Why poll petition against Narok East MP Lemanken Aramat failed

Narok East MP Lemanken Aramat celebrates with his supporters at the Supreme Court shortly after the court upheld his election victory. [Photo: File/Standard]

Lemanken Aramat was among nine candidates who contested the new Narok East parliamentary seat in the March 4, 2013, General Election. The constituency was carved out of the wider Narok North.

The youthful Aramat won the seat with 5,616 votes while his closest challenger, seasoned politician Harun Lempaka, got 5,174 votes.

Lempaka filed a petition at the High Court in Nakuru on April 10, 2013, seeking to have all the parliamentary votes from the 69 constituencies scrutinised and recounted. His argument was that though the election had been smooth, the wrong candidate was declared the winner.

On September 5, 2013, Nakuru High Court judge Mathew Emukule dismissed the petition. Lempaka filed an appeal in the Court of Appeal.

On March 28, 2014, three Court of Appeal judges set aside the decision of the High Court and ordered a recount of all the parliamentary votes. The exercise was to be conducted at the Nakuru High Court.

The MP filed a petition in the Supreme Court. He obtained orders stopping the recount pending the determination of the petition by all seven judges.

His lawyer, Tom Ojienda, filed 11 grounds for the petition. However, during the hearing, the lawyer raised a major issue - that the petition in the High Court in 2013 had been filed out of the time allowed by the Constitution hence it was null and void.

Article 87(2) of the Constitution provides that petitions concerning an election, other than a presidential election, shall be filed within 28 days after declaration of the election results by the Independent Electoral and Boundaries Commission (IEBC).

Section 76(1)(a) of the Elections Act, however, states that a petition to question the validity of an election shall be filed within 28 days after the date of publication of the results of the election in the Kenya Gazette.

This is the section Lempaka relied on in filing his petition. The Narok East parliamentary election results were declared on March 4, 2013.

However, that section was declared unconstitutional in a petition involving Mombasa Governor Hassan Ali Joho & Another.

The ruling was then applied at the Supreme Court by Othaya MP Mary Wambui to overturn an earlier nullification of her election by the Court of Appeal. The petition challenging her election had also been filed out of the time set by the Constitution.

Going by those decisions, the Narok East petition was filed 36 days after declaration of results was time barred.

On this point, Ojienda argued that the High Court, therefore, had no jurisdiction to hear it. And if the petition was a nullity from the beginning, the Court of Appeal could not entertain an appeal arising from such a petition.

The position was supported by IEBC who argued that the petition at the High Court was a nullity having been filed out of time.

However, Lempaka's lawyer Kibe Mungai submitted that if the High Court and the Court of Appeal could not hear such a petition, then even the Supreme Court lacked the jurisdiction to hear it.

Mungai argued that the question of the nullity of the petition could only be determined by the High Court, which had the constitutional mandate to deal with the matter.

He said the MP had not raised the issue of nullity when he first filed the petition at the High Court hence he could not raise it during the proceedings.

"Does the Supreme Court have jurisdiction to entertain this matter?" was the key question the Supreme Court judges had to deal with.

All the seven judges, led by Chief Justice Willy Mutunga, agreed that the petition filed in the High Court was out of time hence null and void from the beginning.

The High Court lacked jurisdiction to entertain it. Likewise, the Court of Appeal had no jurisdiction to hear an appeal arising from a nullity.

The judges, however, reasoned that though the other lower courts had no legal authority to hear the appeal, the Supreme Court had a broader mandate to entertain the case.

"It is a responsibility vested in the Supreme Court to interpret the Constitution with finality. This remit entails that this court determines appropriately those situations in which it ought to resolve questions coming up before it, in particular, where these have a direct bearing on the interpretation and application of the Constitution. Besides, as the Supreme Court carries the overall responsibility for providing guidance on matters of law for the State's judicial branch, it follows that its jurisdiction is an enlarged one, enabling it in all situations in which it has been duly moved, to settle the law for the guidance of other courts." they summed it up.

The judges ruled that the Supreme Court was the guardian of the Constitution, and the final arbiter on constitutional dispute situations.

"Upon an extensive consideration of the factor of timelines in the processing of electoral disputes, under the Constitution and the statute law, this court has come to the conclusion that the jurisdiction of the Election Court is linked to timelines. Consequently, the trial court lacked jurisdiction to entertain the electoral question remitted by the Court of Appeal, once its six-month mandate had lapsed. Indeed, even at the very beginning, the High Court had lacked jurisdiction to entertain the case, as the petition had been filed belatedly by as much as eight days."

They went on: "Just as the High Court lacked jurisdiction to entertain the original petition on the grounds of breached timelines, so the Court of Appeal had no jurisdiction to entertain the matter."

However, they said the Supreme Court was more broadly empowered for general oversight of the interpretation and application of the Constitution, and of the matters of law of general public importance.

Justice Mohammed Ibrahim took a dissenting opinion on whether the Supreme Court should have dealt with the issue of merit in the case if the petition was a nullity from the beginning.

"I agree with the majority finding that the petition at the High Court in this matter was filed outside the constitutional timelines of 28 days after the declaration of results. Hence, all the proceedings at the High Court and the Court of Appeal that sprung from a petition that was a nullity are also null and void. Hence this court does not have jurisdiction to entertain this appeal," the judge said in his dissenting judgement.

He added, "This Court should have downed its tools and not delved into any other question on their merits. With much respect and deference, I would disagree with my brothers and sisters in the majority when they did not rest the matter at this point and went ahead to entertain consideration of other issues on merit."

The Supreme Court annulled the judgement of the Court of Appeal made on March 28, 2014, and reinstated the gazettement of Lemanken as the Narok East MP.

The writer is a court reporter with the Standard Group. Email. [email protected]