Senior officials of the Wiper Party have distanced themselves from a meeting that allegedly changed the names of the National Assembly nominees as the court looks into possible forgery of documents in the process.
Abubakar Talib and Makueni businessman Lucas Wambua are embroiled in a legal battle over the slot of Nominated MP for the Kalonzo Musyoka Wiper party in a case that has sucked in the top leadership of the party and the National Election Board.
But it is the subject of the July 22, alleged meeting that changed the name of Talib to that of Wambua that has become a subject of investigations by the Director of Criminal Investigations (DCI) as directed by the court during the ruling at the High Court.
DCI is investigating whether there was an alleged meeting or whether minutes and documents were forged to indicate that the same occurred. In the letters to the DCI, Wiper Chairman Chirau Mwakwere noted that he knew Talib as the validly nominated MP.
"I am not privy to any changes to the list and Talib remains the one nominated by Wiper, I am not party to any changes," said Makwere in his affidavit to the DCI.
AldulAziz Gakuria a member of the National Election Board also noted that he was not party to the persons that oversaw the changes of the nominee from Talib to Wambua.
"No meeting took place on July 22, as alleged by some party officials to change the party list. I wish to confirm that whether or not such a meeting took place, I for one was definitely not present, nor called for, informed off or given notice of such meeting," said Gakuria in his affidavit.
In October, the High Court ruled that Talib was validly nominated as MP and ordered the Independent Electoral and Boundaries Commission (IEBC) to gazette him.
Justice Joseph Sergon sitting in Nairobi ordered the IEBC to gazette the National Assembly party list for Wiper as submitted and received on July 21 and cancel any other published gazette notice omitting the name of Talib.
In the case, Talib had listed the Wiper secretary general, National Election Board chairman, Wiper, and the IEBC as respondents.
The electoral commission went ahead and gazetted Talib as Nominated MP following the High Court order.
However, Wambua moved to the Court of Appeal to challenge the High Court decision.
He wants the Appellate court to overturn the ruling of Justice Sergon on September 9 where he ordered the IEBC to gazette Talib as Nominated MP pending the hearing and determination of the matter.
Wambua argues that the Judge erred in fact and in law in finding that there was a party list of July 21, which was forwarded to the electoral commission by Wiper yet no such list existed and none was produced before the court.
“The learned Judge erred in fact and in law in finding that the purported party list of July 21, was legal and valid yet there was no evidence that the said purported party list was ever submitted to the IEBC and approved,” Wambua told the court.
The businessman further told the court that Justice Sergon erred in law and in fact in finding that the party list of July 22, was illegal, null, and void yet Wiper party duly submitted the party list which was reviewed and approved by IEBC in line with the Elections Act.
Wambua told the court that the Judge erred in law and in fact by failing to find that Wiper's process of nominating him to the party list of July 22, was conducted in a legal, free, fair, and lawful manner.
The Businessman argued that Justice Sergon erred in law and in fact for failing to find that after the party list of June 25, was rejected by IEBC it caused an advertisement to be placed on its website inviting interested applicants to apply for consideration for nomination to the National Assembly and Talib did not apply.
“The learned Judge erred in law and in fact in failing to find that as per the IEBC nomination rules and constitution, the duty of determining the persons to be placed in the party list was bestowed on a political party and its party leader and that I had no role to play whatsoever,” Wambua told the court.
Wambua argued that the Judge erred in law and in fact in failing to find that the party list submitted on June 25, where Wiper had placed Talib at position one had been rejected by the IEBC on July 15.
“Justice Sergon erred in law and in fact in failing to find that I was procedurally and lawfully nominated to the list submitted of July 22, 2022, that was submitted to IEBC,” Mulinge told the Court.