By PAUL OGEMBA pogemba@ke.nationmedia.com
Posted Monday, October 10 2011 at 16:43
Posted Monday, October 10 2011 at 16:43
An MP wants an election petition against him stopped, saying it is invalid and against his constitutional rights.
Kandara
MP James Maina Kamau is seeking a stay of the proceedings until an
appeal he has lodged to challenge Lady Justice Philomena Mwilu’s
decision to allow the petition to continue is heard and determined.
In
a notice of motion filed under certificate of urgency, the MP argues
that the High Court has no jurisdiction to determine issues concerning
presidential and parliamentary elections.
He submitted
that if the petition continues, he stands to be prejudiced since
scrutiny of the marked copies of the election registers used in Kandara
constituency in 2007 should have been done at the onset of the petition.
Mr
Kamau said that the petition is defective especially after the court
upheld that it did not comply with the rules of the National Assembly
Elections Petition Rules.
He said that instead of Lady
Justice Mwilu allowing the proceedings to continue, she should have
struck out the petition on account of incompetence and non-compliance
with the applicable law and rules.
“In view of that,
the court was supposed to strike out the petition and the failure to do
so constitutes a violation of the MP’s right to equal protection of the
law and the right to a fair hearing,” said lawyer Kibe Mungai,
representing the MP.
However, Lady Justice Mwilu dismissed the application,
saying that unless they are stopped by a superior court, the hearing
will continue to its conclusion.
“The appeal shows that
my earlier ruling has been attacked and I would like to hear the basis
of the attack. This does not stop us from proceeding and we must move
forward immediately,” said the judge.
Challenged proceedings
The
MP challenged the proceedings on grounds that the delay by the
petitioner to prosecute the case was inconsistent with the spirit of the
Constitution.
He argued that the petitioner, Ms Alice
Muthoni Wahome, had forfeited her rights by neglecting the prosecution
since April 2008 without showing sufficient reasons for the prolonged
delay.
He said that some of his potential witnesses had died while others had relocated to the US and Australia.
Lady Justice Mwilu dismissed the MP’s application and directed that the hearing of the petition go ahead.
She also ordered the electoral body to deposit in court election materials used in Kandara during the 2007 General Election.
Ms Wahome filed the petition in January 2008, claiming there were massive election malpractices.
She
submitted that the defunct Electoral Commission of Kenya (ECK) accepted
Mr Kamau’s nomination papers after the deadline and that the MP did not
sign form 16A after the final tally.
Justice Mwilu
directed that the hearing continues on October 18 when the court is
expected to scrutinise election materials used in the 2007 polls.
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