Supreme Court suspends Othaya by-election

The Supreme Court has suspended the Othaya parliamentary by-election scheduled for Tuesday. And in a technical sense, the court also temporarily reinstated the former area MP Mary Wambui, who lost the seat in February.

"Grant of orders are for the public good which will not only preserve public resources but also ensure fidelity to the Constitution," Deputy Chief Justice Kalpana Rawal read the court ruling. The court allowed an application by Wambui to suspend the by-election, pending the hearing and determination of an appeal against the nullification of her election.

Supreme Court judges Rawal and Mohamed Ibrahim also suspended the Court of Appeal judgment that saw Wambui lose the seat. "We are required to have regard to the kind of jurisprudence which will not only resolve the current conflict but will also be good law applicable in the future to meet ends of Justice," the judges said.

The judges ordered that Wambui's appeal be heard expeditiously starting Monday next week, to meet the timeline set by the Constitution for holding a by-election. "Objective of the applicant is to forestall a situation where she goes through the rigorous of an election when there is a possibility that her earlier election could be upheld by this court," judge Ibrahim read part of the ruling.

Under Article 101(4)(b) of the Constitution, a by-election must be held within 90 days after a parliamentary seat has become vacant. Wambui lost the seat following a petition by her main challenger Peter King'ara. She had been elected to succeed President Mwai Kibaki who held the seat since 1974.

Since the March 2013 General Election, the seat had drawn one of the most protracted court battles, first between Wambui and Kibaki's preferred candidate Gichuki Mugambi over the TNA ticket, then between her and King'ara, a Nairobi-based advocate. King'ara, who garnered 14,218 votes against Wambui's 16,285, filed the petition at the High Court in Nyeri, but it was dismissed and her election upheld for having been "free and fair".

He appealed against the decision and the Court of Appeal nullified the election citing numerous irregularities. Wambui, who is seeking re-election on a TNA ticket however wants the Supreme Court to overturn the Court of Appeal decision so that she can retain the seat without taking the constituency back to the polls.

In the appeal filed by her lawyer Cecil Miller, the MP has raised constitutional issues saying the Court of Appeal misguided itself when determining the petition. One of the issues that will also be determined by the Supreme Court is when the by-election should be held given a conflict in the law regarding the nullification of an election and the declaration of a vacant seat.

The bench of five to seven judges will hear the appeal. In their ruling yesterday, the judges dismissed an objection by King'ara, who had argued that the court had no legal authority to hear and determine the application.

King'ara's lawyer Kyalo Mbobu had raised five grounds on which the application should be dismissed. He had argued that the petition had been filed out of the timelines set by the rules of the Supreme Court.

Further King'ara had submitted that other two candidates participating in the by-election had not been enjoined in the appeal hence their rights could be violated. The judges held that failure to include the other candidates would not be fatal to the appeal. They were not parties in the petition at the Court of Appeal and they have a right to apply to be enjoined, the court ruled.

The judges said Wambui had an arguable appeal, which was likely to be rendered useless if the by-election was allowed to go on as planned. The court pointed out that if the by-election is not suspended and the legal issues ironed out, it could lead to a situation where the constituency could have two elected MPs, precipitating a constitutional crisis that could not be rectified.

This article was published by THE STANDARD on April 24, 2014