THE Jubilee coalition wants to privately prosecute Kethi Kilonzo for claiming that she was legally registered to vote.
And yesterday former assistant minister Agnes Ndetei gave notice to appeal the decision by the High Court that allowed Wiper Democratic Movement to field Mutula Kilonzo Jnr for the Makueni senate by-election after Kethi was disqualified.
Ndetei successfully challenged the nomination of Junior's sister Kethi in the IEBC tribunal saying she was not properly registered as a voter.
Yesterday, Ndetei said she was dissatisfied with the decision of the three judge bench comprising Lady Justice Mumbi Ngugi, Justice Richard Mwongo and Justice Weldon Korir.
Yesterday Jubilee Coalition lawyers released a legal opinion recommending Kethi's prosecution. The lawyers led by Jasper Mbiuki said that Kethi committed an electoral malpractice and should not be "let off the hook."
"We also recommend that Jubilee does not stand idly by and let Ms. Kilonzo continue to mock the justice system and practice impunity. Jubilee should explore a private prosecution of Ms. Kilonzo; if the Director of Public Prosecutions is unwilling to take on a political bigwig who thinks she is above the law," the lawyers said.
The opinion, seen by the Star, adds that voter and election fraud had been committed in the Kethi case "...complete with theft of election materials, possession of stolen documents, forgery of documents, perjury, obstruction and perversion of justice, swearing false oaths and evidence tampering."
"CORD must not be allowed to escape scrutiny and it should explain; both as a corporate and through Ms. Kilonzo, where the fraudulent slip came from and how stolen election materials came to be in her possession," the lawyers said.
Their opinion also criticises the High Court decision to allow Wiper to field another candidate. They argue that the High Court cannot ignore the provisions of the Elections Act that parties cannot nominate after the deadline.
"A political party shall not change the candidate nominated after the nomination of that person has been received by the Commission," Section 13(2) of the Elections Act states.
The lawyers say that the courts established a precedent when Jubilee was barred from replacing its candidate for the Kajiado gubernatorial election after their initial candidate was disqualified because he did not meet the academic requirements.
"The High Court has now shifted goal posts and allowed a party that did not even attempt to confirm the eligibility of the candidate to re-nominate; reversing earlier positions without even explaining or distinguishing the contrary approach," the lawyers said in their opinion.
The High Court ruled last week that Wiper should be allowed to nominate a new candidate as there was no evidence that it was aware that Kethi was not registered.
Yesterday, the Jubilee Coalition lawyers argued that the court had raised the prospect of "nominations-without-end and a multiplicity of legal challenges on decisions made by political parties and the Commission."
"On the political front; we recommend that the coalition aggressively highlight the hypocrisy displayed by CORD both before the tribunal and before the High Court. CORD likes to depict itself as a champion of the rule-of-law but it is now clear that CORD means the laws that favour it," the lawyers say.
Last week the High Court upheld the decision of the IEBC Tribunal to disqualify Kethi but allowed Wiper to nominate another candidate.
Wiper has now nominated Mutula Kilonzo Junior who will face-off with Harun Mwau, Philip Kaloki and Jane Kitundu on July 26. The seat was left vacant following the death of former Education Minister Mutula Kilonzo, Kethi and Junior's father.
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