Mombasa governor Hassan Joho yesterday applied for the arrest of his rival Suleiman Shahbal's chief campaigner for alleged electoral malpractises.
Joho and the Independent Electoral and Boundaries Commission want Nyongo Makemba arrested immediately after he confessed to several election offenses.
Nyongo was the second witness to testify in a petition that Shahbal has filed challenging Joho's election. Nyongo admitted that he voted during the March 4 election even though his name did not appear in the voters' register.
Cross examined by Joho's lawyer Mohammed Balala, Nyongo also admitted to visiting several polling stations in Kisauni constituency without having the IEBC authorization letter which was required of all agents.
Balala said Nyongo contravened the Election Act which bars any voter from accessing 400 metres of any polling stations immediately after casting their vote.
Nyongo told the court that although he was not Shahbal's agent, he was tasked with providing the Wiper Democratic party agents in Kisauni with food and refreshments and in doing this, he accessed four polling stations.
Immediately after his testimony, Balala asked the court to order for Nyongo's arrest for violating several sections of the Election Act.Balala asked the court to uphold the integrity and dignity of the judiciary institution by ordering Nyongo to be prosecuted.
Balala said the election statutes provides for imprisonment or an alternative fine of up to Sh 1 million for persons found to have voted while being unregistered voters.
"A witness who confesses bears the burden of that confession. He has said under oath that he visited polling stations while he was not an agent. The law forbids that," said Balala.
"He has also said he voted whereas his name was not in the registers. The court cannot surely turn a blind eye to his confessions. Let the law be practiced across the board for all the witness in the testimony," said Balala.
The IEBC's lawyer Sanjiv Khagram also asked the court to arrest Nyongo for aiding and abetting in the commission of electoral offences.
Khagram said the court would not be required to conduct investigations since the witness had submitted the evidence in court while under oath.
The IEBC cited the election petition ruling by Justice Richard Mwongo who ordered the arrest of a witness who admitted to having voted twice in an election petition filed by George Aladwa against the election of Makadara MP Benson Kangara. Khagram asked the court to use the precedent set by Justice Mwongo.
However, Shahbal's lawyer Gikandi Ngibuini accused Joho and the IEBC of threatening witnesses in the election petition by applying for Nyongo's arrest and prosecution.
"This is a tactic aimed at sending a threatening message to our witnesses. Witnesses will be scared that when they stand in the dock they will not go back as free men but will be taken to Shimo la Tewa," said Gikandi.
Gikandi said the election court was limited to resolving the questions raised by the petitioner challenging the election of Joho as governor.
Gikandi said the office of the DPP and the police could take action if they felt the witness had committed electoral offences during his testimony.
"This is not a magistrate's court to determine guilt. No one has been charged. Let them go to the office of the DPP or the police if they have criminal allegations," said Gikandi.
The IEBC was accused of double standards by calling for the arrest of a voter whose name was not found on their registers whereas it was its responsibility to ensure that such an anomaly did not take place.
Gikandi said the court should not make any piecemeal decisions but should only give its ruling after all the witnesses had completed their testimony.
Justice Fred Ochieng adjourned the hearing for one hour as he went to consider the submissions. When the case resumed, Justice Ochieng rejected Joho's and the IEBC's application to order the arrest and prosecution of Nyongo.
He said it was premature to do so without any further evidence being adduced in court. He warned Nyongo that he was not absolving him of any wrongdoing and said that if the court found he had committed any electoral offenses, he would be arrested and prosecuted.
He also said the IEBC officials stationed at the Kiembeni Baptist church polling station who allowed Nyongo to vote despite his name missing from the voter's register will also be arrested for aiding and abetting him in the commission of the electoral offence.