Laws enacted by Parliament and rules set by the Judiciary have come back to haunt politicians in election petitions.
This has seen a number of politicians lose petitions on the grounds that they were not in line with the Election Act.
This was evident in a recent judgment delivered by the Supreme Court in which a five-judge bench pointed out that election petition laws are not made in vain but to advance the provisions in the Constitution on settlement of election disputes.
Ugenya MP Christopher Karan breached the rules after he filed his response 12 days after seven days from the date he was served with the suit papers in an election petition challenging his victory.
Mr Karan argued that he was not served with the suit papers and he fell sick on September 6, 2017 and was admitted to hospital until September 13, 2017. The court was also told that the MP learnt of the petition from a friend on September 14, 2017.
His application to have his affidavit and those of his witnesses accepted out of time was dismissed by the High Court and the petition proceeded minus him, which saw him move to Court of Appeal on grounds that the election court denied him right to fair hearing.
However, the Supreme Court said Article 87(1) of the Constitution provides that Parliament shall enact legislation to establish mechanisms for timely settling of electoral disputes. The law requires that an election petition challenging an MP’s victory be heard and determined by the High Court within six months of the date of filing.
Lock out a litigant
The Supreme Court said it was convinced that it was not the intention of the legislature to lock out a litigant from the right to be heard, merely on the basis of inability to file a response on time due to inadvertent reasons.
“Indeed, the Elections Act, (Rule (19) (1) signifies the intention of Parliament to facilitate the right to be heard, by giving the court the discretion to enlarge timelines within which to file a response,” read the judgment.
In a petition challenging the election of Nandi Hills MP Alfred Keter, the highest court dismissed it on the grounds that he failed to file his supplementary affidavit after taking over a case from the initial petitioner who withdrew from pursuing the matter.
Benard Kitur filed an application before the election court after Robert Kimei withdrew his petition arguing that he was not interested in pursuing it and the court allowed the substitution.
However, Kitur did not file a supplementary affidavit but went on with the case based on what Kimei and his four witnesses had filed. Elections Rule 12(1) (b) stipulates that a petitioner shall file an affidavit personally and rely on evidence he is privy to.
The Nandi Hills MP immediately filed an application to strike out the petition for non-compliance with the provisions of the Election Rules 2017.
Supreme Court judges said the rationale for substitution of parties in election petitions is that a petitioner works to vindicate the rights of every citizen, and withdrawal of such a petition would affect the rights of the public.
Substitution of petitioners without filing new petitions is allowed by the law due to the strict timelines set by the constitution.
Justice Mohamed Ibrahim said the court was convinced that it was not the intention of the Rules Committee to treat a new petitioner differently from the original one.
“A substituted petitioner while filing a supplementary affidavit must not introduce new issues, as this would advance a new case, different from the original petitioner’s case,” he added.
In the petition challenging the election of Kwale Governor Salim Mvurya, the original petitioner Mwamole Mbwana who withdrew the case told the court that he did not institute it in a representative capacity but in his own capacity and that Suleiman Warrakah and two others had not established the ability to be before Court of Appeal.
Court of Appeal declined to allow Warrakah and the two others to fit in the shoes of the original petitioner and they moved to the Supreme Court, arguing that a petitioner can invoke the highest court’s appellate jurisdiction without indicating under which constitutional provision he seeks to move the court.
Six Supreme Court judges led by Chief Justice David Maraga said the appellate jurisdiction of their court is donated by the Constitution and it is neither original nor unlimited. The judges are Justices Mohamed Ibrahim, JB Ojwang, Smokin Wanjala, Njoki Ndungu and Isaac Lenaola.
Found nothing irregular
Concluded election petitions also showed that the petitioner must be able to prove his allegations against the other party.
This was evident in the case in which Wanvinya Ndeti was challenging Machakos Governor Alfred Mutua’s election.
In dismissing the petition, Supreme Court judges said Wavinya failed to prove that Urbanus Wambua Musyoka who was an agent for Maendeleo Chap Chap Party was an employee of Machakos County Government.
“We did not find any evidence that the said Urbanus Wambua Musyoka was one and the same person as the Chief Officer of the County Government. We also found nothing irregular in the engagement of the other employees of the county government in the conduct of the election,” Maraga added.
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