, NAIROBI, Kenya, May 5 – Mary Wambui is back at the National Assembly as Othaya legislator after the Supreme Court on Monday afternoon quashed a decision by the Court of Appeal.
In their ruling, the Supreme Court judges said both the decisions of the High Court and the Appeal Court were null and void because the petition challenging Wambui’s election was time barred.
Wambui who spoke to journalists soon after the ruling said justice had been delivered because she always believed she was validly elected.
“Firstly I thank God; I have seen the hand of God all through this period. Secondly I thank all the judges in the court because they ensured that justice has prevailed.”
“I also thank my lawyer and his team for the support they offered me during this case,” an elated Wambui explained.
Speaking after the ruling, her lawyer Cecil Miller said that the judges had made the right decision because the petition against Wambui’s election was filed out of the required time frame.
“The key ground in the ruling is that the election petition was filed out of the stipulated 28 days period… the petition was filed six days after the time period.” READ: Wambui’s case set for April 14 ahead of by-election.
“It has been a good day for the rule of law in the country; it has been a very long journey but now she is officially the Member of Parliament for Othaya and she can go and serve the people of Othaya,” Miller added.
The Supreme Court on April 24 stopped the Othaya Constituency by-election that had been slated for April 29, after Wambui appealed the decision of the Court of Appeal that nullified her election.
In their Monday ruling, the Supreme Court judges said: “The Court of appeal exceeded the scope of their jurisdiction in elections and further patently breached the petitioner’s rights as enshrined in the Constitution.”
They added that the Court of Appeal violated the cardinal principles of fairness and justice. “The Court of Appeal manifested bias in the impugned judgement, against the appellant herein and denied the appellant equal protection and benefit of the law, contrary to the provisions of Articles 27 (1) and 50 (1) of the Constitution, when they entirely relied on the 1st respondents allegations of errors and irregularities and totally disregarded the evidence of the appellant’s chief agent, Mr Jeremiah Ichaura, a professional accountant, whose affidavit formed part of the appellant’s response to the petition.”
The continued: “The learned judges of the Court of Appeal erred by trivialising the victory of the appellant and converting the margin of votes between the winner and the runner-up into percentages (4.5pc) and using it to reach their determination, instead of using the arithmetical margin which was 2,067 votes – and thus in breach of the provision of Articles 180 (4) of the Constitution of Kenya, which provides that “the candidate who receives the greatest number of votes shall be declared elected”, not that “the candidate who receives the greatest percentage of votes shall be declared elected.”
“The learned Judges erred by allowing the 1st respondent to derive benefit from proceedings that are null and void ab-initio, since the petition filed by the 1st Respondent in the High Court was filed six days after the expiry of 28 days from the date of declaration of results as envisaged in Article 87(2) of the Constitution, and Section 77(1) of the Elections Act 2011,” the judges concluded.
Wambui had argued that the Appeal Court made grave errors in calling for a repeat election in Othaya by disregarding laws governing elections. READ: Wambui gets direct TNA ticket for Othaya poll.
Wambui and the IEBC both argued that officials from the commission had explained to the satisfaction of the High Court controversies in the Othaya election and as such, the appellate court was wrong in overturning the decision that declared the polls free and fair.