NAIROBI Kenya Dec 17- Disgraced chiefs at the Electoral Commission of Kenya (ECK) survived double tragedy by a whisker on Wednesday, after the High Court temporarily stopped a voter from instituting a private prosecution case against them.
Justice Roselyne Wendoh suspended the case slated for next Tuesday before Nairobi Chief Magistrate Gilbert Mutembei, pending hearing and determination of the case petition.
Justice Wendoh further directed the Commissioners’ lawyer Kibe Mungai to serve parties in the case and return for an all-parties hearing on January 7, 2009.
“In view of serious issues that have been raised, I grant a stay to the intended private prosecution at the Chief Magistrate’s Court, pending an inter partes (all parties) hearing and determination of this application,” Justice Wendoh ruled.
Mr Mungai had made an application seeking to halt the case on grounds that the private prosecution pending at the Chief Magistrate’s court was unconstitutional.
He argued that the magistrate’s court had no jurisdiction over the matter because the conduct of the commissioners could only be tried by a tribunal or the High Court as stipulated by the Constitution.
He also claims that the case related to election offences which could only be tried under the National Assembly and Presidential Election Offences Act and not the Penal Code.
Mr Mungai claims that his clients have been subjected to ‘harassment, blackmail and intimidation’ over the contested polls which have not been challenged in any court of law.
“The prosecution is a continuation of intimidation and blackmail against the Commissioners in order to circumvent or otherwise remove them from office through extra legal political machinations garbed in alleged legal power of the politicians to force out of office in alleged vindication of public interest,” Mr Mungai stated in the application.
“The said case is a shameless, illegitimate and unlawful pressure to frustrate and restrain the Commissioners from seeking justice in the courts in order that the unprecedented and treasonous violation of the Constitution by god fathers and mothers in whose behalf the voter has instituted the private criminal proceeding.”
Julius Melli, a voter from Kuresoi had through lawyer Harun Ndubi made an application seeking to privately prosecute the officials over last year’s bungled polls.
Mr Melli – who was also an observer during the elections – wanted the commissioners charged with among other crimes, abuse of office, subversion of the rule of law, publication of false information and disobedience of their statutory duty.
The criminal case failed to take off on Wednesday after the court heard that not all Commissioners had been served with the suit papers.
According to the prosecution comprising lawyer Harun Ndubi and Pheroze Nowrojee, only 12 of the 22 commissioners had been served, six of whom-including Chairman Samuel Kivuitu, had acknowledged service.
Mr Mutembei had ordered the lawyers to serve the remaining commissioners and return for the hearing of an application for leave to institute the criminal charges on Tuesday next week.
In this opposing application, Mr Mungai argues that permitting Mr Melli to continue with the ‘scheme’ will only serve to pervert the course of justice and make a mockery of the rule of law in Kenya because the Chief Magistrate’s court has no jurisdiction to entertain electoral misconduct.
He wants the High Court to among other orders nullify the proceedings and declare that section 41(9) of the Constitution gives the ECK commissioners immunity from personal, criminal and civil liability in respect of the discharged of their functions.
On Tuesday, Parliament sounded the last death knell on the ECK’s fate after it passed a Bill disbanding the troubled commission.