Jubilee Party was yesterday in a celebratory mood after its candidate for November 7 Kibra Constituency by-election, McDonald Mariga, was cleared to contest.
The Independent Electoral and Boundaries Commission (IEBC) disputes tribunal overturned a decision by its officers to reject Mariga's candidature.
The tribunal, chaired by IEBC chairman, Wafula Chebukati, declared that Mariga was a validly registered voter and cannot be denied his right to vie for Kibra MP seat.
"We make the conclusion that the complainant was duly registered as a voter. The respondent (Returning Officer) decision of September 10, 2019 declining the nomination of the complainant is hereby set aside,” said Chebukati.
The tribunal directed the Returning Officer, Beatrice Muli, to process the application for Mariga’s nomination immediately.
The tribunal's verdict means that unless any case against him is filed at the High Court, Mariga's name will be on the ballot on November 7.
Leina Konchellah, a voter in Kibra, had enjoined himself in the appeal on grounds of inconsistency in Mariga's documents.
Konchellah had indicated that he will move to the High Court after the IEBC refused to entertain his application and ruled that the case would be restricted to the issue of registration.
Ms Muli had annulled the Jubilee Party nominee’s candidature on grounds that although Mariga had registered as a voter in Starehe, his details were not available in IEBC's register.
However the panel ruled that voter registration exercise is a continuous process and simultaneous update of the voters’ register should be efficient to achieve real time update of the register.
The commission admitted its own inadequacies led to the failure to have Mariga's name reflected in the poll register.
“We are of the view that the absence of the complainant’s name in the register that was used by the Returning Officer could not have been taken as a conclusive proof of lack of registration. We are aware of technological challenges that might result in delay of real time update of KIEMS kit especially where registration is conducted in different areas using different BVR machines,” the ruling stated.
The 20-page decision authored by Chebukati and commissioners Abdi Guliye and Boya Molu is a reprieve for Mariga and Jubilee Party.
National Assembly Leader of Majority Aden Duale and his Senate counterpart Kipchumba Murkomen, Langata MP Nixon Korir and former Kakamega Senator Boni Khwalale who were present during the determination of the appeal applauded the tribunal's ruling.
A jubilant Mariga said he had forgiven people he claimed had been carrying a negative campaign against him, insisting that he will allow the 118,178 Kibra voters have a final say.
The legal team representing Mariga, led by Elisha Ongoya, Moses Chelanga and Oliver Kipchumba, had called on the tribunal to rectify the error and allow the soccer star to take part in the mini poll.
In his affidavit, the footballer had stated that he was enlisted as a voter at Kariakor Social Hall polling station in Starehe Constituency and that it was improper for the commission to declare him ineligible.
“I registered as a voter on August 26, 2019 at Kariakor Social Hall polling station in Starehe Constituency and was issued with acknowledgement slip bearing Electors No.014521190826205-9. The law allows continuous voter registration and the voter registers are updated continuously,” Mariga argued.
Officials from IEBC's legal and risk departments had insisted that an application to be registered as a voter was not proof of registration, and that Mariga's name had not been updated in the register being used for Kibra by-election.
They insisted that Mariga should be treated like Kenyans who applied to be enrolled as voters after 2017 general election and were denied chance to vote in Embakasi South and Ugenya by-elections.