Othaya poll to await Supreme Court ruling

The Supreme Court yesterday extended orders stopping the Othaya by-election, which was to be held today.

Chief Justice Willy Mutunga, his deputy Kalpana Rawal, judges Jackton Ojwang, Philip Tunoi, Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung'u extended the orders until the delivery of their judgment.
"Judgment will be given on notice. Meanwhile the orders given by my colleague stand until then," Mutunga said.

On Thursday last week, Rawal and Ibrahim halted the mini-poll to allow former MP Mary Wambui's appeal to go to full hearing. They also stopped the Independent Electoral and Boundaries Commission from conducting the by-election until the case is heard and determined.

In the hearing yesterday, Wambui’s lawyer Cecil Miller told the court that the Court of Appeal went against its mandate in nullifying her election. He said judges Alnasir Visram, Martha Koome and Otieno Odek sitting in Nyeri had no jurisdiction to base their decision on nullifying her win on issues that were not presented before it.

“The judges dwelt on issues of facts and deviated from the issues of law, which governs the Court of Appeal,” Miller said. He said the decision is an infringement on Wambui’s right to a fair trial since they did not address issues raised during the initial petition at the High Court.

Miller said the petition filed by Peter King’ara was null and void as it was filed out of time as it was done six days after the set constitutional deadline. He said the Supreme Court will be allowing an illegality if it agrees with the Court of Appeal decision and allows a by-election in Othaya.

IEBC lawyer Kibe Munge supported Miller saying if the Court of Appeal decision is upheld, it will have negative effects in future. In reply, Kingara’s lawyers Julius Marete and Kyalo Mbobu said they proved numerous irregularities to the appellate judges, which led to the decision.

Marete said in Kagundu polling centre, for instance, there were 82 registered voters but Form 36 indicate that 150 people voted.

“Of the 112 polling stations for Othaya Constituency, 92 polling stations had more than the registered voters,” he said. He said the official IEBC results released two weeks ago indicate that the constituency had four set of results. Mbobu said there is no problem if a petition is filed six days late.

During the March 3, 2013 general election, Wambui got 16,289 votes against King’ara’s 14,218. King’ara was not happy with the outcome and moved to the High Court and filed a petition but judge Jarius Ngaa dismissed it. He then moved to Court of Appeal and won. Judgement will be given on notice.

This article was published by THE STAR on April 29, 2014