NAIROBI November 14 – Former Naivasha Member of Parliament (MP) Jayne Kihara suffered a double blow on Friday after her election petition was dismissed and condemned to pay costs of the suit.
Court of Appeal judges, Riaga Omollo, Emanuel O’Kubasu and Samuel Bosire upheld an appeal by the incumbent MP John Mututho who claimed that Mrs Kihara’s petition filed in January was incompetent.
The current MP had filed an application to have the case struck out, arguing that the application was ‘fatally defective’ because Mrs Kihara did not attach the results of the election in her petition.
“The petitioner (Mrs Kihara) doesn’t have the results now. Her lawyer stated as much. If she does not have the results, what is she challenging?” posed the judges.
Mr Mututho’s appeal emanated from a decision made by Justice Martha Koome sitting in Nakuru in April in which she declined to strike out the petition.
Mrs Kihara had appealed against Mr Mututho’s election on the grounds that the Returning Officer, Christopher Ajele did not declare results in accordance with the National Assembly and Presidential Elections Act.
She claimed that Mr Ajele merely declared that “this old man (Mututho) was ahead of Mrs Kihara by 100 votes.”
On April 30, Justice Koome ruled in favour of Mrs Kihara thereby allowing the petition to continue to completion.
Until Friday’s ruling, the former Assistant Minister for Environment had called 19 witnesses, while Mr Mututho and the Electoral Commission of Kenya both called two witnesses each.
The case had entered the final submissions stage where lawyers were required to file their written closing statements by December 1, when the case would have come up for hearing.
The Appellate Judges ruled that election petition cases are special proceedings and ought to have been expedited since they determine the legality of a person’s election as peoples representative.
“Particulars furnished only count if the election petition itself is competent, not otherwise. Particulars are furnished to clarify issues not to regularise an otherwise defective pleading,” the bench said.
“Consequently if a petition does not contain all the essential of a petition, furnishing of particulars will not validate it,” they added.
During the hearing of the case in Nakuru, the High Court ordered a recount of votes which revealed numerous anomalies.
Some ballot boxes lacked important election documents like form 16A which indicates the exact votes of each candidate from a particular polling station.