The High Court in Kakamega has lifted orders barring the electoral agency from gazetting Senator Cleophas Malala to contest for governorship.
Justice Patrick Otieno said the petition by two voters questioning the senator's academic papers and seeking to have him disqualified from the race will continue on the sidelines of his gazettement by the Independent Electoral and Boundaries Commission (IEBC).
"I will be hearing the case on July 11 as we allow the directorate of criminal investigation, the Kenya National Examinations Council (Knec), Commission for University Education (CUE) and the Ethics and Anti-Corruption Commission (EACC) to testify," the judge said yesterday.
"The said bodies are allowed to respond in seven days. Such a constitutional petition cannot be treated casually and the right for the petitioners to be heard must be balanced with that of Senator Malala to vie in August polls, I, therefore, revisit my earlier orders given in June 6," he ruled.
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The senator's lawyer Charles Malala had asked the court to proceed with the hearing of the petition on Monday afternoon as the IEBC timelines were lapsing even as the petitioners through lawyer Duncan Okatch maintained that the hearing would not go on without the input of DCI, CUE, Knec and EACC.
The IEBC through lawyer Raymond Olando had also complained that gazetting of candidates was being derailed by the petition of the two voters, Fred Muka and Franklin Shilingi.
The petitioners argue that the 37-year-old senator is ineligible to vie as he never graduated with a degree from United States International University Africa (USIU) and should be disqualified from contesting for failure to meet the requirement of having a degree to vie for governorship.
“While Malala alleges that he graduated from USIU in 2011, his degree certificate was printed and issued to him on August 10, 2019. This is eight years after the purported graduation yet ordinarily the date on a degree certificate is the day a person graduates from an institution,” the voters say in their petition.
“A look at USIU’s graduation list for 2011 shows that Malala did not feature among the graduates, nor did his name feature in the graduation list for 2019.”
They cite Section 22 (2) of the Election Act which dictates that "for a person to be validly nominated and thereafter cleared by the electoral commission to vie for the position of the governor, he or she must be a holder of a degree certificate from an institution duly recognised in Kenya."
The petitioners also argue that the validity and legitimacy of Mr Malala’s Kenya Certificate for Secondary Education (KCSE) certificate is in dispute, “as it displays a different Knec code from the official code issued to Friends School Kamusinga” where the senator says he sat KCSE examination.
The petitioners say the governor position is respectable and residents of Kakamega need a leader who is qualified by the law to hold such high public office.
The judge had earlier dismissed with costs a preliminary objection by the IEBC to the petition by the two voters.
The electoral agency argued that the duo ought to have sought audience with the commission's tribunal before going to court. IEBC also questioned the court's jurisdiction to hear the constitutional petition.
The case will be heard on July 11.