Sunday, 21 July 2013

New twist as Mutula Jnr’s rivals threaten court action

PHOTO | JENNIFER MUIRURI Mutula Kilonzo Jnr addresses supporters at Unoa Primary School Grounds in Wote after he was cleared to contest the Makueni Senatorial seat on July 20, 2013. 
PHOTO | JENNIFER MUIRURI Mutula Kilonzo Jnr addresses supporters at Unoa Primary School Grounds in Wote after he was cleared to contest the Makueni Senatorial seat on July 20, 2013.  NATION MEDIA GROUP
Posted  Saturday, July 20  2013 at  23:30
Just a day after he was cleared by the Independent Electoral and Boundaries Commission to vie in Friday’s Makueni Senate by-election, Wiper Party’s new candidate Mutula Kilonzo Jnr is facing a legal battle challenging his candidature.
An official of one of the parties in the Jubilee coalition led by President Uhuru Kenyatta and Deputy President William Ruto said plans were at an advanced stage to take the battle back to the courts on Monday.
“There is something to that effect. Let’s wait for Monday (tomorrow) and see how matters shape up,” the official, who spoke on condition of anonymity, said.
Mr Kilonzo Junior’s opponents argue that the three-judge bench that allowed Wiper a chance to name a new candidate erred in law because the deadline for the nomination of candidates had lapsed.
The Cord candidate yesterday expressed confidence that he would benefit from the prevailing goodwill in Makueni to clinch the seat despite the short campaign period.
“Five days is a lifetime in politics. I will do what I can. The goodwill is overwhelming,” he said.
“My sister has been on the campaign trail. This is only a change of candidate and not the overall campaign.”
He revealed that he was not pushed to run for the seat after the persuasion by Cord leaders led by former Vice-President Kalonzo Musyoka and Senators Johnstone Muthama (Machakos), James Orengo (Siaya) and Mr David Musila (Kitui).
“It was my family that made the final call. I was not pushed,” he said.
“It is not the right time to comment on the said petition. But the best way is to file an appeal against the High Court decision. I welcome it, though.”
The Sunday Nation has learnt that lawyers acting for some of the respondents in the case that was filed by lawyer Kethi Kilonzo at the High Court challenging the decision to block her are said to be planning to push the case back to the Court of Appeal.
They say it was unprocedural for the Wiper party to be given a second chance to field a candidate with just six days left to the by-election.
“Wiper party just like any other party knew of the requirements needed for its candidate. If the person they had in mind was not honest with them on her electoral papers, that is their concern. They should have known better. The judges’ decision is like allowing a fresh athlete a chance to join in a 1,500m race with only 200 meters to go and then declaring him the winner,” says Mr James Museve, a Jubilee party activist.
The judges’ decision has split legal opinion. Machakos Law Society of Kenya chapter chairman Andrew Makundi says the bench acted according to the law.
“The courts are supreme when it comes to such complex matters,” he said. “That is why, when Justice Isaac Lenaola pushed the by-election date from July 22 to July 26, the decision was respected by all players. This is a democratic process, and the judges put into consideration the right of the citizens to participate and freely choose their leaders.”
Another commentator offered a different opinion saying the three-judge bench decided to bend legal rules for political correctness.
Mr Joseph Mutinda said there is no ambiguity in the Elections Act No 24 of 2011 which specifies how the date for nomination of candidates shall be arrived at.
“The Independent Electoral and Boundaries Commission is given the statutory mandate of setting the date for the nomination of candidates who are contesting in an election as required by Section 16(1) of the Elections Act,” he says.
The commission is expected to publish a Gazette notice which shall specify “the day upon which political parties shall submit a party list in accordance with Article 90 of the Constitution … the day for the nomination of candidates for the parliamentary election; and the day or days on which the poll shall be taken for the election, which shall not be less than 21 days after the day specified for nomination.”
Mr Mutinda said the Makueni by-election would breach these provisions and added that if it were not challenged before the election, it would attract a petition. “The law is clear that only the commission can set a date for nominations and a date for the elections and not any other person. It is thus quite clear that the court has no power under the Constitution to set a nomination date for any election or to issue a notice for nomination or election,” Mr Mutinda argued.
The endless legal and push and pull has turned the battle to succeed the late Makueni Senator Mutula Kilonzo into an event dominated by high drama.
Wiper party’s earlier choice for the seat, Ms Kethi Kilonzo, was barred from vying for not being a registered voter.
Justices Richard Mwongo, Weldon Korir and Mumbi Ngugi upheld a finding by the IEBC that Ms Kilonzo was not eligible to take part in the election.
They also gave Cord a lifeline when they found that “the Wiper party has a right to nominate another candidate to contest in the senatorial elections in Makueni County.”
But now, some within Jubilee want the judges’ order challenged while others are of the view that the coalition had made its point and should let go.
“The aggrieved parties plan to stop the gazettement of Mr Kilonzo Jnr tomorrow,” said a senior figure in the coalition who sought anonymity. The race has now attracted five candidates after Kilonzo entry. They are Mr John Harun Mwau (Pick), Prof Philip Kaloki (Narc), Mrs Jane Kitundu (LPK) and Mr Urbanus Katumo (Independent).

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