The Supreme Court was yesterday asked to allow a petition challenging the election of Bomet County Senator Wilfred Lesan.

Former MP Nick Salat, who contested on a Kanu ticket and lost to Lesan of URP party, asked judges to allow him seek justice without being declared time barred.

Lesan was announced the winner with a vote margin of 17, 895 votes.

Salat, through lawyer Stephen Mwenesi, said he did not seek leave of the appeal court to proceed to the highest court.

“Rules of this court allow an appeal to be made directly to this court on matters of interpretation of the law,” Mwenesi said.

But the application was opposed by Lesan’s lawyer Paul Lilan saying the “application may open every petition to come to the Supreme Court.”

Principle of proportionality

Mwenesi asked the court to apply the principle of proportionality and allow the appeal, adding that it is reasonable to find that the appellate judges dismissed the applicant’s case improperly.

Judges Smokin Wanjala and Mohamed Ibrahim heard submissions of the counsel for both parties. 

Just like the Meru Governor Peter Munya case and his Migori counterpart Okoth Obado were allowed at the Supreme Court, Mwenesi said the application should be heard without necessarily seeking certification from appeal court.

Mwenesi also asked the court to extend time to allow the application of the record of appeal at the Supreme Court to be heard and determined.

Independent Elections and Boundaries Commission (IEBC) lawyer Zephania Yego opposed Salat’s application and asked the judges to dismiss it with costs.

Lilan challenged the appeal saying the applicant had jumped the gun by passing the Court of Appeal. It was opposed on the grounds that a certificate of delay to appeal had not been produced.

Salat’s application was also opposed on grounds that the appellate court had not allowed him to appeal and public interest had not been shown in the application.

“The application is incompetent and misconceived. No issue of substantial interpretation of the constitution has been raised,” said Yego.

He admitted to the judges that there  was no pending case before the appeal court and that court proceedings had been tabled by Salat’s lawyer.

Yego insisted that said the appeal court order did not permit Mr Salat to move to the Supreme Court.

Lilan opposed the extension of time to allow the petition saying the applicant had not shown solid grounds explaining why he had delayed to make the appeal.

 “It was an afterthought by the applicant who feigned misunderstanding of the appeal court order.”

Lilan submitted that leave should have been sought from the Supreme Court to file the motion yet this was not done.

Mwenesi brushed off the argument by stating that the spirit of the Constitution was not meant to deny one from to justice.

A ruling on the application will be given on notice.

“We have taken notice on how the matter has taken long and the ruling will be delivered over a short period of time,” said Judge Mohamed Ibrahim.