Voters in Othaya constituency will have to wait a little longer to know whether they will go to the ballot as they wait for the Supreme Court to decide whether the by-election, which was previously scheduled for today, will be held.
The mini poll was suspended last week by the same court, pending the hearing and determination of an appeal filed by area MP Mary Wambui. The Supreme Court said yesterday it would give the verdict on a date to be announced through a notice.
Wambui wants the court to overturn the Court of Appeal decision which nullified her election on February 13. Last week, Wambui got a lifeline after the Supreme Court temporarily suspended the nullification of her election pending the determination of her appeal.
Yesterday, her lawyer Cecil Miller told the Supreme Court that the petition filed by Kingara at the High Court in Nyeri was out of time and should not have been heard. That assertion is based on a recent decision of the highest court that an election petition should be filed 28 days after the declaration of the results and not after the time the winners are gazetted.
The Supreme Court said Section 76 of the Elections Act, which counted the timelines from the date of gazettement of results is unconstitutional.
Going by that decision, Kingara’s petition at the High Court was filed six days past the deadline. The petition was dismissed by the High Court but Kingara successfully appealed leading to the nullification of the election. Miller argued that since Section 76 of the Act was enacted after the Constitution was already in place it was null and void from the start. Legal authority “No petition should have been filed under that section,” he said.
Kingara’s lawyer Kyalo Mbobu said his client filed the petition based on the law as it was in March last year. “My client, who is also a lawyer, filed his petition based on the law as enacted by Parliament. Where else does justice lie?” he asked.
Kyalo said the High Court declined to grant their application for the recount and scrutiny of the votes even though they had pointed out massive irregularities. Out of 112 polling stations in the constituency, Kingara had pointed out irregularities in 92, saying the number of votes cast were more that the registered voters in some polling stations.
