, NAIROBI, Kenya, Jun 9 – The people of Kamukunji Constituency will stay without a Member of Parliament a little longer, after the hearing of an appeal seeking to set side orders blocking the electoral commission from holding a by-election failed to take off on Thursday.
The case failed to proceed after the Interim independent Electoral Commission failed to serve its appeal papers on all interested parties on time.
The Court of Appeal directed all parties to serve their submissions for or against the appeal and appear in court on July 6 for an inter-partes hearing.
The IIEC wants the Court of Appeal to vacate interim orders granted by Justice Daniel Musinga saying there was urgent need for Kamukunji Constituency to have a representative in Parliament.
The commission says it should be allowed to proceed to hold the mini-poll on the earliest date possible in order to fulfil its constitutional duty.
IIEC lawyer Steven Adere contends in his suit papers that the remaining life of the current Parliament is likely to end before August 2012 and unless the application is heard urgently, Kamukunji Constituency will continue to remain disenfranchised.
Mr Adere adds that Kamukunji constituency will not be able to participate in the current key legislation and committee deliberations on the reform process, implementation of the new Constitution and county government systems if the order is not lifted.
The IIEC argues that the order was made without jurisdiction and breached the rules of natural justice.
The commission further says that the injunction was illegal as it halted the performance of the constitutional duties of a constitutional body set out in the constitution.
The High Court has also been accused of violating the principle of proportionality in the assessment of the appropriate remedy to order in public law.
Justice Musinga stopped the by-election after he found that t IIEC violated the right of Paul Waweru Mwangi to be a candidate in the Kamukunji by -election after the Returning Officer refused to accept his nomination papers.
This, the judge said, was a very serious omission which removed transparency in the nomination process.
Justice Musinga held that the RO was required by law to receive the nomination papers from the petitioner, scrutinize them and if found them wanting in any of the mandatory requirements append his signature and return them to the petitioner.
That the judge said, would leave no room for speculation as to the reason for rejecting the same.
Justice Musinga said that without transparent nomination process of candidates there cannot be transparent elections.
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