PARLIAMENTARY loser for Magarini oonstitutency in the last general election Esposito Franco bats moved to court challenging the constitutionality of a requirement that election petitioners to pay Sh250,000 being security for costs as a condition for the hearing of the petitions.
Esposito a Kenyan of Italian origin who lost the seat to ODM “s Amanson Jeffar Kingi told the court that requirement was illegal. His lawyer Cecil Miller said the requirement had denied several losers an opportunity to contest the outcome of disputed election results adding that it was prone to abuse by the rivals in collusion with judicial personnel in the registries.. Miller told Judges Justice Roselyn Wendell and Justice George Dulu that worse of it is that the petitioners are required to pay the money within three days alter the announcment of the results. Miller told the court the petitioner was disastified with the manner in which the election in Magarini constituency was conducted and subsequently filed the petition No 1 in 2008 in the Malindi High Court seeking to nullify the remits.
He said that the petitioner was denied the opportunity by the registrar personnel to pay the amount being the security costs requirement to he paid within a period of three days of filing the petition. The court heard the judiciary staff proceeded to list the matter be mentioned before the trial judge for directions, saying that this gave the incumbent MP the opportunity to strike out the petition for non-compliance of the. requirements and rule the lawyer submitted that the petitioner was refused an opportunity to pay the amount, he sought from electoral court to extend time by which he could deposit the money, but same was dismissed after the application was argued. He said the petitioner personally gave his advocates the amount to pay as security for cost, saying the judiciary staff thwarted the attempt made by the petitioner’s advocates to comply with the requirement of depositing the money. Minks told the court that the jurisdiction of the high court to hear and determine election petitions is donated by section 44 of the constitution, saying the provision of section 21 is blatant and unconstitutional attempt by Parliament to limit the unlimited jurisdiction of the high court to hear election petitions as outlined in section 44 and 60 in the constitution.
