The Supreme Court yesterday threw out Narc Kenya party leader Martha Karua’s appeal against a lower court’s verdict that upheld Kirinyaga Governor Anne Waiguru’s victory.
A five-judge bench, composed of Chief Justice David Maraga, Justices Mohamed Ibrahim, Njoki Ndung’u, Smokin Wanjala and Isaac Lenaola, unanimously agreed that the courts had run out of time to hear the case.
According to the Constitution, election petitions should be heard and determined within six months.
Karua spent more time battling to reverse Ms Waiguru’s win in the Court of Appeal over an application which had been dismissed by the High Court.
The Court of Appeal sent the matter back to the High Court, which subsequently declared that it could not hear the case as time had lapsed.
The Supreme Court judges said the Court of Appeal erred since no court can extend the time within which an election petition can be heard.
“We still hold the position that the period provided for the settlement of electoral disputes cannot be extended by any court and we see no reason to depart from that position in this or any other case,” the judges ruled in a decision read by Justice Lenaola.
Karua had argued that the time lapsed on account of a process which she had no control over.
In her response, the governor urged the court to dismiss the claim as the application was filed outside the time set by the law.
Karua filed her case in Kirinyaga on September 5, 2017. The respondents, the Independent Electoral and Boundaries Commission and the county chief urged the court to dismiss the case.
While agreeing with the two, the court struck out the case after finding it was defective as it did not have the results of the election and the date of declaration.
Aggrieved, Karua appealed and the case was referred again to the High Court. By the time the High Court was again dismissing the case, nine months had passed.
It was the first time the Supreme Court was being asked what happens to an election case when the time set by the law lapses.
It was also asked to determine whether the clock ceases to move on appeal or whether parties should start from day one if they are referred back to the trial court.
The Supreme Court found that the Appeals Court ought to have either given strict timelines to ensure the case was disposed of within the six months or would have determined it itself.
In a bid to ensure that the time is met, the Supreme Court suggested that all lower courts ensure that applications for scrutiny and recount be filed at the same time as the main case.
At the same time, those responding to the case ought to make their applications as a part of the response.
The court added that unless parties are contesting powers of a court to hear the election case or any other critical reasons, the election court should ensure that it does not throw out a case or a response in summary.
It also ruled that an application to strike out a case should be made within the timelines set to clear election cases. According to the Supreme Court, appeals on any other applications ought to wait for the final verdict of an election court.
“All election petitions must be resolved within the provided time frames without qualification. In this case, we have noted that the High Court determined the petition before it after the lapse of six months from the date of filing,” Lenaola said.
“That was an affront to the Constitution and the enabling electoral laws. As such, we agree with the Court of Appeal that the said High Court proceedings were a nullity.”
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