, NAIROBI, Kenya, Feb 19 – The Court of Appeal has declined to overturn the decision by the Speaker of National Assembly to declare the South Mugirango Parliamentary seat vacant, pending the hearing of a case by Omingo Magara.
Appellate judges Riaga Omollo, Philip Waki and Daniel Aganyanya on Friday refused to grant the plea sought by Mr Magara, saying it has already been overtaken by events.
The Speaker of the National Assembly Kenneth Marende declared the seat vacant on January 15 after Mr Magara lost an election petition.
Mr Magara through lawyer Katwa Kigen however said that they intend to pursue the main appeal and persuade the court to reverse the decision of Kisii High Court judge Daniel Musinga.
The three judge bench directed the advocate to take hearing dates at the registry on priority basis.
When he declared the seat vacant, the Speaker gave the Interim Independent Electoral Commission (IIEC) two months, from January 18 to prepare for the by-election.
This could happen at the end of April, which is within the mandatory 60 days from the date the seat was declared vacant.
After Mr Marende\’s move, Mr Magara wrote him a letter and asked him to revoke the declaration so as to be fair to the law arguing that there are legal technicalities touching on voter registration in the constituency.
In a letter dated January 18, Mr Magara\’s lawyers argued that the Speaker should have first allowed the IIEC to prepare for the by-election before declaring the seat vacant because should Magara or any other candidate win, the outcome could still be challenged over anomalies touching on voter registration in the constituency.
In the appeal, Mr Magara claims that Justice Musinga nullified his election on grounds that were not pleaded by Manson Nyamweya who filed the election petition against him.
He said a recount had confirmed him the winner, but the judge ignored it and still nullified his election.
Mr Magara also accuses the judge of relying on assumptions when he made a finding that there was bribery, intimidation of voters, voting by dead persons and influencing the hiring electoral staff.
Separately, Chief Justice Evans Gicheru has appointed a three judge bench to hear a suit seeking to oust Bethuel Kiplagat as the chairman of the Truth Justice and Reconciliation Commission.
The head of the judiciary has set March 16 as the date when the application by former Runyenjes MP Njeru Kathangu and others will commence.
The case was referred to the CJ after High Court Judge Justice Jeanne Gachehce disqualified herself from hearing the suit.
Through lawyer Wanyiri Kihoro, the 10 applicants say they have evidence to show that Ambassador Kiplagat is not appropriate for the post.
The petitioners want the court to issue a temporary order stopping Ambassador Kiplagat from running the Commission until their case is heard and determined.
Mr Kathangu and four former legislators who include Koigi wa Wamwere are accusing him of defending torture, abuse of judicial processes and policies of one party dictatorship when he was the High Commissioner to UK.
They also claim that Ambassador Kiplagat defended most of the actions by the former regime.