Thursday, August 26, 2010

Ruling on summary judgment on Ikolomani petition set for Oct 18

Written By:KNA , Posted: Wed, Aug 25, 2010


The High Court in Kakamega has ordered lawyers representing parties to the Ikolomani election petition to appear in court on October 18 this year for a ruling on application filed for summary judgment.

Justice Isaac Lenaola asked the Registrar of the High Court to issue the three lawyers, Stephen Mwenesi, Julie Aulo and Gabriel Mukele, with notices requiring them to observe the order.

This followed an apparent lack of consensus by the three to settle on an appropriate date after the Judge requested them to pick a convenient date.

The court further issued them with another notice seeking their presence at hearings between October 25 and 28 should the orders sought by the petitioner, to be determined on the week of October 18, fail to be granted by the elections' court.

Mr. Bernard Shinali, the petitioner, through lawyer Stephen Mwenesi, applied for summary judgment based on recorded facts of an inspection of documents that was ordered by the court on June 9 that showed that the parliamentary elections for Ikolomani were riddled with irregularities.

Shinali argued that serious discrepancies were noted and the court granted a plea by the petitioner to inspect Forms 16A and 17 on June 9, 2010.

The inspection concluded on July 5 noted that 7 out of 78 ballot boxes inspected either did not have the documents or had more than required by law and this, it was argued, affected the results.

But lawyers Julie Aulo and Gabriel Mukele appearing for Ikolomani MP Bonny Khalwale, the defunct Electoral Commission of Kenya and Jane Wasilwa challenged the application arguing that it would deny their clients a chance to be heard.

Aulo urged the court to dismiss the application with costs and strike it out claiming that to respond to it would be to validate a bad application. She said that the report on the inspection was not evidence on record admissible to seek the judgment.

She further argued that the court had no jurisdiction to grant the application and that all questions in the petition must be heard and determined at the same time.

"If we deal with the question of whether an election offence has been proved or not, it must be reported to the Speaker and that can only happen at the conclusion of the trial and then certified by the Speaker," she said.

Mukele dismissed appeals for a recount that were made earlier by the petitioner saying that the Returning Officer was not charged with the responsibility of conducting a recount.

He submitted that the court had powers to summon any witness whose involvement was deemed to have had any significance in the case.

"Your Lordship does not have authority and no elections court in this country has taken that route we are being asked to take," he said requesting that his clients be accorded a chance to explain what happened.

In the petition Shinali wants the court to nullify the election of Bonny Khalwale as Ikolomani MP.

No comments:

Post a Comment