Witness tells court how he helped MP cheat and 'pass' language test

By STANDARD TEAM
A witness astonished an election court by confessing he took proficiency exams on behalf of a candidate who was then cleared to run, and won a parliamentary seat in the 2007 General Election.
The confession by Mr Martin Ndungu that he sat for the mandatory language test for Gatundu North Constituency MP Clement Kungu Waibara reinforced claims by the petitioner — former MP Patrick Muiruri — that the man declared winner was a school dropout. Ndungu claimed Waibara approached him many times to sit the exams for him, and finally over tea at the Dancing Spoon Restaurant in Nairobi, he agreed to do so for free, and out of mercy for a man described as his friend.
The witness, however, claimed he was not paid for "cheating", explaining he was just ‘helping’ a friend.
"I sat for the test in place of the first respondent (MP) out of mercy. I was just helping a friend. I was not paid anything. I took the exam on his behalf," he said.
Ndungu claimed he was now spilling the beans because the memory of what he did haunted him.
"This thing has haunted me for a long time. Whenever I think about what I did against the people of Gatundu, I feel bad," he said.
The MP, who was in court, fidgeted and made faces as his academic record turned the subject of the petition against him. At one point, he involuntarily covered his mouth with his hand, painting the picture of a man stunned and bewildered by the adverse claims coming out in the courtroom.

Clement Waibara

He was probably dazed by the possibility that this claim, if proven by the court to be true, would likely cost him his seat, and probably an additional penalty, because it is a serious electoral offence. As the witness went on, detailing how he ‘assisted’ Waibara get cleared to run by scoring 23 out of 25 marks in the language test, images of school candidates whose results are routinely cancelled after being found to have cheated, flooded many minds. But because Waibara was no ordinary candidate, the confession bemused the court audience and many struggled to suppress their laughter. His opponents in court were all smiles, apparently confident they had struck at Waibara’s soft spot.
Fearful he would fail
The witness claimed that the MP met him at the Dancing Spoon Restaurant in Nairobi and pleaded with him to sit for the proficiency exams because he (Waibara) was fearful he would fail.
"I was a voter in Mangu location, in Gatundu North. The first respondent (MP) requested me to assist him take the proficiency exam. I took the exam on his behalf. I impersonated him," he said.
He also revealed in court how the MP gave him his Identity Card on November 1, 2007 after which he went to where the panelists were sitting and met a Mr Frederick Iraya whom he had seen the previous evening.
The panelists, led by Ms Leah Rotich, who were sitting on the Fourth Floor of Jogoo House, did not suspect he was an impostor, and ended up awarding him 23 points out of the maximum 25.
Muiruri, who is the petitioner in the case, alleges Waibara does not qualify to be an MP. It is Muiruri who had called Ndungu as a witness. Muiruri also claims the MP does not possess sufficient academic qualifications. He claimed the politician dropped out of high school in Form Three, and in his last test, managed only a D Plain in English.
At this point, Justice Fred Ochieng questioned whether the information was in Muiruri’s affidavit and the former MP replied in the negative, forcing the Judge to order the petitioner’s lawyer to guide his client.
Muiruri further claimed voter bribery was among 12 election malpractices committed in the area during the elections. He is the third person to challenge Waibara’s election after two others dropped theirs. The first petitioner was Mr Peter Kamau who filed the petition in 2008, but failed to prosecute it.

Martin Ndungu

Petitioner compromised
Muiruri came into the petition after he was allowed to replace the second petitioner Mr Bernard Chege.
This was after he filed an application saying he should be substituted as the petitioner because Chege had failed to prosecute the petition. "There is no doubt that the petitioner has been compromised so that the petition may be dismissed for want of prosecution,’ he claimed.
The petition queries how the MP was nominated and took part in the 2007 parliamentary election, yet he did not allegedly possess sufficient proficiency in English and Kiswahili languages.
Early this year, Waibara had asked Justice Ochieng to disqualify himself from hearing the petition on the grounds that he had "exhibited inexplicable passion in the matter."
In his submissions in court, the MP said the judge had not addressed the issue of security deposited by the first petitioner who withdrew from pursuing the case.
He claimed the judge had decided to hear the main petition without addressing the security issue, a move he termed as irregular.
Muiruri was allowed to proceed with the petition before the Sh250,000 security issue was addressed. The judge declined to disqualify himself from the matter. Another judge Lady Justice Roselyn Wendoh, had disqualified herself before Chief Justice Evan Gicheru appointed Ochieng.
Yesterday, Waibara sought for an adjournment after his advocate, Mr Ken Odera, pulled out of the case, but the Judge rejected his plea. The case was adjourned to today, and Mr Paul Muite will represent him.