By RACHEAL MBURU, ROBERT OCHORO and PERIZ MOKUA
The High Court has dismissed an election petition challenging election of Gatundu North MP Francis Kigo. Judge Richard Mwongo yesterday dismissed the petition filed by immediate former area legislator Clement Waibara and Henry Njenga, saying it was filed eight days out of the required time. Mwongo said the petitioners explanation on the delay was hollow and unconvincing.
“Election disputes are special proceedings under the Constitution and should be treated as such. The petitioners’ is failure to comply with constitutional requirements renders the petition defective and should be struck out,” said the judge. Justice Mwongo concurred with Kigo that there is no legal basis for extension of time to file an election petition.
Kigo had urged the court to quash petition, arguing it is unconstitutional as it contravenes Article 87(1) of the Constitution and Section 77(1) of the Elections Act. Waibara and Njenga, had through lawyer Evans Ondieki, urged the court to administer justice without undue regard to procedural technicalities. They said the delay was brought about by raising the required security for costs and agreeing whether to file a joint petition.
Contest results They had further argued that they believed that Sundays and holidays would not be included when counting 28 days within which a petitioner ought to contest an election. The petitioners had sought to nullify the election of Njenga claiming the parliamentary elections were not free and fair.
They also wanted the court to order scrutiny and recount of votes. The petition was filed on April 18 2013, 36 days after the election results were declared. Under the election petition rules, a petitioner is required to lodge an election petition 28 days after results are declared in the Kenya Gazette.
Meanwhile, High Court judge George Kimondo has said hearing of an election petition contesting the election Kajiado East MP Peris Tobiko will kick off on June 14. Tobiko’s challenger, Kakuta Maimai (ODM) wants scrutiny of votes on grounds that votes cast in some polling stations in favour of the MP exceeded those of the President.
He also claims that in some polling stations this agents were barred from witnessing tallying of votes . Meanwhile, Nyaribari Chache MP Chris Bichage has withdrawn an application seeking to strike out an election petition against him. Kisii High Court judge Edward Muriithi allowed the withdrawal with no costs.
This was after Bichage’s lawyer Momanyi Aunga consulted Richard Tongi’s lawyer, Ken Nyaundi, IEBC and area returning officer’s representatives Dennis Magare. Elsewhere, election petition challenging the election of Bonchari MP Zebedeo Opore will be heard on June 24, 25 and July 1 respectively. Lady Justice, Ruth Sitati ordered concerned lawyers to line up their witnesses to speed up the hearing.