Another blow for Othaya poll loser

An Othaya parliamentary poll loser on Tuesday suffered a blow after the Appeal Court in Nyeri dismissed his application seeking scrutiny and a recount of votes.

The court ruled that Mr Peter King’ara’s appeal was premature and could not be determined before the High Court makes its judgment.

The High Court will make a judgment on the petition on Thursday.

Justice Alnashir Visram ruled that the Court of Appeal has jurisdiction on interlocutory (provisional) matters of law in cases pending before the High Court, but not on factual issues.

“We ground our tools and dismiss the application and refuse to listen to the merits as they will be dealt with in the main petition,” he ruled.

The judge noted the application was one of the main grounds in the petition, and the appellate court did not have jurisdiction to listen to factual points in an election petition.

Justice Visram said election petitions are self-governed and self-reliant and cannot be determined by civil procedure rules. He added that rule 35 does not establish or limit the Court of Appeal from hearing legal matters.

Othaya MP Mary Wambui and the electoral commission had submitted that the Court of Appeal did not have jurisdiction to hear appeals on election petitions if the High Court has not delivered the final judgment.

Justice Visram ruled it is an incorrect position of law to say the court can only hear appeals after the High Court judgment.

This article was published by the DAILY NATION on September 11, 2013