Supporters of Mutula Kilonzo Jr during a campaign rally at Mtito Andei Market/CFM
While not agreeing with the method, Mwongo said it would have been a greater evil to postpone the by-election in order to re-print the ballot papers.
“I prefer to err in favour of allowing further opportunity for competitive election rather than for a constitutional hiatus. I therefore order that the Makueni by-election shall continue with the ballot papers as printed and in the manner proposed by IEBC,” he said.
Mwongo however made it clear to the Independent Electoral and Boundaries Commission (IEBC) that had he been able to push the Makueni by-election any further than Friday, the commission would have had to reprint the ballot papers.
“Having found that the rules and (Elections) Act do not provide for a fixation of an adhesive sticker with the name of the Wiper nominee, the legal options available would be to order for the reprinting of the ballot papers,” he explained.
Cognisant of the constitutional provision that bars holding a by-election beyond 90 days after a vacancy occurs, the Wiper Democratic Movement which had sought the direction of the court on the matter, welcomed the ruling.
“The judge did agree that the process of having a sticker on the ballot was not proper and he has awarded us as a party costs to this suit which means that we are right in demanding that we want one ballot paper and not a ballot paper and a sticker,” Wiper Chairman David Musila said in reaction to the ruling.
Musila’s sentiments were echoed by Siaya Senator James Orengo who argued Wiper’s case before Justice Mwongo.
“That was our position as counsel right from the beginning. That in no circumstances can we bend the Constitution and enlarge the time within which the by-election could be held.”
IEBC’s legal counsel Kimani Muhoro had argued that the commission had not made the assurance that Mutula Jr’s details will be printed straight from the UK, but that his details would nonetheless appear on the ballot.
A technicality Justice Mwongo threw out on the grounds that the commission should have informed the court of its intention when it allowed Wiper to nominate a candidate in place of Kethi Kilonzo last Friday.
Mwongo’s ruling coincided with the end of the Makueni by-election campaign period, which has been overshadowed by court and personalities battles.
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