The Supreme Court has stopped the Othaya mini-poll to allow Mary Wambui challenge an Appellate ruling that quashed her election.
Independent Electoral and Boundaries Commission had scheduled the by-election for April 29 after the Ms Wambui lost her seat two months ago.
Vice president of the Supreme Court Lady Justice Kalpana Rawal and Justice Mohammed Ibrahim stayed the execution of the entire court of appeal judgement which nullified the election of Ms Wambui as Othaya MP.
They said unless they stay the by-election to await the outcome of the appeal “ a constitutional deadlock will be created a situation which the court will not be able to rectify as the constituency may end up having two members in the National Assembly.” EXPEDITE HEARING
To expedite the determination of the appeal filed by lawyer Cecil Miller for Ms Wambui under a certificate of urgency the court will begin hearing the case from April 28.
This is to enable the IEBC to operate within the timelines set by the Constitution to prepare polls within 90 days.
They ruled that “Ms Wambui has an arguable appeal in which complex issues that may create a constitutional deadlock have been raised.” She maintains she was validly elected and that the court of appeal exceeded its powers in cancelling her victory.
Voters in Othaya “ need to fully know what became of their exercise of political right carried out on March 4 2013 and that there is no confusion as to who is their proper representative after the by-election,” they added.
The 41 page ruling also dismissed an objection by a poll loser Mr Peter Gichuki King’ara who petitioned the election of Ms Wambui.
DISMISS WITH COSTS
Mr King’ara through lawyer Kyalo Mbobu had asked the judges to dismiss with costs the appeal filed by Ms Wambui saying the court had no jurisdiction to entertain it and “ there was nothing to stay since the by election date had been set.” The poll loser had also told the court that the appeal was defective as there was misjointer of parties given that other candidates have been nominated by other parties to participate in the mini-poll.
Dismissing the plea by Mr King’ara, the judges observed Article 163 (4) (a) of the Constitution mandates them to preserve the status quo of any one whose rights are threatened.
“The rights of an appellant who is exercising his/her undoubted right of appeal under Article 164(4)(a) of the constitution are safe guarded and the appeal is successful, not rendered nugatory,” they ruled.
The judges concurred with Mr Miller that a different constitutional order may be created if Mr King’ara or any other candidate wins in the by-election and Ms Wambui succeeds in her appeal.
REPEAT POLL
The judges said IEBC had asked them to suspend the by-election even though it had spent Sh35million in preparing for a repeat poll.
The polls body asked the court to determine the validity of two certificates dated March 6 and 10 issued by Appeal Judges Alnashir Visram, Martha Koome and Otieno Odek and a deputy registrar of the court as to when the seat of Othaya fell vacant.
As a key player and co-manager of public resources, the judges said the stay order will “safeguard public funds by ensuring good governance.”
“ We take note of the principal of good governance enshrined in Article 10(2)(c) of the Constitution this court being one of the state organs is bound to abide by in the discharge of its Constitutional mandate.”
