Judge Mwongo acknowledged the uncertainty and directed the petitioners to file a formal application for clarification.
On disclosure of evidence, the court ordered petitioners to serve all missing pages, documents, and video clips within seven days, after it emerged that some electronic evidence had been filed on a flash drive. IEBC confirmed it had already filed responses and would submit the voters’ register.
Despite the early legal battles, the court reminded parties that election petitions are bound by strict timelines and must be concluded within six months of filing.
Judge Mwongo set May 21, 2026, as the judgment date, signaling that the fate of the Mbeere North seat will soon be decided within the narrow window allowed by law.
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Additional reporting by George Munene
