, NAIROBI, Kenya, Jul 16 – Kethi Kilonzo will know this Friday whether or not she will contest the Makueni Senate by-election.
Justice Richard Mwongo, Mumbi Ngugi and Weldon Korir gave the date after hearing over five hours of submissions on Tuesday from the petitioners, respondents and other interested parties.
“I’m sure there’s so much to say but we must end otherwise we’ll never get the opportunity to write this judgment which was meant to have been written yesterday. So we will issue judgments on Friday July 19 at 10:30am in the morning,” Mwongo said.
Kethi the first petitioner and the daughter of the late Makueni Senator Mutula Kilonzo, wants the High Court to order her inclusion on the ballot for the July 26 mini-poll after the Independent Electoral and Boundaries Commission (IEBC) – the respondent – locked her out of the race since she is “not a registered voter.”
The question of jurisdiction dominated the hearing with Kethi contending that the IEBC Nominations Dispute Resolution Committee did not have the power to block her from contesting the Makueni Senate seat on account of her voter registration while the IEBC contested that it was the High Court that lacked jurisdiction.
“Your lordships, we submit that the court’s proper mandate in hearing and determining the present petition is limited to a review of the process of the second Respondent (the IEBC Nominations Dispute Resolution Committee) in arriving at its determination, and not a review of the decision of the second Respondent in finding that the first Petitioner is not a registered voter, and hence not eligible to vie for the seat of Senator of Makueni County,” Advocate Paul Nyamodi argued for the IEBC.
Nyamodi explained that as per Article 88 sub-article 4(e) of the Constitution, the IEBC has the exclusive mandate to preside over the electoral process and the High Court can only come in after the Returning Officer declares a winner.
Senior Counsel James Orengo who argued for the petitioners, Kethi and the Wiper Democratic Movement, disagreed with Nyamodi saying that the IEBC Nominations Dispute Resolution Committee should not have ruled on Kethi’s voter registration as there was a conflict of interest.
“You have the first petitioner on one hand saying she is a registered voter and the IEBC on the other claiming she is not; how then can you expect the IEBC to act as judge, jury and executioner in its own case and issue a fair ruling?” Orengo posed.
The two sides also differed on the question of Kethi’s voter registration with the IEBC maintaining that there was no way Kethi could have registered with an expired passport, let alone vote.
“What you needed at the polling station was an original copy of your ID or a valid passport if that is what you used to register. It did not matter whether or not you were in possession of an acknowledgment slip,” lawyer Kimani Muhoro argued for the IEBC.
The petitioners however insisted that the acknowledgment slip in Kethi’s possession was proof of registration. “A passport expired or not, is proof of citizenship. It does not confer citizenship,” lawyer Harun Ndubi argued in favour of Kethi.
Also representing Kethi, Julie Soweto further stated that given more people voted than were registered; the absence of Kethi’s details in the green book could not provide conclusive evidence that she is not a registered voter.
Orengo went a step further and argued that Kethi should be allowed to contest the Makueni Senate seat irrespective of whether she is a registered voter or not.
“The point of voter registration is to ascertain that the individual is indeed a Kenyan citizen and over 18 years of age. We have already established that Kethi meets both this criteria,” he said.