Former Othaya Member of Parliament Mary Wambui has moved to the Appeal Court to seek leave to appeal the decision that saw her lose her seat. Wambui who now faces a grueling by-election is seeking to go to the Supreme Court in order to revert the previous decision by a three Judge bench in Nyeri sat by Justices Alnashir Visram, Otieno Odek and Martha Koome. Under a certificate of urgency before Justices Steven Kairu, John Mwera and Jamila Mohamed, the MP’s lawyer Cecil Miller said that the judgment occasioned against her would amount to miscarriage of justice if it was executed before the appeal was heard.
The lawyer said that they had grounds that the Appellate Court had erred in overturning the decision by the High Court Judge Justice Jarius Ngaa which retained Wambui as the representative of Othaya people in the Parliament. In the affidavit verifying the urgency signed by Miller, the applicant said that the court had given ear to a petition that had been filed out of 28 days limitations by the constitution. The lawyer said that Interim Independent (IEBC) was directed by the judges to issue a certificate to the speaker of the National Assembly Justine Muturi nullifying the March 4th election of Wambui ; he sought to have the execution stayed until the application was heard.
Miller added that the court of Appeal had exceeded its jurisdiction by interrogating and making findings on matters of fact that had been determined by the trial court. “Unless the said inconsistency is clarified and determined with finality by the Supreme Court, there may be resultant uncertainty in the future of electoral laws during election petitions especially in relation to irregularities, malpractices and applications for scrutiny and recount,” said Miller in the affidavit.
The counsel said that the findings were inconsistent and not justifiable as compared to previous findings by other courts including the Supreme Court. Kinga’ra through lawyer Kyalo Mbobu sought for more time to reply to the application and thus the hearing of the matter was adjourned. The bench ordered the parties to file their documents in relation to the application within 14 days after which they will have the matter disposed-off.
