Petition stalls over security deposit

By Evelyn Kwamboka

The Court of Appeal has temporarily stopped a petition challenging Gatundu North MP Clement Waibara’s election.

This is to give room to three appellate judges to rule on whether the petition should be dismissed for lack of Sh250,000 security deposit.

Justices Erastus Githinji, Daniel Aganyanya and Alnashir Visram issued the order on Monday after Waibara said he would be prejudiced if the hearing of the petition continues before the election court.

The order is to operate until April 8 when the appellate judges will deliver a ruling.

Through his advocate Ken Odera, Waibara said that when the initial petitioner, Mr Peter Kamau, withdrew from the case, the court did not make any order as to whether the security he deposited was to be taken over by a new petitioner, Mr Benard Chege.

Chege was required by law to deposit the money, three days after the court allowed him to take over the case. He failed to pay and the petition was later taken over by former Gatundu MP Patrick Muiruri.

"No security has been deposited to date," he said. The court was told a law firm that represented Chege in the petition wrote he wished to have the security transferred to Kamau.

Waibara said the petitioner had no power to transfer the security without the court’s permission. "The petition is going on without any security. The new petitioner was required to put in his deposit within three days after taking over the matter," he said.

He spoke in an application in which he is appealing against Justice Fred Ochieng’s decision that allowed hearing of the petition.

The judge relied on the letter to make a finding that security had been transferred.

Waibara told the court that the letter was not his evidence and the judge erred in using it to make a finding. The petition is challenging Waibara’s election on grounds of eligibility.

It queries how the MP was nominated and took part in the 2007 parliamentary election yet he allegedly did not possess sufficient proficiency in English and Kiswahili languages.

Last month, a witness astonished the court by confessing he took proficiency exams on behalf Waibara, who was then cleared for election.

The confession by Mr Martin Ndung’u that he sat the mandatory language test for Waibara reinforced claims by the petitioner — Muiruri — that the man declared winner was a school dropout.