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James Orengo allowed to represent MP in election petition

By By RENSON BULUMA | June 6th 2013


Busia, Kenya: Funyula MP Paul Otuoma’s defence against a petition challenging his election received a boost after a court dismissed an application seeking to disqualify Siaya Senator James Orengo from representing him.

The ruling delivered by Busia Resident Magistrate Judge Francis Tuiyott yesterday has subsequently overturned a prayer to have all the records signed by the Senator expunged from the court.

This would have resulted in Otuoma having no reply to the petition.

Lawyer Alex Masika who appeared for the petitioner had sought the interpretation of the court claiming that Otuoma lacked a valid response as it was signed by unqualified counsel or State officer.

Masika asked the court to find out if Orengo’s participation in the proceedings as a counsel was not gainful employment as considered by the law.

“Orengo as a full time State officer is barred by article 77(1) of the Constitution from participating in any gainful employment and by representing Otuoma, he has also breached the section 26 (1) of the Leadership and Integrity Act,” argued Masika.

In reply Orengo had told the court that the question on whether or not he was contravening the provisions of the law was not a matter that had to be taken lightly because it had serious consequences and thus sought a full inquiry and articulation over it.

But Judge Tuiyott while dismissing the application said that the overriding objective of the rules was to facilitate the just, expeditious, proportionate and affordable resolution of election petitions under the Constitution.

He said there was no judicial pronouncement on the scope of that article of the Constitution adding that this king kind of matter was new.

The judge however noted that similar issues had been handled inconclusively by Justice Lenaola in another case of Samuel Ng’ang’a vs the Minister for Justice where the court was asked to determine who was a full time State officer and what constituted gainful employment.

“Nowhere else in the Constitution so far as I know is the term full time State officer is used. The import of those provisions is that not all the persons defined as State officers are expected to work on a full time basis,” said the judge.

Working hours

He added: The complaint against Orengo is criticising and by signing pleadings he contravened the provisions of article 77(1) but the responsibility was on the petitioner to demonstrate that Orengo’s participation as counsel is inherently incompatible with his responsibility as senator.”

Tuiyott also noted that the petitioner had failed to show that Orengo’s participation would impair his judgment in execution of functions as Senator or will result in conflict of interest.

The judge pointed out that the work of senators was both parliamentary and non-parliamentary adding that because Parliament regulates the working hours of members it does not engage members fully from Monday to Friday 8am -5pm.

“The petitioner has not persuaded the court that Orengo has used public time in preparing for or participating in this election petition. No evidence has been shown to demonstrate that the Counsel (Orengo)’s conduct this far is inherently incompatible or fundamentally in conflict with his role as member of Senate,” said Tuiyott

The judge then dismissed the entire application with costs on the petitioner.

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