November 23rd 2017

Top Stories / Counties

Machakos MP loses bid to dismiss petition, Governor Mutua in fierce battle to half case

During a hearing last Thursday, lawyer Waweru Gatonye for Dr Mutua told the High Court in Machakos that the grounds advanced by the governor were sufficient to have the petition dismissed by the court on grounds that the petition was ‘fatally and irreversibly defective.’

By Mutinda MulwaTuesday, 07 Nov 2017 06:33 EAT

The High Court on Monday dismissed with costs an application seeking to strike out a petition challenging the election of Yatta MP, Charles Kilonzo. Justice Aggrey Muchelule, sitting in Machakos, ruled that the case in which former Yatta MP Francis Mwangangi is challenging Kilonzo’s election will have to proceed to full hearing.

In his petition, the former legislator claims the Yatta parliamentary election held on August 8 was marred with massive illegalities and irregularities. He filed the case seeking a declaration that the results were invalid, null and void.

But the Independent Electoral and Boundaries Commission (IEBC) filed a notice of preliminary objection on grounds the petition was ‘fatally defective’ as it had not been filed within the stipulated 28 days as required in Section 76 of the Elections Act. Kilonzo, who is the third respondent, supported the objection by IEBC by filing an affidavit in the same court.

In yesterday’s ruling, the court held that the date of declaration of Yatta parliamentary results - which formed the basis of the Motion to have the case struck out, had been contested by the petitioner.

Both IEBC and Kilonzo claim the petitioner who is the immediate former MP was time barred by one day, to file the petition - a claim that was fiercely contested by Mwangangi’s lawyers.

“The preliminary objection by the first and the second respondent cannot be sustained because it’s founded on contested factual information which has to be tested by normal rules of evidence. And because the dates of declaration of results of Yatta parliamentary election is a contested issue, the matter cannot be determined at this interlocutory stage,” Justice Muchelile said.

Meanwhile the same court is expected to make a ruling on a similar motion filed by Governor Alfred Mutua, who wants a petition by his challenger in the election, former Kathiani MP Wavinya Ndeti, challenging his win dismissed.

During a hearing last Thursday, lawyer Waweru Gatonye for Dr Mutua told the High Court in Machakos that the grounds advanced by the governor were sufficient to have the petition dismissed by the court on grounds that the petition was ‘fatally and irreversibly defective.’

But Wavinya’s lawyers staged a protracted defense, insisting the petition filed against Mutua’s win was above board and met all the necessary requirements on rules of election petitions. Mutua’s lawyers also faulted failure by the petitioners to include his deputy governor as a respondent in the suit, arguing the DG as an elected official, and therefore a necessary party to the petition.

“A complaint against the election of the governor is essentially against the deputy governor as the IEBC does not conduct separate election for the two positions. If the petitioner does not contest the election of the DG, the petitioner cannot sustain a petition against the Governor,” Gatonye told Justice Aggrey Muchelule.

The lawyers argued that if the deputy governor is not affected by a determination in the suit, he shall proceed to be the governor for the reminder of the term and no vacancy shall arise as prayed by the petitioners. “The litigation constituted by the petition will, therefore, be in vain as the petitioners will not legally enjoy the reliefs that they seek through the petition,” he said.

Mutua’s lawyers also cited failure by the petitioner to comply various rules detailing the standards under which petitions challenging election of governor must be served to the respondents.

But Wavinya's lawyer Otiende Amollo argued that failure to include the deputy governor as a respondent was not fatally defective as submitted by Mutua. “There is no provision in law which makes it mandatory for the deputy governor to be enjoined in an election petition challenging a gubernatorial election. The applicant cannot therefore argue that the petition is fatally defective,” said Amollo.

He cited Articles 180, 181, and 182 of the constitution which create the office of the deputy governor but which do not relate to election petition challenging the election of a governor. "The only person in the petition rules who it is made mandatory to be enjoined in an election petition is the commission,” he added.

The lawyer further argued that nothing prevented Mutua’s deputy from applying to be enjoined in the suit. “The same deputy governor, if indeed he felt aggrieved or felt so strongly that he ought to have been involved in this particular petition, nothing prevented him from applying to be joined in the petition,” he said.

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